Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 1 of 33

1

The Honorable

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 Jane Doe and John Doe, individually, and on

behalf of all others similarly situated; and the

10 Episcopal Diocese of Olympia,

No.

11

Plaintiffs,

12

v.

13 Donald Trump, President of The United States;

14 U.S. Department of State; Rex Tillerson, Secretary of State; U.S. Department of

15 Homeland Security; John Kelly, Secretary of

Homeland Security; U.S. Customs and Border 16 Protection; Kevin McAleenan, Acting

17

Commissioner of U.S. Customs and Border Protection; and Michele James, Field Director

18 of the Seattle Field Office of U.S. Customs and Border Protection,

19 Defendants.

20

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

21

22

23

24

25

26

CLASS ACTION COMPLAINT
`

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 2 of 33

1

I. INTRODUCTION

2

1. One week after taking office as President of the United States, Defendant Donald

3 Trump carried out his call for “a total and complete shutdown of Muslims entering the United

4 States” that he had made throughout his campaign for the presidency. With the stroke of a pen,

5 he threw into chaotic uncertainty the lives of tens of thousands of individuals who had been

6 granted valid student and work visas through an exhaustive and thorough screening by the

7 United States government.

8

2. Individual Plaintiffs, and the class they seek to represent, are people with non-

9 immigrant visas who were residents of the State of Washington when the Executive Order was

10 issued. They are now either trapped inside the United States—unable to return to visit their

11 families, or carry out work- or education-related travel—or stuck outside the United States,

12 unable to continue with their studies and jobs, and unable to return to their homes and

13 communities here.

14

3. Plaintiff, the Episcopal Diocese of Olympia (the “Episcopal Diocese” or

15 “Diocese”)—a religious organization incorporated in the State of Washington to do charitable

16 works, including to support the resettlement of refugees in Washington—has had its refugee

17 resettlement activities completely upended as a result of the Executive Order. Nearly two dozen

18 refugee families whom the Episcopal Diocese was supporting in resettlement, including families

19 from Syria, Iraq, and Somalia, were already approved for travel to the United States when the

20 Executive Order issued and their trips were canceled, wasting precious resources and frustrating

21 the activities of the Diocese.

22

4. On January 27, 2017, Defendant Trump issued Executive Order 13769

23 “Protecting the Nation From Foreign Terrorist Entry Into the United Sates” (the “Executive

24 Order”), completely prohibiting for at least 90 days the entry or re-entry of all persons who are

25 nationals of seven predominantly Muslim countries—Iran, Iraq, Libya, Somalia, Sudan, Syria

26

CLASS ACTION COMPLAINT PAGE 2

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 3 of 33

1 and Yemen (the “Designated Countries”)—regardless of whether such persons hold valid visas
2 and regardless of whether their visas are immigration or non-immigration related.
3 5. As one of Defendant Trump’s senior advisors confirmed the next day, the
4 Executive Order is an attempt by Defendant Trump to institute his repeatedly and emphatically
5 promised “Muslim ban.”
6 6. Also on January 27, 2017, the Deputy Assistant Secretary for Visa Services at the
7 Bureau of Consular Affairs of the Department of State, relying on the authority of the Executive
8 Order, summarily and provisionally revoked all valid nonimmigrant and immigrant visas of
9 nationals of the seven Muslim-majority countries, subject to exceptions not relevant here. This
10 revocation (“the Provisional Revocation Letter”) threatens countless nationals of the Designated
11 Countries who are currently in the United States or who reside in the United States but were
12 traveling abroad when the letter was issued.
13 7. Although other actions seeking class certification have been filed on behalf of
14 affected individuals in Washington State, this suit is different. The Individual Plaintiffs seek to
15 represent a class of similarly situated persons in Washington State who hold a non-immigrant
16 visa to work or study in the United States (the “Non-Immigrant Visa Class”). Although these
17 visas may have been provisionally reinstated in light of this Court’s temporary restraining order
18 issued on February 3, 2017 in State of Washington, et al. v. Donald J. Trump, et al., No. 2:17-cv-
19 00141 (W.D. Wash.), Defendants in that action have already filed for expedited appeal of that
20 order.
21 8. As long as the status of their visas is unclear, the Individual Plaintiffs and
22 members of the class cannot leave the country for fear they will not be permitted to return under
23 their current valid visa, or will not be able to apply for another visa to return to complete their
24 education, research, and other work-related functions. In addition, Plaintiff the Episcopal
25 Diocese brings its claims based on the Executive Order’s harm to its own mission activities, as
26 well as the Order’s harm to the refugees served by the Diocese, thereby shielding those

CLASS ACTION COMPLAINT PAGE 3

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 4 of 33

1 vulnerable refugee individuals from the retaliation they reasonably fear if they were to assert
2 their claims directly.
3 9. Defendants’ Executive Order imposes immediate, undue hardship.
4 10. Defendants’ Executive Order is in addition illegal and unconstitutional. The fact
5 that it is facially neutral as to religion neither shields it from this Court’s scrutiny nor masks the
6 discriminatory animus that drives it. And the distinctions the Order does draw on its face are so
7 arbitrary and irrational as to fail even the most minimal level of judicial scrutiny.
8 11. Defendants’ Executive Order is precisely what Defendant Trump promised,
9 repeatedly and openly: a Muslim ban. It is moreover, on admission of Defendant Trump himself,
10 a ban that favors Christians over Muslims, in contravention of “[t]he clearest command of the
11 Establishment Clause . . . that one religious denomination cannot be officially preferred over
12 another.” Larson v. Valente, 456 U.S. 228, 244 (1982).
13 12. Both the Episcopal Diocese of Olympia and Individual Plaintiffs—on behalf of
14 themselves and a class of similarly situated people in Washington State—bring this suit to
15 challenge the provisions and implementation of the Executive Order that violate the First
16 Amendment, the Fifth Amendment, the Religious Freedom Restoration Act (“RFRA”), 42
17 U.S.C. § 2000bb et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.
18 13. The Individual Plaintiffs, the class they seek to represent, and the Episcopal
19 Diocese (collectively, “Plaintiffs”), currently suffer serious harm and will continue to suffer such
20 harm until and unless this Court preliminarily and permanently enjoins the Executive Order.
21 Plaintiffs have no adequate remedy at law.
22 II. JURISDICTION AND VENUE
23 14. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 over Plaintiffs’
24 claims under the U.S. Constitution and federal statutes, as well as under the Administrative
25 Procedure Act, 5 U.S.C. § 706.
26

CLASS ACTION COMPLAINT PAGE 4

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 5 of 33

1 15. The Court has the authority to grant declaratory relief pursuant to the Declaratory

2 Judgment Act, 28 U.S.C. §§ 2201 and 2202.

3 16. Venue is proper under 28 U.S.C. §1391(b)(2) and (e)(1). A substantial part of the

4 events or omissions giving rise to the claims occurred in this district, and Plaintiffs Jane Doe and

5 John Doe reside in this District. Further, Defendants are officers or employees of the United

6 States acting in their official capacities, and agencies of the United States.

7 17. Plaintiff the Episcopal Diocese, also known as the Episcopal Church in Western

8 Washington, is a diocese of the Episcopal Church in Washington State west of the Cascade

9 Range. The Episcopal Diocese is headquartered in Seattle and is a registered 501(c)(3)

10 corporation.

11

III. PARTIES

12 A. Plaintiffs

13

1. Plaintiff John Doe

14 18. Plaintiff John Doe is an Iranian national who resides in Seattle, Washington. Mr.
15 Doe is a fourth year PhD candidate in Aeronautic and Astronautic Engineering at the University
16 of Washington. Mr. Doe is simultaneously studying for a master’s degree in applied
17 mathematics at the University of Washington. Mr. Doe has a provisional patent, “patent
18 pending,” in the United States pertaining to battery function. He is also a graduate fellow with
19 the Clean Energy Institute in Seattle.
20 19. Mr. Doe holds a multiple entry F1 student visa. This is his second such visa that
21 allows him to pursue full-time educational study in the United States. Mr. Doe received both of
22 his F1 visas after an intensive vetting and screening process abroad that included an in-person
23 interview and proof of his admission status at the University of Washington as a full-time
24 doctoral student.
25 20. Mr. Doe first arrived in the United States in 2012. Before that he studied for a
26 master’s degree in civil engineering in the Netherlands, and then worked for a year in the

CLASS ACTION COMPLAINT PAGE 5

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 6 of 33

1 Netherlands for an international offshore oil and gas company. Mr. Doe has also served as a
2 visiting researcher at ETH Zurich in Switzerland studying nonlinear solitary waves, and at the
3 University of South Carolina studying nonlinear wave propagation. Mr. Doe received his
4 undergraduate bachelors of science degree in civil engineering in Iran.
5 21. Mr. Doe’s immediate and extended family, including maternal grandparents, all
6 live in Iran.
7 22. Mr. Doe is engaged in collaborative research with the Chinese Academy of
8 Science. He co-authors publications with Chinese researchers and is actively advising and
9 directing joint research with students in the United States and China on these projects. As part of
10 this collaboration, Mr. Doe conducted research in China for three months in 2016. Mr. Doe was
11 planning to return to China for further research and collaboration in April of 2017 but now, as a
12 result of the Executive Order, he is unable to travel outside the United States because he fears he
13 would not be able to return to his complete his doctorate.
14 23. As part of his doctorate studies, it is anticipated and expected that Mr. Doe will
15 participate in international conferences, because such endeavors are essential to his training and
16 his ability to be fully active in the scientific and research community. There are numerous
17 upcoming academic conferences that Mr. Doe was planning to attend, but that he will no longer
18 be able to attend as a result of the Executive Order. Mr. Doe believes that notwithstanding his
19 multiple entry F1 visa, the Executive Order can prevent him from re-entering the United States if
20 he leaves to attend any international conferences.
21 24. Because of the Executive Order, Mr. Doe will be unable to attend the
22 International Renewable Energy Storage Conference in Dusseldorf, Germany in March
23 2017. He will also have to miss the International Conference on Hybrid and Organic
24 Photovoltaics in Lausanne, Switzerland in May 2017. And if his visa situation remains
25 uncertain, he may be unable to attend the Third International Conference on Perovskite Solar
26 Cells and Optoelectronics in Oxford, England in September 2017.

CLASS ACTION COMPLAINT PAGE 6

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 7 of 33

1 25. Mr. Doe’s research and career have suffered and will continue to suffer as long as
2 the Executive Order is in place.
3 26. Mr. Doe is pursuing his claims anonymously because he is afraid of retaliation
4 from the United States government or others for asserting his rights.
5 2. Plaintiff Jane Doe
6

7

27. Plaintiff Jane Doe is an Iranian national who resides in Seattle, Washington. Ms.

8 Doe holds a multiple entry F1 student visa and is lawfully in the United States, studying to

9 complete a master’s degree at the University of Washington.

10

28. Ms. Doe received her F1 visa after an intensive vetting and screening process

11 abroad that included an in-person interview at the Vancouver consulate, and proof of her

12 admission status at the University of Washington as a full-time student. Ms. Doe first came to

13 the United States in September 2016 to pursue her graduate studies. Ms. Doe’s dream in

14 pursuing her graduate degree was to work in international public policy, including to perhaps

15 work one day for the United Nations.

16

29. As part of her academic and professional training, Ms. Doe was pursuing summer

17 internships outside of the United States when the Executive Order issued. However, because of

18 the Executive Order, Ms. Doe’s plans have changed dramatically. Ms. Doe may now not be able

19 to return to the United States to complete her studies if she leaves for a summer internship—or

20 even an interview for such an internship—notwithstanding the fact that holds a multiple entry

21 student visa. As a direct result of the Executive Order, Ms. Doe has canceled all of her

22 upcoming interviews for summer internships outside the United States for fear she would not be

23 able to return.

24

30. The Executive Order has arrested Ms. Doe’s international plans for the summer,

25 and has also disrupted her longer-term plans of international work. Without an international

26 summer internship, Ms. Doe’s dreams of a career in international work may be permanently on

CLASS ACTION COMPLAINT PAGE 7

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 8 of 33

1 hold. In addition, Ms. Doe fears that she will not be able to leave the United States to see her
2 family—all of whom live overseas, including her elderly grandparents—and that they will not be
3 able to come to the United States to visit her either for the duration of her studies.
4 31. Further, although Ms. Doe receives some funding from UW and works as a
5 teaching assistant, she still relies on financial support from her parents in Iran. Sanctions
6 imposed by the United States on Iran make money transfers from her parents to her extremely
7 difficult, if not impossible, without in person contact. The Executive Order has thus also harmed
8 and will continue to harm Ms. Doe’s ability to pursue her studies.
9 32. The Executive Order has disrupted Jane Doe’s work, study, and goals. It has
10 isolated her from her family, forcing her to cancel a visit she had planned with her brother (who
11 lives in Paris, France) to celebrate the Persian New Year, Nowruz, in March. She now feels that
12 the work and resources, including tuition, that she has put into her degree to date have been
13 wasted. Ms. Doe is strongly considering abandoning her graduate studies as a result of the
14 Executive Order.
15 33. Ms. Doe is pursuing her claims anonymously because she is afraid of retaliation
16 from the United States government or others for asserting her rights.
17 3. Plaintiff The Episcopal Diocese of Olympia
18

19

34. The Episcopal Diocese of Olympia, also known as the Episcopal Church in

20 Western Washington, is a diocese of the Episcopal Church in western Washington. It is

21 headquartered in Seattle’s Capitol Hill neighborhood.

22

35. The Episcopal Diocese is a local affiliate of the Episcopal Migration Ministries, a

23 voluntary agency that welcomes refugees through a Cooperative Agreement with the Department

24 of State. The Episcopal Diocese has operated a refugee resettlement program since 1978 and has

25 sponsored more than 15,000 refugees of all religions and nationalities to resettle in the Seattle

26 area. The Episcopal Diocese’s Refugee Resettlement Office (“RRO”) is located in South Seattle

CLASS ACTION COMPLAINT PAGE 8

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 9 of 33

1 and receives and assists refugees from all over the world, including from each of the 7 countries
2 targeted by the Executive Order, without regard to race, religion, or country of origin. The RRO
3 is one of eleven ministries offered and provided for by the Episcopal Diocese. The Episcopal
4 Diocese’s refugee resettlement program stems from the moral obligation of the Episcopal faith to
5 welcome and assist strangers, especially those who are poor, sick, and most in need of help.
6 36. The RRO provides a multitude of services to refugees, including coordinating the
7 arrival of refugees to the United States, housing assistance, job training, providing for basic
8 household needs, advocacy, language tutoring, business training and microenterprise loans, and a
9 savings program to help refugees purchase homes, vehicles, education, or businesses. The RRO
10 has 9.5 full time employees, with 4 full-time equivalent staff working directly to support new
11 arrivals and their survival needs during their first 90 days in the United States. Approximately
12 two dozen volunteers assist the RRO in providing these services.
13 37. Before a refugee arrives in the United States, the RRO is notified by the
14 Department of State that a family has been approved for refugee status and that the RRO should
15 “assure” the case. The RRO is required to make contact with friends or relatives of the arriving
16 refugees living in the U.S. (known as the “U.S. ties”) who were listed on the refugee’s
17 application. The RRO expends significant time making phone calls, sending mail, and making
18 in-person visits to meet with the U.S. tie to evaluate his or her capacity to help the RRO during
19 the resettlement process. The evaluation process includes a home visit to view and evaluate the
20 living space. If there is no possibility that the arriving refugee can live with a U.S. tie, the RRO
21 further interviews the U.S. tie to determine if the relative or friend can assist with transportation,
22 job search, enrollment of kids in school, or any of the other daily tasks with which newly-
23 arriving refugees need assistance.
24 38. If the U.S. tie cannot perform these tasks, the RRO invests its own resources to
25 perform this pre-arrival legwork for the incoming refugees. These tasks include, among other
26 things, searching for and obtaining safe housing, furnishing the residence, and stocking it with

CLASS ACTION COMPLAINT PAGE 9

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 10 of 33

1 food and household items prior to the arrival of the refugees. If the refugee family or U.S. tie
2 rejects the apartment or house, RRO staff begin a process of evaluating alternative locations. The
3 RRO undertakes housing inspections that consume significant RRO staff time to ensure that the
4 neighborhood is safe, that there is no bare wiring visible in the living space, no peeling or flaking
5 interior paint or plaster, no visible mold or unsanitary odors, that all windows and doors have
6 working locks, that heat, ventilation, lighting, and running water are adequate, that kitchen
7 appliances and bathroom fixtures are in good repair, and that there are easily accessible storage
8 or disposal facilities for garbage.
9 39. The RRO’s pre-arrival services can also involve cultivation of community groups
10 or churches to help refugees during the first months of their adjustment to life in America. The
11 RRO staff spend time visiting churches and community groups to describe the refugee
12 resettlement process, ask for assistance with specific families that are still en route, and organize
13 committees to help refugee newcomers with specific tasks like searching for employment.
14 40. When the Executive Order was issued on January 27, 2017, the RRO was
15 expecting to receive over 20 refugee families, including families from Syria, Iraq, and Somalia,
16 into the community in the coming days, weeks, and months, and had been actively preparing for
17 their arrival and resettlement in the greater Seattle area by carrying out on their behalves the
18 activities described above. In fact, five of these families had already been booked on scheduled
19 flights to the U.S. when the Executive Order was issued. As a result of the RRO’s efforts, these
20 refugee families already had domestic arrangements supporting their arrival in the United States
21 and were approved for travel. Yet, these families had their dreams dashed when they had to
22 abruptly cancel their travel plans as a result of the Executive Order.
23 41. Since the Executive Order, the RRO’s work has been completely disrupted. Not
24 only have families in transit or on the verge of transit been placed in additional crisis and stress,
25 but the chaos surrounding the implementation of the Executive Order has also required the RRO
26 to expend additional, unplanned-for resources. RRO staff are working around-the-clock to

CLASS ACTION COMPLAINT PAGE 10

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 11 of 33

1 address the immediate needs of these families in crisis and to respond to questions and concerns

2 from their families and loved ones already in the United States who had been planning for the

3 arrival of these already-approved refugees. In addition, many of the RRO’s resources devoted to

4 these 20 refugee families over the past months have now been wasted.

5 42. The Executive Order has caused significant additional harm to the most

6 vulnerable population that the RRO and Episcopal Diocese are focused on serving. These

7 refugees are fleeing persecution in their country of origin, and are now facing persecution in the

8 safe haven they had been promised in the United States. The mission and efficacy of the RRO,

9 and through it the Episcopal Diocese, has been thwarted by the Executive Order.

10 B.
11

Defendants

12

43. Defendant Donald J. Trump is the President of the United States. He is sued in his

13 official capacity.

14

44. Defendant U.S. Department of State (“DOS”) is a cabinet department of the

15 United States federal government that is responsible for issuing visas.

16

45. Defendant Rex W. Tillerson is the Secretary of State and has responsibility for

17 overseeing enforcement and implementation of the Executive Order by all DOS staff. He is sued

18 in his official capacity.

19

46. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet

20 department of the United States federal government with the primary mission of securing the

21 United States. Its sub-agencies include U.S. Citizenship and Immigration Services (“USCIS”),

22 Customs and Border Protection (“CBP”), and Immigration and Customs Enforcement (“ICE”).

23

47. Defendant John Kelly is the Secretary of DHS and has responsibility for

24 overseeing enforcement and implementation of the Executive Order by all DHS staff. He is sued

25 in his official capacity.

26

CLASS ACTION COMPLAINT PAGE 11

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 12 of 33

1 48. Defendant U.S. Customs and Border Protection (“CBP”) is an agency within DHS

2 with the primary mission of detecting and preventing the unlawful entry of persons and goods

3 into the United States.

4 49. Defendant Kevin K. McAleenan is the Acting Commissioner of CBP has

5 responsibility for overseeing enforcement and implementation of the Executive Order by all CBP

6 staff. He is sued in his official capacity.

7 50. Defendant Michele James is the Field Director of the Seattle Field Office of CBP

8 and has responsibility for overseeing enforcement and implementation of the Executive Order by

9 all DHS staff in her area, which covers Washington State. She is sued in her official capacity.

10
11 A.
12

IV. FACTUAL BACKGROUND President Trump’s January 27, 2017 Executive Order

13

51. On January 27, 2017, Defendant Trump signed the Executive Order entitled,

14 “Protecting the Nation from Foreign Terrorist Entry into the United States.” A copy of this

15 Executive Order is attached to this Complaint as Exhibit A.

16

52. The Executive Order cites the threat of domestic terrorism committed by foreign

17 nationals and purports to direct a variety of changes to the manner and extent to which non-

18 citizens may seek and obtain admission to the United States.

19

53. Section 3(c) of the Order suspends immigrant and nonimmigrant entry into the

20 country for 90 days for all people from countries referred to in section 217(a)(12) of the INA, 8

21 U.S.C. § 1187(a)(12), with narrow exceptions not relevant here. The Executive Order applies 22 only to nationals of Syria, Sudan, Iraq, Iran, Libya, Somalia, and Yemen.1

23

54. Section 5(a) suspends the U.S. Refugee Admissions Program for 120 days.

24

25
1 Fact Sheet: Protecting The Nation From Foreign Terrorist Entry To The United States, Dep’t of Homeland
26 Security (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/protecting-nation-foreign-terrorist-
entry-united-states (last accessed Feb. 6, 2017).

CLASS ACTION COMPLAINT PAGE 12

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 13 of 33

1 55. Section 5(b) states that “refugee claims made by individuals on the basis of
2 religious-based persecution, provided that the religion of the individual is a minority religion in
3 the individual’s country of nationality” will be prioritized.
4 56. Section 5(c) contains as its statement of government interest a proclamation “that
5 “the entry of nationals of Syria as refugees is detrimental to the interests of the United States,”
6 and suspends the entry of Syrian refugees into the country.
7 57. Section 5(e) provides for nearly unfettered individual discretion by the Secretaries
8 of State and Homeland Security to “jointly determine to admit individuals … as refugees on a
9 case-by-case basis, “in their discretion, but only so long as they determine that the admission of
10 such individuals as refugees is in the national interest—including when the person is a religious
11 minority in his country of nationality facing religious persecution.”
12 1. The Arbitrariness of the Executive Order
13

14

58. Section 1 of the Executive Order, entitled “Purpose,” states that at the time of the

15 September 11, 2001 (“9/11”) terrorist attacks, “State Department policy prevented consular

16 officers from properly scrutinizing the visa applications of several of the 19 foreign nationals”

17 involved in those attacks. Further, DHS’s Fact Sheet on the Executive Order stated that “[t]he 18 Executive Order protects the United States from countries compromised by terrorism . . . .”2

19

59. Yet, the Executive Order does not impose any restrictions on nationals of Egypt,

20 Lebanon, Saudi Arabia, and the United Arab Emirates—the countries of which the 9/11 attackers

21 were citizens.

22

60. According to an article published on CNN, “[i]n financial disclosure forms during

23 the presidential campaign, [Defendant Trump] listed two companies with dealings in Egypt and

24

25

26
2 Supra n.1.
CLASS ACTION COMPLAINT PAGE 13

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 14 of 33

1 eight with business in Saudi Arabia. And in the UAE, the Trump Organization is partnering with
2 a local billionaire to develop two golf courses in Dubai.”3 3
61. According to a September 2016 report from the Cato Institute, “[i]ncluding those 4
murdered in the terrorist attacks of September 11, 2001 (9/11), the chance of an American 5
perishing in a terrorist attack on U.S. soil that was committed by a foreigner over the 41-year 6 period studied here is 1 in 3.6 million per year.”4 Similarly, The Boston Globe reported in 2016 7
that “a person living in the United States is more than over 100 times more likely to be killed by 8 falling objects than by a jihadi terrorist.”5 9
62. Ten former national security, foreign policy, and intelligence officials at the 10
highest levels of the United States government, including Madeleine K. Albright, Michael V. 11
Hayden, John F. Kerry, Janet A. Napolitano, and Leon E. Panetta, recently filed a joint 12 declaration in State of Washington, et al. v. Donald J. Trump et al., No. 17-35105 (9th Cir.) (Dkt. 13
28-2) (Feb. 6, 2017) (“Joint Declaration”), stating that they are “unaware of any specific threat 14
that would justify the travel ban established by the Executive Order” and that “[t]here is no 15
national security purpose for a total bar on entry for aliens from the seven named countries. See 16
Exhibit B, ¶ 3. 17
63. These respected civil servants, who have collectively “devoted decades to 18
combatting the various terrorist threats that the United States faces in a dynamic and dangerous 19
world” declared, in their professional opinions, that the Order “does not perform its declared 20
task” of “protecting the nation from foreign terrorist entry into the United States,” and instead 21

22
3 Kyle Blaine & Julia Horowitz, How the Trump administration chose the 7 countries in the immigration executive
23 order, CNN (Jan. 30, 2017), available at http://www.cnn.com/2017/01/29/politics/how-the-trump-administration-
chose-the-7-countries/ (last accessed Feb. 6, 2017).
24 4 Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, 798 CATO INSTITUTE POL’Y ANALYSIS 1 (Sept. 13,
25 2016), available at https://object.cato.org/sites/cato.org/files/pubs/pdf/pa798_1_1.pdf (last accessed Feb. 6, 2017).
5 Graham Allison, Fear death from tree limbs, not tourists, BOSTON GLOBE (Feb. 1, 2016), available at
26 https://www.bostonglobe.com/opinion/editorials/2016/02/19/fear-death-from-tree-limbs-not-
terrorists/2ZrHzpP54GBHwbv2AVD6aM/story.html (last accessed Feb. 6, 2017).

CLASS ACTION COMPLAINT PAGE 14

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 15 of 33

1 actually undermines the national security of the United States. Id. ¶¶ 2-3. Specifically, the Joint
2 Declaration states that the Executive Order: 1) will endanger U.S. troops in the field; 2) will
3 disrupt key counterterrorism, foreign policy, and national security partnerships that are critical to
4 addressing the threat posed by terrorist groups such as ISIL; 3) will endanger intelligence sources
5 in the field; 4) will likely feed the recruitment narrative of ISIL and other extremists that portray
6 the United States as at war with Islam; 5) will disrupt ongoing law enforcement efforts; 6) will
7 have a devastating humanitarian impact; and 7) will cause economic damage to American
8 citizens and residents. Id. ¶ 5.
9 64. The Joint Declaration also describes pre-existing national security-based
10 immigration restrictions as “consistently tailored to respond to: (1) specific, credible threats
11 based on individualized information, (2) the best available intelligence and (3) thorough
12 interagency legal and policy review.” Id. ¶ 6. The document further describes the rigorous
13 system of security vetting that the United States has had in place since the 9/11 attacks, and
14 which is applied to travelers not once, but multiple times. Refugees in particular are subjected to
15 vetting that takes on average more than a year. Id.
16 65. The Executive Order states that “the United States should not admit those who
17 engage in acts of bigotry or hatred (including . . . the persecution of those who practice religions
18 different from their own)” and yet it singles out practitioners of a single religion for exclusion.
19 Exhibit A Sec. 1.
20 66. The Executive Order effectively traps members of the Non-Immigrant Visa Class
21 in the United States, interfering with their relationships with family members in their home
22 countries, and imposing burdens that do not serve any valid governmental interest. Faced with a
23 rapidly shifting and highly unpredictable legal landscape, the individual named plaintiffs and
24 class members have chosen and will continue to choose to stay inside the United States for fear
25 that any provisional reinstatement of their visas will no longer be in effect by the time they might
26 wish to return.

CLASS ACTION COMPLAINT PAGE 15

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 16 of 33

1

2. Visa Revocations Pursuant to the Executive Order

2 67. The same day the Executive Order issued, the Deputy Assistant Secretary for Visa

3 Services at the Bureau of Consular Affairs of the Department of State, relying on the Executive

4 Order, issued a letter purporting to provisionally revoke all valid nonimmigrant and immigrant

5 visas of nationals of the Designated Countries, subject to exceptions not relevant here.

6 68. The Provisional Revocation Letter was not publicized; to the contrary, it was

7 withheld from the public until it was filed four days later under a “Notice of Supplemental

8 Authority” in court cases challenging the Executive Order.

9 69. Neither notice nor opportunity to be heard was provided to the Episcopal Diocese,

10 members of the Non-Immigrant Visa Class, Plaintiffs, or indeed anyone else prior to the mass

11 revocation of these visas.

12 70. The Provisional Revocation Letter compounded the chaos caused by the

13 Executive Order. The federal government has issued no public and legally binding guidance

14 regarding the meaning or proper interpretation of the Provisional Revocation Letter. A copy of

15 this letter is attached to this Complaint as Exhibit C.

16 71. The Provisional Revocation Letter also appears to expand the scope of the

17 Executive Order’s application: it applies on its face to persons who are present inside the United

18 States as well as persons outside the United States, rather than being limited to persons seeking

19 to enter the United States. Under section 221(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(i)(B),

20 “[a]ny alien . . . whose nonimmigrant visa . . . has been revoked under section 1201(i) of this

21 title” INA § 221(i), referenced in the Provisional Revocation Letter “is deportable.”

22

72. The State Department estimates that it revoked up to 60,000 visas.6

23

24

25
6 Mary Emily O’Hara, Over 100,000 Visas Have Been Revoked by Immigration Ban, Justice Dept. Reveals, NBC
26 (Feb. 3, 1027), available at http://www.nbcnews.com/news/us-news/over-100-000-visas-have-been-revoked-
immigration-ban-justice-n716121 (last accessed Feb. 6, 2017).

CLASS ACTION COMPLAINT PAGE 16

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 17 of 33

1 73. The CBP states on its website that all F1, J1, and M1 visas belonging to persons
2 from the affected countries were provisionally revoked.7
3 74. Upon information and belief, all H1B visas belonging to persons from the
4 affected countries were also provisionally revoked.
5 3. Implementation of the Executive Order and Visa Revocations
6

7

75. The disastrous effects of the Executive Order were immediately apparent.

8 Countless news reports document the chaotic scene at airports across the country as those who

9 were legally entitled to entry when they boarded airplanes heading to the United States—

10 refugees, immigrants, and those traveling on non-immigrant visas alike—were designated

11 deportable by the time they landed. For example, 109 travelers from the Designated Countries on

12 non-immigrant visas were in transit to the country at the time the Executive order was signed.8

13 Up to 13 people were detained at the Seattle-Tacoma International Airport on January 28, 2017

14 pursuant to the Executive Order.9

15

76. Application of the Executive Order has been, moreover, inconsistent and

16 confusing, with contradictory official statements issued within days of one another—further

17 heightening Plaintiffs reasonable and on-going fear that if they leave the country they will not be

18 permitted to return to their work and studies.

19

77. For example, DHS’s position on the application of the Executive Order to lawful

20 permanent residents, or green card holders, changed three times over the course of six days

21 following the issuance of the order:

22 7 Q&A for Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States, U.S.
Customs and Border Protection (Feb. 2, 2017), available at https://www.cbp.gov/document/faqs/questions-and-
23 answers-protecting-nation-foreign-terrorist-entry-united-states (last accessed Feb. 6, 2017).

24 8 Jeremy Diamond & Steve Almasy, Trump’s immigration ban sends shockwaves, CNN (Jan. 30, 2017), available at
http://www.cnn.com/2017/01/28/politics/donald-trump-executive-order-immigration-reaction/ (last accessed Feb.
25 6, 2017).
9 Liz Jones & Isolde Raftery, Roller coaster of heartbreak and fury at Sea-Tac in wake of Trump order, KUOW.org
26 (Jan. 28, 2017), available at http://kuow.org/post/roller-coaster-heartbreak-and-fury-sea-tac-wake-trump-order
(last accessed Feb. 6, 2017).

CLASS ACTION COMPLAINT PAGE 17

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 18 of 33

1

x

On January 28, 2017, a spokesperson for DHS stated that lawful permanent

residents, or green card holders, would be barred from entry pursuant to the

2

Executive Order.

3

x

Secretary Kelly reversed course the next day on January 29th, issuing a statement

4

that: “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,

5

absent the receipt of significant derogatory information indicating a serious threat

to public safety and welfare, lawful permanent resident status will be a dispositive

6

factor in our case-by-case determinations.”

7

x

Two days later on January 31, 2017, U.S. Customs and Border Protection, a DHS

8

sub-agency, issued a statement that, while repeating Secretary Kelly’s January

29th statement, then stated in the “Questions and Answers” Section that the entry

9

of lawful permanent residents would depend on receipt of a “national interest

waiver[] consistent with the provisions of the Executive Order.” 10

11

x

DHS changed its position yet again two days later. This time, the February 2,

2017 version of the “Questions and Answers” stated that “[u]nder recent guidance

12

from the White House…the Executive Order issued January 27, 2017, does not

apply to their [lawful permanent residents] entry to the United States.” As of

13

February 2, 2017, DHS had processed 1,610 waivers for legal permanent residents

to re-enter the United States. 14

15

78. Provisions of the Executive Order relating to refugees have also been

16 inconsistently interpreted and applied by Defendants, further heightening the need for judicial

17 intervention.

18

79. For example, although Section 5(a) of the Executive Order unequivocally states

19 that “[t]he Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for

20 120 days,” four business days later on February 2, 2017, and in a reversal of the clear mandate in

21 the Executive Order, the Acting Director of the U.S. Immigration and Citizenship Services

22 (“USCIS”), a division of DHS, issued a guidance to all USCIS employees that “USCIS will

23 adjudicate Refugee/Asylee Relative Petitions [ ] for all beneficiaries, from any country of

24 nationality, currently in the United States…”. A copy of this guidance is attached as Exhibit D.

25

80. In further contradiction of the clear language of unequivocal suspension of

26 USRAP, DHS instructed that “[a]dditionally, USCIS will continue refugee interviews in

CLASS ACTION COMPLAINT PAGE 18

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 19 of 33

1 jurisdictions where there is a preexisting international agreement related to refugee processing.”
2 Exhibit D.
3 81. The February 2, 2017 guidance to USCIS employees also stated that “USCIS will
4 continue refugee interviews when the person is a religious minority in his or her country of
5 nationality facing religious persecution.” Exhibit D (emphasis added).
6 4. Court Orders and President Trump’s Defiance Thereof
7

8

82. Although both this Court and other courts around the country have granted writs

9 of habeas and temporary restraining orders, some nationwide, Plaintiffs are compelled to file this

10 action to ensure their rights are protected. Many, if not all, of the existing litigation and court

11 orders do not help members of the Non-Immigrant Visa Class, most of whom are stuck inside the

12 country, rather than outside of it.

13

83. Further, Defendants’ repeated actions and statements, as well as the temporary

14 nature of the restraining orders issued thus far further underscore Plaintiffs’ plight: until there is

15 some legal certainty as to the status of their non-immigrant visas, they cannot leave the country

16 now—no matter how urgently they wish to do so—should they want to be guaranteed the ability

17 to return at a later date to resume their work and studies.

18

84. Immediately after the first nationwide stay was granted, see Darweesh v. Trump,

19 No. 17 CIV. 480 (AMD), 2017 WL 388504, at *1 (E.D.N.Y. Jan. 28, 2017), Defendant DHS

20 issued a statement that “President Trump’s Executive Orders remain in place—prohibited travel

21 will remain prohibited, and the U.S. government retains its right to revoke visas at any time if 22 required for national security or public safety.”10

23

85. On January 31, 2017, acting United States Attorney General Sally Yates issued a

24 memorandum to Department of Justice employees instructing them to not act to enforce the

25
10 Department Of Homeland Security Response To Recent Litigation, Dep’t Homeland Security (Jan. 29, 2017),
26 available at https://www.dhs.gov/news/2017/01/29/department-homeland-security-response-recent-litigation (last
accessed Feb. 6, 2017).

CLASS ACTION COMPLAINT PAGE 19

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 20 of 33

1 Executive Order because she was “not convinced . . . that the Executive Order is lawful.”11 Ms.

2 Yates wrote:

3 My responsibility is to ensure that the position of the Department of Justice is not

4

only legally defensible, but is informed by our best view of what the law is after

consideration of all the facts. In addition, I am responsible for ensuring that the

5

positons we take 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

6

convinced that the defense of the Executive Order is consistent with these

responsibilities, nor am I convinced that the Executive Order is lawful.12

7

8

86. Within hours of her issuance of this statement, and its hand-delivery to Defendant

9 Trump, Defendant Trump fired Ms. Yates, calling her statement a “betrayal.”

10

87. After this Court issued a TRO on February 3, 2017, Defendants vowed an

11 immediate appeal. Even more unusual were Defendant Trump’s statements that followed the

12 District Court’s Order:

13

x

@realDonaldTrump: “The opinion of this so-called judge, which essentially takes

law-enforcement away from our country, is ridiculous and will be overturned!” --

14

5:12 AM - 4 Feb 201713

15

x

@realDonaldTrump: “What is our country coming to when a judge can halt a

16

Homeland Security travel ban and anyone, even with bad intentions, can come

into U.S.?” -- 12:44 PM - 4 Feb 201714

17

x

@realDonaldTrump: “Because the ban was lifted by a judge, many very bad and

18

dangerous people may be pouring into our country. A terrible decision” -- 1:44

19

PM - 4 Feb 201715

20

21 11 Letter from Sally Yates to Dep’t of Justice (Jan. 30, 2017), available at
https://www.nytimes.com/interactive/2017/01/30/us/document-Letter-From-Sally-Yates.html?_r=1 (last accessed
22 Feb. 6, 2017). 23 12 See supra n.13.
13 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 5:12 PM),
24 https://twitter.com/realdonaldtrump/status/827867311054974976.
25 14 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 12:44 PM),
https://twitter.com/realDonaldTrump/status/827981079042805761.
26 15 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 1:44 PM),
https://twitter.com/realDonaldTrump/status/827996357252243456.

CLASS ACTION COMPLAINT PAGE 20

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 21 of 33

1

x

@realDonaldTrump: “Why aren’t the lawyers looking at and using the Federal

Court decision in Boston, which is at conflict with ridiculous lift ban decision?” --

2

3:37 PM - 4 Feb 201716

3

x

@realDonaldTrump: “The judge opens up our country to potential terrorists and

4

others that do not have our best interests at heart. Bad people are very happy!” --

4:48 PM - 4 Feb 201717

5

x

@realDonaldTrump: “Just cannot believe a judge would put our country in such

6

peril. If something happens blame him and court system. People pouring in. Bad!”

-- 12:39 PM - 5 Feb 201718 7

8

x

@realDonaldTrump: “I have instructed Homeland Security to check people

coming into our country VERY CAREFULLY. The courts are making the job

9

very difficult!” -- 12:42 PM - 5 Feb 201719

10 88. These statements appear to be designed to inflame and incite further animus

11 against persons affected by the ban, and grossly distort and misrepresent the actual process

12 through which Plaintiffs were screened and reviewed before their admittance to the United States

13 was allowed.

14 89. Unless and until this Court preliminarily and permanently enjoins the Executive

15 Order, any provisional reinstatement of the previously provisionally revoked visas does not

16 provide Plaintiffs adequate and full relief.

17 B.
18

The Discriminatory Intent Behind the Executive Order

19

90. The Executive Order and the Provisional Revocation Letter currently apply only

20 to nationals of seven countries, all of which are majority—Muslim: Iraq, Iran, Libya, Somalia,

21 Sudan, Syria, and Yemen.

22 16 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 3:37 PM), 23 https://twitter.com/realDonaldTrump/status/828024835670413312.
17 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 4:48 PM),
24 https://twitter.com/realDonaldTrump/status/828042506851934209.
25 18 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 5, 2017, 12:39 PM),
https://twitter.com/realDonaldTrump/status/828342202174668800.
26 19 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 5, 2017, 12:42 PM),
https://twitter.com/realDonaldTrump/status/828343072840900610.

CLASS ACTION COMPLAINT PAGE 21

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 22 of 33

1 91. The Executive Order, by its express terms, suspends immigrant and nonimmigrant
2 entry into the United States based on nationality, place of birth or place of residence.
3 92. The Provisional Revocation Letter similarly revokes “all valid nonimmigrant and
4 immigrant visas of nationals” based on nationality, place of birth, or place of residence.
5 93. The Executive Order is Defendant Trump’s fulfillment of a clearly stated
6 campaign promise to ban Muslims from entering the United States. In a December 7, 2015
7 written statement, “Donald J. Trump Statement on Preventing Muslim Immigration,” then-
8 candidate Trump said that he was “calling for a total and complete shutdown of Muslims
9 entering the United States.” This statement is still displayed on the official Trump-Pence website
10 as of the filing of this Complaint.20 11
94. Defendant Trump repeatedly referred to a ban on Muslim immigration on the 12 campaign trail.21 13
95. After the election, on December 22, 2016, a reporter asked Defendant Trump 14
whether his “plans to create a Muslim register or ban Muslim immigration to the United States” 15
had changed. Defendant Trump responded “you’ve known my plans all along” and that he was 16 “100% correct” in his position.22 17
96. On the day Defendant Trump issued the Executive Order, he gave an interview to 18
the Christian Broadcasting Network during which he confirmed his intent to prioritize non19
Muslims nationals of the Designated Countries over Muslim nationals of those countries: 20

21
22 20 Press Release, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at
https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration (last
23 accessed Feb. 6, 2017). 21 See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Dec. 7, 2015, 2:32 PM),
24 https://twitter.com/realDonaldTrump/status/673993417429524480 (last accessed Feb. 6, 2017); Jenna Johnson,
Trump calls for ‘total and complete shutdown of Muslims entering the United States’, The Washington Post (Dec. 7,
25 2015), available at http://wpo.st/O0uY2 (last accessed Feb. 6, 2017).

26 22 Katie Reilly, Donald Trump on Proposed Muslim Ban: ‘You Know My Plains’, Time (Dec. 21, 2016), available
at http://time.com/4611229/donald-trump-berlin-attack (last accessed Feb. 6, 2017).

CLASS ACTION COMPLAINT PAGE 22

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 23 of 33

1

They’ve been horribly treated. 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

2

Muslim you could come in, but if you were a Christian, it was almost impossible

3

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

4

thought it was very, very unfair.23

5

97. Consistent with Defendant Trump’s expressed intent to favor Christians, Section

6 5(e) of the Executive Order authorizes the Secretaries of the Departments of State and Homeland

7 Security to admit individuals who are members of “a religious minority in [their] count[ries] of

8 nationality facing religious persecution.” Exhibit A. This provision directly grants Christians

9 preference over Muslim refugees.

10

98. During a signing ceremony for the Executive Order on January 27, 2017,

11 Defendant Trump stated that the purpose of the Executive Order was to “establish[] new vetting

12 measures to keep radical Islamic terrorists out of the United States of America.”24

13

99. Senior advisors to Defendant Trump have engaged in anti-Muslim rhetoric that

14 provide additional support for the notion that the Executive Order was prompted by animus

15 toward Islam and Muslims.

16

100. In an interview on January 28, 2017, one of Defendant Trump’s senior advisors,

17 Rudolph Giuliani, left no doubt that the ban on entry from nationals of the Designated Countries

18 was intended to carry out a ban on Muslims, and that the Executive Order was crafted to create a

19 pretextual cover for a Muslim ban. Mr. Giuliani stated: “I’ll tell you the whole history of it. . . .

20

21

22

23 23 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As 24 Refugees, CBN News (Jan. 27, 2017), available at http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-
file-exclusive-president-trump-says-persecuted-christians-will-be-given-priority-as-refugees (last accessed Feb. 6,
25 2017).
24 Dan Merica, Trump signs executive order to keep out 'radical Islamic terrorists', CNN (Jan. 30, 2017), available
26 at http://www.cnn.com/2017/01/27/politics/trump-plans-to-sign-executive-action-on-refugees-extreme-vetting/
(last accessed Feb. 6, 2017).

CLASS ACTION COMPLAINT PAGE 23

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 24 of 33

1 So, when [Defendant Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He
2 said, ‘Put a commission together. Show me the right way to do it legally.’”25 3
101. On January 29, an anonymous “senior administration official” briefed a staffer of 4
Breitbart.com on the intended purpose of the Executive Order: “The reality, though, is that the 5
situation [of large Islamic populations] that exists today in parts of France, in parts of Germany, 6 in Belgium, etcetera, is not a situation we want replicated inside the United States.”26 7
102. While Defendant Trump has subsequently tried to deny that his Executive Order 8 was “a Muslim ban, as the media [was] falsely reporting.”27 His own prior conflicting, recorded 9
statements as well as those of his senior advisors make clear the rationale for the Executive 10
Order is in fact to ban Muslims from entering the United States[.] 11
103. Individual Plaintiffs Jane Doe and John Doe, and members of the class—non12
immigrants with valid visas—are among the targets of the Executive Order. The Executive Order 13
and the manner in which it is being implemented is causing these Individual Plaintiffs and 14
members of the proposed class direct, ongoing, and immediate harm because they are suffering 15
“[t]he indignity of being singled out [by a government] for special burdens’” on the basis of 16
religion or assumed religion. Hassan v. City of New York, 804 F.3d 277, 289 (3d. Cir. 2015), as 17
amended (Feb. 2, 2016) (quoting Locke v. Davey, 540 U.S. 712, 731, (2004) (Scalia, J., 18
dissenting)). 19
20
21 25 Amy B. Wang, Trump asked for a ‘Muslim ban,’ Giuliani says — and ordered a commission to do it ‘legally’, 22 The Washington Post (Jan. 29, 2017), available at http://wpo.st/xzuY2 (last accessed Feb. 6, 2017).
26 Neil Munro, Left Protests While Trump Junks Obama’s Global Immigration Plan, Brietbart.com (Jan. 30, 2017),
23 available at http://www.breitbart.com/big-government/2017/01/30/trump-changes-immigration-favor-american-
values/ (parenthetical in original) (last accessed Feb. 6, 2017).
24
27 Press Release, President Donald J. Trump Statement Regarding Recent Executive Order Concerning Extreme
25 Vetting, The White House (Jan. 29, 2017), available at https://www.whitehouse.gov/the-press-
office/2017/01/29/president-donald-j-trump-statement-regarding-recent-executive-order (last accessed Feb. 6,
26 2017).

CLASS ACTION COMPLAINT PAGE 24

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 25 of 33

1 C. Facts Common to all Members of the Plaintiff Class

2 104. Since the Executive Order was announced on January 27, 2017, its
3 implementation by Defendants and their agents has been marked by chaos and confusion.
4 105. Individual Plaintiffs and members of the Plaintiff Class reasonably fear that, if
5 they attempt to enter or re-enter the United States, they will be denied permission to do so,
6 notwithstanding their previously established lawful presence in the United States and the fact
7 that they have otherwise been deemed appropriate by the U.S. government for admission.
8 106. The suspension of entry for class members with valid, pre-screened, pre-approved
9 student visas has left vast numbers of foreign students in Washington, and in the United States
10 more generally, trapped and stripped of their ability to travel home to see their families or, if they
11 had the misfortune of being out of the country at the time the Executive Order was issued,
12 stranded and unable to continue with their otherwise lawful education and research endeavors in
13 the United States.
14 107. The suspension of entry for class members with valid, pre-screened, pre-approved
15 work visas has left vast numbers of hardworking people who happen to be foreign nationals
16 trapped and stripped of their ability to travel home to see their families and significantly affects
17 their ability to work and earn a living, as well as their well-being. If these individuals had the
18 misfortune of being out of the country at the time the Executive Order was issued, they are now
19 stranded and unable to return to their jobs and at risk of losing their livelihood.
20 V. CLASS ACTION ALLEGATIONS
21

22

108. The Individual Plaintiffs bring this action as a class action pursuant to Fed. R.

23 Civ. P. 23(b)(1) and (b)(2), on their own behalf and on behalf of all other persons with non-

24 immigrant visas who are nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen (the

25 “Designated Countries”) who reside, or recently had been residing, lawfully in Washington when

26 the Executive Order issued.

CLASS ACTION COMPLAINT PAGE 25

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 26 of 33

1 109. The Plaintiff Class is so numerous that joinder is impracticable. According to the
2 Annual Report of the Visa Office of the U.S. Department of State, in 2015, the last year for
3 which data are available, the United States issued over 72,162 non-immigrant visas to nationals
4 from the seven Designated Countries.28 On information and belief, a large number of such 5
persons reside, or have recently resided, in Washington. 6
110. The claims of the Plaintiff Class members share common issues of law, including 7
but not limited to whether the Executive Order violates their associational, religious exercise and 8
due process rights under the First and Fifth Amendments, the Religious Freedom Restoration 9
Act, and the Administrative Procedure Act. 10
111. The claims of the Plaintiff Class members share common issues of fact, including 11
but not limited to whether the Executive Order is being or will be enforced so as to prevent them 12
from entering the United States from abroad or from re-entering the United States should they 13
choose to leave the United States briefly, even though they would otherwise be admissible. 14
112. The claims or defenses of the named Plaintiffs are typical of the claims or 15
defenses of members of the Plaintiff Class. 16
113. The named Plaintiffs will fairly and adequately protect the interests of the 17
Plaintiff class. The named Plaintiffs have no interest that is now or may be potentially 18
antagonistic to the interests of the Plaintiff class. The attorneys representing the named Plaintiffs 19
include experienced civil rights attorneys and are considered able practitioners in federal 20
constitutional litigation. These attorneys should be appointed as class counsel. 21
114. Defendants have acted, have threatened to act, and will act on grounds generally 22
applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief 23

24

25 28 Report of the Visa Office 2015, Table XVIII: Nonimmigrant Visas Issued By Nationality, U.S. Dep’t of State –
Bureau of Consular Affairs (2015), available at
26 https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2015AnnualReport/FY15AnnualReport-
TableXVIII.pdf (last accessed Feb. 6, 2017).

CLASS ACTION COMPLAINT PAGE 26

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 27 of 33

1 appropriate to the class as a whole. The Plaintiff Class may therefore be properly certified under

2 Fed. R. Civ. P. 23(b) (2).

3 115. Prosecution of separate actions by individual members of the Plaintiff Class

4 would create the risk of inconsistent or varying adjudications and would establish incompatible

5 standards of conduct for individual members of the Plaintiff Class. The Plaintiff Class may

6 therefore be properly certified under Fed. R. Civ. P. 23(b) (1).

7 VI. CAUSES OF ACTION

8 COUNT ONE

9

FIRST AMENDMENT – ESTABLISHMENT, FREE EXERCISE, SPEECH AND

ASSEMBLY CLAUSES

10

(Against All Defendants, Asserted by All Plaintiffs)

11

116. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

13

117. The First Amendment prohibits the establishment of a religion or the prohibition

14 of the free exercise of religion.

15

118. The Executive Order constitutes an unlawful attempt to discriminate against

16 Muslims and to establish a preference for one religion over another. References in the Executive

17 Order to the seven Designated Countries are transparently a pretext to establish this preference.

18 Singling out Muslims for disfavored treatment and granting special preferences to non-Muslims

19 is neither justified by, nor closely fitted to, any compelling governmental interest.

20

119. The Executive Order also violates the rights of Plaintiff the Episcopal Diocese to

21 receive information and speech from, and to associate freely with, refugees.

22

COUNT TWO

RELIGIOUS FREEDOM RESTORATION ACT

23

(Against All Defendants, Asserted by All Plaintiffs)

24

120. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

26

CLASS ACTION COMPLAINT PAGE 27

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 28 of 33

1 121. Pursuant to the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 et seq.,

2 the government “shall not substantially burden a person’s exercise of religion” unless it “(1) is in

3 furtherance of a compelling government interest; and (2) is the least restrictive means of

4 furthering that compelling governmental interest.” Id. (emphasis added).

5 122. The Executive Order has the effect of imposing a special disability on the basis of

6 religious views or religious status, by withdrawing important immigration benefits principally

7 from Muslims on account of their religion. In doing so, the Executive Order places a substantial

8 burden on Muslims’ exercise of religion in a way that is not the least restrictive means of

9 furthering a compelling governmental interest.

10 123. Defendants’ actions therefore constitute a violation of the Religious Freedom

11 Restoration Act, 42 U.S.C. § 2000bb-1 et seq.

12 COUNT THREE

13

FIFTH AMENDMENT – EQUAL PROTECTION

(Against All Defendants, Asserted by All Plaintiffs)

14 124. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

16 125. The Executive Order discriminates against Plaintiffs on the basis of their country

17 of origin without sufficient justification and therefore violates the equal protection component of

18 the Due Process Clause of the Fifth Amendment.

19 126. Additionally, the Executive Order was substantially motivated by animus

20 toward—and has a disparate effect on—Muslims, which also violates the equal protection

21 component of the Due Process Clause of the Fifth Amendment.

22 127. The Executive Order expressly prioritizes certain religious groups over others, in

23 further violation of the equal protection component of the Due Process Clause of the Fifth

24 Amendment.

25 128. The Executive Order bars altogether Syrian refugees in violation of the equal

26 protection component of the Due Process Clause of the Fifth Amendment.

CLASS ACTION COMPLAINT PAGE 28

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 29 of 33

1

COUNT FOUR

FIFTH AMENDMENT – PROCEDURAL DUE PROCESS

2

(Against All Defendants, Asserted by All Plaintiffs)

3

129. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

5

130. Procedural due process requires that the government be constrained before it acts

6 in a way that deprives individuals of liberty or property interests protected under the Due Process

7 Clause of the Fifth Amendment.

8

131. Defendants’ actions, as described above, have deprived Plaintiffs of their liberty

9 and/or property interests without notice or opportunity to be heard.

10

COUNT FIVE

FIFTH AMENDMENT – SUBSTANTIVE DUE PROCESS

11

(Against All Defendants, Asserted by Individual Plaintiffs and the

Non-Immigrant Visa Class) 12

13

132. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

15

133. The Due Process Clause of the Fifth Amendment provides that “[n]o person

16 shall…be deprived of life, liberty, or property, without due process of law.”

17

134. Plaintiffs Jane Doe and John Doe have a constitutionally protected liberty interest

18 in freedom of movement that encompasses their right to travel abroad.

19

135. Defendants’ actions, as described above, have denied Plaintiffs the opportunity to

20 travel outside the United States, for fear that they will be denied re-entry. Such actions, taken

21 pursuant to the Executive Order, violate the substantive due process rights guaranteed by the

22 Fifth Amendment to Plaintiffs.

23

24

25

26

CLASS ACTION COMPLAINT PAGE 29

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 30 of 33

1

COUNT SIX

ADMINISTRATIVE PROCEDURE ACT—PROCEDURAL VIOLATION

2

(Against all Defendants except Defendant Trump, Asserted by All Plaintiffs)

3 136. Plaintiffs repeat and incorporate by reference each and every allegation contained
4 in the preceding paragraphs as if fully set forth herein.
5 137. Sections 553 and 706 of the Administrative Procedure Act, 5 U. S. C. §§ 553
6 and 706 (2), require that federal agencies conduct formal rule making before engaging in action
7 that impacts substantive rights.
8 138. In implementing Sections 3 and 5 of the Executive Order, Defendants federal
9 agencies and Defendant secretaries and/or directors of those agencies have changed the
10 substantive criteria by which individuals from the Designated Countries may enter the United
11 States. Such Defendants did not follow the procedures required by the Administrative Procedure
12 Act before taking action impacting the substantive rights of the Plaintiffs.
13 139. In addition, the Administrative Procedure Act, 5 U. S. C. § 706 (2), places clear
14 limits on the exercise of discretion to revoke a visa under 8 U.S.C. § 1201(i). Specifically, the
15 Secretary of State must comply with statutory procedures for the revocation of a visa; the
16 Secretary’s action must not exceed his or her statutory authority; and the Secretary must respect
17 the constitutional rights enjoyed by visa holders. See 5 U.S.C. § 706(2).
18 140. By failing to follow the procedures required of them prior to changing the
19 substantive criteria by which individuals from the Designated Countries may enter the United
20 States, Defendants federal agencies and Defendant secretaries and/or directors of those agencies
21 violated the Administrative Procedure Act.
22 141. These violations continue to cause ongoing harm to Plaintiffs.
23

24

25

26

CLASS ACTION COMPLAINT PAGE 30

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 31 of 33

1

COUNT SEVEN

ADMINISTRATIVE PROCEDURE ACT—SUBSTANTIVE VIOLATION

2

(Against all Defendants except Defendant Trump, Asserted by all Plaintiffs)

3

142. Plaintiffs repeat and incorporate by reference each and every allegation contained

4 in the preceding paragraphs as if fully set forth herein

5

143. The Administrative Procedure Act, 5 U. S. C. § 706(2), prohibits federal agency

6 action that is arbitrary, unconstitutional, or contrary to statute.

7

144. In implementing Sections 3 and 5 of the Executive Order, Defendants federal

8 agencies and Defendant secretaries and/or directors of those agencies have taken unconstitutional

9 and unlawful action, as alleged in this Complaint, in violation of the Administrative Procedures

10 Act.

11

145. In implementing Sections 3 and 5 of the Executive Order, Defendants federal

12 agencies and Defendant secretaries and/or directors of those agencies have applied provisions of

13 the Executive Order arbitrarily, in violation of the Administrative Procedures Act.

14

146. Defendants’ actions as set forth above were (A) arbitrary, capricious,

15 discriminatory, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to

16 constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction,

17 authority, or limitations, or short of statutory right; and (D) without observance of procedure

18 required by law, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D).

19

PRAYER FOR RELIEF

20

WHEREFORE, Petitioners pray that this Court grant the following relief:

21

1. A determination that the Individual Plaintiffs’ claims may properly be maintained

22 as a class action pursuant to Fed. R. Civ. P. 23(b)(1) and (b)(2);

23

2. A declaration that the Executive Order and the manner in which it has been

24 implemented are in violation of the rights of Plaintiffs and Plaintiff Class members for the

25 reasons set forth above.

26

CLASS ACTION COMPLAINT PAGE 31

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 32 of 33

1 3. An injunction that the Executive Order may not be enforced as against Plaintiffs
2 and Plaintiff Class members in connection with their entry or re-entry into the United States;
3 4. A permanent injunction of the Executive Order as contrary to the Constitution;
4 5. An award to the organizational Plaintiff and to the Plaintiff Class of reasonable
5 costs and attorneys’ fees; and,
6 6. Such other and further relief that this Court may deem fit and proper.
7 DATED this 7th day of February, 2017. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

CLASS ACTION COMPLAINT PAGE 32

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1 Filed 02/07/17 Page 33 of 33

1 AMERICAN CIVIL LIBERTIES UNION

OF WASHINGTON FOUNDATION

2

By: /s/ Emily Chiang

g

3

Emily Chiang, WSBA # 50517

4

901 Fifth Avenue, Suite 630

Seattle, Washington 98164

5

Telephone: (206) 624-2184

Email: echiang@aclu-wa.org 6

7

Attorneys for Plaintiffs

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

KELLER ROHRBACK L.L.P.

By: /s/ Lynn Lincoln Sarko

n

By: /s/ Tana Lin

n

By: /s/ Amy Williams-Derry

y o

By: /s/ Derek W. Loeser

r

Lynn Lincoln Sarko, WSBA # 16569 Tana Lin, WSBA # 35271 Amy Williams-Derry, WSBA #28711 Derek W. Loeser, WSBA # 24274 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 Email: lsarko@kellerrohrback.com
dloeser@kellerrohrbak.com tlin@kellerrohrback.com awilliams-derry@kellerrohrback.com

By: /s/ Laurie B. Ashton

N

Laurie B. Ashton* 3101 North Central Avenue, Suite 1400 Phoenix, Arizona 85012-2600 Telephone: (602) 248-0088 Facsimile: (602) 248-2822 Email: lashton@kellerrohrback.com

By: /s/ Alison Chase

e

Alison Chase* 3101 North Central Avenue, Suite 1400 Phoenix, Arizona 85012-2600 Telephone: (602) 248-0088 Facsimile: (602) 248-2822 Email: lashton@kellerrohrback.com
achase@kellerrohrback.com

Cooperating Attorneys for the American Civil Liberties Union Of Washington Foundation

*Pro hac vice applications forthcoming

CLASS ACTION COMPLAINT PAGE 33

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178 Document 1-1 Filed 02/07/17 Page 1 of 7
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Case 2:17-cv-00178 Document 1-1 Filed 02/07/17 Page 3 of 7
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Case 2:17-cv-00178 Document 1-1 Filed 02/07/17 Page 4 of 7
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9;91!

Case 2:17-cv-00178 Document 1-1 Filed 02/07/17 Page 5 of 7
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Case 2:17-cv-00178 Document 1-2 Filed 02/07/17 Page 1 of 18
EXHIBIT B

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Response to Emergency Motion
Exhibit A

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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 17-35105

STATE OF WASHINGTON, et al.

)

)

Plaintiffs-Appellees, )

) JOINT DECLARATION OF

vs.

) MADELEINE K. ALBRIGHT,

) AVRIL D. HAINES

) MICHAEL V. HAYDEN

) JOHN F. KERRY

) JOHN E. McLAUGHLIN

DONALD J. TRUMP, President of the

) LISA O. MONACO

United States, et al.,

) MICHAEL J. MORELL

) JANET A. NAPOLITANO

Defendants-Appellants. ) LEON E. PANETTA

) SUSAN E. RICE

)

)

)

We, 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, and Susan E. Rice declare as follows:
1. We are former national security, foreign policy, and intelligence officials in the United States Government:
a. 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 and has been a member of the Central Intelligence Agency External Advisory Board since 2009 and the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States.
b. Avril D. Haines served as Deputy Director of the Central Intelligence Agency from 2013 to 2015, and as Deputy National Security Advisor from 2015 to January 20, 2017.
c. Michael V. Hayden served as Director of the National Security Agency from 1999 to 2005, and Director of the Central Intelligence Agency from 2006 to 2009.
d. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.

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e. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000-2004 and Acting Director of CIA in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.
f. 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.
g. Michael J. Morell served as Acting Director of the Central Intelligence Agency in 2011 and from 2012 to 2013, Deputy Director from 2010 to 2013, and as a career official of the CIA from 1980. His duties included briefing President George W. Bush on September 11, 2001, and briefing President Barack Obama regarding the May 2011 raid on Osama bin Laden.
h. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.
i. Leon E. Panetta served as Director of the Central Intelligence Agency from 2009-11 and as Secretary of Defense from 2011-13.
j. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009-13 and as National Security Advisor from 2013 to January 20, 2017.
2. We have collectively devoted decades to combatting the various terrorist threats that the United States faces in a dynamic and dangerous world. We have all held the highest security clearances. A number of us have worked at senior levels in administrations of both political parties. Four of us (Haines, Kerry, Monaco and Rice) were current on active intelligence regarding all credible terrorist threat streams directed against the U.S. as recently as one week before the issuance of the Jan. 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Order”).
3. 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. It does not perform its declared task of “protecting the nation from foreign terrorist entry into the United States.” To the contrary, the Order disrupts thousands of lives, including those of refugees and visa holders all previously vetted by standing procedures that the Administration has not shown to be inadequate. It could do long-term damage to our national security and foreign policy interests, endangering U.S. troops in the field and disrupting counterterrorism and national security partnerships. It will aid ISIL’s propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam. It will hinder relationships with the very communities that law enforcement professionals need to address the threat. It will have a damaging humanitarian and economic impact on the lives and jobs of American citizens and residents. And apart from all of these concerns, the Order offends our nation’s laws and values.
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4. There is no national security purpose for a total bar on entry for aliens from the seven named countries. Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order. Very few attacks on U.S. soil since September 11, 2001 have been traced to foreign nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens. The Administration has identified no information or basis for believing there is now a heightened or particularized future threat from the seven named countries. Nor is there any rational basis for exempting from the ban particular religious minorities (e.g., Christians), suggesting that the real target of the ban remains one religious group (Muslims). In short, the Administration offers no reason why it abruptly shifted to group-based bans when we have a tested individualized vetting system developed and implemented by national security professionals across the government to guard the homeland, which is continually re-evaluated to ensure that it is effective.
5. In our professional opinion, the Order will harm the interests of the United States in many respects:
a. The Order will endanger U.S. troops in the field. Every day, American soldiers work and fight alongside allies in some of the named countries who put their lives on the line to protect Americans. For example, allies who would be barred by the Order work alongside our men and women in Iraq fighting against ISIL. To the extent that the Order bans travel by individuals cooperating against ISIL, we risk placing our military efforts at risk by sending an insulting message to those citizens and all Muslims.
b. The Order will disrupt key counterterrorism, foreign policy, and national security partnerships that are critical to our obtaining the necessary information sharing and collaboration in intelligence, law enforcement, military, and diplomatic channels to address the threat posed by terrorist groups such as ISIL. The international criticism of the Order has been intense, and it has alienated U.S. allies. It will strain our relationships with partner countries in Europe and the Middle East, on whom we rely for vital counterterrorism cooperation, undermining years of effort to bring them closer. By alienating these partners, we could lose access to the intelligence and resources necessary to fight the root causes of terror or disrupt attacks launched from abroad, before an attack occurs within our borders.
c. The Order will endanger intelligence sources in the field. For current information, our intelligence officers may 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 Americans safe – and whom our officers had promised always to protect with the full might of our government and our people.
d. Left in place, the Executive Order will likely feed the recruitment narrative of ISIL and other extremists that portray the United States as at war with Islam. As government officials, we took every step we could to counter violent extremism. Because of the Order’s disparate impact against Muslim travelers and immigrants, it feeds ISIL’s narrative and sends the wrong message to the Muslim community here at home and all over the world: that
3

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the U.S. government is at war with them based on their religion. The Order may even endanger Christian communities, by handing ISIL a recruiting tool and propaganda victory that spreads their message that the United States is engaged in a religious war. e. The Order will disrupt ongoing law enforcement efforts. By alienating Muslim-American communities in the United States, it 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. f. The Order will have a devastating humanitarian impact. When the Order issued, those disrupted included women and children who had been victimized by actual terrorists. Tens of thousands of travelers today face deep uncertainty about whether they may travel to or from the United States: for medical treatment, study or scholarly exchange, funerals or other pressing family reasons. While the Order allows for the Secretaries of State and Homeland Security to agree to admit travelers from these 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. g. The Order will cause economic damage to American citizens and residents. The Order will affect many foreign travelers, particularly students, who annually inject hundreds of billions into the U.S. economy, supporting well over a million U.S. jobs. Since the Order issued, affected companies have noted its adverse impacts on many strategic economic sectors, including defense, technology, medicine, culture and others.
6. As a national security measure, the Order is unnecessary. National security-based immigration restrictions have consistently been tailored to respond to: (1) specific, credible threats based on individualized information, (2) the best available intelligence and (3) thorough interagency legal and policy review. This Order rests not on such tailored grounds, but rather, on (1) general bans (2) not supported by any new intelligence that the Administration has claimed, or of which we are aware, and (3) not vetted through careful interagency legal and policy review. Since the 9/11 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 is applied to travelers not once, but multiple times. Refugees receive the most thorough vetting of any traveler to the United States, taking on the average more than a year. Successive administrations have continually worked to improve this vetting through robust informationsharing and data integration to identify potential terrorists without resorting to a blanket ban on all aliens and refugees. Because various threat streams are constantly mutating, as government officials, we sought continually to improve that vetting, as was done in response to particular threats identified by U.S. intelligence in 2011 and 2015. Placing additional restrictions on individuals from certain countries in the visa waiver program –as has been done on occasion in the past – merely allows for more individualized vettings before individuals with particular passports are permitted to travel to the United States.
7. In our professional opinion, the Order was ill-conceived, poorly implemented and ill-explained. The “considered judgment” of the President in the prior cases where courts have
4

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deferred was based upon administrative records showing that the President’s decision rested on cleared views from expert agencies with broad experience on the matters presented to him. Here, there is little evidence that the Order underwent a thorough interagency legal and policy processes designed to address current terrorist threats, which would ordinarily include a review by the career professionals charged with implementing and carrying out the Order, an interagency legal review, and a careful policy analysis by Deputies and Principals (at the cabinet level) before policy recommendations are submitted to the President. We know of no interagency process underway before January 20, 2017 to change current vetting procedures, and the repeated need for the Administration to clarify confusion after the Order issued suggest that that Order received little, if any advance scrutiny by the Departments of State, Justice, Homeland Security or the Intelligence Community. Nor have we seen any evidence that the Order resulted from experienced intelligence and security professionals recommending changes in response to identified threats.
8. The Order is of unprecedented scope. We know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people. Even after 9/11, 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. In past cases, suspensions were limited to particular individuals or subclasses of nationals who posed a specific, articulable threat based on their known actions and affiliations. In adopting this Order, the Administration alleges no specific derogatory factual information about any particular recipient of a visa or green card or any vetting step omitted by current procedures.
9. Maintaining the district court’s temporary restraining order while the underlying legal issues are being adjudicated would not jeopardize national security. It would simply preserve the status quo ante, still requiring that individuals be subjected to all the rigorous legal vetting processes that are currently in place. Reinstating the Executive Order would wreak havoc on innocent lives and deeply held American values. Ours is a nation of immigrants, committed to the faith that we are all equal under the law and abhor discrimination, whether based on race, religion, sex, or national origin. As government officials, we sought diligently to protect our country, even while maintaining an immigration system free from intentional discrimination, that applies no religious tests, and that measures individuals by their merits, not stereotypes of their countries or groups. Blanket bans of certain countries or classes of people are beneath the dignity of the nation and Constitution that we each took oaths to protect. Rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the United States” does not disguise the Order’s discriminatory intent, or make it necessary, effective, or faithful to America’s Constitution, laws, or values.
5

CaCsaes: e172-:31571-c0v5-,00021/7086/2D01o7cu, mIDe:n1t013-0228F9i2le,dD0k2tE/0n7tr/y1:728P-2a,gPea8geof71o8f 17
10. For all of the foregoing reasons, in our professional opinion, the January 27 Executive Order does not further – but instead harms – sound U.S. national security and foreign policy.
Respectfully submitted, s/MADELEINE K. ALBRIGHT* s/AVRIL D. HAINES s/MICHAEL V. HAYDEN s/JOHN F. KERRY s/JOHN E. McLAUGHLIN s/LISA O. MONACO s/MICHAEL J. MORELL s/JANET A. NAPOLITANO s/LEON E. PANETTA s/SUSAN E. RICE
*All original signatures are on file with Harold Hongju Koh, Rule of Law Clinic, Yale Law School, New Haven, CT. 06520-8215 203-432-4932 We declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. [Individual signature pages follow]
6

CaCsaes: e172-:31571-c0v5-,00021/7086/2D01o7cu, mIDe:n1t013-0228F9i2le,dD0k2tE/0n7tr/y1:728P-2a,gPea9geof81o8f 17

CaCsaes:e127:-1375-1c0v5-0, 00127/086/2D0o1c7u,mIDe:n1t 013-2028F9il2e,dD0k2t/E0n7t/r1y7: 28P-a2g, ePa1g0eo9f 1o8f 17

CaCsaes: e172-:31571-c0v5-,00021/7086/2D01o7cu, mIDe:n1t013-0228F9i2le,dD0k2tE/0n7tr/y1:728P-2a,gPea1g1eo1f01o8f 17

CaCsaes: e172-:31571-c0v5-,00021/7086/2D01o7cu, mIDe:n1t013-0228F9i2le,dD0k2tE/0n7tr/y1:728P-2a,gPea1g2eo1f11o8f 17

LIOZ'KmnrqeCJo f,ep q,g slql CgJOlgXg

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NITHJOY'ICW'g NIHO 73

CaCsaes: e172-:31571-c0v5-,00021/7086/2D01o7cu, mIDe:n1t013-0228F9i2le,dD0k2tE/0n7tr/y1:728P-2a,gPea1g4eo1f31o8f 17

CaCsaes: e172-:31571-c0v5-,00021/7086/2D01o7cu, mIDe:n1t013-0228F9i2le,dD0k2tE/0n7tr/y1:728P-2a,gPea1g5eo1f41o8f 17

CaCsaes: e172-:31571-c0v5-,00021/7086/2D01o7cu, mIDe:n1t013-0228F9i2le,dD0k2tE/0n7tr/y1:728P-2a,gPea1g6eo1f51o8f 17
EXECUTED this 5th day of February, 2017 __________/s/_________________ JANET A. NAPOLITANO

CaCsaes: e172-:31571-c0v5-,00021/7086/2D01o7cu, mIDe:n1t013-0228F9i2le,dD0k2tE/0n7tr/y1:728P-2a,gPea1g7eo1f61o8f 17

CaCsaes: e172-:31571-c0v5-,00021/7086/2D01o7cu, mIDe:n1t013-0228F9i2le,dD0k2tE/0n7tr/y1:728P-2a,gPea1g8eo1f71o8f 17
EXECUTED this 5th day of February, 2017 ________/s/___________________ SUSAN E. RICE

Case 2:17-cv-00178 Document 1-3 Filed 02/07/17 Page 1 of 2
EXHIBIT C

CasCea1s:e172-:c1v7--1c0v1-05041-N78MGDoDcoucmuemnet n1t-323-F1iledFil0e2d/0071//1371/1P7agPea2geof12of 1 United States Department of State
Deputy Assistant Secretcuy for Visa Services Washington, D.C. 20520
January 27, 2017
Upon request of the U.S. Department of Homeland Security and pursuant to sections 212(±) and 221(i) of the Immigration and Nationality Act and 22 CFR 41.122 and 42.82, and in implementation of'section 3(c) of the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals, I hereby provisionally revoke all valid nonimmigrant and immigrant visas of nationals of
' Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to the exceptions
discussed below. The revocation does not apply to visas in the following nonimmigrant classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas. The revocation also does not apply to any visa exempted on the basis of a determination made by the Secretaries of State and Homeland Secmity pursuant to section 3(g) of the Executive Order on a case-by-case basis, and when in the national interest. This document is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Edward J. Ramotowski Deputy Assistant Secretary Bureau ofConsular Affairs Department of State

Case 2:17-cv-00178 Document 1-4 Filed 02/07/17 Page 1 of 3
EXHIBIT D

Case 2:17-cv-00178 Document 1-4 Filed 02/07/17 Page 2 of 3
AILA Doc. No. 17020332. (Posted 2/3/17)

Case 2:17-cv-00178 Document 1-4 Filed 02/07/17 Page 3 of 3

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JS 44 (Rev. 11/15)

Case 2:17-cv-0017C8IVDILocCumOeVntE1R-5SHFiEleEdT02/07/17 Page 1 of 3

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS Jane Doe and John Doe, individually and on behalf of all others similarly situated; and the Episcopal Diocese of Olympia

DEFENDANTS Donald Trump, President of the
United States; (see attached list of additional defendants)

(b) County of Residence of First Listed Plaintiff King County
(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant Washington County
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Emily Chiang, ACLU-WA, 901 Fifth Ave. #630 Seattle WA 98164 (206) 624-2184; Lynn Sarko, Keller Rohrback L.L.P., 1201 Third Ave., #3200, Seattle WA 98101 (206) 623-1900

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

’ 1 U.S. Government Plaintiff

’ 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

’ 1 ’ 1 Incorporated or Principal Place

’ 4 ’4

of Business In This State

’ 2 U.S. Government Defendant

’ 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

’ 2 ’ 2 Incorporated and Principal Place of Business In Another State

’ 5 ’5

Citizen or Subject of a Foreign Country

’ 3 ’ 3 Foreign Nation

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

’ 110 Insurance

PERSONAL INJURY

PERSONAL INJURY ’ 625 Drug Related Seizure

’ 422 Appeal 28 USC 158

’ 120 Marine

’ 310 Airplane

’ 365 Personal Injury -

of Property 21 USC 881 ’ 423 Withdrawal

’ 130 Miller Act

’ 315 Airplane Product

Product Liability

’ 690 Other

28 USC 157

’ 140 Negotiable Instrument

Liability

’ 367 Health Care/

’ 150 Recovery of Overpayment ’ 320 Assault, Libel &

& Enforcement of Judgment

Slander

Pharmaceutical Personal Injury

PROPERTY RIGHTS ’ 820 Copyrights

’ 151 Medicare Act

’ 330 Federal Employers’

Product Liability

’ 830 Patent

’ 152 Recovery of Defaulted

Liability

’ 368 Asbestos Personal

’ 840 Trademark

Student Loans

’ 340 Marine

Injury Product

(Excludes Veterans)

’ 345 Marine Product

’ 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

’ 350 Motor Vehicle

Liability

LABOR

PERSONAL PROPERTY ’ 710 Fair Labor Standards

’ 370 Other Fraud

Act

SOCIAL SECURITY ’ 861 HIA (1395ff) ’ 862 Black Lung (923)

’ 160 Stockholders’ Suits

’ 355 Motor Vehicle

’ 371 Truth in Lending

’ 720 Labor/Management

’ 863 DIWC/DIWW (405(g))

’ 190 Other Contract

Product Liability

’ 380 Other Personal

Relations

’ 864 SSID Title XVI

’ 195 Contract Product Liability ’ 360 Other Personal

’ 196 Franchise

Injury

Property Damage ’ 385 Property Damage

’ 740 Railway Labor Act ’ 751 Family and Medical

’ 865 RSI (405(g))

’ 362 Personal Injury -

Product Liability

Leave Act

Medical Malpractice

’ 790 Other Labor Litigation

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS ’ 791 Employee Retirement

FEDERAL TAX SUITS

’ 210 Land Condemnation

’ 440 Other Civil Rights

Habeas Corpus:

Income Security Act

’ 870 Taxes (U.S. Plaintiff

’ 220 Foreclosure

’ 441 Voting

’ 463 Alien Detainee

or Defendant)

’ 230 Rent Lease & Ejectment ’ 442 Employment

’ 510 Motions to Vacate

’ 871 IRS—Third Party

’ 240 Torts to Land

’ 443 Housing/

Sentence

26 USC 7609

’ 245 Tort Product Liability ’ 290 All Other Real Property

Accommodations

’ 530 General

’ 445 Amer. w/Disabilities - ’ 535 Death Penalty

IMMIGRATION

Employment

Other:

’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other

Other

’ 550 Civil Rights

’ 462 Naturalization Application ’ 465 Other Immigration
Actions

’ 448 Education

’ 555 Prison Condition

’ 560 Civil Detainee -

Conditions of

Confinement

’ 6 ’6
OTHER STATUTES
’ 375 False Claims Act ’ 376 Qui Tam (31 USC
3729(a)) ’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and
Corrupt Organizations ’ 480 Consumer Credit ’ 490 Cable/Sat TV ’ 850 Securities/Commodities/
Exchange ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 893 Environmental Matters ’ 895 Freedom of Information
Act ’ 896 Arbitration ’ 899 Administrative Procedure
Act/Review or Appeal of Agency Decision ’ 950 Constitutionality of State Statutes

V. ORIGIN (Place an “X” in One Box Only)

’ 1 Original

’ 2 Removed from

Proceeding

State Court

’ 3 Remanded from Appellate Court

’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict

Reopened

Another District

Litigation

(specify)

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
1st Am; 5th am; 42 U.S.C. 2000bb-1; 5 U.S.C. 553, 706 VI. CAUSE OF ACTION Brief description of cause:
Class action complaint for multiple civil rights violations

VII. REQUESTED IN COMPLAINT:

’ CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F.R.Cv.P.

DEMAND $

CHECK YES only if demanded in complaint: JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)

IF ANY

(See instructions):
JUDGE

The Honorable James L. Robart

DOCKET NUMBER 2:17-cv-00141-JLR

DATE
02/07/2017

SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT #
Print

AMOUNT

Save As...

APPLYING IFP

JUDGE

MAG. JUDGE

Reset

JS 44 Reverse (Rev. 11/15)

Case 2:17-cv-00178 Document 1-5 Filed 02/07/17 Page 2 of 3

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.

Case 2:17-cv-00178 Document 1-5 Filed 02/07/17 Page 3 of 3
ATTACHMENT TO CIVIL COVER SHEET
Additional Defendants: U.S. Department of State; Rex Tillerson, Secretary of State; U.S. Department of Homeland Security; John Kelly, Secretary of Homeland Security; U.S. Customs and Border Protection; Kevin McAleenan. Acting Commissioner of U.S. Customs and Border Protection; and Michele James, Field Director of the Seattle Field Office of U.S. Customs and Border Protection

 
 Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 1 of 76

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 John Doe, Jane Doe, Jack Doe, Jason Doe, Julia Doe, Joseph Doe and James Doe, individually,
10 and on behalf of all others similarly situated; the Episcopal Diocese of Olympia, and the Council
11 on American Islamic Relations-Washington,

12

Plaintiffs,

13

v.

14 Donald Trump, President of The United States;

15 U.S. Department of State; Rex Tillerson,
Secretary of State; U.S. Department of 16 Homeland Security; John Kelly, Secretary of

17

Homeland Security; U.S. Customs and Border Protection; Kevin McAleenan, Acting

18 Commissioner of U.S. Customs and Border Protection; and Michele James, Field Director

19 of the Seattle Field Office of U.S. Customs and

Border Protection 20

Defendants. 21

No. 2:17-cv-00178-JLR
FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

22

23

24

25

26

FIRST AMENDED CLASS ACTION COMPLAINT
`

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 2 of 76

1

TABLE OF CONTENTS

2 3 I.

Page INTRODUCTION........................................................................................................ 1

4 II. JURISDICTION AND VENUE.................................................................................... 5

5 III. PARTIES ..................................................................................................................... 6

6 7 8 9 10 11 12 13 14 15 16 17 18
IV. 19 20 21 22 23 24

A. Plaintiffs ........................................................................................................... 6 1. Plaintiff John Doe.................................................................................. 6 2. Plaintiff Jane Doe .................................................................................. 8 3. Plaintiff Jack Doe .................................................................................. 9 4. Plaintiff Jason Doe .............................................................................. 10 5. Plaintiff Julia Doe................................................................................ 12 6. Plaintiff Joseph Doe ............................................................................ 13 7. Plaintiff James Doe.............................................................................. 15 8. Plaintiff The Episcopal Diocese of Olympia ........................................ 17 9. Plaintiff The Council on American-Islamic RelationsWashington ......................................................................................... 20
B. Defendants...................................................................................................... 23 FACTUAL BACKGROUND ..................................................................................... 24 A. President Trump’s January 27, 2017 Original Executive Order ....................... 24
1. Visa Revocations Pursuant to the Original Executive Order................. 25 2. Chaos, Confusion, and Whiplash in the Implementation of
the Original Executive Order ............................................................... 27 3. The Discriminatory Intent Behind the Original Executive
Order ................................................................................................... 30

25

B. President Trump’s March 6, 2017 Revised Executive Order............................ 34

26

C. The Arbitrariness of the Executive Orders....................................................... 39

FIRST AMENDED CLASS ACTION COMPLAINT PAGE i
`

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 3 of 76

1 2 3 4 5 V. 6 VI. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

1. Arbitrariness of the Travel Ban............................................................ 40 2. Arbitrariness of the Suspension of the Refugee Admissions
Program............................................................................................... 48 D. Court Orders and President Trump’s Continuing Defiance Thereof ................. 57 CLASS ACTION ALLEGATIONS ............................................................................ 63 CAUSES OF ACTION............................................................................................... 65

FIRST AMENDED CLASS ACTION COMPLAINT PAGE ii

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 4 of 76

1

I. INTRODUCTION

2

1. Just as “the world is not made brand new every morning,” McCreary Cnty., Ky. v.

3 Am. Civil Liberties Union of Ky., 545 U.S. 844, 866 (2005), “a person is not made brand new

4 simply by taking the oath of office.” Aziz v. Trump, No. 117CV116LMBTCB, 2017 WL 580855,

5 at *8 (E.D. Va. Feb. 13, 2017). Impermissible animus cannot be cleansed with a few “mostly

6 minor technical differences”:1 a Muslim ban is a Muslim ban.

7

2. One week after taking the oath of office as President of the United States,

8 Defendant Trump carried out a promise he made repeatedly and explicitly on the campaign trail,

9 launching “a total and complete shutdown of Muslims entering the United States” with his

10 signature on Executive Order 13769 “Protecting the Nation from Foreign Terrorist Entry into the

11 United States” (the “Original Executive Order” or “Original Order”). A senior advisor confirmed

12 the next day that the Original Executive Order was, in fact, Defendant Trump’s attempt to

13 institute his “Muslim ban.”2

14

3. With the stroke of a pen, he threw into chaotic uncertainty the lives of tens of

15 thousands of individuals who had been granted valid student and work visas and disrupted the

16 passage to safety for refugees and their families, including women and children who had been

17 victimized by actual terrorists, all of whom had already been subjected to an exhaustive and

18 thorough screening by the United States government.

19

4. Multiple courts—including this Court and the Ninth Circuit Court of Appeals—

20 recognized the ban for the affront to our Constitution it was and promptly stayed it. While

21 continuing to insist there was “nothing wrong” with the original Order, Defendants openly

22 advertised that the Revised Order would have “mostly minor technical differences” from the

23 Original Order and “fundamentally” would be “the same basic policy outcome for the country.”3

24
25 1 See infra, n. 79. 26 2 See infra, n. 28.
3 See infra, n. 79.
FIRST AMENDED CLASS ACTION COMPLAINT PAGE 1

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 5 of 76

1 Defendants then spent more than a month publicly struggling to figure out how to do exactly
2 what they repeatedly said they wanted to do: ban Muslims.
3 5. In the meantime, Defendant Trump continued to stoke fear and sow
4 misinformation, claiming “our country [is] in such peril… People pouring in. Bad!”4, “THE 5 SECURITY OF OUR NATION IS AT STAKE!”,5 -and “‘77% of refugees allowed into U.S. 6 since travel reprieve hail from seven suspect countries.’ (WT) [sic] SO DANGEROUS!”6 7
6. Defendant Trump was supposed to issue the new order on March 1, 2017, the day 8 after he addressed Congress.7 But despite his public statements regarding the urgent national 9
security need for the ban, Defendant Trump delayed signing a new order for five days more to 10
maximize the favorable press coverage of his first address to Congress and to allow the executive 11 order “to have its own ‘moment.’”8 12
7. On March 6, 2017, Defendant Trump signed Executive Order 13769, also titled 13
“Protecting the Nation from Foreign Terrorist Entry into the United Sates” (“Revised Executive 14
Order” or “Revised Order”). Despite the fact that Defendant Trump had originally claimed that 15
“[i]f the ban were announced with a one week notice, the ‘bad’ would rush into our country 16 during that week,”9 the Revised Order was set to go into effect ten days after its signing, on 17
March 16, 2017. 18

19

20
4 See infra n. 72.
21 5 See infra n. 74.
22 6 See infra n. 75.

23 7 See infra n. 34.

24 8 Laura Jarrett, Ariane de Vogue & Jeremy Diamond, Trump Delays New Travel Ban After Well-Reviewed Speech,
CNN (Mar. 1, 2017), available at http://www.cnn.com/2017/02/28/politics/trump-travel-ban-visa-holders (last
25 accessed Mar. 13, 2017). and Marina Feng, Pence Says Trump’s Revised Immigration and Travel Ban Coming ‘In a
Few Days’, Huffington Post (Mar. 1, 2017), available at http://www.huffingtonpost.com/entry/trump-revised-
26 immigration-ban_us_58b6cc57e4b0a8a9b787b1f0 (last accessed Mar. 13, 2017).
9 See infra n. 64.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 2

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 6 of 76

1 8. The Revised Order is every bit as much of a Muslim ban as the Original Order
2 and every bit as unconstitutional. It reflects Defendant Trump’s explicit vow to “follow[ ]
3 through on what I pledged to do”10 and “keep my campaign promises.”11 True to his promise, 4
Defendants made a few cosmetic changes to address some of the most obvious facial legal 5
deficiencies with the Original Order. 6
9. But the Constitution is not so easily fooled. Cosmetic changes made openly and 7
explicitly to evade judicial scrutiny fail to mask the discriminatory animus that continues to 8
pervade the Order. Even if not as plain on its face as the Original Order, the Revised Order 9
remains in contravention of “[t]he clearest command of the Establishment Clause . . . that one 10
religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 11
228, 244 (1982). 12
10. Just like the Original Order, the Revised Order bans the entry into this country of 13
nationals from the Muslim-majority countries of Iran, Libya, Somalia, Sudan, Syria, and Yemen 14
(the “Designated Countries”) and completely halts refugee entries for 120 days. And although 15
Iraqis are no longer banned under the Revised Order, it targets no new countries. 16
11. Far from eliminating the need for judicial scrutiny, the combined Orders 17
underscore the need for it. The secret revocation of tens of thousands of valid visas pursuant to 18
the Original Order, the subsequent post hoc attempt to exempt green card holders—but not other 19
valid visa holders—from the Original Order, the implication by Defendant Trump that he would 20
not abide by court orders staying the Original Order, and the eventual issuance of a Revised 21
Order with an arcane waiver scheme dependent solely upon the discretion of individual consular 22
officers has created an unstable, unpredictable, and uncertain situation for all Plaintiffs. 23
12. Plaintiffs are Washington residents from the Designated Countries with expired 24
(e.g. expired and used multiple entry or used single entry) non-immigrant visas who are trapped 25 26 10 See infra, n. 31.
11 See infra, n. 31.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 3

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 7 of 76

1 inside the United States—unable to visit their families in their home countries or carry out
2 education-related travel for fear they will be unable to return to their lives here (“the Non-
3 Immigrant Visa Class”). Unlike similarly situated people from the non-Designated Countries,
4 once members of the Non-Immigrant Visa class leave the country, they know they will be
5 singled out: the default for them is denial of a new visa unless they are fortunate enough to
6 procure a waiver from the general ban.
7 13. Plaintiffs are also refugees and asylees who reside in Washington and have filed
8 applications to reunify with their family members who have completed and cleared their final
9 security screenings (“the Refugee Class”). They have fled war-torn countries, survived brutal
10 conditions in refugee camps, and finally made it into the United States—some, after years of
11 uncertainty and fear. They anxiously await reunification with dearly loved family members who
12 were cleared for travel prior to the signing of the Original Order and now reasonably fear those
13 family members will never make it into the United States. Plaintiffs seek to directly represent
14 themselves and others similarly situated.
15 14. Also harmed by the Revised Order is Plaintiff the Episcopal Diocese of Olympia
16 (the “Episcopal Diocese” or “Diocese”), a religious entity organized in the State of Washington
17 to do charitable works, including to support the resettlement of refugees in Washington. The
18 Diocese has had its refugee resettlement activities completely upended as a result of the Original
19 and Revised Executive Orders which barred the arrival of persons granted refugee status by an
20 administrative judge. As of the filing of the Amended Complaint, nearly 20 families from the
21 Designated Countries and nearly 17 families from other countries whom the Episcopal Diocese
22 was supporting in resettlement were granted refugee status and approved for travel to the United
23 States but had their trips canceled as a result of the Orders, wasting precious resources and
24 frustrating the activities of the Diocese.
25 15. The Council on American-Islamic Relations-Washington (“CAIR-WA”) is
26 harmed by the Revised Order. CAIR-WA is a non-profit organization based in Seattle that works

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 4

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 8 of 76

1 to promote an understanding of Islam through dialogue, education, protection of civil liberties,
2 and coalition-building. As a result of the Orders, CAIR-WA has received numerous inquiries
3 from its constituent about American-Muslim travelers who have become the target of
4 unconstitutional ideological questioning by Transportation Security Administration and Customs
5 and Border Protection agents about their personal beliefs. CAIR-WA has had to devote
6 substantial, unplanned-for resources to respond.
7 16. The Episcopal Diocese of Olympia, CAIR-WA, and the individual Plaintiffs—on
8 behalf of themselves and two classes of similarly situated people in Washington State—bring
9 this suit to challenge the provisions and implementation of the Revised Executive Order that
10 violate the First Amendment, the Fifth Amendment, the Religious Freedom Restoration Act
11 (“RFRA”), 42 U.S.C. § 2000bb et seq., the Immigration and Nationality Act, 8 U.S.C. § 1101 et
12 seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.
13 17. The individual Plaintiffs, the classes they seek to represent, the Episcopal
14 Diocese, and CAIR-WA (collectively, “Plaintiffs”), currently suffer serious harm and will
15 continue to suffer such harm until and unless this Court preliminarily and permanently enjoins
16 the Revised Executive Order. Plaintiffs have no adequate remedy at law.
17 II. JURISDICTION AND VENUE
18 18. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 over Plaintiffs’
19 claims under the U.S. Constitution and federal statutes, as well as under the Administrative
20 Procedure Act, 5 U.S.C. § 706.
21 19. The Court has the authority to grant declaratory relief pursuant to the Declaratory
22 Judgment Act, 28 U.S.C. §§ 2201 and 2202.
23 20. Venue is proper under 28 U.S.C. §1391(b)(2) and (e)(1). A substantial part of the
24 events or omissions giving rise to the claims occurred in this district, and all individual Plaintiffs
25 reside in this District. Further, Defendants are officers or employees of the United States acting
26 in their official capacities, and agencies of the United States.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 5

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 9 of 76

1 21. Plaintiff the Episcopal Diocese, also known as the Episcopal Church in Western

2 Washington, is a diocese of the Episcopal Church in Washington State west of the Cascade

3 Range. The Episcopal Diocese is headquartered in Seattle and is a registered 501(c)(3)

4 corporation.

5

III. PARTIES

6 A. Plaintiffs

7

1. Plaintiff John Doe

8 22. Plaintiff John Doe is an Iranian national who resides in Seattle, Washington. John
9 Doe is a fourth year Ph.D candidate in Aeronautic and Astronautic Engineering at the University
10 of Washington. John Doe is simultaneously studying for a master’s degree in applied
11 mathematics at the University of Washington. John Doe has a provisional patent, “patent
12 pending,” in the United States pertaining to battery function. He is also a graduate fellow with
13 the Clean Energy Institute in Seattle.
14 23. John Doe holds a multiple entry F1 student visa that will expire in August 2017.
15 This is his second such visa that allows him to pursue full-time educational study in the United
16 States. John Doe received both of his F1 visas after an intensive vetting and screening process
17 abroad that included an in-person interview and proof of his admission status at the University of
18 Washington as a full-time doctoral student.
19 24. John Doe first arrived in the United States in 2012. Before that he studied for a
20 master’s degree in civil engineering in the Netherlands, and then worked for a year in the
21 Netherlands for an international offshore oil and gas company. John Doe has also served as a
22 visiting researcher at ETH Zurich in Switzerland studying nonlinear solitary waves, and at the
23 University of South Carolina studying nonlinear wave propagation. John Doe received his
24 undergraduate bachelors of science degree in civil engineering in Iran.
25 25. John Doe’s immediate and extended family, including maternal grandparents, all
26 live in Iran.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 6

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 10 of 76

1 26. John Doe is engaged in collaborative research with the Chinese Academy of
2 Science. He co-authors publications with Chinese researchers and is actively advising and
3 directing joint research with students in the United States and China on these projects. As part of
4 this collaboration, John Doe conducted research in China for three months in 2016. John Doe
5 was planning to return to China for further research and collaboration in April of 2017 but
6 canceled that trip because of the travel ban. John Doe hopes to be able to go to China this
7 summer but remains fearful of what position Defendants may take next that might potentially
8 leave him stranded outside the country if he makes the trip.
9 27. As part of his doctorate studies, it is anticipated and expected that John Doe will
10 participate in international conferences, because such endeavors are essential to his training and
11 his ability to be fully active in the scientific and research community. There are numerous
12 upcoming academic conferences that John Doe was planning to attend such as the International
13 Renewable Energy Storage Conference in Dusseldorf, Germany on March 14-16, 2017, the
14 International Conference on Hybrid and Organic Photovoltaics in Lausanne, Switzerland in May
15 2017, and the Third International Conference on Perovskite Solar Cells and Optoelectronics in
16 Oxford, England in September 2017. However, as the submission deadline for the conferences
17 are often several months before the event, and given the multiple times Defendants changed their
18 mind while implementing the Original Order, John Doe either decided not to submit proposals
19 for several of the conferences to which he otherwise would have applied to make presentations
20 or canceled his travel plans to attend as a result of Defendants’ actions. In addition, given the
21 uncertainty that remains with the Revised Order, he continues to fear that if he leaves the United
22 States to attend an academic conference, he may be prevented from re-entering the United States.
23 John Doe’s inability to reenter the United States would prevent him from completing his
24 doctorate.
25 28. John Doe’s research and career have suffered and will continue to suffer as long
26 as the Revised Executive Order is in place.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 7

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 11 of 76

1 29. John Doe is pursuing his claims anonymously because he is afraid of retaliation
2 from the United States government or others for asserting his rights.
3 2. Plaintiff Jane Doe
4

5

30. Plaintiff Jane Doe is an Iranian national who resides in Seattle, Washington. Ms.

6 Doe holds a multiple entry F1 student visa and is lawfully in the United States, studying to

7 complete a master’s degree at the University of Washington.

8

31. Jane Doe received her F1 visa after an intensive vetting and screening process

9 abroad that included an in-person interview at the Vancouver consulate, and proof of her

10 admission status at the University of Washington as a full-time student. Jane Doe first came to

11 the United States in September 2016 to pursue her graduate studies. Jane Doe’s dream in

12 pursuing her graduate degree was to work in international public policy, including to perhaps

13 work one day for the United Nations.

14

32. As part of her academic and professional training, Jane Doe was pursuing summer

15 internships outside of the United States when the Original Executive Order issued. However,

16 because of the Original Executive Order, Jane Doe’s plans changed dramatically. As a direct

17 result of the Original Executive Order, Jane Doe canceled all of her upcoming interviews for

18 summer internships outside the United States for fear she would not be able to return. The

19 Original Executive Order arrested Jane Doe’s international plans for the summer and also

20 disrupted her longer-term plans of international work. Without an international summer

21 internship, Jane Doe’s dreams of a career in international work may be permanently on hold.

22

33. In addition, Jane Doe fears that she will not be able to leave the United States to

23 see her family—all of whom live overseas, including her elderly grandparents—and that they

24 will not be able to come to the United States to visit her either for the duration of her studies.

25

34. Further, although Jane Doe receives some funding from UW and works as a

26 teaching assistant, she still relies on financial support from her parents in Iran. Sanctions

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 8

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 12 of 76

1 imposed by the United States on Iran make money transfers from her parents to her extremely
2 difficult, if not impossible, without in-person contact.
3 35. The Original Executive Order disrupted Jane Doe’s work, study, and goals. It
4 isolated her from her family, most of whom live in Iran, and forced her to cancel a visit she had
5 planned with her brother (who lives in Paris, France) to celebrate the Persian New Year, Nowruz,
6 in March. She now feels that the work and resources, including tuition, that she has put into her
7 degree to date have been wasted. Jane Doe is strongly considering abandoning her graduate
8 studies as a result of the Original Executive Order.
9 36. Given the multiple times Defendants changed their minds while implementing the
10 Original Order and the uncertainty that remains with the Revised Order, Jane Doe continues to
11 fear that she may be prevented from re-entering the United States if she leaves, which would
12 prevent her from completing her graduate studies.
13 37. The Revised Executive Order thus also harms and will continue to harm Jane
14 Doe’s ability to pursue her studies.
15 38. Jane Doe is pursuing her claims anonymously because she is afraid of retaliation
16 from the United States government or others for asserting her rights.
17 3. Plaintiff Jack Doe
18

19

39. Plaintiff Jack Doe Jack Doe is an Iranian national who resides in Seattle.

20

40. Jack Doe is a post-doctorate researcher at the University of Washington in a joint

21 appointment that includes Electrical Engineering. He is working under his F1 visa Optional

22 Practical Training (“OPT”) status, and subsequent extension for STEM students (“STEM OPT”),

23 which together allow him, after completing his degree, to work for 3 years in academia. OPT is

24 temporary employment that is directly related to an F-1 student’s major area of study, and the

25 STEM OPT extension allows certain F-1 students who receive science, technology, engineering,

26 and mathematics (STEM) degrees, and who meet other specified requirements, to apply for a 24-

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 9

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 13 of 76

1 month extension of their post-completion OPT. Application for both OPT and STEM OPT
2 requires endorsement by the student’s “designated school official” at the student’s U.S. academic
3 institution.
4 41. Jack Doe’s OPT status will expire on May 31, 2017, and with it, his student visa.
5 42. Jack Doe has an undergraduate degree in Electrical Engineering from Sharif
6 University in Tehran.
7 43. Jack Doe first came to the United States in 2006 with an F1 visa to work on a
8 Ph.D at the University of Maryland. He obtained his first F1 student visa from the United States
9 embassy in Cypress.
10 44. In 2008, Jack Doe returned briefly to Iran to visit his family. Most of his family
11 lives in Iran. He also traveled to Dubai to obtain another F1 single entry student visa that allowed
12 him to return to the United States to continue his educational training.
13 45. Since completing his Ph.D in 2014, Jack Doe has been operating under the OPT
14 provision of his visa to do post-doc research at the University of Washington.
15 46. Although Jack Doe is in the United States and working legally, his status will
16 change during the 90-day ban set out in Section 2(c) of the Revised Order. Jack Doe will lose his
17 ability to work after May 31, 2017. Prior to the issuance of the Executive Orders, Jack Doe had
18 been interviewing with employers. His future employment prospects are now in complete
19 jeopardy because he is at a significant disadvantage compared to other foreign nationals who are
20 not from one of the Designated Countries and who can therefore travel freely both for the
21 duration of the 90-day ban and in the future.
22 47. Jack Doe is pursuing his claims anonymously because he is afraid of retaliation
23 from the United States government or others for asserting his rights.
24

25

4. Plaintiff Jason Doe

26 48. Plaintiff Jason Doe is a resident of Seattle.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 10

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 14 of 76

1 49. Jason Doe is an Iranian national. He first came to the United States in 2013 with
2 his wife, who was enrolled in a doctorate program at the University of Washington. His wife
3 held an F1 visa, and he held an F2 visa.
4 50. In 2014, Jason Doe was accepted into a 5-year doctorate program at the Business
5 School of the University of Washington to study Information Systems. He is halfway through his
6 program and anticipates graduating in 2019. Jason Doe would like to stay in academia, as a
7 researcher, writer, and professor in his field.
8 51. After he was admitted to the University of Washington, Jason Doe left the United
9 States to obtain a multiple entry F1 visa. He obtained one in 2014 and returned to the University
10 of Washington to work on his Ph.D. Jason Doe’s visa expired in August 2016, but he is in the
11 United States lawfully because his F1 status is valid until 2019 pursuant to his Form I-20. His F1
12 status may also be extended if it takes him longer to finish his degree.
13 52. Jason Doe’s wife currently holds an F2 visa and associated I-20. Her F2 status
14 will also expire in 2019.
15 53. The majority of his and his wife’s families are in Iran.
16 54. Given Jason Doe’s time horizon on graduation and the fact that he is halfway
17 through his program, he should be starting to attend conferences to present papers, expand his
18 contacts, and develop his expertise. Most of the conferences that would be appropriate for him to
19 attend are international conferences, which would require travel outside of the United States in
20 the coming months.
21 55. However, as a result of the travel ban, Jason Doe cannot leave the country for fear
22 he will not be permitted to return. He is particularly reluctant to leave without his wife for fear
23 that they will be separated. His research and career will suffer as long as the Revised Executive
24 Order is in place.
25 56. Jason Doe is pursuing his claims anonymously because he is afraid of retaliation
26 from the United States government or others for asserting his rights.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 11

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 15 of 76

1

2

5. Plaintiff Julia Doe

3 57. Plaintiff Julia Doe is an Iranian national who resides in Seattle, Washington. Julia
4 Doe is a second-year Ph.D candidate at the University of Washington. Julia Doe has three or four
5 years left of her studies before she completes her degree.
6 58. Julia Doe holds a single entry F1 student visa. Julia Doe received her F1 visa after
7 engaging in an extensive vetting and screening process abroad that included an in-person
8 interview and proof of her admission to the University of Washington as a full-time doctoral
9 student.
10 59. Julia Doe first arrived in the United States in September 2015. Before that she
11 received a Bachelor’s degree from a university in Iran. Ms. Doe has done research and
12 internships at prestigious academic and corporate institutions in Europe.
13 60. Julia Doe’s immediate and extended family, including grandparents, all live in
14 Iran. Julia Doe has not seen her family in two years. She had planned on returning to Iran for a
15 visit later this year after she finished her qualifications for her Master’s degree. The visit is
16 important to her because she is very close to her family, her grandmother is ailing, and close
17 family members have had children.
18 61. As part of her academic work, Julia Doe anticipated and expected that she will
19 participate in international conferences. Julia Doe already has identified four international
20 conferences that are all taking place outside of the United States that she would like to attend but
21 cannot because of the travel ban and the uncertainty regarding her ability to return to the United
22 States. One of these conference is in Vancouver, Canada, later this year. All of her colleagues are
23 planning to drive to the conference. However, she cannot attend. The limitations on her ability to
24 participate in international conferences negatively impact her academic growth and her
25 professional development.
26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 12

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 16 of 76

1 62. Given the multiple times Defendants changed their minds while implementing the
2 Original Order and the uncertainty that remains with the Revised Order, Julia Doe continues to
3 fear that she may be prevented from re-entering the United States if she leaves, which would
4 prevent her from completing her graduate studies.
5 63. The Revised Executive Order thus also harms and will continue to harm Julia
6 Doe’s ability to pursue her studies.
7 64. Julia Doe is pursuing his claims anonymously because she is afraid of retaliation
8 from the United States government or others for asserting her rights.
9 6. Plaintiff Joseph Doe
10

11

65. Plaintiff Joseph Doe is a Somalian national who currently resides in Des Moines,

12 Washington.

13

66. Joseph Doe is married with three children.

14

67. Prior to arriving in the United States, Joseph Doe had lived in refugee camps in

15 Kenya since 1992—for nearly 22 years. Joseph Doe’s family fled Somalia during that country’s

16 violent civil war to escape persecution and the risk of being killed because of their clan

17 membership. While trying to reach safety, Joseph Doe’s family spent weeks in the forest without

18 food. Fighters from one of the warring factions found them in the forest and raped Joseph Doe’s

19 older sister. His mother tried to stop the rape of her daughter, but the men clubbed her in the

20 head with the butt of their guns. His sister, who was pregnant, bled to death following the rape.

21 Joseph Doe was approximately ten years old at the time and witnessed all of these events. He

22 struggles with these memories to this day.

23

68. Joseph Doe’s family eventually reached Kenya and began living in a refugee

24 camp. Joseph Doe had his initial interview with the United Nations High Commissioner for

25 Refugees (“UNHCR”) in 2000 with his mother, two brothers, and three surviving sisters.

26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 13

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 17 of 76

1 69. In 2004, Joseph Doe left the camp one morning as he often did to try to earn some
2 money for his family. But when he returned, he found out that the local Turkana people had
3 raided the camp, and in the subsequent fighting and upheaval, his family was nowhere to be
4 found. To this day, Joseph Doe does not know where his mother or siblings are or what
5 happened to them. He still hopes to find them someday.
6 70. When he was finally called for an interview with DHS/USCIS in 2011, Joseph
7 Doe had just gotten married. He went through the screening process with DHS/USCIS starting in
8 2011 and completed it in December 2013.
9 71. Joseph Doe finally arrived in the United States on January 28, 2014, as a refugee.
10 He only had refugee status for himself as the refugee process was begun for him with his mother
11 and siblings when he was a child.
12 72. Joseph Doe became a legal permanent resident in 2016. Joseph Doe is currently
13 working, sending money to his family in Kenya, and preparing for their arrival.
14 73. When he came to the United States, Joseph Doe had to leave behind in Kenya his
15 wife and children, the youngest of whom was just about six months old at the time. His children
16 are now 3, 4, and 9 years old.
17 74. Joseph Doe filed a Refugee/Asylee Relative Petition, Form I-730, for his wife and
18 three children in June 2015. His wife and children had their final interviews in November 2016,
19 which they successfully passed; they have completed the security clearance; they completed their
20 medical clearance on January 31, 2017; and they received their final required injections on
21 March 1, 2017. They are only waiting to be scheduled for travel to the United States.
22 75. Joseph Doe was told that the only thing left before his family would travel to the
23 United States was for their travel arrangements to be finalized. However, as of the date of this
24 filing, Joseph Doe’s family members have not received their tickets for travel, and they have not
25 been permitted to come to the United States.
26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 14

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 18 of 76

1 76. Joseph Doe has been unable to learn why his family’s travel has not been
2 arranged or why they have not been able to travel to the United States.
3 77. Because of the Revised Order, Joseph Doe now understands that his family’s
4 travel to the United States will be delayed for at least 120 days, and possibly indefinitely if the
5 refugee cap is met before they are admitted. With this delay, it is likely that his family’s medical
6 clearance will expire and they will be required to repeat that part of the process.
7 78. The Revised Order has interfered with and delayed the arrival to the United States
8 of the only family Joseph Doe has left. Joseph Doe is injured by that interference and delay.
9 79. Joseph Doe is pursuing his claims anonymously because he is afraid of retaliation
10 from the United States government or others for asserting his rights.
11 7. Plaintiff James Doe
12

13

80. James Doe is an Eritrean national who resides in Seattle, Washington.

14

81. James Doe fled Eritrea in 2009 after being imprisoned because of his political

15 beliefs. In 2009, he was working at Sawa Military Training Camp (“Sawa”) as part of his

16 mandatory national service, which is required of every Eritrean for 18 months by law, but in

17 practice is a system of indefinite conscription. The Eritrean government requires all Eritrean

18 students to spend their last year of high school at Sawa, and James Doe was working as an

19 instructor there, teaching accounting, which was his focus of study at university. While he was

20 forced to work at Sawa, he was only able to go home to see his wife and children every three or

21 four months. At that time, his oldest child was about a year old, and his wife was expecting their

22 second child.

23

82. In or around March 2009, the Eritrean government called a meeting to ask people

24 at Sawa what changes they would like to see implemented, and James Doe participated in this

25 meeting and voiced his opinions. Two or three days later, government officers came to his room

26 at Sawa and arrested him.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 15

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 19 of 76

1 83. They took him to an underground prison and kept him there for approximately
2 five months. The prisoners were not given enough food to eat, and they had no water for
3 washing. Many prisoners were tortured with beatings and by being tied up for long periods of
4 time, including one technique well known in Eritrean prisons called the “helicopter,” in which
5 the hands and feet of a prisoner are tied behind his back and he is made to lie on the ground, face
6 down, or suspended in the air. Sometimes the guards would remove prisoners and not bring them
7 back, and the other prisoners did not know what became of them. James Doe knew not to speak
8 out to the prison guards and was able to avoid being tortured, and eventually, he escaped the
9 prison.
10 84. He fled first to Sudan, then through Egypt, and made it to Israel. Once he had
11 made it to Israel, he was finally able to contact his wife and let her know what had happened to
12 him.
13 85. James Doe stayed in Israel for a significant time, but he could not get permanent
14 status in Israel as a refugee. He was able to get a visa for travel to Sri Lanka as a refugee, but
15 after he arrived there, the Sri Lankan government began detaining Eritrean refugees. He was
16 detained and kept in prison for almost two years.
17 86. The United Nations, investigating the Sri Lankan detention centers, became aware
18 of him and worked with him to help him obtain refugee status in the United States. In April
19 2015, nearly six years after he escaped prison in Eritrea, he made it to the United States.
20 87. In July 2015, James Doe filed a Refugee/Asylee Relative Petition, Form I-730, for
21 his wife and children. His family is currently living in Ethiopia, and his children, including the
22 daughter whom he has never met, are now 8 and 9 years old.
23 88. James Doe became a lawful permanent resident in 2016. He currently works two
24 jobs, one full-time and one part-time, and provides financial support for his wife and children.
25 89. In late September 2016, James Doe’s I-730 petition for his wife and children was
26 approved. At that time, James Doe learned that his family would come to the United States

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 16

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 20 of 76

1 within the next 4-5 months. His family had been interviewed at the US Embassy in Addis Ababa
2 and had passed their security clearance. They also went through the required medical
3 examinations and immunizations.
4 90. James Doe was told that the only thing left before his family would travel to the
5 United States was for their travel arrangements to be finalized. However, as of the date of this
6 filing, James Doe’s family has not received their tickets for travel, and they have not come to the
7 United States.
8 91. James Doe has been unable to learn why his family’s travel has not been arranged
9 or why they have not been able to travel to the United States.
10 92. Because of the Revised Order, James Doe now understands that his family’s
11 travel to the United States will be delayed for at least 120 days. With this delay, it is likely that
12 his family’s medical clearance will expire and they will be required to repeat that part of the
13 process.
14 93. The Revised Order has interfered with and delayed James Doe’s family’s travel to
15 the United States. James Doe is injured by that interference and delay.
16 94. James Doe is pursuing his claims anonymously because he is afraid of retaliation
17 from the United States government or others for asserting his rights.
18 8. Plaintiff The Episcopal Diocese of Olympia
19

20

95. The Episcopal Diocese of Olympia, also known as the Episcopal Church in

21 Western Washington, is a diocese of The Episcopal Church located in western Washington. It is

22 headquartered in Seattle’s Capitol Hill neighborhood.

23

96. The Episcopal Diocese is a local affiliate of the Episcopal Migration Ministries, a

24 voluntary agency that welcomes refugees through a Cooperative Agreement with the Department

25 of State. The Episcopal Diocese has operated a refugee resettlement program since 1978 and has

26 sponsored more than 15,000 refugees of all religions and nationalities to resettle in the Seattle

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 17

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 21 of 76

1 area. The Episcopal Diocese’s Refugee Resettlement Office (“RRO”) is located in South Seattle
2 and receives and assists refugees from all over the world, including from each of the 7 countries
3 targeted by the Original Executive Order, without regard to race, religion, or country of origin.
4 The RRO is one of eleven ministries offered and provided for by the Episcopal Diocese. The
5 Episcopal Diocese’s refugee resettlement program stems from the moral obligation of the
6 Episcopal faith to welcome and assist strangers, especially those who are poor, sick, and most in
7 need of help.
8 97. The RRO provides a multitude of services to refugees, including coordinating the
9 arrival of refugees to the United States, housing assistance, job training, providing for basic
10 household needs, advocacy, language tutoring, business training and microenterprise loans, and a
11 savings program to help refugees purchase homes, vehicles, education, or businesses. The RRO
12 has 9.5 full time employees, with 4 full-time equivalent staff working directly to support new
13 arrivals and their survival needs during their first 90 days in the United States. Approximately
14 two dozen volunteers assist the RRO in providing these services.
15 98. Before a refugee arrives in the United States, the RRO is notified by the
16 Department of State that a family has been approved for refugee status and that the RRO should
17 “assure” the case. The RRO is required to make contact with friends or relatives of the arriving
18 refugees living in the U.S. (known as the “U.S. ties”) who were listed on the refugee’s
19 application. The RRO expends significant time making phone calls, sending mail, and making
20 in-person visits to meet with the U.S. tie to evaluate his or her capacity to help the RRO during
21 the resettlement process. The evaluation process includes a home visit to view and evaluate the
22 living space. If there is no possibility that the arriving refugee can live with a U.S. tie, the RRO
23 further interviews the U.S. tie to determine if the relative or friend can assist with transportation,
24 job search, enrollment of kids in school, or any of the other daily tasks with which newly
25 arriving refugees need assistance.
26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 18

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 22 of 76

1 99. If the U.S. tie cannot perform these tasks, the RRO invests its own resources to
2 perform this pre-arrival legwork for the incoming refugees. These tasks include, among other
3 things, searching for and obtaining safe housing, furnishing the residence, and stocking it with
4 food and household items prior to the arrival of the refugees. If the refugee family or U.S. tie
5 rejects the apartment or house, RRO staff begin a process of evaluating alternative locations. The
6 RRO undertakes housing inspections that consume significant RRO staff time to ensure that the
7 neighborhood is safe, that there is no bare wiring visible in the living space, no peeling or flaking
8 interior paint or plaster, no visible mold or unsanitary odors, that all windows and doors have
9 working locks, that heat, ventilation, lighting, and running water are adequate, that kitchen
10 appliances and bathroom fixtures are in good repair, and that there are easily accessible storage
11 or disposal facilities for garbage.
12 100. The RRO’s pre-arrival services can also involve cultivation of community groups
13 or churches to help refugees during the first months of their adjustment to life in America. The
14 RRO staff spend time visiting churches and community groups to describe the refugee
15 resettlement process, ask for assistance with specific families that are still en route, and organize
16 committees to help refugee newcomers with specific tasks like searching for employment.
17 101. When the Original Executive Order was issued on January 27, 2017, the RRO
18 was expecting to welcome over 20 refugee families—including families from Syria, Iraq, and
19 Somalia—into the community in the coming days, weeks, and months, and had been actively
20 preparing for their arrival and resettlement in the greater Seattle area by carrying out on their
21 behalves the activities described above. As a result of the RRO’s efforts, these refugee families
22 already had domestic arrangements supporting their arrival in the United States and were
23 approved for travel. Yet, these families had their dreams dashed when they had to abruptly
24 cancel their travel plans as a result of the Original Executive Order.
25 102. Since the Original Executive Order, the RRO’s work has been completely
26 disrupted. The chaos surrounding the implementation of the Original and Revised Executive

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 19

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 23 of 76

1 Orders has also required the RRO to expend additional, unplanned-for resources. RRO staff are
2 working around-the-clock to address the immediate needs of these families in crisis and to
3 respond to questions and concerns from their families and loved ones already in the United
4 States who had been planning for the arrival of these already-approved refugees. In addition,
5 many of the RRO’s resources devoted to these refugee families over the past months have now
6 been wasted.
7 103. The Revised Executive Order only exacerbates the harm to the Diocese and the
8 population it serves. A few of the refugees the Diocese was expecting have arrived between the
9 time the Original Order was halted by court orders and the effective date of the Revised Order.
10 However as of the filing of this Amended Complaint, nearly 20 families from the Designated
11 Countries and nearly 17 families from other countries the Diocese was expecting have not
12 arrived and certainly will not be able to complete their trips once the Revised Order goes into
13 effect.
14 104. Both the Original and Revised Executive Orders have caused and continue to
15 cause significant additional harm to the most vulnerable population that the RRO and Episcopal
16 Diocese are focused on serving. These refugees are fleeing persecution in their country of origin,
17 and are now facing persecution in the safe haven they had been promised in the United States.
18 The dramatic reduction in the overall number of refugees allowed this year will not only rob
19 families of hope and a future but may also cost some of them their lives. The mission and
20 efficacy of the RRO, and through it the Episcopal Diocese, has been thwarted by the Original
21 Executive Order.
22

23

9. Plaintiff The Council on American-Islamic Relations-Washington

24 105. The Council on American-Islamic Relations-Washington (CAIR-WA) is a
25 grassroots civil rights and advocacy group. CAIR-WA is a 501 (c) (3) non-profit organization
26 that was incorporated in 2004 and operates from its offices in downtown Seattle.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 20

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 24 of 76

1 106. The mission of CAIR-WA is to enhance the understanding of Islam in
2 Washington state and throughout the United States by encouraging dialogue, protecting civil
3 liberties, empowering American Muslims, and building coalitions that promote justice and
4 mutual understanding. CAIR-WA also provides direct service to its Muslim constituents in the
5 form of information, training, and access to a network of over 50 pro bono attorneys.
6 107. Since January 27, 2017, and the issuance of the first Executive Order, CAIR-WA
7 has received several inquiries from American-Muslim travelers in Washington who have become
8 the target of unconstitutional and systematic ideological questioning by Transportation Security
9 Administration and Customs and Border Patrol agents about their religious values and political
10 views. The number of such inquiries has increased dramatically since January 27, 2016, and
11 CAIR-WA has devoted and continues to devote considerable unplanned-for resources to respond
12 to these inquiries and to educate the community about its rights in the face of the Executive
13 Orders.
14 108. Since January 27, 2017, CAIR-WA has also been flooded with inquiries from
15 affected persons about the impact of the Executive Orders on their ability or the ability of their
16 families to travel, cross borders, or with respect to visa or immigration status. CAIR-WA has
17 received over 70 such requests for help from US citizens and others since January 27, 2017.
18 109. In addition to its direct staff, CAIR-WA also works with a network of over 20 pro
19 bono attorneys in Washington who provide direct services to its constituents on civil rights,
20 immigration, and visa issues.
21 110. CAIR-WA has provided referrals and advice to many United States citizens
22 originally from the Affected Countries who are trying to reunite with their immediate families.
23 For example, a Somali national has contacted CAIR-WA regarding his petition to be reunited
24 with his wife and two children who remain in Djibouti. On January 23, 2017, the US Embassy
25 in Djibouti scheduled screening interviews for his family. The Embassy canceled these
26 interviews on January 29, 2017. Despite the injunction preventing the implementation of the

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 21

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 25 of 76

1 Original Order, the US Embassy has refused to reschedule the interviews, and his family is now
2 subject to the restrictions and delays of the Revised Order.
3 111. Another United States citizen originally from Sudan has contacted CAIR-WA
4 regarding her petition for her Sudanese father to receive an IR-5 visa. Her father was scheduled
5 for a screening interview at the US Embassy in the United Arab Emirates on February 15, 2017.
6 The Embassy canceled the interview when the Original Order issued. The interview was
7 rescheduled after the Original Order was enjoined, and her father received his visa on February
8 20, 2017. Unfortunately, however, her father’s efforts to book travel to the United States have
9 been thwarted, due to the issuance of the Revised Order. The airlines have required him to return
10 to the US Embassy to ensure that his recently issued visa is still valid. Her father is now afraid to
11 book his airline travel only to be detained or deported at the border when he tries to enter the
12 United States.
13 112. CAIR-WA assists and advises American Muslims such as those described above
14 and provides education, advocacy, and referrals so they may navigate both the stated and implied
15 ramifications of the Defendants’ Orders.
16 113. CAIR-WA has also experienced a dramatic increase in the number of inquiries
17 from the Muslim community regarding the signed Executive Orders since January 27, 2017; in
18 addition to inquiries about bullying, hate crimes, and other injuries suffered by those it serves as
19 a direct result of Defendants’ open antipathy for those observing the Muslim faith.
20 114. CAIR-WA has had to hire a part-time civil rights team member to handle the
21 extra work. This additional part-time position was not in CAIR’s 2017 budget, but was deemed a
22 necessary expenditure as part of CAIR-WA’s commitment to providing a rapid response to the
23 number of questions and reports of disruption in travel experienced by CAIR-WA constituents.
24 115. In direct response to the original and revised Executive Orders, CAIR-WA has
25 also organized several informational presentations for the Washington Muslim community to
26 address the confusion, concern, and fear the Orders have stimulated.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 22

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 26 of 76

1 116. In 2015 and prior years, at least 98 percent of CAIR-WA’s funding was from

2 individual donors, almost all of whom reside in the state of Washington, or from matching funds

3 from companies that employ its individual donors and volunteers. The remaining 2 percent of

4 CAIR-WA’s funding comes from sponsorship from locally-based non-profits, mosques, and

5 businesses that serve Washington communities.

6 B.
7

Defendants

8

117. Defendant Donald J. Trump is the President of the United States. He is sued in his

9 official capacity.

10

118. Defendant U.S. Department of State (“DOS”) is a cabinet department of the

11 United States federal government that is responsible for issuing visas.

12

119. Defendant Rex W. Tillerson is the Secretary of State and has responsibility for

13 overseeing enforcement and implementation of the Original Executive Order by all DOS staff.

14 He is sued in his official capacity.

15

120. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet

16 department of the United States federal government with the primary mission of securing the

17 United States. Its sub-agencies include U.S. Citizenship and Immigration Services (“USCIS”),

18 Customs and Border Protection (“CBP”), and Immigration and Customs Enforcement (“ICE”).

19

121. Defendant John Kelly is the Secretary of DHS and has responsibility for

20 overseeing enforcement and implementation of the Original Executive Order by all DHS staff.

21 He is sued in his official capacity.

22

122. Defendant U.S. Customs and Border Protection (“CBP”) is an agency within DHS

23 with the primary mission of detecting and preventing the unlawful entry of persons and goods

24 into the United States.

25

26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 23

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 27 of 76

1 123. Defendant Kevin K. McAleenan is the Acting Commissioner of CBP has

2 responsibility for overseeing enforcement and implementation of the Original Executive Order

3 by all CBP staff. He is sued in his official capacity.

4 124. Defendant Michele James is the Field Director of the Seattle Field Office of CBP

5 and has responsibility for overseeing enforcement and implementation of the Original Executive

6 Order by all DHS staff in her area, which covers Washington State. She is sued in her official

7 capacity.

8
9 A.
10

IV. FACTUAL BACKGROUND President Trump’s January 27, 2017 Original Executive Order

11

125. On January 27, 2017, Defendant Trump signed the Original Executive Order

12 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” A copy of

13 this Original Executive Order is attached to this Complaint as Exhibit A.

14

126. The Original Executive Order cited the threat of domestic terrorism committed by

15 foreign nationals and purported to direct a variety of changes to the manner and extent to which

16 non-citizens may seek and obtain admission to the United States.

17

127. Section 3(c) of the Original Executive Order suspended immigrant and

18 nonimmigrant entry into the country for 90 days for all people from countries referred to in

19 section 217(a)(12) of the INA, 8 U.S.C. § 1187(a)(12), with narrow exceptions not relevant here.

20 The Original Executive Order applied only to nationals of Syria, Sudan, Iraq, Iran, Libya,

21 Somalia, and Yemen (the “Original Targeted Countries”).12 The ban applied regardless of

22 whether such persons held valid visas and regardless of whether their visas were immigration or

23 non-immigration related.

24

128. Section 5(a) suspended the U.S. Refugee Admissions Program for 120 days.

25
12 Fact Sheet: Protecting The Nation from Foreign Terrorist Entry to The United States, Dep’t of Homeland
26 Security (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/protecting-nation-foreign-terrorist-
entry-united-states (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 24

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 28 of 76

1 129. Section 5(b) stated that “refugee claims made by individuals on the basis of
2 religious-based persecution, provided that the religion of the individual is a minority religion in
3 the individual’s country of nationality” will be prioritized.
4 130. Section 5(c) contained as its statement of government interest a proclamation
5 “that “the entry of nationals of Syria as refugees is detrimental to the interests of the United
6 States,” and suspends the entry of Syrian refugees into the country.
7 131. Section 5(e) provided for nearly unfettered individual discretion by the Secretaries
8 of State and Homeland Security to “jointly determine to admit individuals … as refugees on a
9 case-by-case basis, “in their discretion, but only so long as they determine that the admission of
10 such individuals as refugees is in the national interest—including when the person is a religious
11 minority in his country of nationality facing religious persecution.”
12 132. The Original Executive Order stated that “the United States should not admit
13 those who engage in acts of bigotry or hatred (including . . . the persecution of those who
14 practice religions different from their own)” and yet it singled out practitioners of a single
15 religion for exclusion. See Exhibit A, Sec. 1.
16

17

1. Visa Revocations Pursuant to the Original Executive Order

18 133. The same day the Original Executive Order issued, the Deputy Assistant
19 Secretary for Visa Services at the Bureau of Consular Affairs of the Department of State, relying
20 on the Original Executive Order, issued a letter purporting to provisionally revoke all valid
21 nonimmigrant and immigrant visas of nationals of the Original Targeted Countries, subject to
22 exceptions not relevant here.
23 134. The Provisional Revocation Letter was not publicized; to the contrary, it was
24 withheld from the public until it was filed four days later under a “Notice of Supplemental
25 Authority” in court cases challenging the Original Executive Order.
26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 25

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 29 of 76

1 135. Neither notice nor opportunity to be heard was provided to the Episcopal Diocese,

2 members of the Non-Immigrant Visa Class, Plaintiffs, or indeed anyone else prior to the mass

3 revocation of these visas.

4 136. The Provisional Revocation Letter compounded the chaos caused by the Original

5 Executive Order. The federal government issued no public and legally binding guidance

6 regarding the meaning or proper interpretation of the Provisional Revocation Letter. A copy of

7 this letter is attached to this Complaint as Exhibit B.

8 137. The Provisional Revocation Letter also appeared to expand the scope of the

9 Original Executive Order’s application: it applied on its face to persons who were present inside

10 the United States as well as persons outside the United States, rather than being limited to

11 persons seeking to enter the United States. Under section 221(a)(1)(B) of the INA, 8 U.S.C. §

12 1227(a)(i)(B), “[a]ny alien . . . whose nonimmigrant visa . . . has been revoked under section

13 1201(i) of this title” INA § 221(i), referenced in the Provisional Revocation Letter “is

14 deportable.”

15

138. The State Department estimated that it revoked up to 60,000 visas.13

16 139. The CBP stated on its website that all F1, J1, and M1 visas belonging to persons

17 from the affected countries were provisionally revoked.14

18 140. Upon information and belief, all H1B visas belonging to persons from the

19 affected countries were also provisionally revoked.

20

21

22

23

24 13 Mary Emily O’Hara, Over 100,000 Visas Have Been Revoked by Immigration Ban, Justice Dept. Reveals, NBC
(Feb. 3, 1027), available at http://www.nbcnews.com/news/us-news/over-100-000-visas-have-been-revoked-
25 immigration-ban-justice-n716121 (last accessed Mar. 13, 2017).
14 Q&A for Original Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States,
26 U.S. Customs and Border Protection (Feb. 2, 2017), available at https://www.cbp.gov/document/faqs/questions-
and-answers-protecting-nation-foreign-terrorist-entry-united-states (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 26

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 30 of 76

1

2. Chaos, Confusion, and Whiplash in the Implementation of the Original

Executive Order

2

3

141. The disastrous effects of the Original Executive Order were immediately

4 apparent. Countless news reports document the chaotic scene at airports across the country as

5 those who were legally entitled to entry when they boarded airplanes heading to the United

6 States—refugees, immigrants, and those traveling on non-immigrant visas alike—were

7 designated deportable by the time they landed. For example, 109 travelers from the Original

8 Targeted Countries on non-immigrant visas were in transit to the country at the time the Original

9 Executive Order was signed.15 Up to 13 people were detained at the Seattle-Tacoma

10 International Airport on January 28, 2017 pursuant to the Original Executive Order.16

11

142. Application of the Original Executive Order was inconsistent and confusing, with

12 contradictory official statements issued within days of one another—further heightening

13 Plaintiffs’ reasonable and on-going fear that if they left the country, they would not be permitted

14 to return to their work and studies.

15

143. For example, DHS’s position on the application of the Original Executive Order

16 to lawful permanent residents, or green card holders, changed three times over the course of six

17 days following the issuance of the Original Executive Order:

18

•

On January 28, 2017, a spokesperson for DHS stated that lawful permanent

19

residents, or green card holders, would be barred from entry pursuant to the

Original Executive Order. 20

21

•

Secretary Kelly reversed course the next day on January 29th, issuing a statement

that: “In applying the provisions of the president’s Original Executive Order, I

22

hereby deem the entry of lawful permanent residents to be in the national interest.

Accordingly, absent the receipt of significant derogatory information indicating a

23

24 15 Jeremy Diamond & Steve Almasy, Trump’s immigration ban sends shockwaves, CNN (Jan. 30, 2017), available
at http://www.cnn.com/2017/01/28/politics/donald-trump-executive-order-immigration-reaction/ (last accessed
25 Mar. 13, 2017).
16 Liz Jones & Isolde Raftery, Roller coaster of heartbreak and fury at Sea-Tac in wake of Trump order, KUOW.org
26 (Jan. 28, 2017), available at http://kuow.org/post/roller-coaster-heartbreak-and-fury-sea-tac-wake-trump-order
(last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 27

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 31 of 76

1

serious threat to public safety and welfare, lawful permanent resident status will

be a dispositive factor in our case-by-case determinations.” 2

•

Two days later on January 31, 2017, U.S. Customs and Border Protection, a DHS

3

sub-agency, issued a statement that, while repeating Secretary Kelly’s January

4

29th statement, then stated in the “Questions and Answers” Section that the entry

of lawful permanent residents would depend on receipt of a “national interest

5

waiver[] consistent with the provisions of the Original Executive Order.”

6

•

DHS changed its position yet again two days later. This time, the February 2,

2017 version of the “Questions and Answers” stated that “[u]nder recent guidance

7

from the White House…the Original Executive Order issued January 27, 2017,

8

does not apply to their [lawful permanent residents] entry to the United States.”

As of February 2, 2017, DHS had processed 1,610 waivers for legal permanent

9

residents to re-enter the United States.

10 144. In addition, on the day Defendant Trump issued the Original Order, Deputy
11 Assistant Secretary for Visa Services at the U.S. Department of State, Edward J. Ramotowski,
12 issued a letter that 17 “provisionally revoke[d] all valid nonimmigrant and immigrant visas of
13 nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.” But then on February 1, 2017,
14 White House Counsel Donald F. McGahn II—who is not in the chain of command for any of the
15 Executive Departments—issued “Authoritative Guidance,” admitting there was “reasonable
16 uncertainty” surrounding provisions of the Original Order such that he needed to clarify that
17 sections 3(c) and 3(e) of the Executive Order did not apply to lawful permanent residents.18
18 145. Provisions of the Original Executive Order relating to refugees also were
19 inconsistently interpreted and applied by Defendants, further heightening the need for judicial
20 intervention.
21

22

23
17 Letter from Edward J. Ramotowski, Deputy Assistant Secretary for Visa Services at the U.S. Dep’t of State (Jan.
24 27, 2017), available at http://www.politico.com/f/?id=00000159-f6bd-d173-a959-ffff671a0001 (last accessed Mar.
14, 2017).
25
18 Emergency Motion Under Circuit Rule 27-3 for Administrative Stay & Motion for Stay Pending Appeal at 72,
26 Washington v. Trump, No. 17-35105 (9th Cir. Feb. 4, 2017), ECF No. 14.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 28

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 32 of 76

1 146. For example, although Section 5(a) of the Original Executive Order
2 unequivocally stated that “[t]he Secretary of State shall suspend the U.S. Refugee Admissions
3 Program (USRAP) for 120 days,” four business days later on February 2, 2017, and in a reversal
4 of the clear mandate in the Original Executive Order, the Acting Director of the U.S.
5 Immigration and Citizenship Services (“USCIS”), a division of DHS, issued a guidance to all
6 USCIS employees that “USCIS will adjudicate Refugee/Asylee Relative Petitions [ ] for all
7 beneficiaries, from any country of nationality, currently in the United States…”. A copy of this
8 guidance is attached as Exhibit C.
9 147. In further contradiction of the clear language of unequivocal suspension of
10 USRAP, DHS instructed that “[a]dditionally, USCIS will continue refugee interviews in
11 jurisdictions where there is a preexisting international agreement related to refugee processing.”
12 Exhibit C.
13 148. The February 2, 2017 guidance to USCIS employees also stated that “USCIS will
14 continue refugee interviews when the person is a religious minority in his or her country of
15 nationality facing religious persecution.” Exhibit C (emphasis added).
16 149. As summed up by the Ten National Security Experts:
17

18

the repeated need for the Administration to clarify confusion after the Order

issued suggest that that Order received little, if any advance scrutiny by the

19

Departments of State, Justice, Homeland Security or the Intelligence Community.

20

Nor have we seen any evidence that the Order resulted from experienced

intelligence and security professionals recommending changes in response to

21

identified threats.”

22 Joint Declaration at ¶7.
23

24

25

26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 29

AMERICAN CIVIL LIBERTIES UNION
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901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 33 of 76

1

3. The Discriminatory Intent Behind the Original Executive Order

2 150. The Original Executive Order and the Provisional Revocation Letter applied only
3 to nationals of seven countries, all of which are majority-Muslim: Iraq, Iran, Libya, Somalia,
4 Sudan, Syria, and Yemen.
5 151. The Original Executive Order, by its express terms, suspended immigrant and
6 nonimmigrant entry into the United States based on nationality, place of birth or place of
7 residence.
8 152. The Provisional Revocation Letter similarly revoked “all valid nonimmigrant and
9 immigrant visas of nationals” based on nationality, place of birth, or place of residence.
10 153. The Original Executive Order was Defendant Trump’s fulfillment of a clearly
11 stated campaign promise to ban Muslims from entering the United States. In a December 7, 2015
12 written statement, “Donald J. Trump Statement on Preventing Muslim Immigration,” then-
13 candidate Trump said that he was “calling for a total and complete shutdown of Muslims
14 entering the United States.” This statement is still displayed on the official Trump-Pence website
15 as of the filing of this Complaint.19 16
154. When questioned about the “shutdown,” and asked whether a customs agent 17
would ask a person his or her religion, then candidate Trump responded, “They would say, ‘Are 18
you Muslim?’” The interviewer then asked, “And if they said, ‘yes,’ they would not be allowed 19 in the country?” “That’s correct,” Mr. Trump responded.20 20
155. Defendant Trump repeatedly referred to a ban on Muslim immigration on the 21 campaign trail.21 22

23 19 Press Release, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at 24 https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration (last
accessed Mar. 13, 2017).

25 20 Nick Gass, Trump Not Bothered by Comparisons to Hitler, Politico (Dec. 8, 2015), available at

http://www.politico.com/trump-muslims-shutdown-hitler-comparison (last accessed Mar. 13, 2017).
26 21 Donald J. Trump (@realDonaldTrump), Twitter (Dec. 7, 2015, 2:32 PM),

https://twitter.com/realDonaldTrump/status/673993417429524480 (last accessed Mar. 13, 2017);

FIRST AMENDED CLASS

AMERICAN CIVIL LIBERTIES UNION

KELLER ROHRBACK L.L.P.

ACTION COMPLAINT PAGE 30

OF WASHINGTON FOUNDATION
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 34 of 76

1 156. Defendant Trump also indicated that he knew that he would need to find an
2 alternative way to describe the Muslim ban. In response to a question on the July 17, 2016
3 episode of 60 Minutes about the evolution of his earlier rhetoric of an outright ban on Muslim
4 immigration to a ban on persons from territories that have a Muslim majority, the following
5 exchange took place:
6

7

Stahl: [I]n December, you [i.e., Pence] tweeted, and I quote you, “Calls to ban

Muslims from entering the U.S. are offensive and unconstitutional.” 8

Trump: So you call it territories. OK? We’re gonna do territories. We’re not

9

gonna let people come in from Syria that nobody knows who they are.

10

...

11 Stahl: [S]o you’re changing... your position.

12 Trump: —No, I—call it whatever you want. We’ll call it territories, OK?

13 Stahl: So not Muslims?
14

Trump: You know—the Constitution—there’s nothing like it. But it doesn’t

15

necessarily give us the right to commit suicide, as a country, OK? And I’ll tell

16

you this. Call it whatever you want, change territories [sic], but there are territories and terror states and terror nations that we’re not gonna allow the

17

people to come into our country.22

18

157. Seven days later in response to a question on NBC’s Meet the Press about

19 whether his acceptance speech at the Republican National Convention was a rollback on his

20 position, Defendant Trump reiterated the point when he replied:

21

22

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 territory. People were so upset when I used the

23

24

25 and Jenna Johnson, Trump calls for ‘total and complete shutdown of Muslims entering the United States’, The
Washington Post (Dec. 7, 2015), available at http://wpo.st/O0uY2 (last accessed Mar. 13, 2017).
26 22 Lesley Stahl, The Republican Ticket: Trump and Pence, CBS (Jul. 17, 2016), available at
http://www.cbsnews.com/news/60-minutes-trump-pence-republican-ticket/ (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 31

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 35 of 76

1

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.23

2

3

158. After the election, on December 22, 2016, a reporter asked Defendant Trump

4 whether his “plans to create a Muslim register or ban Muslim immigration to the United States”

5 had changed. Defendant Trump responded “you’ve known my plans all along” and that he was

6 “100% correct” in his position.24

7

159. After reading the title of the Original Order when signing it, Defendant Trump

8 said, “We all know what that means.”25

9

160. On the day Defendant Trump issued the Original Executive Order, he gave an

10 interview to the Christian Broadcasting Network during which he confirmed his intent to

11 prioritize non-Muslims nationals over Muslim nationals of those countries:

12

They’ve been horribly treated. Do you know if you were a Christian in Syria it

13

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

14

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

15

thought it was very, very unfair.26

16

161. Consistent with Defendant Trump’s expressed intent to favor Christians, Section

17 5(e) of the Original Executive Order authorized the Secretaries of the Departments of State and

18 Homeland Security to admit individuals who are members of “a religious minority in [their]

19

20

21 23 Rebecca Shabad, Donald Trump says he’s expanding his Muslim ban, CBS (July 24, 2016), available at
22 http://www.cbsnews.com/news/donald-trump-says-hes-expanding-muslim-ban/ (last accessed Mar. 13, 2017).
24 Katie Reilly, Donald Trump on Proposed Muslim Ban: ‘You Know My Plans’, Time (Dec. 21, 2016), available at
23 http://time.com/4611229/donald-trump-berlin-attack (last accessed Mar. 13, 2017).

24 25 Transcript of Ceremonial Swearing in of the Secretary of Defense, CNN (Jan. 27, 2017), available at
http://transcripts.cnn.com/TRANSCRIPTS/1701/27/cg.02.html (last accessed Mar. 13, 2017).
25 26 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As
Refugees, CBN News (Jan. 27, 2017), available at http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-
26 file-exclusive-president-trump-says-persecuted-christians-will-be-given-priority-as-refugees (last accessed Mar.
13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 32

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 36 of 76

1 count[ries] of nationality facing religious persecution.” Exhibit A. This provision directly grants
2 Christians preference over Muslim refugees.
3 162. During a signing ceremony for the Original Executive Order on January 27, 2017,
4 Defendant Trump stated that the purpose of the Original Executive Order was to “establish[] new
5 vetting measures to keep radical Islamic terrorists out of the United States of America.”27 6
163. Senior advisors to Defendant Trump have engaged in anti-Muslim rhetoric that 7
provide additional support for the notion that the Original Executive Order was prompted by 8
animus toward Islam and Muslims. 9
164. In an interview on January 28, 2017, one of Defendant Trump’s senior advisors, 10
Rudolph Giuliani, left no doubt that the ban on entry from nationals of the Original Targeted 11
Countries was intended to carry out a ban on Muslims, and that the Original Executive Order 12
was crafted to create a pretextual cover for a Muslim ban. Mr. Giuliani stated: “I’ll tell you the 13
whole history of it. . . . So, when [Defendant Trump] first announced it, he said, ‘Muslim ban.’ 14
He called me up. He said, ‘Put a commission together. Show me the right way to do it 15 legally.’”28 16
165. On January 29, an anonymous “senior administration official” briefed a staffer of 17
Breitbart.com on the intended purpose of the Original Executive Order: “The reality, though, is 18
that the situation [of large Islamic populations] that exists today in parts of France, in parts of 19 Germany, in Belgium, etcetera, is not a situation we want replicated inside the United States.”29 20

21

22
27 Dan Merica, Trump signs Original Executive Order to keep out ‘radical Islamic terrorists’, CNN (Jan. 30, 2017),
23 available at http://www.cnn.com/2017/01/27/politics/trump-plans-to-sign-executive-action-on-refugees-extreme-
vetting/ (last accessed Mar. 13, 2017).
24 28 Amy B. Wang, Trump asked for a ‘Muslim ban,’ Giuliani says — and ordered a commission to do it ‘legally’,
25 The Washington Post (Jan. 29, 2017), available at http://wpo.st/xzuY2 (last accessed Mar. 13, 2017).
29 Neil Munro, Left Protests While Trump Junks Obama’s Global Immigration Plan, Brietbart.com (Jan. 30, 2017),
26 available at http://www.breitbart.com/big-government/2017/01/30/trump-changes-immigration-favor-american-
values/ (parenthetical in original) (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 33

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 37 of 76

1 166. While Defendant Trump has subsequently tried to deny that his Original
2 Executive Order was “a Muslim ban, as the media [was] falsely reporting.”30 His own prior 3
conflicting, recorded statements as well as those of his senior advisors make clear the rationale 4
for the Original Executive Order is in fact to ban Muslims from entering the United States[.] 5
167. The Original Executive Order and the manner in which it was implemented 6
caused individual Plaintiffs and members of the proposed classes direct, ongoing, and immediate 7
harm by causing them to suffer “[t]he indignity of being singled out [by a government] for 8
special burdens’” on the basis of religion or assumed religion. Hassan v. City of New York, 804 9
F.3d 277, 289 (3d. Cir. 2015), as amended (Feb. 2, 2016) (quoting Locke v. Davey, 540 U.S. 712, 10
731, (2004) (Scalia, J., dissenting)). 11

12 B. President Trump’s March 6, 2017 Revised Executive Order

13 168. During a February 16, 2017 news conference, Donald Trump twice declared that
14 he would follow through on his campaign promise of a Muslim ban, albeit changing his
15 terminology to “radical Islamic terrorists”:
16

17

• “Some of the things I’m doing probably aren’t popular but they’re necessary for

security and for other reasons…I’m here following through on what I pledged to

18

do.”

19

• “We have taken decisive action to keep radical Islamic terrorists out of our

20

country. No parts are necessary and constitutional actions were blocked by

judges, in my opinion, incorrect, and unsafe ruling. [sic]…I got elected on defense

21

of our country. I keep my campaign promises, and our citizens will be very happy

when they see the result. They already are, I can tell you that. Extreme vetting

22

will be put in place and it already is in place in many places.31

23

24 30 Press Release, President Donald J. Trump Statement Regarding Recent Original Executive Order Concerning
Extreme Vetting, The White House (Jan. 29, 2017), available at https://www.whitehouse.gov/the-press-
25 office/2017/01/29/president-donald-j-trump-statement-regarding-recent-executive-order (last accessed Mar. 13,
2017).
26 31 Full Transcript: President Donald Trump’s News Conference, CNN (Feb. 16, 2017), available at
http://www.cnn.com/2017/02/16/politics/donald-trump-news-conference-transcript/ (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 34

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 38 of 76

1

2

169. Defendant Trump also announced during the February 16th news conference that

3 he would be “issuing a new executive action next week that will comprehensively protect our

4 country… That will be done sometime next week, toward the beginning or middle at the latest 5 part.”32 Defendant Trump did not issue a new order that following week.

6

170. On February 21, 2017, Stephen Miller, Senior Advisor to the President, described

7 the administration’s plans with regard to the Revised Order: “Fundamentally, you’re still going

8 to have the same basic policy outcome for the country, but you’re going to be responsive to a lot

9 of very technical issues that were brought up by the court and those will be addressed. But in

10 terms of protecting the country, those basic policies are still going to be in effect.”33

11

171. While the White House indicated that the new order would be signed on March 1,

12 2017—the day after Defendant Trump’s first address to Congress on February 28th,34 the signing

13 of the new order was delayed yet again.

14

172. On February 28th, an administration official told a news outlet that the delay was

15 due to the busy news cycle, that Defendant Trump wanted it to get plenty of attention, and “[w]e

16 need [the executive order] to have its own time to breathe.”35

17

173. On March 1, 2017, another senior Administration official told a different news

18 outlet that Defendant Trump delayed plans to sign a reworked travel ban in the wake of positive

19 reaction to his first address to Congress, explaining that “We want the (executive order) to have

20 its own ‘moment.’”36

21 32 See supra, n. 31. 22 33 See infra, n. 79.

23 34 Justin Fishel, New Trump Order on Travel and Immigration Expected Wednesday, ABC News (Feb. 2, 2017),
available at http://abcnews.go.com/Politics/trump-order-travel-immigration-expected-
24 wednesday/story?id=45814211 (last accessed on Mar. 13, 2017).
25 35 Shane Goldmacher & Nahal Toosi, Trump Delays Signing New Travel Ban Order, Officials Say, Politico (Feb.
28, 2017), available at http://www.politico.com/story/2017/02/trump-delays-travel-ban-order-235548 (last
26 accessed Mar. 13, 2017).
36 See supra, n. 34.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 35

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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 39 of 76

1 174. Five days later on March 6, 2017, Defendant Trump signed the Revised Executive
2 Order that has the exact same title as the Original Order, “Protecting the Nation from Foreign
3 Terrorist Entry into the United States.” A copy of this Revised Executive Order is attached to
4 this Complaint as Exhibit D.
5 175. Although the Revised Order was designed to appear facially neutral, Defendants
6 cannot erase the history or facts preceding its issuance, see supra Section IV.2., the taint of the
7 discriminatory motivation behind it, supra Section IV.3., or the complete arbitrariness of its
8 requirements. See infra Section IV.C.
9 176. Indeed, Defendant Trump has openly promoted that the Revised Order was his
10 continued fulfillment of his campaign promises. For example, on the day Defendant Trump
11 signed the Revised Order, he sent a fundraising email requesting support for the Revised Order
12 because he was “implement[ing] the policies you—and millions of American like you—voted
13 for.”37 And at a press conference the next day on March 7, 2017, White House Press Secretary 14
Sean Spicer confirmed that with the issuance of the Revised Order, Defendant Trump was 15
“deliver[ing]” on one of his “most significant campaign promises: protecting the country against 16 radical Islamic terrorism…”38 17
177. Pursuant to Section 13 of the Revised Order, the Original Order will be revoked 18
as of the effective date of the Revised Order. 19
178. Pursuant to Section 14 of the Revised Order, it will take effect on March 16, 20
2017. 21

22

23 37 Matt Zapotosky, David Nakamura, & Abigail Hauslohner, Revised Executive Order Bans Travelers from Six
Muslim-Majority Countries from Getting New Visas, Washington Post (Mar. 6, 2017), available at
24 https://www.washingtonpost.com/world/national-security/new-executive-order-bans-travelers-from-six-muslim-
majority-countries-applying-for-visas/2017/03/06/3012a42a-0277-11e7-ad5b-
25 d22680e18d10_story.html?utm_term=.c2b939d5bb80 (last accessed Mar. 13, 2017).
38 Press Briefing by Secretary Sean Spicer, No. 18, The White House (Mar. 7, 2017), available at
26 https://www.whitehouse.gov/the-press-office/2017/03/07/press-briefing-press-secretary-sean-spicer-372017-18
(last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 36

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 40 of 76

1 179. The Revised Order shares two fundamental features with the Original Order: it
2 continues to violate the rights of non-immigrants who need to renew their visas, and it continues
3 to violate the rights of refugees and asylees seeking to reunite with family members who have
4 already cleared all security hurdles.
5 180. Six of the seven countries targeted in the Original Order are still targeted by the
6 Revised Order. Section 2(c) of the Revised Order suspends entry into the United States by the
7 nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen for ninety days from the effective
8 date of the Revised Order.
9 181. All six banned countries have overwhelmingly Muslim populations.
10 182. Pursuant to Section 2(e) of the Revised Order, at the end of the ninety-day ban,
11 the Secretary of Homeland Security shall submit to the President a list of countries recommended
12 for inclusion in a Presidential proclamation that would prohibit the entry of categories of foreign
13 nationals of countries that have not provided the requested information until they do so or until
14 the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or
15 has adequately shared information through other means. The names of additional countries may
16 also be submitted to the President.
17 183. Pursuant to Section 3(a) of the Revised Order, the Order shall apply only to
18 foreign nationals of the designated countries who: (i) are outside the United States on the
19 effective date of this order; (ii) did not have a valid visa at 5:00 p.m., eastern standard time on
20 January 27, 2017; and (iii) do not have a valid visa on the effective date of the Revised Order.
21 184. Section 3 of the Revised Order provides for certain “exceptions” and potential
22 “waivers” to the travel ban.
23 185. Section 3(b) states that the Revised Order will not apply to: (i) any lawful
24 permanent resident of the United States; (ii) any foreign national who is admitted to or paroled
25 into the United States on or after the effective date of this order; (iii) any foreign national who
26 has a document other than a visa, valid on the effective date of this order or issued on any date

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 37

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 41 of 76

1 thereafter, that permits him or her to travel to the United States and seek entry or admission, such
2 as an advance parole document; (iv) any dual national of a country designated under section 2 of
3 this order when the individual is traveling on a passport issued by a non-designated country;
4 (v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty
5 Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
6 (vi) any foreign national who has been granted asylum; any refugee who has already been
7 admitted to the United States; or any individual who has been granted withholding of removal,
8 advance parole, or protection under the Convention Against Torture.
9 186. Section 3(c) allows a consular officer, or, as appropriate, the Commissioner, U.S.
10 Customs and Border Protection (CBP), or the Commissioner’s delegee, to decide on a case-by-
11 case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for
12 whom entry is otherwise suspended if the foreign national has demonstrated to the officer’s
13 satisfaction that denying entry during the suspension period would cause undue hardship, and
14 that his or her entry would not pose a threat to national security and would be in the national
15 interest.
16 187. This waiver provision is of little solace in light of statements and actions taken by
17 Defendants in support of a Muslim ban, such as Defendant Trump’s prior statement that a person
18 who admitted being a Muslim should be denied entry into the country. See supra ¶ 154.
19 188. Neither the Original nor Revised Order single out any countries for disfavored
20 treatment that are not majority-Muslim.
21 189. Section 6(a) of the Revised Order suspends all decisions on applications for
22 refugee status as well as travel of refugees into the United States for 120 days. The suspension
23 required in Section 6 does not apply to refugee applicants who, before the effective date of the
24 Revised Order, have been formally scheduled for transit by the Department of State.
25 190. Section 6(c) allows the Secretary of State and the Secretary of Homeland Security
26 to jointly determine to admit individuals to the United States as refugees on a case-by-case basis,

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 38

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 42 of 76

1 in their discretion, but only so long as they determine that the entry of such individuals as
2 refugees is in the national interest and does not pose a threat to the security or welfare of the
3 United States, including in circumstances such as the following: the individual’
4 s entry would enable the United States to conform its conduct to a preexisting international
5 agreement or arrangement, or the denial of entry would cause undue hardship.
6 191. Refugees or asylees who seek to have a family member(s) join them in the United
7 States must file Refugee/Asylee Relative Petitions (Form I-730). However, the Revised Order
8 will suspend all decisions on applications as well as travel for these family members.
9 192. On March 6, 2017, the Department of Homeland Security issued a Q&A:
10 Protecting the Nation from Foreign Terrorist Entry to The United States. A copy of the Q&A is
11 attached as Exhibit E. The Q&A provides:
12

13

Q27. Can the exception for refugee admission be used for Refugee/Asylee

Relative Petitions (Form I-730) cases where a family member is requesting a

14

beneficiary follow to join?

15

No. Individuals who already have valid visas or travel documents that permit

16

them to travel to the United States are exempt from the Executive Order. To the

extent that an individual does not yet have such documents, please contact the

17

Department of State.

18 C. The Arbitrariness of the Executive Orders

19 193. Despite repeated claims by Defendants regarding the immediate national security
20 need for the Orders, Defendant Trump took thirty-one days after the time this Court issued the
21 first injunction against the Original Order on February 3, 2017 to issue the Revised Order. At
22 least five of those days were due purely to timing of press coverage desired by Defendant Trump
23 and had nothing to do with national security.39 24

25

26
39 See supra, n. 34.
FIRST AMENDED CLASS ACTION COMPLAINT PAGE 39

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OF WASHINGTON FOUNDATION
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 43 of 76

1

1. Arbitrariness of the Travel Ban

2 194. Section 1 of the Original Executive Order, entitled “Purpose,” stated that at the
3 time of the September 11, 2001 (“9/11”) terrorist attacks, “State Department policy prevented
4 consular officers from properly scrutinizing the visa applications of several of the 19 foreign
5 nationals” involved in those attacks. Further, DHS’s Fact Sheet on the Original Executive Order
6 stated that “[t]he Original Executive Order protects the United States from countries
7 compromised by terrorism . . . .”40 The Revised Order continues to justify the actions of 8
Defendants based on events from 2001. See Revised Order, Section (1)(h). 9
195. Yet, neither the Original nor the Revised Executive Order impose any restrictions 10
on nationals of Egypt, Lebanon, Saudi Arabia, or the United Arab Emirates—the countries of 11
which the 9/11 attackers were citizens. A March 9, 2017 Breitbart article stated that ISIS boasted 12
that Saudi Arabia is the top provider of terrorists for its group, citing a high-ranking Iraqi 13
intelligence officer as saying, “The Saudi presence in ISIS is very large. What we have left are 14 mainly Iraqis and Saudis.”41 15
196. According to an article published on CNN, “[i]n financial disclosure forms during 16
the presidential campaign, [Defendant Trump] listed two companies with dealings in Egypt and 17
eight with business in Saudi Arabia. And in the UAE, the Trump Organization is partnering with 18 a local billionaire to develop two golf courses in Dubai.”42 19
197. The Original Order failed to cite a scintilla of evidence supporting the need for the 20
travel ban of nationals from the seven originally banned countries. Nor did or could Defendants 21
provide any such support in any of their briefings in the numerous courts where the Original 22

23 40 See supra, n.12.

24 41 Edwin Mora, Report: More Citizens of Saudi Arabia Have Joined Islamic State Than Any Other Country,
Breitbart (Mar. 9, 2017), available at http://www.breitbart.com/national-security/2017/03/09/report-key-u-s-ally-
25 saudi-arabia-no-1-jihadist-supplier-for-islamic-state/ (last accessed Mar. 13, 2017).
42 Kyle Blaine & Julia Horowitz, How the Trump administration chose the 7 countries in the immigration Original
26 Executive Order, CNN (Jan. 30, 2017), available at http://www.cnn.com/2017/01/29/politics/how-the-trump-
administration-chose-the-7-countries/ (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 40

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 44 of 76

1 Order was challenged in the weeks following its signing or the time leading up to the issuance of
2 the Revised Order. This is because Defendants simply do not have the facts to do so. And the
3 best Defendants could do in the Revised Order was to cite to a June 2016 Department of State
4 Country Report on Terrorism 2015. In relying on information for data from two years ago,
5 Defendants ignore more recent data from not only respected research organizations sources but
6 also the United States government’s own national security experts.
7 198. According to a September 2016 report from the Cato Institute, “[i]ncluding those
8 murdered in the terrorist attacks of September 11, 2001 (9/11), the chance of an American
9 perishing in a terrorist attack on U.S. soil that was committed by a foreigner over the 41-year
10 period studied here is 1 in 3.6 million per year.”43 Similarly, The Boston Globe reported in 2016 11
that “a person living in the United States is more than over 100 times more likely to be killed by 12 falling objects than by a jihadi terrorist.”44 Indeed, it appears that in 2016, Americans were less 13
likely to be killed by Muslim extremists (1 in six million) than for being Muslim (1 in one 14 million).45 15
199. Ten former national security, foreign policy, and intelligence officials at the 16
highest levels of the United States government, including John F. Kerry (former Secretary of 17
State), Avril D. Haines (former Deputy National Security Advisor ), Lisa O. Monaco (former 18
Assistant to the President for Homeland Security and Counterterrorism and Deputy National 19
Security Advisor), and Susan E. Rice (former National Security Advisor)—all of whom were 20
serving in their official capacities and “were current on active intelligence regarding all credible 21

22
43 Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, 798 CATO INSTITUTE POL’Y ANALYSIS 1 (Sept. 13,
23 2016), available at https://object.cato.org/sites/cato.org/files/pubs/pdf/pa798_1_1.pdf (last accessed Mar. 13
2017).
24 44 Graham Allison, Fear death from tree limbs, not tourists, BOSTON GLOBE (Feb. 1, 2016), available at 25 https://www.bostonglobe.com/opinion/editorials/2016/02/19/fear-death-from-tree-limbs-not-
terrorists/2ZrHzpP54GBHwbv2AVD6aM/story.html (last accessed Mar. 13, 2017).
26 45 Charles Kurzman; Muslim-American Terrorism: Muslim-American Involvement with Violent Extremism,
available at http://kurzman.unc.edu/muslim-american-terrorism/ (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 41

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 45 of 76

1 terrorist threat streams directed against the U.S” up until January 20, 2017, just seven days prior
2 to the issuance of the Original Executive Order (“Ten National Security Experts”)—filed a joint ,
3 sworn declaration in State of Washington, et al. v. Donald J. Trump et al., No. 17-35105 (9th 4
Cir.) (Dkt. 28-2) (Feb. 6, 2017) (“Joint Declaration”), attached as Exhibit B, stating that they 5
were “unaware of any specific threat that would justify the travel ban established by the Original 6
Executive Order” and that “[t]here is no national security purpose for a total bar on entry for 7
aliens from the seven named countries. See Exhibit F, Sec. 3-4. 8
200. These officials who were in office a mere seven days before the Original Order 9
issued “kn[e]w of no interagency process underway before January 20, 2017 to change current 10
vetting procedures, and the repeated need for the Administration to clarify confusion after the 11
Order issued suggest that that Order received little, if any advance scrutiny by the Departments 12
of State, Justice, Homeland Security or the Intelligence Community.” Id. at ¶ 7. Nor had the 13
officials seen “any evidence that the Order resulted from experienced intelligence and security 14
professionals recommending changes in response to identified threats.” Id. 15
201. Therefore, in their opinion, the Original Executive Order “c[ould] not be justified 16
on national security or foreign policy grounds.” Id. They explained that: 17

18

[s]ince September 11, 2001, not a single terrorist attack in the United States has

been perpetrated by aliens from the countries named in the Order. Very few

19

attacks on U.S. soil since September 11, 2001 have been traced to foreign

20

nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens. The Administration has identified no information or basis for

21

believing there is now a heightened or particularized future threat from the seven

named countries. Nor is there any rational basis for exempting from the ban

22

particular religious minorities (e.g., Christians), suggesting that the real target of

the ban remains one religious group (Muslims). In short, the Administration offers

23

no reason why it abruptly shifted to group-based bans when we have a tested

24

individualized vetting system developed and implemented by national security professionals across the government to guard the homeland, which is continually

25

re-evaluated to ensure that it is effective.

26 Id. at ¶ 4 (emphasis added).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 42

AMERICAN CIVIL LIBERTIES UNION
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 46 of 76

1 202. These respected civil servants, who have collectively “devoted decades to
2 combatting the various terrorist threats that the United States faces in a dynamic and dangerous
3 world” declared, in their professional opinions, that the Original Executive Order “does not
4 perform its declared task” of “protecting the nation from foreign terrorist entry into the United
5 States,” and instead actually undermined the national security of the United States. Id. ¶¶ 2-3.
6 203. Specifically, the Joint Declaration stated that the Original Executive Order:
7 (1) will endanger U.S. troops in the field; (2) will disrupt key counterterrorism, foreign policy,
8 and national security partnerships that are critical to addressing the threat posed by terrorist
9 groups such as ISIL; (3) will endanger intelligence sources in the field; (4) will likely feed the
10 recruitment narrative of ISIL and other extremists that portray the United States as at war with
11 Islam; (5) will disrupt ongoing law enforcement efforts; (6) will have a devastating humanitarian
12 impact; and 7) will cause economic damage to American citizens and residents. Id. ¶ 5.
13 204. The Joint Declaration also described pre-existing national security-based
14 immigration restrictions as “consistently tailored to respond to: (1) specific, credible threats
15 based on individualized information, (2) the best available intelligence and (3) thorough
16 interagency legal and policy review.” Id. ¶ 6. The document further described:
17

18

Since the 9/11 attacks, the United States has developed a rigorous system of

security vetting, leveraging the full capabilities of the law enforcement and

19

intelligence communities. This vetting is applied to travelers not once, but

20

multiple times. Refugees receive the most thorough vetting of any traveler to the

United States, taking on the average more than a year. Successive administrations

21

have continually worked to improve this vetting through robust information

sharing and data integration to identify potential terrorists without resorting to a

22

blanket ban on all aliens and refugees. Because various threat streams are

constantly mutating, as government officials, we sought continually to improve

23

that vetting, as was done in response to particular threats identified by U.S.

24

intelligence in 2011 and 2015. Placing additional restrictions on individuals from

certain countries in the visa waiver program –as has been done on occasion in the

25

past – merely allows for more individualized vettings before individuals with

particular passports are permitted to travel to the United States. 26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 43

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 47 of 76

1 Id. at ¶ 6.
2 205. While the Original Order allowed for the Secretaries of State and Homeland
3 Security to agree to admit travelers from these countries on a case-by-case basis, these experts
4 concluded that “in our experience it would be unrealistic for these overburdened agencies to
5 apply such procedures to every one of the thousands of affected individuals with urgent and
6 compelling needs to travel.” Id. at ¶ 5.f.
7 206. On the unprecedented scope of the Original Order, these experts wrote:
8

9

We know of no case where a President has invoked his statutory authority to

suspend admission for such a broad class of people. Even after 9/11, the U.S.

10

Government did not invoke the provisions of law cited by the Administration to

11

broadly bar entrants based on nationality, national origin, or religious affiliation.

In past cases, suspensions were limited to particular individuals or subclasses of

12

nationals who posed a specific, articulable threat based on their known actions

and affiliations. In adopting this Order, the Administration alleges no specific

13

derogatory factual information about any particular recipient of a visa or green

card or any vetting step omitted by current procedures. 14

15 Id. at ¶ 8.

16

207. Nearly 1000 current State Department officials formally registered their dissent to

17 the Original Order.46 These career diplomats explained:

18

19

A policy which closes our doors to over 200 million legitimate travelers in the

hopes of preventing a small number of travelers who intend to harm Americans

20

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

21

values of nondiscrimination, fair play, and extending a warm welcome to foreign

22

visitors and immigrants. Alternative solutions are available to address the risk of

terror attacks which are both more effective and in line with Department of State

23

and American values…

24

25
46 Steve Herman & Nike Ching, Sources: Nearly 1,000 at State Department Officially Dissent on Immigration
26 Order, VOA News (Jan. 31, 2017), available at http://www.voanews.com/a/over-a-thousand-state-dept-personnel-
officially-dissent-to-immigration-order/3700399.html (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 44

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 48 of 76

1

[ ] This ban, which can only be lifted under conditions which will be difficult or

impossible for countries to meet, will not achieve its stated aim of to protect the

2

American people from terrorist attacks by foreign nationals admitted to the United

3

States. Despite the Executive Order’s focus on them, a vanishingly small number of terror attacks on U.S. soil have been committed by foreign nationals who

4

recently entered the United States on an immigrant or nonimmigrant visa. Rather,

the overwhelming majority of attacks have been committed by native-born or

5

naturalized U.S. citizens--individuals who have been living in the United States

for decades, if not since birth. In the isolated incidents of foreign nationals

6

entering the U.S. on a visa to commit acts of terror, the nationals have come from

7

a range of countries, including many (such as Pakistan or Saudi Arabia) which are not covered by the Executive Order.

8 [ ] Given the near-absence of terror attacks committed in recent years by Syrian,

9

Iraqi, Irani, Libyan, Somalia, Sudanese, and Yemeni citizens who are in the U.S.

in after entering on a visa, this ban will have little practical effect in improving

10

public safety…

11

The end result of this ban will not be a drop in terror attacks in the United States;

12

rather, it will be a drop in international good will towards Americans and a threat

towards our economy.

13 A copy of this letter is attached to this Amended Complaint as Exhibit G.47

14

15

208. In the process of creating the Revised Order, the Office of Intelligence and

16 Analysis within the Department of Homeland Security that is charged with equipping the 17 Homeland Security Enterprise with timely intelligence and information,48 developed a paper

18 assessing the international terrorist threat to the United States and worldwide posed by citizens of

19 the seven Original Targeted Countries. Although the paper did not assess the risk of domestic

20 terrorism, included in the key findings were:

21

• citizens of the seven Original Targeted Countries were rarely implicated in US-

based terrorism; 22

23

• “country of citizenship is unlikely to be a reliable indicator of potential terrorist

activity”; and

24

25 47Document available at https://assets.documentcloud.org/documents/3438487/Dissent-Memo.pdf.
26 48 Leadership and Organization, Office of Intelligence and Analysis, Dep’t of Homeland Security (last published
Jan. 30, 2017), available at https://www.dhs.gov/office-intelligence-and-analysis (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 45

AMERICAN CIVIL LIBERTIES UNION
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 49 of 76

1

• Of the at least 82 primarily US-based individuals who died in the pursuit of or

were convicted of any terrorism-related federal offense inspired by a foreign

2

terrorist organization since the beginning of the Syrian conflict in March 2011, of

3

the seven Original Targeted Countries, Iran, Sudan, and Yemen had 1 each, and

there were no individuals from Syria.

4

5 Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States, Office of

6 Intelligence and Analysis, Dep’t of Homeland Security (2017), Exhibit H.49

7

209. A second, March 1, 2017 Intelligence Assessment announced in its title that

8 “Most Foreign-born, US-based Violent Extremists Radicalized after Entering Homeland…”

9 (“March 1 Intelligence Assessment”)50 also negates the necessity of the Revised Order’s travel

10 ban. A copy of this report is as it appeared in the MSNBC article attached as Exhibit I.

11

210. The March 1 Intelligence Assessment was based on information available as of

12 December 31, 2016. One of the key judgments of the March 1 Intelligence Assessment was that:

13

most foreign-born, US-based violent extremists likely radicalized several years

14

after their entry to the United States, limiting the ability of screening and vetting

15

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

16

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

17

States for more than 10 years before their indictment or death. A separate DHS

study that found recent foreign-born US violent extremists began radicalizing, on

18

average, 13 years after their entry to the United States further supports our

19

assessment.

20

211. The examples of terrorist activity cited in Section 1(h) of the Revised Order only

21 underscore the points raised in all of these reports and statements by national security experts

22 that the travel ban is unnecessary and will be ineffective. The first example cited relates to two

23

24 49 Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States, U.S., Dep’t of Homeland
Security (Feb. 2017), available at https://assets.documentcloud.org/documents/3474730/DHS-intelligence-
25 document-on-President-Donald.pdf (last accessed Mar. 13, 2017).
50 Rachel Maddow, TRMS Exclusive: DHS Document Undermines Trump Case for Travel Ban, MSNBC (Mar. 2,
26 2017), available at http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-
trump-case-travel-ban (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 46

AMERICAN CIVIL LIBERTIES UNION
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KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 50 of 76

1 Iraqi nationals; yet, the Revised Order removed Iraq from the list of targeted countries. The
2 second example was of a native of Somali who had been brought to the United States as a child
3 but then committed the act in question after he had been naturalized as a United States citizen
4 and when he was an adult.
5 212. On March 10, 2017, more than 130 foreign policy and national security experts
6 wrote an open letter to President Trump (“Open Letter”) concluding that the Revised Order
7 “suffers from the same core substantive defects as the previous version.” The experts raise the
8 concern that the Revised Order will “weaken U.S. national security” because it “jeopardize[s]
9 our relationships with allies and partners on whom we rely for vital counterterrorism cooperation
10 and information sharing. To Muslims— including those victimized by or fighting against ISIS—
11 it will send a message that reinforces the propaganda of ISIS and other extremist groups, that
12 falsely claim the United States is at war with Islam.” The Open Letter is attached as Exhibit J.51 13
213. The experts explain in the Open Letter: “Following the 9/11 attacks, the United 14
States developed a rigorous system of security vetting for travelers to our homeland, leveraging 15
the full capabilities of the intelligence and law enforcement communities. Since then, the U.S. 16
has added enhanced vetting procedures for travelers and has revised them continuously. Our 17 government applies this process to travelers not once, but multiple times.”52 18
214. In addition, the Revised Order now allows automatic entry for nationals of the 19
Designated Countries with valid visas, an admission by Defendants that the current screening 20
and vetting process for the admission of non-immigrant visa holders is adequate and effective to 21
protect this country’s national security interests. 22
215. Rather than wasting the resources of our security agencies banning millions of 23
individuals who are already being thoroughly analyzed through current procedures put in place 24

25 51 Document available at https://assets.documentcloud.org/documents/3515708/LetterFormerOfficialsonMarch6EO26 Pdf.pdf.
52 See supra, n. 51.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 47

AMERICAN CIVIL LIBERTIES UNION
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 51 of 76

1 by national security experts, Defendants should be focusing on the small but very dangerous
2 individuals for whom they have specific information that will lead to actually stopping attacks in
3 this country.
4

5

2. Arbitrariness of the Suspension of the Refugee Admissions Program

6 216. In priming the country for the Revised Order, Defendant Trump relies upon
7 arbitrary and irrational animus towards refugees with no factual basis. For example, in discussing
8 refugees at a February 18, 2017 rally in Melbourne, Florida, he claimed: “We've allowed
9 thousands and thousands of people into our country and there was no way to vet those people.
10 There was no documentation. There was no nothing. So we’re going to keep our country safe.”53 11
217. However, according to the State Department’s January 20, 2017 Bureau of 12
Population, Refugees, and Migration Fact Sheet: 13

14

All refugees undergo the most intensive security screening of any traveler to the

United States. This screening includes multiple federal intelligence, security, and

15

law enforcement agencies, including the National Counterterrorism Center, the

16

FBI Terrorist Screening Center, and the Departments of Homeland Security,

State, and Defense. Syrian refugees go through yet additional forms of security

17

screening. A refugee applicant cannot be approved for travel until all required

security checks have been completed and cleared.54

18

19

218. The U.S. Government has a great deal of experience screening and admitting

20 large numbers of refugees from chaotic environments, including where intelligence holdings are

21 limited.

22

23

24 53 Jacob Gardenswartz, Transcript: President Donald Trump’s rally in Melborne, Florida, Vox (Feb. 18, 2017),
available at http://www.vox.com/2017/2/18/14659952/trump-transcript-rally-melbourne-florida (last accessed
25 Mar. 13, 2017).
54 U.S. Dep’t of State Diplomacy in Action, U.S. Refugee Admissions Program FAQ’s, Bureau of Population,
26 Refugees, and Migration (Jan. 20, 2017), available at
https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 48

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 52 of 76

1 219. According to the U.S. Citizenship and Immigration Services (“USCIS”), the
2 government agency that oversees lawful immigration to the United States:
3

4

Refugee applicants are subject to intensive biographic and biometric security

checks. Through close coordination with the federal law enforcement and

5

intelligence communities, these checks are continually reviewed and enhanced to

6

address specific populations that may pose particular threats.

7

The United Nations High Commissioner for Refugees (UNHCR) identifies and

refers many refugees to the U.S. Refugee Admissions Program (“USRAP”) for

8

resettlement consideration. UNHCR also provides important information about

the worldwide refugee situation. 9

The Department of State (State) coordinates and manages the USRAP.

10

Resettlement Support Centers (RSCs) work with State to carry out administrative

11

and processing functions, such as file preparation, data collection, and out-

processing activities during the refugee admissions process.

12

USCIS conducts interviews with applicants to determine their eligibility for

13

refugee status, including whether they are credible, meet the refugee definition,

and are otherwise admissible to the United States under U.S. law.55 14

15

220. The general refugee process encompasses the following: 56

16

17

18

19

20

21

22

23

24 55U.S. Citizenship and Immigration Services: Refugee Processing and Security Screening, U.S. Department of 25 Homeland Security (last updated Dec. 3, 2015), available at https://www.uscis.gov/refugeescreening (last acessed
on Mar. 2, 2017).
26 56 Refugee Processing and Security Screening, U.S. Citizenship and Immigration Services (last reviewed/updated
Dec. 3, 2015), available at https://www.uscis.gov/refugeescreening (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 49

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 53 of 76

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

221. The non-existent vetting process claimed by Defendant Trump actually consists of

18 the following numerous steps:

19

USRAP Screening 20

21

USRAP screening is a shared responsibility. It includes both biometric and biographic checks at multiple stages during the process, including immediately

22

before a refugee’s departure to the United States and upon his or her arrival in the

United States.

23

The screening of refugee applicants involves numerous biographic checks that are

24

initiated by the RSCs and reviewed and/or resolved by USCIS. These include:

25

The Department of State’s Consular Lookout and Support System (CLASS)

26

State initiates CLASS name checks for all refugee applicants when they are

being prescreened by an RSC. Name checks are conducted on the applicant’s

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 50

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 54 of 76

1

primary names as well as any variations used by the applicant. Responses are

received before the USCIS interview, and possible matches are reviewed and

2

adjudicated by USCIS headquarters. Evidence of the response is included in

3

the case file. If a new name or variation is identified at the interview, USCIS requests another CLASS name check on the new name and places the case on

4

hold until that response is received.

5

CLASS is owned by State. The name-check database provides access to

critical information for adjudicating immigration applications. The system

6

contains records provided by numerous agencies and includes information on

individuals who have been denied visas, immigration violations, criminal

7

histories, and terrorism concerns, as well as intelligence information and child

8

support enforcement data.

9

In addition to containing information from State sources, CLASS also

includes information from:

10

o National Counterterrorism Center/Terrorist Screening Center (terrorist

11

watch lists),

12

o TECS, o Interpol,

13

o Drug Enforcement Administration,

o Health and Human Services, and

14

o FBI (extracts of the National Crime Information Center’s Wanted Persons

File, Immigration Violator File, Foreign Fugitive File, Violent Gang and

15

Terrorist Organization File (and the Interstate Identification Index)).

16

Security Advisory Opinion (SAO)

17 State initiates SAO name checks for certain refugee applicants when they are

18

being prescreened by an RSC. The SAO biographic check is conducted by the

FBI and intelligence community partners. SAOs are conducted for an

19

applicant who is a member of a group or nationality that the U.S. government

has designated as requiring this higher level check. SAOs are processed, and a

20

response must be received before finalizing the decision. If there is a new

21

name or variation identified at the interview, USCIS requests another SAO for

the new name and places the case on hold until that response is received.

22 The SAO process was implemented after Sept. 11, 2001, to provide an

23

additional security mechanism to screen individuals in certain higher-risk

categories who are seeking to enter the United States through a variety of

24

means, including refugee applicants.

25

Interagency Check (IAC)

26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 51

AMERICAN CIVIL LIBERTIES UNION
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901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 55 of 76

1

The IAC screens biographic data, including names, dates of birth, and other

additional data of all refugee applicants within designated age ranges. This

2

information is captured at the time the applicant is prescreened and is

3

provided to intelligence community partners. This screening procedure began in 2008 and has expanded over time to include a broader range of applicants

4

and records. These checks occur throughout the process.

5

At the time of USCIS interview, USCIS staff collects fingerprints and begins

biometric checks. These checks include:

6

• FBI Fingerprint Check through Next Generation Identification

7

(NGI): Recurring biometric record checks pertaining to criminal history

8

and previous immigration data.

9

• DHS Automated Biometric Identification System (IDENT - f/n/a US-

VISIT): A biometric record check related to travel and immigration

10

history as well as immigration violations, and law enforcement and

national security concerns. Enrollment in IDENT also allows U.S.

11

Customs and Border Protection (CBP) to confirm the applicant’s identity

12

at U.S. ports of entry.

13

• DOD Defense Forensics and Biometrics Agency (DFBA)’s Automated

Biometric Identification System (ABIS): A biometric record check of

14

the Department of Defense’s (DOD) records collected in areas of conflict

(predominantly Iraq and Afghanistan). DOD screening began in 2007 for

15

Iraqi applicants and has now been expanded to all nationalities. CBP’s

16

National Targeting Center-Passenger (NTC-P) conducts biographic vetting of all ABIS biometric matches against various classified and unclassified

17

U.S. government databases.

18

USCIS Interview 19

The USCIS refugee interview is an important part of the refugee screening

20

process. Highly trained USCIS officers conduct extensive interviews with each

21

refugee applicant to learn more about the applicant's claim for refugee status and

admissibility. These officers have undergone specialized and extensive training

22

on:

23

• Refugee law,

• Grounds of inadmissibility,

24

• Fraud detection and prevention,

25

• Security protocols,

• Interviewing techniques,

26

• Credibility analysis, and

• Country conditions research.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 52

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 56 of 76

1

Before deploying overseas, officers also receive additional training on the specific

2

population that they will be interviewing, detailed country of origin information,

3

and updates on any fraud trends or security issues that have been identified.

4

Officers conducting interviews of Syrian applicants undergo an expanded 1-week

training focusing on Syria-specific topics, including a classified intelligence

5

briefing. During the interview, the officer develops lines of questioning to obtain

information on whether the applicant has been involved in terrorist activity,

6

criminal activity, or the persecution/torture of others. The officer will also

conduct a credibility assessment on each applicant. 7

8

Controlled Application Review and Resolution Process (CARRP)

9

During the process of adjudicating any USCIS benefit, if any national security

concerns are raised, either based on security and background checks or personal

10

interviews or testimony, USCIS conducts an additional review through the

internal CARRP process. CARRP is an internal USCIS process that a case can go

11

through to ensure that immigration benefits or services are not granted to

12

individuals who pose a threat to national security and/or public safety, or who seek to defraud our immigration system.

13 Enhanced Review for Syrian Applicants

14 USCIS’ Refugee, Asylum, and International Operations Directorate and Fraud

15

Detection and National Security Directorate (FDNS) work together to provide

enhanced review of certain Syrian cases. This review involves FDNS providing

16

intelligence-driven support to refugee adjudicators, including identifying threats

17

and suggesting topics for questioning. FDNS also monitors terrorist watch lists and disseminates intelligence information reports on any applicants who are

18

determined to present a national security threat.

19

CBP Vetting

20

CBP inspects all applicants who are approved for refugee resettlement to the

United States to determine their admissibility before they are admitted as

21

refugees. CBP receives a manifest of all approved individuals who have been

22

booked for travel to the United States. CBP receives this manifest 8 days before the scheduled travel. CBP begins vetting the individuals before they arrive at a

23

U.S. airport and then conducts an inspection and additional background checks of

these individuals upon their arrival at a U.S. airport.57

24

25

26
57 See supra, n. 56.
FIRST AMENDED CLASS ACTION COMPLAINT PAGE 53

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 57 of 76

1 222. Defendant Trump has misrepresented that “there was no way to vet those people”
2 in an attempt to justify his arbitrary and unjustified suspension of the refugee admissions
3 program. However, USCIS Director León Rodriguez’s explained in his September 28, 2016
4 written testimony for a Senate Committee on the Judiciary, Subcommittee on Immigration and
5 the National Interest hearing that “[a]ll refugees entering our country are subject to the highest
6 level of security check of any category of any traveler to the United States and admitted only
7 after successfully completing a stringent security screening process.”58 He further detailed: 8

9

Recognizing that a well-trained cadre of officers is critical to protecting the

integrity of the refugee process, we have focused our efforts on providing the

10

highest quality training to our officers. In addition to the basic training required of

11

all USCIS officers, refugee officers receive nine weeks of specialized training that

includes comprehensive instruction on all aspects of the job, including refugee

12

law, grounds of inadmissibility, fraud detection and prevention, security

protocols, interviewing techniques, credibility analysis, and country conditions

13

research. Before deploying overseas, officers also receive pre-departure training,

which focuses on the specific population that they will be interviewing. This

14

includes information on the types of refugee claims that they are likely to

15

encounter, detailed country of origin information, and updates on any fraud trends

or security issues that have been identified. With the advent of large-scale

16

processing of Iraqi applicants in 2007, USCIS officers who adjudicate Iraqi

refugee applications began receiving an additional two-day training on country-

17

specific issues, including briefings from outside experts from the law

18

enforcement, intelligence, policy, and academic communities. This training has since expanded to a one-week training in order to include Syria-specific topics in

19

addition to Iraqi ones.

20

In order to fully explore refugee claims and to identify any possible grounds of

ineligibility, specially-trained USCIS officers conduct an in-person, in-depth

21

interview of every principal refugee applicant. The officer assesses the credibility

of the applicant and evaluates whether the applicant’s testimony is consistent with

22

known country conditions. These officers also interview each accompanying

23

family member age 14 and older. All applicants must establish admissibility to the

United States before the case (i.e., the collection of applicants) is approved. In

24

addition, refugee applicants are subject to robust security screening protocols to

25 58 Written Testimony of USCIS Director Leon Rodriguez for a Senate Committee on Immigration and the National
Interest Hearing: Oversight of the Administration’s FY 2017 Refugee Resettlement Program, Dep’t of Homeland
26 Security (Sep. 28, 2016) available at https://www.dhs.gov/news/2016/09/28/written-testimony-uscis-director-
senate-judiciary-subcommittee-immigration-and (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 54

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 58 of 76

1

identify potential fraud, criminal or national security issues. All refugee status

determinations made by interviewing officers undergo supervisory review before

2

a final decision is made. Refugee Affairs Division policy requires officers to

3

submit certain categories of sensitive cases – including certain national securityrelated cases – to Refugee Affairs Division Headquarters to obtain concurrence

4

prior to the issuance of a decision. This allows for Headquarters staff to conduct

additional research, liaise with law enforcement or intelligence agencies, or

5

consult with an outside expert before finalizing the decision.59

6 223. In addition, as recently as January 20, 2017, the U.S. Department of State issued a
7 Fact Sheet that makes clear that the reality of the refugee screening process was, is, and
8 continues to be the complete opposite of what Defendant Trump has claimed:
9

10

No traveler to the United States is subject to more rigorous security screening

than the refugees the U.S. Government considers for admission. Only after the

11

U.S. Government’s rigorous and lengthy security screening process has been

12

completed and an applicant is not found to pose a threat does the U.S.

Government grant that individual refugee admission to the U.S. Security

13

screening of all refugees involves multiple U.S. agencies, including the

Departments of State, Homeland Security (DHS), and Defense, the Federal

14

Bureau of Investigation, The National Counterterrorism Center, the Terrorist

Screening Center, and two federal intelligence agencies.60 15

16 Emphasis added.

17

224. Finally, the Open Letter from the foreign policy and national security experts

18 affirms:

19

20

[r]efugees are vetted more intensively than any other category of traveler. They

are screened by national intelligence agencies and INTERPOL, their fingerprints

21

and other biometric data are checked against terrorist and criminal databases, and

they are interviewed several times. These processes undergo review on an

22

ongoing basis to ensure that the most updated and rigorous measures are applied,

23

24

25
26 59 See supra, n. 58.
60 See supra, n. 54.
FIRST AMENDED CLASS ACTION COMPLAINT PAGE 55

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 59 of 76

1

and any additional enhancements can be added without halting refugee

resettlement or banning people from certain countries.61

2

3

225. The actual facts are that the already existing refugee admissions process is

4 stringent, robust, lengthy, and rigorous. Extreme vetting is already in place.

5

226. Defendant Trump repeatedly demonized Syrian refugees,62 and made clear his

6 intention to ban them from the country:

7

8

9

10

11

12

13

14

15

16

17

18

19

20 227. In line with his rhetoric, the Original Order indefinitely suspended the admission
21 of Syrian refugees because the “entry of nationals of Syria as refugees is detrimental to the
22 interests of the United States.” Original Order Section 5(c).
23

24 61 See supra, n. 51.
25 62 Jesselyn Cook, 7 Lies Donald Trump Has Spread About Syrian Refugees Entering the U.S., Huffington Post (Oct.
20, 2016), available at http://www.huffingtonpost.com/entry/donald-trump-refugee-
26 crisis_us_5807809ae4b0180a36e7ac14 (last accessed Mar. 13, 2017), and Donald J. Trump @realDonaldTrump,
Twitter (Apr. 7, 2016, 7:22 PM), https://twitter.com/realDonaldTrump/status/718269255872081922

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 56

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 60 of 76

1 228. The Revised Order removed the provision suspending the admission of Syrian
2 refugees indefinitely, demonstrating the farce behind the assertion in the Original Order that their
3 entry was detrimental to the national interests of the country and highlighting the arbitrary nature
4 in which Defendants have gone about developing and implementing both the Original and
5 Revised Executive Orders.
6

7 D. Court Orders and President Trump’s Continuing Defiance Thereof

8 229. Although both this Court and other courts around the country have granted writs
9 of habeas, temporary restraining orders and preliminary injunctions (some nationwide) and the
10 Original Order has been rescinded, Plaintiffs are compelled to continue this action to ensure their
11 rights are protected. Many, if not all, of the existing litigation and court orders do not help
12 Washington residents who entered the country on single entry or now expired multiple entry
13 non-immigrant visas. They are now stuck inside the country. In addition, numerous Washington
14 residents who are asylees still await the arrival of their families who have completed the rigorous
15 refugee security clearance process.
16 230. In addition, despite the fact that he revoked the Original Executive Order,
17 Defendants’ repeated actions and statements make it far from clear that Defendant Trump will
18 not revert to his original position.
19 231. Immediately after the first nationwide stay was granted, see Darweesh v. Trump,
20 No. 17 CIV. 480 (AMD), 2017 WL 388504, at *1 (E.D.N.Y. Jan. 28, 2017), Defendant DHS
21 issued a statement that “President Trump’s Original Executive Orders remain in place—
22 prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas
23 at any time if required for national security or public safety.”63 And Defendant Trump claimed, 24

25
63 Department of Homeland Security Response To Recent Litigation, Dep’t Homeland Security (Jan. 29, 2017),
26 available at https://www.dhs.gov/news/2017/01/29/department-homeland-security-response-recent-litigation (last
accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 57

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 61 of 76

1 “If the ban were announced with a one week notice, the ‘bad’ would rush into our country during

2 that week. A lot of bad ‘dudes’ out there!”64

3 232. On January 31, 2017, acting United States Attorney General Sally Yates issued a

4 memorandum to Department of Justice employees instructing them to not act to enforce the

5 Original Executive Order because she was “not convinced . . . that the Original Executive Order

6 is lawful.”65 Ms. Yates wrote:

7

My responsibility is to ensure that the position of the Department of Justice is not

8

only legally defensible, but is informed by our best view of what the law is after

consideration of all the facts. In addition, I am responsible for ensuring that the

9

positons we take 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

10

convinced that the defense of the Original Executive Order is consistent with

these responsibilities, nor am I convinced that the Original Executive Order is

11

lawful.66

12 233. Within hours of her issuance of this statement, and its hand-delivery to Defendant
13 Trump, Defendant Trump fired Ms. Yates, calling her statement a “betrayal.”
14 234. After this Court issued a Temporary Restraining Order (“TRO”) on February 3,
15 2017 and the Ninth Circuit issued a unanimous decision upholding the TRO on February 9,
16 2017, Defendants vowed to keep fighting the court orders.
17 235. Even more unusual were Defendant Trump’s statements that followed the District
18 Court and Ninth Circuit’s Orders:
19

20

21

22

23
64 Donald J. Trump (@realDonaldTrump, Twitter (Jan. 30, 2017 5:31 AM),
24 https://twitter.com/realdonaldtrump/status/826060143825666051
25 65 Letter from Sally Yates to Dep’t of Justice (Jan. 30, 2017), available at
https://www.nytimes.com/interactive/2017/01/30/us/document-Letter-From-Sally-Yates.html?_r=1 (last accessed
26 Mar. 13, 2017).
66 See supra, n. 65.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 58

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 62 of 76

1

•

@realDonaldTrump: “The opinion of this so-called judge, which essentially takes

law-enforcement away from our country, is ridiculous and will be overturned!” --

2

5:12 AM - 4 Feb 201767

3

•

@realDonaldTrump: “What is our country coming to when a judge can halt a

4

Homeland Security travel ban and anyone, even with bad intentions, can come

into U.S.?” -- 12:44 PM - 4 Feb 201768

5

•

@realDonaldTrump: “Because the ban was lifted by a judge, many very bad and

6

dangerous people may be pouring into our country. A terrible decision” -- 1:44

7

PM - 4 Feb 201769

8

•

@realDonaldTrump: “Why aren’t the lawyers looking at and using the Federal

Court decision in Boston, which is at conflict with ridiculous lift ban decision?” --

9

3:37 PM - 4 Feb 201770

10

•

@realDonaldTrump: “The judge opens up our country to potential terrorists and

others that do not have our best interests at heart. Bad people are very happy!” --

11

4:48 PM - 4 Feb 201771

12

•

@realDonaldTrump: “Just cannot believe a judge would put our country in such

13

peril. If something happens blame him and court system. People pouring in. Bad!”

-- 12:39 PM - 5 Feb 201772

14

•

@realDonaldTrump: “I have instructed Homeland Security to check people

15

coming into our country VERY CAREFULLY. The courts are making the job

16

very difficult!” -- 3:35 PM - 9 Feb 201773

17

18 67 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 5:12 PM), 19 https://twitter.com/realdonaldtrump/status/827867311054974976.
68 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 12:44 PM),
20 https://twitter.com/realDonaldTrump/status/827981079042805761.

21 69 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 1:44 PM),
https://twitter.com/realDonaldTrump/status/827996357252243456.
22 70 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 3:37 PM),
23 https://twitter.com/realDonaldTrump/status/828024835670413312.
71 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 4:48 PM),
24 https://twitter.com/realDonaldTrump/status/828042506851934209.

25 72 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 5, 2017, 12:39 PM),
https://twitter.com/realDonaldTrump/status/828342202174668800
26 73 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 5, 2017, 12:42 PM),
https://twitter.com/realDonaldTrump/status/828343072840900610.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 59

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
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Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 63 of 76

1

•

@realDonaldTrump: “SEE YOU IN COURT, THE SECURITY OF OUR

NATION IS AT STAKE!” -- 12:42 PM - 5 Feb 201774 2

3

•

@realDonaldTrump” “Our legal system is broken! ‘77% of refugees allowed into

U.S. since travel reprieve hail from seven suspect countries.’ (WT) [sic] SO

4

DANGEROUS!” – 4:12 AM - 11 Feb 201775

5

236. The day before the Ninth Circuit issued its ruling, Defendant Trump declared that

6 the Original Order was “so simple and so beautifully written and so perfectly written”76 and cast

7 further aspersions this country’s judicial system, stating, “I don't ever want to call a court biased,

8 so I won't call it biased. And we haven't had a decision yet. But courts seem to be so political and

9 it would be so great for our justice system if they would be able to read a statement and do what's

10 right.”

11

237. In their February 16, 2017 supplemental brief regarding review of the Ninth

12 Circuit’s decision to deny Defendant’s request for a stay of the TRO by the entire panel,

13 Defendants represented that “[r]ather than continuing this litigation, the President intends in the

14 near future to rescind the Order and replace it with a new, substantially revised Executive

15 Order…” 77

16

238. Yet on that very same day, Defendant Trump directly contradicted the

17 representations made to the Ninth Circuit in the supplemental briefing filed by the United States

18 government on his behalf. During a news conference, Defendant Trump stated: “We’re issuing a

19 new executive action next week that will comprehensively protect our country. So we’ll be going

20

21 74 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 9, 2017, 3:35 PM),
22 https://twitter.com/realDonaldTrump/status/829836231802515457.
75 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 11, 2017, 4:12 AM),
23 https://twitter.com/realDonaldTrump/status/830389130311921667.

24 76 Matt Zapotosky & Robert Barnes, As Judges weigh travel ban, Trump Asserts that Courts are “so political”,
Washington Post (Feb. 8, 2017), available at http://www.chicagotribune.com/news/nationworld/politics/ct-trump-
25 defends-travel-ban-20170208-story.html (last accessed Mar. 13, 2017).
77 Supplemental Brief at 154, State of Washington, et al. v. Donald J. Trump, et al., No. 2:17-cv-00141, Dkt. No.
26 154 (W.D. Wash.), see also Motion for Stay at 14, State of Washington, et al. v. Donald J. Trump, et al., No. 2:17-
cv-00141, (W.D. Wash.).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 60

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 64 of 76

1 along the one path and hopefully winning that, at the same time we will be issuing a new and
2 very comprehensive order to protect our people.”78 3
239. Further, on February 21, 2017, senior policy adviser Stephen Miller not only 4
claimed “[n]othing was wrong with the first executive order” but also revealed that the revised 5
travel ban will have “mostly minor technical differences” from the Original Order and 6 “fundamentally” would be “the same basic policy outcome for the country.”79 7
240. In addition, during White House press briefings on February 21, 22, and 23, 2017, 8
Press Secretary Sean Spicer stated that the Defendant Trump will continue to pursue the case in 9
the Ninth Circuit. In particular, Mr. Spicer stated: 10

11

• On February 21, 2017: The President has “made very clear” that there will be

a “dual-track system” and is 80“confident that we’re still going to prevail on

12

the case—the merits of the case.”

13 • On February 22, 2017: The President is “fighting this on both fronts, making

14

sure that we keep evolving through the 81court system on the existing EO,”

while drafting an additional executive order. 15

16

• On February 23, 2017: “So with respect to the executive order [on

immigration], there are several courts that this is being fought in—10 or so—

17

and we continue to deal with that in all of those venues. And then again, I

guess, the only way to say this is, then obviously on the dual-track side we

18

have the additional executive order that we’ve talked about earlier that will

come out and further address the problems. We continue to believe that the 19

20 78 Presidential News Conference (Feb. 16, 2017), transcript and video is available at
https://www.nytimes.com/video/us/politics/100000004937194/trump-labor-secretary.html (last accessed on Mar.
21 13, 2017).
79 Martha McCallum, Miller: New Order Will Be Responsive to the Judicial Ruling; Rep. Ron DeSantis: Congress
22 has Gotten Off to a Slow Start, Fox (Feb. 21, 2017) available at
http://www.foxnews.com/transcript/2017/02/21/miller-new-order-will-be-responsive-to-judicial-ruling-rep-ron-
23 desantis/ (last accessed Mar. 13, 2017).

24 80 Press Briefing by Secretary Sean Spicer, #13, The White House (Feb. 21, 2017), available at
https://www.whitehouse.gov/the-press-office/2017/02/21/press-briefing-press-secretary-sean-spicer-2212017-13
25 (last accessed Mar. 13, 2017).
81Press Briefing by Secretary Sean Spicer, #14, The White House (Feb. 22, 2017), available at
26 https://www.whitehouse.gov/the-press-office/2017/02/22/press-briefing-press-secretary-sean-spicer-2222017-14
(last accessed Feb. 27, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 61

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 65 of 76

1

issues that we face specifically in the 9th district—9th Circuit, rather, that we

will prevail on, on the merits of that. But on the other challenges that have

2

come and the other venues and the others—that we feel equally confident, as

3

we did in Massachusetts and other venues. So it’s not a single-track system.”82

4

241. On February 27, 2017, Press Secretary Spicer reiterated that as to the Revised

5 Order, “the goal is obviously to maintain the way that we did it the first time.”83

6

242. Defendants’ statements appear to be designed to inflame and incite further animus

7 against persons affected by the ban, and grossly distort and misrepresent the actual process

8 through which Plaintiffs were screened and reviewed before their admittance to the United States

9 was allowed.

10

243. Defendants’ statements underscore the continued discriminatory motive behind

11 the Revised Order. And Defendants’ statements make it abundantly clear that there is no

12 guarantee that Defendants will not revert to the Original Order at some point in time.

13

244. Indeed, as recently as on March 1, 2017, Vice President Pence stated during an

14 interview on CBS This Morning that “[t]he president is just determined to not only defend the

15 first executive order in the courts, which we continue to believe is fully within his purview and in

16 his presidential authority, but also to take that authority that is undisputed in the law within the

17 executive order.”84

18

245. Given the numerous, inconsistent positions Defendants have taken with regard to

19 the Original and Revised Orders over time, individual Plaintiffs and members of the Non-

20 Immigrant Visa Class reasonably fear that, if they attempt to enter or re-enter the United States,

21 they will be denied permission to do so, notwithstanding their previously established lawful

22

23 82 Press Briefing by Secretary Sean Spicer, #15, The White House (Feb. 23, 2017), available at
https://www.whitehouse.gov/the-press-office/2017/02/23/press-briefing-press-secretary-sean-spicer-2232017-15
24 (last accessed Feb. 27, 2017).
25 83 Press Briefing by Secretary Sean Spicer, #17, The White House (Feb 27, 2017) available at
https://www.whitehouse.gov/the-press-office/2017/02/27/press-briefing-press-secretary-sean-spicer-2272017-17
26 (last accessed Mar. 13, 2017).
84 See supra, n.8.

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 62

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 66 of 76

1 presence in the United States and the fact that they have otherwise been deemed appropriate by
2 the U.S. government for admission.
3 246. Because the Revised Order continues to suspend the refugee admissions program,
4 Joseph Doe and others similarly situated are left in the exact same purgatory they were in with
5 the Original Order.
6 247. The Revised Order effectively traps members of the Non-Immigrant Visa Class in
7 the United States, interferes with the relationships of the Non-Immigrant Visa Class as well as
8 the I-730 Class and their family members, and imposes arbitrary and irrational burdens on them
9 that do not serve any valid governmental interest.
10 V. CLASS ACTION ALLEGATIONS
11

12

248. Plaintiffs Jack Doe, Jason Doe, and Julia Doe bring this action as a class action

13 pursuant to Fed. R. Civ. P. 23(b)(1) and (b)(2), on their own behalf and on behalf of all other

14 Washington residents who are nationals of the Designated Countries with non-immigrant visas

15 and who do not have unexpired multiple-entry visas (“the Non-Immigrant Visa Class”).

16

249. Plaintiffs Joseph Doe and James Doe bring this action as a class action pursuant to

17 Fed. R. Civ. P. 23(b)(1) and (b)(2), on their own behalf and on behalf of all other refugees and

18 asylees, including those who have since adjusted their status to Lawful Permanent Resident, who

19 now reside in Washington, and who have filed I-730 applications for and await the arrival of

20 their family members who have completed and cleared their final security screenings as of the

21 effective date of the Revised Order (“the Refugee Class”).

22

250. Upon information and belief, both Plaintiff Classes are so numerous that joinder

23 is impracticable. According to the Annual Report of the Visa Office of the U.S. Department of

24 State, in 2015, the last year for which data are available, the United States issued over 58,663

25 non-immigrant visas to nationals from the Designated Countries.85 59% of all Muslim refugees

26 85 Report of the Visa Office 2015, Table XVIII: Nonimmigrant Visas Issued by Nationality, U.S. Dep’t of State –

Bureau of Consular Affairs (2015), available at

FIRST AMENDED CLASS

AMERICAN CIVIL LIBERTIES UNION

KELLER ROHRBACK L.L.P.

ACTION COMPLAINT PAGE 63

OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 67 of 76

1 who entered the United States in FY 2016 hailed from the six countries to which Section 2(c) of
2 the new Executive Order applies. On information and belief, a large number of such persons
3 reside in Washington.
4 251. The claims of the Non-Immigrant Visa Class as well as the Refugee Class
5 members share common issues of law, including but not limited to whether the Revised
6 Executive Order violates their associational, religious exercise, and due process rights under the
7 First and Fifth Amendments; the Religious Freedom Restoration Act; and the Administrative
8 Procedure Act.
9 252. The claims of the Plaintiff Class members share common issues of fact, including
10 but not limited to whether the Revised Executive Order is being or will be enforced so as to
11 prevent them or their family members from entering the United States from abroad or from re-
12 entering the United States should they choose to leave the United States briefly, even though
13 they would otherwise be admissible.
14 253. The claims or defenses of the named Plaintiffs are typical of the claims or
15 defenses of members of each of the Plaintiff Classes.
16 254. Jack Doe, Jason Doe, and Julia Doe will fairly and adequately protect the interests
17 of the Non-Immigrant Visa Class, and Joseph Doe and James Doe will fairly and adequately
18 protect the interests of the Refugee Class. None of the named Plaintiffs have any interest that is
19 now or may be potentially antagonistic to the interests of the Plaintiff class they seek to
20 represent. The attorneys representing the named Plaintiffs include experienced civil rights
21 attorneys and are considered able practitioners in federal constitutional litigation. These attorneys
22 should be appointed as class counsel.
23 255. Defendants have acted, have threatened to act, and will act on grounds generally
24 applicable to both Plaintiff Classes, thereby making final injunctive and declaratory relief
25

26 https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2015AnnualReport/FY15AnnualReport-
TableXVIII.pdf (last accessed Mar. 13, 2017).

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 64

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 68 of 76

1 appropriate to the class as a whole. Both Plaintiff Classes may therefore be properly certified

2 under Fed. R. Civ. P. 23(b)(2).

3 256. Prosecution of separate actions by individual members of either of the Plaintiff

4 Classes would create the risk of inconsistent or varying adjudications and would establish

5 incompatible standards of conduct for individual members of each Plaintiff Class. Both Plaintiff

6 Classes may therefore be properly certified under Fed. R. Civ. P. 23(b)(1).

7 VI. CAUSES OF ACTION

8 COUNT ONE

9

FIRST AMENDMENT – ESTABLISHMENT, FREE EXERCISE, SPEECH AND

ASSEMBLY CLAUSES

10

(Against All Defendants, Asserted by All Plaintiffs)

11

257. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

13

258. The First Amendment prohibits the establishment of a religion or the prohibition

14 of the free exercise of religion.

15

259. The Revised Executive Order constitutes an unlawful attempt to discriminate

16 against Muslims and to establish a preference for one religion over another. References in the

17 Revised Executive Order to the Designated Countries are transparently a pretext to establish this

18 preference. Singling out Muslims for disfavored treatment and granting special preferences to

19 non-Muslims is neither justified by, nor closely fitted to, any compelling governmental interest.

20

260. The Revised Executive Order also violates the rights of Plaintiff the Episcopal

21 Diocese to receive information and speech from, and to associate freely with, refugees.

22

COUNT TWO

RELIGIOUS FREEDOM RESTORATION ACT

23

(Against All Defendants, Asserted by All Plaintiffs)

24

261. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 65

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 69 of 76

1 262. Pursuant to the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 et seq.,

2 the government “shall not substantially burden a person’s exercise of religion” unless it “(1) is in

3 furtherance of a compelling government interest; and (2) is the least restrictive means of

4 furthering that compelling governmental interest.” Id. (emphasis added).

5 263. The Revised Executive Order has the effect of imposing a special disability on the

6 basis of religious views or religious status, by withdrawing important immigration benefits

7 principally from Muslims on account of their religion. In doing so, the Revised Executive Order

8 places a substantial burden on Muslims’ exercise of religion in a way that is not the least

9 restrictive means of furthering a compelling governmental interest.

10 264. Defendants’ actions therefore constitute a violation of the Religious Freedom

11 Restoration Act, 42 U.S.C. § 2000bb-1 et seq.

12

COUNT THREE

13

FIFTH AMENDMENT – EQUAL PROTECTION

(Against All Defendants, Asserted by Jack Doe, Jason Doe, Julia Doe, and the

14

Non-Immigrant Visa Class)

15

265. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

17

266. The Revised Executive Order discriminates against Plaintiffs Jack Doe, Jason

18 Doe, Julia Doe, and the members of the Non-Immigrant Visa Class on the basis of their country

19 of origin without sufficient justification and therefore violates the equal protection component of

20 the Due Process Clause of the Fifth Amendment.

21

267. The Revised Order bars them from traveling and imposes additional burdens such

22 as requiring them to seek a waiver.

23

268. Additionally, the Revised Executive Order was substantially motivated by animus

24 toward—and has a disparate effect on—Muslims, which also violates the equal protection

25 component of the Due Process Clause of the Fifth Amendment.

26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 66

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 70 of 76

1

COUNT FOUR

FIFTH AMENDMENT – PROCEDURAL DUE PROCESS

2

(Against All Defendants, Asserted by All Plaintiffs except John and Jane Doe)

3

269. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

5

270. The Due Process Clause of the Fifth Amendment provides that “[n]o person

6 shall…be deprived of life, liberty, or property, without due process of law.”

7

271. Procedural due process requires that the government be constrained before it acts

8 in a way that deprives individuals of liberty or property interests protected under the Due Process

9 Clause of the Fifth Amendment.

10

272. Defendants’ actions, as described above, have deprived Plaintiffs of their liberty

11 and/or property interests without notice or opportunity to be heard.

12

COUNT FIVE

FIFTH AMENDMENT – SUBSTANTIVE DUE PROCESS

13

(Against All Defendants, Asserted by Jack Doe, Jason Doe, Julia Doe, and the

Non-Immigrant Visa Class) 14

15

273. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

17

274. Plaintiffs Jack Doe, Jason Doe, Julia Doe, and members of the Non-Immigrant

18 Visa Class have a constitutionally protected, fundamental liberty interest in freedom of

19 movement that encompasses their right to travel abroad.

20

275. Defendants’ actions, as described above, have denied Plaintiffs Jack Doe, Jason

21 Doe, Julia Doe, and members of the Non-Immigrant Visa Class the opportunity to travel outside

22 the United States for fear that they will be denied re-entry. Such actions, taken pursuant to the

23 Revised Executive Order, are not justified by a compelling government interest and therefore

24 violate the substantive due process rights guaranteed by the Fifth Amendment to Plaintiffs Jack

25 Doe, Jason Doe, and members of the Non-Immigrant Visa Class.

26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 67

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 71 of 76

1

COUNT SIX

FIFTH AMENDMENT – SUBSTANTIVE DUE PROCESS

2

(Against All Defendants, Asserted by Joseph Doe, James Doe, and the Refugee Class)

3 276. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

5 277. Plaintiffs Joseph Doe, James Doe, and members of the Refugee Class have a

6 constitutionally protected, fundamental liberty interest in their marriage and their family lives.

7 278. Defendants’ arbitrary suspension of the travel of refugees into the United States

8 and the decision on applications for refugee status, including follow-to-join Refugee/Asylee

9 Relative Petitions, violate the substantive due process rights guaranteed by the Fifth Amendment

10 to them. Defendants’ arbitrary suspension of the refugee program has deprived Plaintiffs Joseph

11 Doe, James Doe, and members of the Refugee Class of their fundamental right to be with their

12 families and is not justified by a compelling government interest.

13

COUNT SEVEN

14

VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT

(Against all Defendants, Asserted by Jack Doe, Jason Doe, Julia Doe, and the

15

Non-Immigrant Visa Class)

16

279. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

18

280. The formulation of policies pertaining to the entry of aliens is entrusted

19 exclusively to Congress. Galvan v. Press, 347 U.S. 522, 531 (1954). Through the enactment of

20 and amendments to the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq.,

21 Congress has established an extensive statutory scheme governing the admission and exclusion

22 of aliens. Where Congress has delegated authority to the Executive, that authority remains

23 constrained by the parameters of the INA. Defendants have exceeded the scope of their delegated

24 authority because their actions are contrary to the INA.

25

281. Specifically, INA § 212(a) establishes, in detail, the classes of aliens who are

26 ineligible for visas or admission into the United States, including under “Security and related

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 68

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 72 of 76

1 grounds,” § 212(a)(3), 8 U.S.C. § 1182(a)(3). INA § 212(a)(3)(C)(iii) prohibits ideological

2 exclusions like those embodied in Defendants’ Orders. Namely, an alien may not be excludable

3 or subject to restrictions or conditions on entry “because of the alien’s past, current, or expected

4 beliefs, statements, or associations.” 8 U.S.C. § 1182(a)(3)(C)(iii).

5 282. In enacting this provision of the INA, Congress specifically sought to end a

6 practice of excluding or denying entry to aliens based on their beliefs.

7 283. Defendants, in issuing the Orders, have directly contradicted the expressed will of

8 Congress and violated the INA. To the extent that the delegation of authority in INA § 212(f) is

9 viewed as encompassing the authority to violate the expressed will of Congress, it is an

10 unconstitutional delegation of authority.

11 COUNT EIGHT

12

ADMINISTRATIVE PROCEDURE ACT— PROCEDURAL VIOLATION

(Against all Defendants except Defendant Trump, Asserted by All Plaintiffs) 13

14

284. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

16

285. Defendants U.S. Department of State, U.S. Department of Homeland Security.

17 and U.S. Customs and Border Protection are “agencies” under the APA. See 5 U. S. C. § 551(1).

18

286. Sections 553 and 706 of the Administrative Procedure Act, 5 U. S. C. §§ 553

19 and 706 (2), require that federal agencies conduct formal rule making before engaging in action

20 that impacts substantive rights.

21

287. The APA further requires courts to hold unlawful and set aside any agency action

22 taken “without observance of procedure required by law.” 5 U. S. C. § 706(2)(D).

23

288. The creation of the administrative rules contained in Sections 2, 3, and 6 of the

24 Revised Executive Order was an agency action subject to the APA.

25

289. Additionally, in implementing Sections 2, 3, and 6 of the Revised Executive

26 Order, Defendants federal agencies and Defendant secretaries and/or directors of those agencies

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 69

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 73 of 76

1 have taken an agency action subject to the APA because they have changed the substantive

2 criteria by which individuals from the Designated Countries may enter the United States, which

3 impacts substantive rights.

4 290. Such Defendants did not follow the procedures required by the Administrative

5 Procedure Act before taking action impacting the substantive rights of the Plaintiffs.

6 291. By failing to follow the rulemaking procedures required of them prior to changing

7 the substantive criteria by which individuals from the Designated Countries may enter the United

8 States, Defendants federal agencies and Defendant secretaries and/or directors of those agencies

9 violated the Administrative Procedure Act.

10 292. These violations continue to cause ongoing harm to Plaintiffs.

11 COUNT NINE

12

ADMINISTRATIVE PROCEDURE ACT—SUBSTANTIVE VIOLATION

(Against all Defendants except Defendant Trump, Asserted by all Plaintiffs)

13 293. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

15 294. Defendants U.S. Department of State, U.S. Department of Homeland Security.

16 and U.S. Customs and Border Protection are “agencies” under the APA. See 5 U. S. C. § 551(1).

17 295. The Administrative Procedure Act prohibits federal agency action that is

18 “contrary to constitutional right, power, privilege, or immunity,” 5 U. S. C. § 706(2)(B), or “in

19 excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U. S. C. §

20 706(2)(C), or “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with

21 law.” 5 U. S. C. § 706(2)(A).

22 296. The creation of the administrative rules contained in Sections 2, 3, and 6 of the

23 Revised Executive Order was an agency action subject to the APA.

24 297. Additionally, in implementing Sections 2, 3, and 6 of the Revised Executive

25 Order, Defendants federal agencies and Defendant secretaries and/or directors of those agencies

26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 70

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 74 of 76

1 have taken unconstitutional and unlawful action, as alleged in this Complaint, in violation of the
2 Administrative Procedure Act.
3 298. In implementing Sections 3(c) and 6(c), Defendants federal agencies have
4 arbitrarily and capriciously exercised their discretion.
5 299. In implementing Sections 2 and 3 of the Revised Executive Order, Defendants
6 federal agencies and Defendant secretaries and/or directors of those agencies their statutory
7 authority and engaged in nationality and religion-based discrimination in violation of RFRA.
8 300. Finally, in implementing Sections 2, 3, and 6 of the Revised Executive Order,
9 Defendants’ actions as set forth above were arbitrary, capricious, or discriminatory. Defendants
10 have offered no satisfactory explanation for the countries that are or are not included within the
11 scope of the Revised Order while banning millions of people with no connection whatsoever to
12 terrorism and causing harm to Plaintiffs. Accordingly, Defendants have violated the substantive
13 requirements of the Administrative Procedure Act.
14 PRAYER FOR RELIEF
15 WHEREFORE, Petitioners pray that this Court grant the following relief:
16 1. A determination that the Individual Plaintiffs’ claims may properly be maintained
17 as a class action pursuant to Fed. R. Civ. P. 23(b)(1) and (b)(2);
18 2. A declaration that the Revised Executive Order and the manner in which it will be
19 implemented are in violation of the rights of all Plaintiffs as well as members of the Non-
20 Immigration Visa Class and the Refugee Class for the reasons set forth above.
21 3. An injunction that the Revised Executive Order may not be enforced as against
22 Plaintiffs or members of members of the Non-Immigration Visa Class or the Refugee Class in
23 connection with their entry or re-entry into the United States;
24 4. A permanent injunction of the Revised Executive Order as contrary to the
25 Constitution;
26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 71

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 75 of 76

1 5. An award to the Plaintiffs as well as members of the Non-Immigration Visa Class
2 and the Refugee Class of reasonable costs and attorneys’ fees; and,
3 6. Such other and further relief that this Court may deem fit and proper.
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 72

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 10 Filed 03/14/17 Page 76 of 76

1 DATED this 14th day of March, 2017.

2 AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION 3

By: /s/ Emily Chiang

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Emily Chiang, WSBA # 50517

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La Rond Baker, WSBA # 43610

901 Fifth Avenue, Suite 630

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Seattle, Washington 98164

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Telephone: (206) 624-2184 Email: echiang@aclu-wa.org

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Attorney for Plaintiffs

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KELLER ROHRBACK L.L.P.

By: /s/ Lynn Lincoln Sarko

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By: /s/ Tana Lin

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By: /s/ Amy Williams-Derry

y o

By: /s/ Derek W. Loeser______________

By: /s/ Alison S. Gaffney_____________r

Lynn Lincoln Sarko, WSBA # 16569 Tana Lin, WSBA # 35271 Amy Williams-Derry, WSBA #28711 Derek W. Loeser, WSBA # 24274 Alison S. Gaffney, WSBA # 45565 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 Email: lsarko@kellerrohrback.com
tlin@kellerrohrback.com awilliams-derry@kellerrohrback.com dloeser@kellerrohrback.com agaffney@kellerrohrback.com

By: /s/ Laurie B. Ashton

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Laurie B. Ashton (Pro Hac Vice) 3101 North Central Avenue, Suite 1400 Phoenix, Arizona 85012-2600 Telephone: (602) 248-0088 Facsimile: (602) 248-2822 Email: lashton@kellerrohrback.com

By: /s/ Alison Chase

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Alison Chase (Pro Hac Vice) 1129 State Street, Suite 8 Santa Barbara, CA 93101 Telephone: (805) 456-1496 Facsimile: (805) 456-1497 Email: achase@kellerrohrback.com

Attorneys for Plaintiffs/Cooperating Attorneys for the American Civil Liberties Union Of Washington Foundation

FIRST AMENDED CLASS ACTION COMPLAINT PAGE 73

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

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EXHIBIT A

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ... Page 1 of 9 Case 2:17-cv-00178-JLR Document 10-1 Filed 03/14/17 Page 2 of 10
the WHITE HOUSE PRESIDENT DONALD J. TRUMP
Í

From the Press Office
Speeches & Remarks Press Briefings Statements & Releases Presidential Actions
Executive Orders Presidential Memoranda Proclamations Related OMB Material Legislation Nominations & Appointments Disclosures

The White House Office of the Press Secretary
For Immediate Release

January 27, 2017

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST

https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-natio... 3/14/2017

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ENTRY INTO THE UNITED STATES
EXECUTIVE ORDER
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Protecting the Nation from Foreign Terrorist Entry into the United States
By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:
Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visaissuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.
Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be 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.
In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not
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support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.
Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.
Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
(c) 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 of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim 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)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty
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Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, 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.
(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.
Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm
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subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant's likelihood of becoming a positively contributing member of society and the applicant's ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order.
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, 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. Where
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necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.
(d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.
(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, 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 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, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship -- and it would not pose a risk to the security or welfare of the United States.
(f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.
(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of
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refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.
Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.
(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visainterview wait times are not unduly affected.
Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to
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validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable.
Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter:
(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later;
(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorismrelated acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and
(iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and
(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.
(b) The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels.
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Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. DONALD J. TRUMP
¬ŧ­ 
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Case 2:17-cv-00178-JLR Document 10-2 Filed 03/14/17 Page 1 of 2
EXHIBIT B

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EXHIBIT C

Case 2:17-cv-00178-JLR Document 10-3 Filed 03/14/17 Page 2 of 3
AILA Doc. No. 17020332. (Posted 2/3/17)

Case 2:17-cv-00178-JLR Document 10-3 Filed 03/14/17 Page 3 of 3

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AILA Doc. No. 17020332. (Posted 2/3/17)

Case 2:17-cv-00178-JLR Document 10-4 Filed 03/14/17 Page 1 of 18
EXHIBIT D

Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United Sta... Page 1 of 17 Case 2:17-cv-00178-JLR Document 10-4 Filed 03/14/17 Page 2 of 18
the WHITE HOUSE PRESIDENT DONALD J. TRUMP
Í

From the Press Office
Speeches & Remarks Press Briefings Statements & Releases Presidential Actions
Executive Orders Presidential Memoranda Proclamations Related OMB Material Legislation Nominations & Appointments Disclosures

The White House Office of the Press Secretary
For Immediate Release

March 06, 2017

Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States

EXECUTIVE ORDER

https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-natio... 3/14/2017

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- - - - - - -
PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the Nation from terrorist activities by foreign nationals admitted to the United States, it is hereby ordered as follows:
Section 1. Policy and Purpose. (a) It is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals. The screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program (USRAP) play a crucial role in detecting foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United States. It is therefore the policy of the United States to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the USRAP.
(b) On January 27, 2017, to implement this policy, I issued Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States).
(i) Among other actions, Executive Order 13769 suspended for 90 days the entry of certain aliens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. These are countries that had already been identified as presenting heightened concerns about terrorism and travel to the United States. Specifically, the suspension applied to countries referred to in, or designated under, section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), in which Congress restricted use of the Visa Waiver Program for nationals of, and aliens recently present in, (A) Iraq or Syria, (B) any country designated by the Secretary of State as a state sponsor of terrorism (currently Iran, Syria, and Sudan), and (C) any other country designated as a country of concern by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence. In 2016, the Secretary of Homeland Security designated Libya, Somalia, and Yemen as additional countries of concern for travel purposes, based on consideration of three statutory factors related to terrorism and national security: "(I) whether the
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presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States; (II) whether a foreign terrorist organization has a significant presence in the country or area; and (III) whether the country or area is a safe haven for terrorists." 8 U.S.C. 1187(a)(12)(D)(ii). Additionally, Members of Congress have expressed concerns about screening and vetting procedures following recent terrorist attacks in this country and in Europe.
(ii) In ordering the temporary suspension of entry described in subsection (b) (i) of this section, I exercised my authority under Article II of the Constitution and under section 212(f) of the INA, which provides in relevant part: "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." 8 U.S.C. 1182(f). Under these authorities, I determined that, for a brief period of 90 days, while existing screening and vetting procedures were under review, the entry into the United States of certain aliens from the seven identified countries -- each afflicted by terrorism in a manner that compromised the ability of the United States to rely on normal decision-making procedures about travel to the United States -would be detrimental to the interests of the United States. Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to grant case-by-case waivers when they determined that it was in the national interest to do so.
(iii) Executive Order 13769 also suspended the USRAP for 120 days. Terrorist groups have sought to infiltrate several nations through refugee programs. Accordingly, I temporarily suspended the USRAP pending a review of our procedures for screening and vetting refugees. Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to jointly grant case-by-case waivers when they determined that it was in the national interest to do so.
(iv) Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including
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those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP in light of their particular challenges and circumstances.
(c) The implementation of Executive Order 13769 has been delayed by litigation. Most significantly, enforcement of critical provisions of that order has been temporarily halted by court orders that apply nationwide and extend even to foreign nationals with no prior or substantial connection to the United States. On February 9, 2017, the United States Court of Appeals for the Ninth Circuit declined to stay or narrow one such order pending the outcome of further judicial proceedings, while noting that the "political branches are far better equipped to make appropriate distinctions" about who should be covered by a suspension of entry or of refugee admissions.
(d) Nationals from the countries previously identified under section 217(a)(12) of the INA warrant additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats. Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States. Finally, once foreign nationals from these countries are admitted to the United States, it is often difficult to remove them, because many of these countries typically delay issuing, or refuse to issue, travel documents.
(e) The following are brief descriptions, taken in part from the Department of State's Country Reports on Terrorism 2015 (June 2016), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United States:
(i) Iran. 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
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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.
(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' counterterrorism 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 terrorist fighters. The United States Embassy in Libya suspended its operations in 2014.
(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 of the 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.
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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.
(f) In light of the conditions in these six countries, until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the 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. Accordingly, while that assessment is ongoing, I am imposing a temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-bycase waivers, as described in section 3 of this order.
(g) Iraq presents a special case. Portions of Iraq remain active combat zones. Since 2014, ISIS has had dominant influence over significant territory in northern and central Iraq. Although that influence has been significantly reduced due to the efforts and sacrifices of the Iraqi government and armed forces, working along with a United States-led coalition, the ongoing conflict has impacted the Iraqi government's capacity to secure its borders and to identify fraudulent travel documents. Nevertheless, the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq's commitment to combat ISIS justify different treatment for Iraq. In particular, those Iraqi government forces that have fought to regain more than half of the territory previously dominated by ISIS have shown steadfast determination and earned enduring respect as they battle an armed group that is the common enemy of Iraq and the United States. In addition, since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal. Decisions about issuance of visas or granting admission to
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Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.
(h) Recent history shows that some of those who have entered the United States through our immigration system have proved to be threats to our national security. Since 2001, hundreds of persons born abroad have been convicted of terrorismrelated 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. For example, in January 2013, two Iraqi nationals admitted to the United States as 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 as part of a plot to detonate a bomb at a crowded Christmas-tree-lighting ceremony in Portland, Oregon. The 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.
(i) Given the foregoing, the entry into the United States of foreign nationals who may commit, aid, or support acts of terrorism remains a matter of grave concern. In light of the Ninth Circuit's observation that the political branches are better suited to determine the appropriate scope of any suspensions than are the courts, and in order to avoid spending additional time pursuing litigation, I am revoking Executive Order 13769 and replacing it with this order, which expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.
Sec. 2. Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or publicsafety threat. The Secretary of Homeland Security may conclude that certain
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information is needed from particular countries even if it is not needed from every country.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence.
(c) 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, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.
(d) Upon submission of the report described in subsection (b) of this section regarding the information needed from each country for adjudications, the Secretary of State shall request that all foreign governments that do not supply such information regarding their nationals begin providing it within 50 days of notification.
(e) After the period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means. The Secretary of State, the Attorney General, or the
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Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.
(f) At any point after the submission of the list described in subsection (e) of this section, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, may submit to the President the names of any additional countries recommended for similar treatment, as well as the names of any countries that they recommend should be removed from the scope of a proclamation described in subsection (e) of this section.
(g) The Secretary of State and the Secretary of Homeland Security shall submit to the President a joint report on the progress in implementing this order within 60 days of the effective date of this order, a second report within 90 days of the effective date of this order, a third report within 120 days of the effective date of this order, and a fourth report within 150 days of the effective date of this order.
Sec. 3. Scope and Implementation of Suspension.
(a) Scope. Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspension of entry pursuant to section 2 of this order shall apply only to foreign nationals of the designated countries who:
(i) are outside the United States on the effective date of this order;
(ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and
(iii) do not have a valid visa on the effective date of this order.
(b) Exceptions. The suspension of entry pursuant to section 2 of this order shall not apply to:
(i) any lawful permanent resident of the United States;
(ii) any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;
(iii) any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him
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or her to travel to the United States and seek entry or admission, such as an advance parole document;
(iv) any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;
(v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
(vi) any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
(c) Waivers. Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner's delegee, 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 the foreign national has demonstrated to the officer's satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest. Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa issuance process will be effective both for the issuance of a visa and any subsequent entry on that visa, but will leave all other requirements for admission or entry unchanged. Case-by-case waivers could be appropriate in circumstances such as the following:
(i) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity;
(ii) the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;
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(iii) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;
(iv) the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
(v)the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
(vi) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;
(vii) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
(viii) the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or
(ix) the foreign national is traveling as a United States Governmentsponsored exchange visitor.
Sec. 4. Additional Inquiries Related to Nationals of Iraq. An application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review, including, as appropriate, consultation with a designee of the Secretary of Defense and use of the additional information that has been obtained in the context of the close U.S.-Iraqi security partnership, since Executive Order 13769 was issued, concerning individuals suspected of ties to ISIS or other terrorist organizations and individuals coming from territories controlled or formerly controlled by ISIS. Such review shall include consideration of whether the
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applicant has connections with ISIS or other terrorist organizations or with territory that is or has been under the dominant influence of ISIS, as well as any other information bearing on whether the applicant may be a threat to commit acts of terrorism or otherwise threaten the national security or public safety of the United States.
Sec. 5. Implementing Uniform Screening and Vetting Standards for All Immigration Programs. (a) The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence shall implement a program, as part of the process for adjudications, to identify individuals who seek to enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry. This program shall include the development of a uniform baseline for screening and vetting standards and procedures, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that applicants are who they claim to be; a mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States; and any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Attorney General, and the Director of National Intelligence, shall submit to the President an initial report on the progress of the program described in subsection (a) of this section within 60 days of the effective date of this order, a second report within 100 days of the effective date of this order, and a third report within 200 days of the effective date of this order.
Sec. 6. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order, subject to waivers pursuant to subsection (c) of this section. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review
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the USRAP application and adjudication processes to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. The suspension described in this subsection shall not apply to refugee applicants who, before the effective date of this order, have been formally scheduled for transit by the Department of State. The Secretary of State shall resume travel of refugees into the United States under the USRAP 120 days after the effective date of this order, and the Secretary of Homeland Security shall resume making decisions on applications for refugee status only for stateless persons and nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that the additional procedures implemented pursuant to this subsection are adequate to ensure the security and welfare of the United States.
(b) Pursuant to section 212(f) of the INA, I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any entries in excess of that number until such time as I determine that additional entries would be in the national interest.
(c) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretary of State and the Secretary of Homeland Security may jointly determine to admit individuals to the United States as refugees on a caseby-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, including in circumstances such as the following: 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.
(d) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of State shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
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Sec. 7. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretary of State and the Secretary of Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority permitted by section 212(d)(3)(B) of the INA, 8 U.S.C. 1182(d)(3)(B), relating to the terrorism grounds of inadmissibility, as well as any related implementing directives or guidance.
Sec. 8. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry exit tracking system for in-scope travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive set forth in subsection (a) of this section. The initial report shall be submitted within 100 days of the effective date of this order, a second report shall be submitted within 200 days of the effective date of this order, and a third report shall be submitted within 365 days of the effective date of this order. The Secretary of Homeland Security shall submit further reports every 180 days thereafter until the system is fully deployed and operational.
Sec. 9. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions. This suspension shall not apply to any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; traveling for purposes related to an international organization designated under the IOIA; or traveling for purposes of conducting meetings or business with the United States Government.
(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that nonimmigrant visa-interview wait times are not unduly affected.
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Sec. 10. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements and arrangements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If another country does not treat United States nationals seeking nonimmigrant visas in a truly reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by that foreign country, to the extent practicable.
Sec. 11. Transparency and Data Collection. (a) To be more transparent with the American people and to implement more effectively policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available the following information:
(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation with or provision of material support to a terrorism-related organization, or any other national-security-related reasons;
(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and who have engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States;
(iii) information regarding the number and types of acts of gender-based violence against women, including so-called "honor killings," in the United States by foreign nationals; and
(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.
(b) The Secretary of Homeland Security shall release the initial report under subsection (a) of this section within 180 days of the effective date of this order and
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shall include information for the period from September 11, 2001, until the date of the initial report. Subsequent reports shall be issued every 180 days thereafter and reflect the period since the previous report.
Sec. 12. Enforcement. (a) The Secretary of State and the Secretary of Homeland Security shall consult with appropriate domestic and international partners, including countries and organizations, to ensure efficient, effective, and appropriate implementation of the actions directed in this order.
(b) In implementing this order, the Secretary of State and the Secretary of Homeland Security shall comply with all applicable laws and regulations, including, as appropriate, those providing an opportunity for individuals to claim a fear of persecution or torture, such as the credible fear determination for aliens covered by section 235(b)(1)(A) of the INA, 8 U.S.C. 1225(b)(1)(A).
(c) No immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order.
(d) Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.
(e) This order shall not apply to an individual who has been granted asylum, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture. Nothing in this order shall be construed to limit the ability of an individual to seek asylum, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.
Sec. 13. Revocation. Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order.
Sec. 14. Effective Date. This order is effective at 12:01 a.m., eastern daylight time on March 16, 2017.
Sec. 15. Severability. (a) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this
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order and the application of its other provisions to any other persons or circumstances shall not be affected thereby. (b) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements. Sec. 16. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP THE WHITE HOUSE,
March 6, 2017.
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Q&A: Protecting the Nation From Foreign Terrorist Entry To The United States
Release Date: March 6, 2017
March 6, 2017 11:30 a.m. EST Office of Public Affairs Contact: 202-282-8010
Q1. Who is subject to the suspension of entry under the Executive Order?
Per the Executive Order, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen, who are outside the United States and who did not have a valid visa at 5 p.m. Eastern Standard Time on January 27, 2017, and do not have a valid visa on the effective date of this order are not eligible to enter the United States while the temporary suspension remains in effect. Thus any individual who had a valid visa either on January 27,
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2017 (prior to 5:00 PM) or holds a valid visa on the effective date of the Executive Order is not barred from seeking entry.
Q2. Will “in-transit” travelers within the scope of the Executive Order be denied entry into the United States and returned to their country of origin?
Those individuals who are traveling on valid visas and arrive at a U.S. port of entry will still be permitted to seek entry into the United States. All foreign nationals traveling with a visa must continue to satisfy all requirements for entry, including demonstrating that they are admissible. Additional information on applying for admission to the United States is available on CBP.gov. (https://www.cbp.gov/travel/international-
visitors/applying-admission-united-states)
Q3. I am a national from one of the six affected countries currently overseas and in possession of a valid visa, but I have no prior travel to
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the United States. Can I travel to the United States?
Per the Executive Order, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who have valid visas will not be affected by this Executive Order. No visas will be revoked solely based on this Executive Order.
Q4. I am presently in the United States in possession of a valid single entry visa but I am a national of one of the six impacted countries. Can I travel abroad and return to the United States?
Regardless of the Executive Order, your visa is not valid for multiple entries into the Unites States. While the Executive Order does not apply to those within the United States and your travel abroad is not limited, a valid visa or other document permitting you to travel to and seek admission to the United States is still required for any subsequent entry to the United States.
Q5. I am presently in the United States in possession of a valid multiple entry visa
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but am a national of one of the six affected countries, can I travel abroad and return to the United States?
Yes. Individuals within the United States with valid multiple entry visas on the effective date of the order are eligible for travel to and from the United States, provided the visa remains valid and the traveler is otherwise admissible. All foreign nationals traveling with a visa must satisfy all admissibility requirements for entry. Additional information on applying for admission to the United States is available on CBP.gov.
(https://www.cbp.gov/travel/international-visitors/applyingadmission-united-states)
Q6. I am from one of the six countries, currently in the United States in possession of a valid visa and have planned overseas travel. My visa will expire while I am overseas, can I return to the United States?
Travelers must have a valid visa to travel to the United States, regardless of the Executive Order. Travelers who
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do not have a valid visa due to its expiration while abroad must obtain a new valid visa prior to returning to the United States.
Q7. Will the Department of Homeland Security (DHS) and the Department of State (DOS) be revoking the visas of persons ineligible to travel under the revised Executive Order?
Visas will not be revoked solely as a result of the Executive Order. The Department of State has broad authority under Section 221(i) of the Immigration and Nationality Act to revoke visas.
Q8. What is the process for overseas travelers affected by the Executive Order to request a waiver?
Waivers for overseas travelers without a valid U.S. visa will be adjudicated by the Department of State in conjunction with a visa application.
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Q9. How are returning refugees and asylees affected by the Executive Order?
Returning refugees and asylees, i.e., individuals who have already been granted asylum or refugee status in the United States, are explicitly excepted from this Executive Order. As such, they may continue to travel consistent with existing requirements.
Q10. Are first-time arrival refugees with valid /travel documents allowed to travel to the United States?
Yes, but only refugees, regardless of nationality, whose travel was already formally scheduled by the Department of State, are permitted to travel to the United States and seek admission. The Department of State will have additional information.
Q11. Will unaccompanied minors within the scope of the Executive Order be denied boarding and or
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denied entry into the United States?
The Executive Order applies to those who do not have valid visas. Any individuals, including children, who seek entry to the United States must have a valid visa (or other approved travel document) before travel to the United States. The Secretary of State may issue a waiver on a case-by-case basis when in the national interest of the United States. With such a waiver, a visa may be issued.
Q12. Is DHS complying with all court orders?
DHS is complying, and will continue to comply, with all court orders in effect.
Q13. When will the Executive Order be implemented?
The Executive Order is effective at 12:01 A.M., Eastern Standard Time, on March 16, 2017.
Q14. Will the Executive Order impact Trusted Traveler Program membership?
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No. Currently, CBP does not have reciprocal agreements for a Trusted Traveler Program with any of the countries designated in the Executive Order.
Q15. When will CBP issue guidance to both the field and airlines regarding the Executive Order?
CBP will issue guidance and contact stakeholders to ensure timely implementation consistent with the terms of the Executive Order.
Q16. Will first-time arrivals with valid immigrant visas be allowed to travel to the U.S.?
Yes. Individuals holding valid visas on the effective date of the Executive Order or on January 27, 2017 prior to 5:00 PM do not fall within the scope of the Order.
Q17. Does this affect travelers at all ports of entry?
Yes, this Executive Order applies to travelers who are applying for entry into the United States at any port of
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entry—air, land, or sea—and includes preclearance locations.
Q18. What does granting a waiver to the Executive Order mean? How are waivers applied to individual cases?
Per the Executive Order, the Departments of Homeland Security and State can review individual cases and grant waivers on a case-by-case basis if a foreign national demonstrates that his or her entry into the United States is in the national interest, will not pose a threat to national security, and that denying entry during the suspension period will cause undue hardship.
Q19. Does “from one of the six countries” mean citizen, national, or born in?
The Executive Order applies to both nationals and citizens of the six countries.
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Q20. How does the lawsuit/stay affect DHS operations in implementing this Executive Order?
Questions regarding the application of specific federal court orders should be directed to the Department of Justice.
Q21. Will nationals of the six countries with valid green cards (lawful permanent residents of the United States) be allowed to return to the United States?
Per the Executive Order, the suspension of entry does not apply to lawful permanent residents of the United States.
Q22. Can a dual national who holds nationality with one of the six designated countries traveling with a passport from an
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unrestricted country travel to the United States?
The Executive Order exempts from its scope any dual national of one of the six countries when the individual is traveling on a passport issued by a different nondesignated country.
Q23. Can a dual national who holds nationality with one of the six designated countries and is currently overseas, apply for an immigrant or nonimmigrant visa to the United States?
Please contact the Department of State for information about how the Executive Order applies to visa applicants.
Q24. Are international students, exchange visitors, and their dependents from the six countries (such as F, M, or J visa holders)
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included in the Executive Order? What kind of guidance is being given to foreign students from these countries legally in the United States?
The Executive Order does not apply to individuals who are within the United States on the effective date of the Order or to those individuals who hold a valid visa. Visas which were provisionally revoked solely as a result of the enforcement of Executive Order 13769 are valid for purposes of administering this Executive Order. Individuals holding valid F, M, or J visas may continue to travel to the United States on those visas if they are otherwise valid.
Please contact the State Department for information about how the Executive Order applies to visa applicants.
Q25. What happens to international students, exchange visitors or their dependents from the six countries, such as F, M or J visa holders if their visa
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expires while the Executive Order is in place and they have to depart the country?
The Executive Order does not affect F, M, or J visa holders if they currently have a valid visa on the effective date or held a valid visa on January 27, 2017 prior to the issuance of the Executive Order. With that said, travelers must have a valid visa to travel to the United States, regardless of the Executive Order. Travelers whose visa expires after the effective date of the Executive Order must obtain a new, valid visa to return to the United States.
Q26. Can U.S. Citizenship and Immigration Services (USCIS) continue refugee interviews?
The Departments of Homeland Security and State will conduct interviews as appropriate and consistent with the Executive Order. However, the Executive Order suspends decisions on applications for refugee status, unless the Secretary of Homeland Security and the Secretary of State jointly determine, on a case-by-case basis, that the entry of an individual as a refugee is in the national interest and would not pose a threat to the security or welfare of the United States.
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Q27. Can the exception for refugee admission be used for Refugee/Asylee Relative Petitions (Form I-730) cases where a family member is requesting a beneficiary follow to join?
No. Individuals who already have valid visas or travel documents that permit them to travel to the United States are exempt from the Executive Order. To the extent that an individual does not yet have such documents, please contact the Department of State.
Q28. Does the Executive Order apply to those currently being adjudicated for naturalization or adjustment of status?
USCIS will continue to adjudicate Applications for Naturalization (Form N-400) and Applications to Register Permanent Residence or Adjust Status (Form I-485) and grant citizenship consistent with existing practices.
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Q29. Will landed immigrants of Canada affected by the Executive Order be eligible for entry to the United States?
Landed immigrants of Canada who hold passports from one of the six countries are eligible to apply for a visa, and coordinate a waiver, at a location within Canada.
Q30. Has CBP issued clear guidance to CBP officers at ports of entry regarding the Executive Order?
CBP has and will continue to issue any needed guidance to the field with respect to this Executive Order.
Q31. What coordination is being done between CBP and the carriers?
CBP has been and will remain in continuous communication with the airlines through CBP regional carrier liaisons. In addition, CBP will hold executive level calls with airlines in order to provide guidance, answer questions, and address concerns.
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Q32. What additional screening will nationals of restricted countries (as well as any visa applications) undergo as a result of the Executive Order?
In making admission and visa eligibility determinations, DHS and DOS will continue to apply all appropriate security vetting procedures.
Q33. Why is a temporary suspension warranted?
The Executive Order signed on March 6, 2017, allows for the proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals. The Executive Order protects the United States from countries compromised by terrorism and ensures a more rigorous vetting process. Protecting the American people is the highest priority of our Government and this Department.
Congress and the Obama Administration designated these six countries as countries of concern due to the national security risks associated with their instability and the prevalence of terrorist fighters in their territories.The conditions in the six designated countries present a recognized threat, warranting additional scrutiny of their nationals seeking to travel to and enter the United States. In order to ensure that the U.S.
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Government can conduct a thorough and comprehensive analysis of the national security risks, the Executive Order imposes a 90-day suspension on entry to the United States of nationals of those countries.
Based on commitments from the Government of Iraq, the suspension of entry in this Executive Order will not apply to nationals of Iraq. Iraq has taken steps to increase their cooperation with the United States in the vetting of Iraqi nationals and as such it was determined that a temporary suspension is not warranted.
DHS will faithfully execute the immigration laws and the President’s Executive Order, and will treat all of those we encounter humanely and with professionalism.
Q34. Why is a suspension of the refugee program warranted?
Some of those who have entered the United States as refugees have also proved to be threats to our national security. For example, in October 2014, an individual admitted to the United States as a refugee from Somalia, and who later became a naturalized U.S. citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction in connection with a plot to set off a bomb at a Christmas tree-lighting ceremony in Portland, Oregon. The Federal Bureau of Investigation has reported that approximately 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations.
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Q35. How were the six countries designated in the Executive Order selected?
The six countries, Iran, Libya, Somalia, Sudan, Syria, and Yemen, had already been identified as presenting concerns about terrorism and travel to the United States.Specifically, the suspension applies to countries referred to in, or designated under—except Iraq—section 217(a)(12) of the INA, 8 U.S.C. § 1187(a)(12).In that provision Congress restricted use of the Visa Waiver Program by dual nationals of, and aliens recently present in, (A) Syria and Iraq, (B) any country designated by the Secretary of State as a state sponsor of terrorism (currently Iran, Syria, and Sudan), and (C) any other country designated as a country of concern by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence.In 2016, the former Secretary of Homeland Security designated Libya, Somalia, and Yemen as additional countries of concern regarding aliens recently present in those countries.
For the purposes of this Executive Order, although Iraq has been previously identified, based on commitments from the Government of Iraq, the suspension of entry in this Executive Order will not apply to nationals of Iraq. However, those who are dual nationals of Iraq and aliens recently present in Iraq continue to have restricted use of the Visa Waiver Program.
On the basis of negotiations that have taken place between the Government of Iraq and the U.S. Department of State in the last month, Iraq will increase
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cooperation with the U.S. Government on the vetting of its citizens applying for a visa to travel to the United States.As such it was determined that a temporary suspension with respect to nationals of Iraq is not warranted at this time.
Q36. Why was Iraq treated differently in this Executive Order?
The close cooperative relationship between the United States and the democratically-elected Iraqi government, the strong U.S. diplomatic presence in Iraq, the significant presence of U.S. forces in Iraq, and Iraq’s commitment to combat ISIS justify different treatment.In particular, those Iraqi government forces that have fought to regain more than half of the territory previously dominated by ISIS have earned special status.In addition, since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to provide additional information about its citizens for purposes of our immigration decisions.Accordingly, it is no longer necessary to include Iraq in the temporary suspension applicable to the other six countries, but visa applications and applications for admission to the United States by Iraqi nationals will be subjected to additional scrutiny to determine if they have connections with ISIS or other terrorist organizations.
Q37. Are Iraqi nationals subject to the Executive Order? Will they require a
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waiver to travel to the United States?
This Executive Order does not presently suspend the entry of nationals of Iraq. However, all travelers must have a valid travel document in order to travel to the United States. Admissibility will be determined by a CBP officer upon arrival at a Port of Entry. Please contact the Department of State for information related to visa eligibility and application.
Topics: Border Security (/topics/border-security) , Homeland Security Enterprise (/topics/homeland-security-enterprise) , Immigration Enforcement (/topics/immigration-enforcement) Keywords: immigration (/keywords/immigration) , immigration enforcement (/keywords/immigration-enforcement) Last Published Date: March 6, 2017
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EXHIBIT G

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EXHIBIT H

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EXHIBIT I

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-tru... 3/6/2017

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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Case 2:17-cv-00178-JLR Document 10-9 Filed 03/14/17 Page 3 of 9

http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-tru... 3/6/2017

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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Case 2:17-cv-00178-JLR Document 10-9 Filed 03/14/17 Page 4 of 9

http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-tru... 3/6/2017

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

Page 6 of 10

Case 2:17-cv-00178-JLR Document 10-9 Filed 03/14/17 Page 5 of 9

http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-tru... 3/6/2017

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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Case 2:17-cv-00178-JLR Document 10-9 Filed 03/14/17 Page 6 of 9

http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-tru... 3/6/2017

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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Case 2:17-cv-00178-JLR Document 10-9 Filed 03/14/17 Page 7 of 9

http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-tru... 3/6/2017

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-tru... 3/6/2017

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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Case 2:17-cv-00178-JLR Document 10-9 Filed 03/14/17 Page 9 of 9

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Case 2:17-cv-00178-JLR Document 10-10 Filed 03/14/17 Page 1 of 9
EXHIBIT J

Case 2:17-cv-00178-JLR Document 10-10 Filed 03/14/17 Page 2 of 9
March 10, 2017
The Honorable Donald J. Trump The White House 1600 Pennsylvania Avenue NW Washington, D.C. 20050
Dear Mr. President,
We have worked for years, under both Democratic and Republican administrations, to protect America’s national security. We are deeply concerned that the March 6, 2017 executive order halting refugee resettlement and suspending visa issuance and travel from six Muslim-majority countries will, like the prior version, weaken U.S. national security and undermine U.S. global leadership. The United States faces serious 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. But the recent order suffers from the same core substantive defects as the previous version.
The revised executive order will jeopardize our relationships with allies and partners on whom 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.
We must remain vigilant to keep our nation safe from terrorists, whether foreign or homegrown. At the same time, we must remain true to our ideals. These are not mutually exclusive goals. In fact, resettlement initiatives advance U.S. national security interests by protecting the stability of U.S. allies and partners struggling to host large numbers of refugees.
Following the 9/11 attacks, the United States developed a rigorous system of security vetting for travelers to our homeland, leveraging the full capabilities of the intelligence and law enforcement communities. Since then, the U.S. has added enhanced vetting procedures for travelers and has revised them continuously. Our government applies this process to travelers not once, but multiple times. Refugees are vetted more intensively than any other category of traveler. They are screened by national intelligence agencies and INTERPOL, their fingerprints and other biometric data are checked against terrorist and criminal databases, and they are interviewed several times. These processes undergo review on an ongoing basis to ensure that the most updated and rigorous measures are applied, and any additional enhancements can be added without halting refugee resettlement or banning people from certain countries.
We welcome the removal of Iraq from the 90-day travel ban, but we remain concerned that the Iraqis who risked their lives to work with the U.S. military, U.S. government and other U.S. organizations will be left in harm’s way for even longer due to the order’s 120-day suspension of the U.S. Refugee Admissions Program and overall reduction in refugee admissions. These individuals were given priority access to U.S. resettlement under the Refugee Crisis in Iraq Act, but their resettlement, like that of many
Page 1 of 8

Case 2:17-cv-00178-JLR Document 10-10 Filed 03/14/17 Page 3 of 9

other vetted refugees, will now likely be delayed as security clearances and other approvals expire, adding many more months onto their processing. The United States has a moral obligation to protect these allies.

Bans like those included in this order are harmful to U.S. national security and beneath the dignity of our great nation. Further, the order’s drastic reduction in the number of refugees to be resettled in this fiscal year after the 120-day moratorium weakens this country’s ability to provide global leadership and jeopardizes our national security interests by failing to support the stability of our allies that are struggling to host large numbers of refugees. America’s much-admired compassion and openness are sources not of weakness but strength. These qualities accord with the ideals on which our nation was founded, and on which our greatness rests.

The revised executive order is damaging to the strategic and national security interests of the United States. We urge that, in moving forward, the United States: ensure any vetting enhancements are necessary, non-discriminatory and otherwise consistent with the U.S. Constitution; implement any necessary enhancements without a counterproductive ban or suspension on entry of nationals of particular countries or religions; and immediately restart a strong non-discriminatory refugee resettlement initiative, which will in turn advance U.S. global leadership and national security interests.

We firmly believe that these steps will strengthen U.S. national security and appreciate your attention to the concerns we raise in this letter.

Sincerely, (names in alphabetical order)

Wally Adeyemo Former Deputy Assistant to the President and Deputy National Security Advisor for International Economics

Christopher Le Mon Former Special Assistant to the President for National Security Affairs

Dr. Madeleine K. Albright Former Secretary of State

Marcel Lettre Former Under Secretary of Defense for Intelligence

Steven L. Arnold Lieutenant General U.S. Army (Ret.)

George Little Former Assistant Secretary of Defense for Public Affairs

Alyssa Ayres Former Deputy Assistant Secretary of State for South Asia

Albert J. Madora Major General U.S. Army (Ret.)

Jeremy Bash Former Chief of Staff, Department of Defense

Kelly Magsamen Former Principal Deputy Assistant Secretary of Defense for Asian and Pacific Security Affairs
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Case 2:17-cv-00178-JLR Document 10-10 Filed 03/14/17 Page 4 of 9

Rand Beers Former Acting Secretary of the Department of Homeland Security

Thomas Malinowski Former Assistant Secretary of State for Democracy, Human Rights, and Labor

Daniel Benjamin Former Coordinator for Counterterrorism, Department of State

Robert Malley Former Special Assistant to the President and White House Coordinator for the Middle East, North Africa, and the Persian Gulf Region

Rob Berschinski Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor

Brian McKeon Former Acting Under Secretary of Defense for Policy

Nisha Biswal Former Assistant Secretary of State for South and Central Asian Affairs

Pete McCloskey, Jr. U.S. Congressman, 1967-1983 11th, 17th, and 12th Congressional Districts of CA

Jarrett Blanc Former Deputy Special Representative to Afghanistan and Pakistan

John McLaughlin Former Deputy Director and Acting Director of Central Intelligence Agency

Charles Blanchard Former General Counsel U.S. Air Force

Philip McNamara Former Assistant Secretary for Partnerships and Engagement, Department of Homeland Security

Antony Blinken Former Deputy Secretary of State

Bernadette Meehan Former Special Assistant to the President for National Security Affairs

Max Boot Jeane J. Kirkpatrick Senior Fellow in National Security Studies Council on Foreign Relations

Sarah Mendelson Former Ambassador to the Economic and Social Council, United Nations

David M. Brahms Brigadier General U.S. Marine Corps (Ret.)

James Miller Former Undersecretary of Defense for Policy

Michael Breen Retired United States Army Officer

Lisa Monaco Former Assistant to President for Homeland Security and Counterterrorism and Deputy National Security Advisor

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Case 2:17-cv-00178-JLR Document 10-10 Filed 03/14/17 Page 5 of 9

Rosa Brooks Former Counselor to Under Secretary of Defense for Policy

Alberto Mora Former General Counsel, Department of the Navy

Ambassador (ret.) Nicholas Burns Former Under Secretary of State for Political Affairs, Ambassador to NATO and to Greece

Janet Napolitano Former Secretary of the Department of Homeland Security

Ambassador William J. Burns Former Deputy Secretary of State

William L. Nash Major General U.S. Army (Ret.)

Luis C.deBaca Former Ambassador at Large to Monitor and Combat Trafficking in Persons

Thomas Nides Former Deputy Secretary of State for Management and Resources

Michael Carpenter Former Deputy Assistant Secretary of Defense for Russia, Ukraine, Eurasia

Michael P. Noonan U.S. Army Veteran Director of Research, Foreign Policy Research Institute

Derek Chollet Former Assistant Secretary of Defense for International Security Affairs

Suzanne Nossel Former Deputy Assistant Secretary of State for International Organizations Affairs

Richard Clarke Former National Coordinator for Security, Infrastructure Protection and Counterterrorism for the U.S.

James C. O’Brien Former Special Envoy for Hostage Recovery

David Cohen Former Deputy Director, Central Intelligence Agency

Matthew Olsen Former Director of the National Counterterrorism Center

Bathsheba Crocker Former Assistant Secretary of State for International Organization Affairs

Rick Olson Former Special Representative for Afghanistan and Pakistan

Ryan C. Crocker Former U.S. Ambassador to Lebanon, Kuwait, Syria, Pakistan, Iraq, and Afghanistan

Charles Otstott Lieutenant General U.S. Army (Ret.)

James P. Cullen Brigadier General U.S. Army (Ret.)

Eric Pelofsky Former Special Assistant to the President and Senior Director for North Africa and Yemen

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Case 2:17-cv-00178-JLR Document 10-10 Filed 03/14/17 Page 6 of 9

Mary DeRosa Former Deputy Counsel to the President for National Security Affairs

Gale Pollock Major General U.S. Army (Ret.)

Daniel Drezner Professor Fletcher School of Law and Diplomacy

Amy Pope Former Deputy Homeland Security Advisor and Deputy Assistant to the President for National Security Affairs

Paul D. Eaton Major General U.S. Army (Ret.)

Michael Posner Former Assistant Secretary of State for Democracy, Human Rights and Labor

Mari K. Eder Major General U.S. Army (Ret.)

Samantha Power Former United States Ambassador to the United Nations

Brian Egan Former Legal Adviser U.S. State Department

Jeffrey Prescott Former Senior Director for Iran, Iraq, Syria, and the Gulf States, National Security Council

Evelyn Farkas Former Executive Director, Commission on the Prevention of WMD Proliferation and Terrorism

Ned Price Former Special Assistant to the President and National Security Council Spokesperson

Daniel Feldman Former Special Representative for Afghanistan and Pakistan

Dafna Rand Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor

Steve Feldstein Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor

William D. Razz Waff Major General U.S. Army (Ret.)

Jose W. Fernandez Former Assistant Secretary of State for Economic, Energy, and Business Affairs

Susan Rice Former National Security Advisor to the President of the U.S.

Jonathan Finer

Bill Richardson

Former Director of Policy Planning, Department of Former Governor of New Mexico and United

State

States Ambassador to the United Nations

Michele Flournoy Former Under Secretary of Defense for Policy

Leon Rodriguez Former Director, U.S. Citizenship and Immigration Services

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Case 2:17-cv-00178-JLR Document 10-10 Filed 03/14/17 Page 7 of 9

Eugene Fox Major General U.S. Army (Ret.)

Laura Rosenberger Former Chief of Staff to the Deputy Secretary of State

Danielle Garbe

Tommy Ross

Former Director for Lebanon and Jordan, National Former Deputy Assistant Secretary of Defense for

Security Council

Security Cooperation

Dennis P. Geoghan Brigadier General U.S. Army (Ret.)

Murray G. Sagsveen Brigadier General U.S. Army (Ret.)

Suzy George Former Deputy Assistant to the President, Chief of Staff and Executive Secretary, National Security Council

Eric Schwartz Former Assistant Secretary of State for Population, Refugees, and Migration

F. Stephen Glass Rear Admiral, JAGC U.S. Navy (Ret.)

Norman R. Seip Lieutenant General U.S. Air Force (Ret.)

Rachel Goldbrenner Former Senior Policy Advisor to the U.S. Ambassador to the United Nations

Wendy Sherman Former Under Secretary of State for Political Affairs

Mary Beth Goodman Former Special Assistant to the President for Development and Democracy

Vikram Singh Former Deputy Assistant Secretary of Defense for South and Southeast Asia

Philip Gordon Former Special Assistant to the President and White House Coordinator for the Middle East, North Africa, and the Persian Gulf Region

Elissa Slotkin Former Acting Assistant Secretary of Defense for International Security Affairs

Wilton Scott Gorske Major General U.S. Army (Ret.)

Jeff Smith Former General Counsel, Central Intelligence Agency

Donald J. Guter Rear Admiral, JACG U.S. Navy (Ret.)

Julianne “Julie” Smith Former Deputy National Security Advisor to the Vice President of the United States

Ziad Haider Former Special Representative for Commercial and Business Affairs, U.S. Department of State

Tara Sonenshine Former Under Secretary of State for Public Diplomacy and Public Affairs

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Case 2:17-cv-00178-JLR Document 10-10 Filed 03/14/17 Page 8 of 9

Irv Halter Major General U.S. Air Force (Ret.)

Matthew Spence Former Deputy Assistant Secretary of Defense for Middle East Policy

Lee H. Hamilton U.S. Congressman, 1965-1999 9th Congressional District of IN

James Steinberg Former Deputy Secretary of State

Keith Harper

Nik Steinberg

Former Ambassador to the United Nations Human Former Counselor to the U.S. Permanent

Rights Council

Representative to the United Nations

Luke Hartig Former Senior Director for Counterterrorism National Security Council

Seth M.M. Stodder Former Assistant Secretary of Homeland Security for Border, Immigration & Trade Policy

Caitlin Hayden Former National Security Council Spokesperson

Jake Sullivan Former National Security Advisor to the Vice President of the U.S.

Leif H. Hendrickson Brigadier General U.S. Marine Corps (Ret.)

Timothy S. Sullivan Rear Admiral U.S. Coast Guard (Ret.)

Heather Higginbottom Former Deputy Secretary of State for Management and Resources

Antonio M. Taguba Major General U.S. Army (Ret.)

John D. Hutson Rear Admiral, JACG U.S. Navy (Ret.)

Jim Townsend Former Deputy Assistant Secretary of Defense for European and NATO Policy

David. R. Irvine Brigadier General U.S. Army (Ret.)

Michael G. Vickers Former Under Secretary of Defense for Intelligence

John H. Johns Brigadier General U.S. Army (Ret.)

David Wade Former Chief of Staff, Department of State

Colin Kahl Former National Security Advisor to the Vice President of the United States

William Wechsler Former Deputy Assistant Secretary of Defense for Counterterrorism and Special Operations

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Case 2:17-cv-00178-JLR Document 10-10 Filed 03/14/17 Page 9 of 9

Gil Kerlikowske

Moira Whelan

Former Commissioner, United States Customs and Former Deputy Assistant Secretary of State for

Border Protection

Public Affairs

John Kerry Former Secretary of State

Catherine Wiesner Former Deputy Assistant Secretary of State, Bureau of Population, Refugees, and Migration

Jeremy Konyndyk Former Director, Office of U.S. Foreign Disaster Assistance, USAID

Douglas Wilson Former Assistant Secretary of Defense for Public Affairs

Charles Kupchan Former Special Assistant to the President for National Security Affairs

Tamara Cofman Wittes Former Deputy Assistant Secretary of State for Near Eastern Affairs

Mark P. Lagon Former U.S. Ambassador-at-Large to Combat Trafficking in Persons

Jon Brook Wolfsthal Former Special Assistant to the President for National Security Affairs

Jonathan Lee Former Deputy Chief of Staff, Department of Homeland Security

Lee Wolosky Former Special Envoy for Guantanamo Closure

Michael R. Lehnert Major General U.S. Marine Corps (Ret.)

Tom Wyler Former Counselor to the Secretary of Commerce and Senior Advisor for International Economics

Paul N. Lekas

Stephen N. Xenakis

Former Deputy General Counsel for Legal Counsel, Brigadier General

Department of Defense

U.S. Army (Ret.)

CC: The Honorable Rex W. Tillerson, Secretary of State The Honorable James N. Mattis, Secretary of Defense The Honorable Jefferson B. Sessions, Attorney General of the United States The Honorable John F. Kelly, Secretary of Homeland Security The Honorable Michael P. Dempsey, Acting Director of National Intelligence

Page 8 of 8

 
 Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 1 of 86

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 John Doe, Jack Doe, Jason Doe, Joseph Doe and James Doe, individually, and on behalf of
10 all others similarly situated; the Episcopal Diocese of Olympia, and the Council on
11 American Islamic Relations-Washington,

12

Plaintiffs,

13

v.

14 Donald Trump, President of The United States;

15 U.S. Department of State; Rex Tillerson,
Secretary of State; U.S. Department of 16 Homeland Security; John Kelly, Secretary of

17

Homeland Security; U.S. Customs and Border Protection; Kevin McAleenan, Acting

18 Commissioner of U.S. Customs and Border Protection; and Michele James, Field Director

19 of the Seattle Field Office of U.S. Customs and

Border Protection 20

Defendants. 21

No. 2:17-cv-00178-JLR
SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

22

23

24

25

26

SECOND AMENDED CLASS ACTION COMPLAINT
`

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 2 of 86

1 2 3 I. 4 II.

TABLE OF CONTENTS Page
INTRODUCTION........................................................................................................ 1 JURISDICTION AND VENUE.................................................................................... 6

5 III. 6 7 8 9 10 11 12 13 14 15 16
IV. 17 18 19 20 21 22 23

PARTIES ..................................................................................................................... 6 A. Plaintiffs ........................................................................................................... 6
1. Plaintiff John Doe.................................................................................. 6 2. Plaintiff Jack Doe .................................................................................. 8 3. Plaintiff Jason Doe .............................................................................. 10 4. Plaintiff Joseph Doe ............................................................................ 12 5. Plaintiff James Doe.............................................................................. 14 6. Plaintiff The Episcopal Diocese of Olympia ........................................ 17 7. Plaintiff The Council on American-Islamic Relations-
Washington ......................................................................................... 21 B. Defendants...................................................................................................... 24 FACTUAL BACKGROUND ..................................................................................... 25 A. President Trump’s January 27, 2017 Original Executive Order ....................... 25
1. Visa Revocations Pursuant to the Original Executive Order................. 27 2. Chaos, Confusion, and Whiplash in the Implementation of
the Original Executive Order ............................................................... 28 3. The Discriminatory Intent Behind the Original Executive
Order ................................................................................................... 31 B. President Trump’s March 6, 2017 Revised Executive Order............................ 36

24

C. The Arbitrariness of the Executive Orders....................................................... 45

25

1. Arbitrariness of the Travel Ban............................................................ 45

26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE i
`

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 3 of 86

1 2 3 4 5 6 7
V. 8
VI. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

a. The Faulty Logic Behind Invoking the 9/11 Attacks to Justify the Travel Ban .......................................................... 45
b. The Faulty Logic Behind Invoking 2015 Data to Justify the Travel Ban .............................................................. 50
2. Arbitrariness of the Suspension of the Refugee Admissions Program............................................................................................... 54
D. President Trump’s Continuing Defiance of Court Orders Regarding the Executive Orders ...................................................................... 65
CLASS ACTION ALLEGATIONS ............................................................................ 71
CAUSES OF ACTION............................................................................................... 73

SECOND AMENDED CLASS ACTION COMPLAINT PAGE ii

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 4 of 86

1

I. INTRODUCTION

2

1. Just as “the world is not made brand new every morning,” McCreary County v.

3 American Civil Liberties Union of Kentucky, 545 U.S. 844, 866 (2005), “a person is not made

4 brand new simply by taking the oath of office.” Aziz v. Trump, No. 17-116, 2017 WL 580855, at

5 *8 (E.D. Va. Feb. 13, 2017). Impermissible animus cannot be cleansed with a few “mostly minor

6 technical differences”:1 a Muslim ban is a Muslim ban.

7

2. One week after taking the oath of office as President of the United States,

8 Defendant Trump carried out a promise he made repeatedly and explicitly on the campaign trail,

9 launching “a total and complete shutdown of Muslims entering the United States” with his

10 signature on Executive Order 13769 “Protecting the Nation from Foreign Terrorist Entry into the

11 United States” (the “Original Executive Order” or “Original Order”), 82 Fed. Reg. 8977, on

12 January 27, 2017. The vice chairman of Defendant Trump's transition team confirmed the next

13 day that the Original Executive Order was, in fact, Defendant Trump’s attempt to institute his

14 “Muslim ban.”2

15

3. With the stroke of a pen, he threw into chaotic uncertainty the lives of tens of

16 thousands of individuals who had been granted valid student and work visas and disrupted the

17 passage to safety for refugees and their families, including women and children who had been

18 victimized by actual terrorists, all of whom had already been subjected to an exhaustive and

19 thorough screening by the United States government

20

4. May 7, 2017, marked the 100th day since the signing of the Original Order.3

21

5. Multiple courts—including this Court and the Ninth Circuit Court of Appeals—

22 recognized the ban for the affront to our Constitution it was and promptly stayed it. While

23 continuing to insist “nothing was wrong” with the Original Order, Defendants openly advertised

24

25 1 See infra note 116.
26 2 See infra note 38.
3 April 27, 2017, marked the 90th day which was the initial time frame for the travel ban.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 1

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 5 of 86

1 that the Revised Order would have “mostly minor technical differences” from the Original Order
2 and “fundamentally” would be “the same basic policy outcome for the country.”4 Defendants 3
then spent more than a month publicly struggling to figure out how to do exactly what they 4
repeatedly said they wanted to do: ban Muslims. 5
6. In the meantime, Defendant Trump continued to stoke fear and sow 6 misinformation, claiming “our country [is] in such peril. . . . People pouring in. Bad!”5, “THE 7 SECURITY OF OUR NATION IS AT STAKE!”,6 and “‘77% of refugees allowed into U.S. 8 since travel reprieve hail from seven suspect countries.’ (WT) [sic] SO DANGEROUS!”7 9
7. Defendant Trump was supposed to issue the new order on March 1, 2017, the day 10 after he addressed Congress.8 But despite his public statements regarding the urgent national 11
security need for the ban, Defendant Trump delayed signing a new order for five days more to 12
maximize the favorable press coverage of his first address to Congress and to allow the executive 13 order “to have its own ‘moment.’”9 14
8. On March 6, 2017, Defendant Trump signed Executive Order 13780, also titled 15
“Protecting the Nation from Foreign Terrorist Entry into the United Sates” (“Revised Executive 16
Order” or “Revised Order”), 82 Fed. Reg. 13209. Despite the fact that Defendant Trump had 17
originally claimed that “[i]f the ban were announced with a one week notice, the ‘bad’ would 18

19

20
4 See infra note 116.
21 5 See infra note 109.
22 6 See infra note 111.

23 7 See infra note 112.

24 8 See infra note 44.
9 Laura Jarrett, Ariane de Vogue & Jeremy Diamond, Trump Delays New Travel Ban After Well-Reviewed Speech,
25 CNN (Mar. 1, 2017), http://www.cnn.com/2017/02/28/politics/trump-travel-ban-visa-holders (last accessed Mar. 13,
2017); Marina Feng, Pence Says Trump’s Revised Immigration and Travel Ban Coming ‘In a Few Days,’
26 Huffington Post (Mar. 1, 2017), http://www.huffingtonpost.com/entry/trump-revised-immigration-
ban_us_58b6cc57e4b0a8a9b787b1f0 (last accessed Mar. 13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 2

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 6 of 86

1 rush into our country during that week,”10 the Revised Order was set to go into effect ten days 2
after its signing, on March 16, 2017. 3
9. As Defendant Trump has admitted, the Revised Order is just a “watered-down 4 version” of his first travel ban.11 5
10. The Revised Order is every bit as much of a Muslim ban as the Original Order 6
and every bit as unconstitutional. It reflects Defendant Trump’s explicit vow to “follow[ ] 7 through on what I pledged to do”12 and “keep my campaign promises.”13 True to that promise, 8
Defendants made a few cosmetic changes to address some of the most obvious facial legal 9
deficiencies with the Original Order. 10
11. But the Constitution is not so easily fooled. Cosmetic changes made openly and 11
explicitly to evade judicial scrutiny fail to mask the discriminatory animus that continues to 12
pervade the Order. Even if not as plain on its face as the Original Order, the Revised Order 13
remains in contravention of “[t]he clearest command of the Establishment Clause . . . that one 14
religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 15
228, 244 (1982). 16
12. Just like the Original Order, the Revised Order bans the entry into this country of 17
nationals from the Muslim-majority countries of Iran, Libya, Somalia, Sudan, Syria, and Yemen 18
(the “Designated Countries”) and completely halts refugee entries for 120 days. And although 19
Iraqis are no longer banned under the Revised Order, it targets no new countries. 20
13. Far from eliminating the need for judicial scrutiny, the combined Orders 21
underscore the need for it. The secret revocation of tens of thousands of valid visas pursuant to 22
the Original Order, the subsequent post hoc attempt to exempt green card holders—but not other 23

24 10 See infra note 101.
25 11 See infra note 49. 26 12 See infra note 41.
13 Id.
SECOND AMENDED CLASS ACTION COMPLAINT PAGE 3

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 7 of 86

1 valid visa holders—from the Original Order, the implication by Defendant Trump that he would
2 not abide by court orders staying the Original Order, and the eventual issuance of a Revised
3 Order with an arcane waiver scheme dependent solely upon the discretion of individual consular
4 officers has created an unstable, unpredictable, and uncertain situation for all Plaintiffs.
5 14. Plaintiffs are Washington residents from the Designated Countries with lawful
6 non-immigrant status but without re-entry visas (e.g., expired multiple-entry visas or used single-
7 entry visas) who are trapped inside the United States—unable to visit their families in their home
8 countries or carry out education-related travel for fear they will be unable to return to their lives
9 here (“the Non-Immigrant Visa Class”). Unlike similarly situated people from the non-
10 Designated Countries, once members of the Non-Immigrant Visa class leave the country, they
11 know they will be singled out: the default for them is denial of a new visa unless they are
12 fortunate enough to procure a waiver from the general ban.
13 15. Plaintiffs are also refugees and asylees who reside in Washington and have filed
14 petitions to reunify with their family members who have completed and cleared their final
15 security screenings (“the Refugee Class”). They have fled war-torn countries, survived brutal
16 conditions in refugee camps, and finally made it into the United States—some, after years of
17 uncertainty and fear. They anxiously await reunification with dearly loved family members who
18 were cleared for travel prior to the signing of the Original Order and now reasonably fear those
19 family members will never make it into the United States. Plaintiffs seek to directly represent
20 themselves and others similarly situated.
21 16. Also harmed by the Revised Order is Plaintiff the Episcopal Diocese of Olympia
22 (the “Episcopal Diocese” or “Diocese”), a religious entity organized in the State of Washington
23 to do charitable works, including to support the resettlement of refugees in Washington. The
24 Diocese has had its refugee resettlement activities completely upended as a result of the Original
25 and Revised Executive Orders which barred the arrival of persons admitted through the United
26 States Refugee Admissions Program (“USRAP”). As of the filing of the Second Amended

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 4

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 8 of 86

1 Complaint, nearly a dozen families from the Designated Countries and nearly the same number
2 of families from other countries whom the Episcopal Diocese was supporting in resettlement
3 were granted refugee status and approved for travel to the United States but had their trips
4 canceled as a result of the Orders, wasting precious resources and frustrating the activities of the
5 Diocese.
6 17. The Council on American-Islamic Relations-Washington (“CAIR-WA”) is
7 harmed by the Revised Order. CAIR-WA is a non-profit organization based in Seattle that works
8 to promote an understanding of Islam through dialogue, education, protection of civil liberties,
9 and coalition-building. As a result of the Orders, CAIR-WA has received numerous inquiries
10 from its constituent about American-Muslim travelers who have become the target of
11 unconstitutional ideological questioning by Transportation Security Administration and Customs
12 and Border Protection agents about their personal beliefs. CAIR-WA has had to devote
13 substantial, unplanned-for resources to respond.
14 18. The Episcopal Diocese of Olympia, CAIR-WA, and the individual Plaintiffs—on
15 behalf of themselves and two classes of similarly situated people in Washington State—bring
16 this suit to challenge the provisions and implementation of the Revised Executive Order that
17 violate the First Amendment, the Fifth Amendment, the Religious Freedom Restoration Act
18 (“RFRA”), 42 U.S.C. § 2000bb et seq., the Immigration and Nationality Act, 8 U.S.C. § 1101 et
19 seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.
20 19. The individual Plaintiffs, the classes they seek to represent, the Episcopal
21 Diocese, and CAIR-WA (collectively, “Plaintiffs”), currently suffer serious harm and will
22 continue to suffer such harm until and unless this Court preliminarily and permanently enjoins
23 the Revised Executive Order. Plaintiffs have no adequate remedy at law.
24
25
26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 5

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 9 of 86

1

II. JURISDICTION AND VENUE

2

20. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 over Plaintiffs’

3 claims under the U.S. Constitution and federal statutes, as well as under the Administrative

4 Procedure Act, 5 U.S.C. § 706.

5

21. The Court has the authority to grant declaratory relief pursuant to the Declaratory

6 Judgment Act, 28 U.S.C. §§ 2201 and 2202.

7

22. Venue is proper under 28 U.S.C. § 1391(b)(2) and (e)(1). A substantial part of the

8 events or omissions giving rise to the claims occurred in this district, and all individual Plaintiffs

9 reside in this District. Further, Defendants are officers or employees of the United States acting

10 in their official capacities, and agencies of the United States.

11

23. Plaintiff the Episcopal Diocese, also known as the Episcopal Church in Western

12 Washington, is a diocese of the Episcopal Church in Washington State west of the Cascade

13 Range. The Episcopal Diocese is headquartered in Seattle and is a registered 501(c)(3)

14 corporation.

15

24. The Council on American-Islamic Relations-Washington (CAIR-WA) is a

16 501(c)(3) non-profit organization that operates from its offices in downtown Seattle.

17
18 A.
19
20

Plaintiffs 1. Plaintiff John Doe

III. PARTIES

21

25. Plaintiff John Doe is an Iranian national who resides in Seattle, Washington. John

22 Doe is a fourth year Ph.D. candidate in Aeronautic and Astronautic Engineering at the University

23 of Washington. John Doe is simultaneously studying for a master’s degree in applied

24 mathematics at the University of Washington. John Doe has a provisional patent, “patent

25 pending,” in the United States pertaining to battery function. He is also a graduate fellow with

26 the Clean Energy Institute in Seattle.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 6

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 10 of 86

1 26. John Doe holds a multiple entry F-1 student visa that will expire in August 2017.
2 This is his second such visa that allows him to pursue full-time educational study in the United
3 States. John Doe received both of his F-1 visas after an intensive vetting and screening process
4 abroad that included an in-person interview and proof of his admission status at the University of
5 Washington as a full-time doctoral student.
6 27. John Doe first arrived in the United States in 2012. Before that he studied for a
7 master’s degree in civil engineering in the Netherlands, and then worked for a year in the
8 Netherlands for an international offshore oil and gas company. John Doe has also served as a
9 visiting researcher at ETH Zurich in Switzerland studying nonlinear solitary waves, and at the
10 University of South Carolina studying nonlinear wave propagation. John Doe received his
11 undergraduate bachelors of science degree in civil engineering in Iran.
12 28. John Doe’s immediate and extended family, including maternal grandparents, all
13 live in Iran.
14 29. John Doe is engaged in collaborative research with the Chinese Academy of
15 Science. He co-authors publications with Chinese researchers and is actively advising and
16 directing joint research with students in the United States and China on these projects. As part of
17 this collaboration, John Doe conducted research in China for three months in 2016. John Doe
18 was planning to return to China for further research and collaboration in April of 2017 but
19 canceled that trip because of the travel ban. John Doe hopes to be able to go to China this
20 summer but remains fearful of what position Defendants may take next that might potentially
21 leave him stranded outside the country if he makes the trip.
22 30. As part of his doctorate studies, it is anticipated and expected that John Doe will
23 participate in international conferences, because such endeavors are essential to his training and
24 his ability to be fully active in the scientific and research community. There are numerous
25 upcoming academic conferences that John Doe was planning to attend such as the International
26 Renewable Energy Storage Conference in Dusseldorf, Germany on March 14-16, 2017, the

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 7

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 11 of 86

1 International Conference on Hybrid and Organic Photovoltaics in Lausanne, Switzerland in May
2 2017, and the Third International Conference on Perovskite Solar Cells and Optoelectronics in
3 Oxford, England in September 2017. However, as the submission deadline for the conferences
4 are often several months before the event, and given the multiple times Defendants changed their
5 mind while implementing the Original Order, John Doe either decided not to submit proposals
6 for several of the conferences to which he otherwise would have applied to make presentations
7 or canceled his travel plans to attend as a result of Defendants’ actions. In addition, given the
8 uncertainty that remains with the Revised Order, he continues to fear that if he leaves the United
9 States to attend an academic conference, he may be prevented from re-entering the United States.
10 John Doe’s inability to reenter the United States would prevent him from completing his
11 doctorate.
12 31. John Doe’s research and career have suffered and will continue to suffer as long
13 as the Revised Executive Order is in place.
14 32. John Doe is pursuing his claims anonymously because he is afraid of retaliation
15 from the United States government or others for asserting his rights.
16 2. Plaintiff Jack Doe
17

18

33. Plaintiff Jack Doe is an Iranian national who resides in Seattle.

19

34. Jack Doe was born and raised in a Muslim family.

20

35. Jack Doe is a post-doctorate researcher at the University of Washington in a joint

21 appointment that includes Electrical Engineering. Until recently, he was working under his F-1

22 visa Optional Practical Training (“OPT”) status, and subsequent extension for STEM students

23 (“STEM OPT”), which together allowed him, after completing his degree, to work for 3 years in

24 academia. OPT is temporary employment that is directly related to an F-1 student’s major area of

25 study, and the STEM OPT extension allows certain F-1 students who receive science,

26 technology, engineering, and mathematics (STEM) degrees, and who meet other specified

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 8

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 12 of 86

1 requirements, to apply for a 24-month extension of their post-completion OPT. Application for
2 both OPT and STEM OPT requires endorsement by the student’s “designated school official” at
3 the student’s U.S. academic institution.
4 36. Jack Doe’s OPT status was due to expire on May 31, 2017, and with it, his
5 student visa. Recently, since the issuance of the Revised Order, Jack Doe received his H1-B
6 status.
7 37. Jack Doe has an undergraduate degree in Electrical Engineering from Sharif
8 University in Tehran.
9 38. Jack Doe first came to the United States in 2006 with an F-1 visa to work on a
10 Ph.D. at the University of Maryland. He obtained his first F-1 student visa from the United States
11 embassy in Cypress.
12 39. In 2008, Jack Doe returned briefly to Iran to visit his family. Most of his family
13 lives in Iran. He also traveled to Dubai to obtain another F-1 single entry student visa that
14 allowed him to return to the United States to continue his educational training. It has been years
15 since he has been able to see his mother and sister in Iran. Because of the Executive Orders, Jack
16 Doe has lost hope that he will be able to see family any time in the near future.
17 40. Since completing his Ph.D. in 2014 until the recent receipt of his H1-B status,
18 Jack Doe was operating under the OPT provision of his visa to do post-doc research at the
19 University of Washington.
20 41. Although Jack Doe is in the United States and working legally, the timing of his
21 status change during the 90-day ban set out in Section 2(c) of the Revised Order has been a
22 complicating factor. Prior to the issuance of the Executive Orders, Jack Doe had been
23 interviewing with employers. His future employment prospects are now in complete jeopardy
24 because he is at a significant disadvantage compared to other foreign nationals who are not from
25 one of the Designated Countries and who can therefore travel freely both for the duration of the
26 90-day ban and in the future.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 9

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 13 of 86

1 42. Since the issuance of the Executive Orders, Jack Doe has felt marginalized,
2 stigmatized, and less than a full member of the community. Jack Doe feels subjected to increased
3 suspicion, scrutiny, and social and political isolation on the basis of his religion (or perceived
4 religion) and national origin. He had plans to take some business and leisure trips within the
5 United States but has cancelled them because he fears for his safety and the hostility he might
6 face in places which are less exposed to immigrants and Muslims. Jack Doe is aware of recent
7 press reports of evidence targeted at Muslims and fears for his safety as a result. In particular, the
8 wide spread press coverage of the shooting of two Indian men in a Kansas bar who were asked
9 what type of visa they held before being yelled at to “get out of my country”14 and shot on the 10
mistaken belief that they were from Iran cause Jack Doe substantial concern for his own safety 11 and well-being.15 12
43. Jack Doe is pursuing his claims anonymously because he is afraid of retaliation 13
from the United States government or others for asserting his rights. 14

15

3. Plaintiff Jason Doe

16 44. Plaintiff Jason Doe is a resident of Seattle.
17 45. Jason Doe is Muslim.
18 46. Jason Doe is an Iranian national. He first came to the United States in 2013 with
19 his wife, who was enrolled in a doctorate program at the University of Washington. His wife
20 held an F-1 visa, and he held an F-2 visa.
21 47. In 2014, Jason Doe was accepted into a 5-year doctorate program at the Business
22 School of the University of Washington to study Information Systems. He is halfway through his
23

24 14 Alyssa Ayres, The Kansas City Shooting Is Quickly Changing How Indians View the U.S., Forbes (Mar. 3, 2017), 25 https://www.forbes.com/sites/alyssaayres/2017/03/03/the-kansas-city-shooting-is-quickly-changing-how-indians-
view-the-u-s/#9476acc60909 (last accessed May 4, 2017).
26 15 Eric Levenson, 911 Calls Reveal the Kansas Suspect Thought He’d Shot ‘Two Iranians,’ CNN (Feb. 28, 2017),
http://www.cnn.com/2017/02/27/us/kansas-olathe-bar-shooting-indian-court/ (last accessed May 4, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 10

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 14 of 86

1 program and anticipates graduating in 2019. Jason Doe would like to stay in academia, as a
2 researcher, writer, and professor in his field.
3 48. After he was admitted to the University of Washington, Jason Doe left the United
4 States to obtain a multiple entry F-1 visa. He obtained one in 2014 and returned to the University
5 of Washington to work on his Ph.D. Jason Doe’s visa expired in August 2016, but he is in the
6 United States lawfully because his F-1 status is valid until 2019 pursuant to his Form I-20. His F-
7 1 status may also be extended if it takes him longer to finish his degree.
8 49. Jason Doe’s wife currently holds an F-2 visa and associated I-20. Her F-2 status
9 will also expire in 2019.
10 50. The majority of his family and his wife’s family are in Iran.
11 51. Given Jason Doe’s time horizon on graduation and the fact that he is halfway
12 through his program, he should be starting to attend conferences to present papers, expand his
13 contacts, and develop his expertise. Most of the conferences that would be appropriate for him to
14 attend are international conferences, which would require travel outside of the United States in
15 the coming months.
16 52. However, as a result of the travel ban, Jason Doe cannot leave the country for fear
17 he will not be permitted to return. He is particularly reluctant to leave without his wife for fear
18 that they will be separated. His research and career will suffer as long as the Revised Executive
19 Order is in place.
20 53. Since the issuance of the Executive Orders, Jason Doe has felt marginalized,
21 stigmatized, and less than a full member of the community. Jason Doe has felt subjected to
22 increased suspicion, scrutiny, and social and political isolation on the basis of his religion (or
23 perceived religion) and national origin. He read reports of an Iranian man in Oregon who was not
24 Muslim but who returned home from a trip to find his house vandalized, sprayed with hate-filled
25 racist graffiti (“F*** YOU TERRORIST”) and a note weighted down by bullets in the shape of a
26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 11

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 15 of 86

1 cross that said “if I see you here next month, I will shoot you and burn your house.”16 When 2
someone asks him where he is from or what his religion is, he is no longer comfortable 3
answering that he is from Iran or that he is a Muslim because he is worried about the 4
consequences. Jason Doe no longer feels safe walking in the streets at night because he worries 5 someone might shoot him because of how he looks and because they hate Muslims.17 6
54. Jason Doe is pursuing his claims anonymously because he is afraid of retaliation 7
from the United States government or others for asserting his rights. 8
4. Plaintiff Joseph Doe 9

10

55. Plaintiff Joseph Doe is a Somali national who currently resides in Des Moines,

11 Washington.

12

56. Joseph Doe is a practicing Muslim.

13

57. Joseph Doe is married with three children.

14

58. Prior to arriving in the United States, Joseph Doe had lived in refugee camps in

15 Kenya since 1992—for nearly 22 years. Joseph Doe’s family fled Somalia during that country’s

16 violent civil war to escape persecution and the risk of being killed because of their clan

17 membership. While trying to reach safety, Joseph Doe’s family spent weeks in the forest without

18 food. Fighters from one of the warring factions found them in the forest and raped Joseph Doe’s

19 older sister. His mother tried to stop the rape of her daughter, but the men clubbed her in the

20 head with the butt of their guns. His sister, who was pregnant, bled to death following the rape.

21 Joseph Doe was approximately ten years old at the time and witnessed all of these events. He

22 struggles with these memories to this day.

23

24

25 16 Lizzy Acker, Portland-Area Man’s Home Vandalized with Death Threats and Racist Graffiti, The Oregonian
(Mar. 31, 2017), http://www.oregonlive.com/pacific-northwest-news/index.ssf/2017/03/portland-
26 area_mans_home_vandal.html (last accessed May 5, 2017).
17 See supra notes 14-15.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 12

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 16 of 86

1 59. Joseph Doe’s family eventually reached Kenya and began living in a refugee
2 camp. Joseph Doe had his initial interview with the United Nations High Commissioner for
3 Refugees (“UNHCR”) in 2000 with his mother, two brothers, and three surviving sisters.
4 60. In 2004, Joseph Doe left the camp one morning as he often did to try to earn some
5 money for his family. But when he returned, he found out that the local Turkana people had
6 raided the camp, and in the subsequent fighting and upheaval, his family was nowhere to be
7 found. To this day, Joseph Doe does not know where his mother or siblings are or what
8 happened to them. He still hopes to find them someday.
9 61. When he was finally called for an interview with DHS/USCIS in 2011, Joseph
10 Doe had just gotten married. He went through the screening process with DHS/USCIS starting in
11 2011 and completed it in December 2013.
12 62. Joseph Doe finally arrived in the United States on January 28, 2014, as a refugee.
13 He only had refugee status for himself as the refugee process was begun for him with his mother
14 and siblings when he was a child.
15 63. Joseph Doe became a legal permanent resident in 2016. Joseph Doe is currently
16 working, sending money to his family in Kenya, and preparing for their arrival.
17 64. When he came to the United States, Joseph Doe had to leave behind in Kenya his
18 wife and children, the youngest of whom was just about six months old at the time. His children
19 are now 3, 4, and 9 years old.
20 65. Joseph Doe filed a Refugee/Asylee Relative Petition, Form I-730, for his wife and
21 three children in June 2015. His wife and children had their final interviews in November 2016,
22 which they successfully passed; they have completed the security clearance; they completed their
23 medical clearance on January 31, 2017; and they received their final required injections on
24 March 1, 2017. They are only waiting to be scheduled for travel to the United States.
25 66. Joseph Doe was told that the only thing left before his family would travel to the
26 United States was for their travel arrangements to be finalized. However, as of the date of this

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 13

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 17 of 86

1 filing, Joseph Doe’s family members have not received their tickets for travel, and they have not
2 been permitted to come to the United States.
3 67. Joseph Doe has been unable to learn why his family’s travel has not been
4 arranged or why they have not been able to travel to the United States.
5 68. Because of the Revised Order, Joseph Doe now understands that his family’s
6 travel to the United States will be delayed for at least 120 days, and possibly indefinitely if the
7 refugee cap is met before they are admitted. With this delay, it is likely that his family’s medical
8 clearance will expire and they will be required to repeat that part of the process.
9 69. Joseph Doe’s youngest son often cries for him, asks his mother where his dad is,
10 and asks to talk to his dad. When Joseph Doe speaks with his son, his son constantly asks
11 “Where are you?” and “Why can’t you come for us?” Joseph Doe has applied for an I-131 travel
12 document to visit his wife and children in Kenya. However, he is afraid to leave the country even
13 with a travel document because he fears he will not be allowed to return to the United States.
14 70. The Revised Order has interfered with and delayed the arrival to the United States
15 of the only family Joseph Doe has left. Joseph Doe is injured by that interference and delay.
16 71. Joseph Doe is pursuing his claims anonymously because he is afraid of retaliation
17 from the United States government or others for asserting his rights.
18 5. Plaintiff James Doe
19

20

72. James Doe is an Eritrean national who resides in Seattle, Washington.

21

73. James Doe fled Eritrea in 2009 after being imprisoned because of his political

22 beliefs. In 2009, he was working at Sawa Military Training Camp (“Sawa”) as part of his

23 mandatory national service, which is required of every Eritrean for 18 months by law, but in

24 practice is a system of indefinite conscription. The Eritrean government requires all Eritrean

25 students to spend their last year of high school at Sawa, and James Doe was working as an

26 instructor there, teaching accounting, which was his focus of study at university. While he was

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 14

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 18 of 86

1 forced to work at Sawa, he was only able to go home to see his wife and children every three or
2 four months. At that time, his oldest child was about a year old, and his wife was expecting their
3 second child.
4 74. In or around March 2009, the Eritrean government called a meeting to ask people
5 at Sawa what changes they would like to see implemented, and James Doe participated in this
6 meeting and voiced his opinions. Two or three days later, government officers came to his room
7 at Sawa and arrested him.
8 75. They took him to an underground prison and kept him there for approximately
9 five months. The prisoners were not given enough food to eat, and they had no water for
10 washing. Many prisoners were tortured with beatings and by being tied up for long periods of
11 time, including one technique well known in Eritrean prisons called the “helicopter,” in which
12 the hands and feet of a prisoner are tied behind his back and he is made to lie on the ground, face
13 down, or suspended in the air. Sometimes the guards would remove prisoners and not bring them
14 back, and the other prisoners did not know what became of them. James Doe knew not to speak
15 out to the prison guards and was able to avoid being tortured, and eventually, he escaped the
16 prison.
17 76. He fled first to Sudan, then through Egypt, and made it to Israel. Once he had
18 made it to Israel, he was finally able to contact his wife and let her know what had happened to
19 him.
20 77. James Doe stayed in Israel for a significant time, but he could not get permanent
21 status in Israel as a refugee. He was able to get a visa for travel to Sri Lanka as a refugee, but
22 after he arrived there, the Sri Lankan government began detaining Eritrean refugees. He was
23 detained and kept in prison for almost two years.
24 78. The United Nations, investigating the Sri Lankan detention centers, became aware
25 of him and worked with him to help him obtain refugee status in the United States. In April
26 2015, nearly six years after he escaped prison in Eritrea, he made it to the United States.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 15

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 19 of 86

1 79. In July 2015, James Doe filed a Refugee/Asylee Relative Petition, Form I-730, for
2 his wife and children. His family is currently living in Ethiopia, and his children, including the
3 daughter whom he has never met, are now 8 and 9 years old.
4 80. James Doe became a lawful permanent resident in 2016. He currently works two
5 jobs, one full-time and one part-time, and provides financial support for his wife and children.
6 81. In late September 2016, James Doe’s I-730 petition for his wife and children was
7 approved. At that time, James Doe learned that his family would come to the United States
8 within the next 4-5 months. His family had been interviewed at the US Embassy in Addis Ababa
9 and had passed their security clearance. They also went through the required medical
10 examinations and immunizations.
11 82. James Doe was told that the only thing left before his family would travel to the
12 United States was for their travel arrangements to be finalized. However, as of the date of this
13 filing, James Doe’s family has not received their tickets for travel, and they have not come to the
14 United States.
15 83. James Doe has been unable to learn why his family’s travel has not been arranged
16 or why they have not been able to travel to the United States.
17 84. Because of the Revised Order, James Doe now understands that his family’s
18 travel to the United States will be delayed for at least 120 days. With this delay, it is likely that
19 his family’s medical clearance will expire and they will be required to repeat that part of the
20 process.
21 85. The Revised Order has interfered with and delayed James Doe’s family’s travel to
22 the United States. James Doe is injured by that interference and delay.
23 86. Since the issuance of the Executive Orders, James Doe has felt subjected to
24 increased suspicion, scrutiny, and social and political questioning on the basis of his religion (or
25 perceived religion) and national origin. Because of his features, coloring, and accent, James Doe
26 is frequently asked by customers at his workplace where he is from and if he is Muslim. He has

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 16

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 20 of 86

1 also had Muslim customers confide in him that they do not feel comfortable speaking in Arabic
2 in public because they are afraid of being discriminated against and that, as a result, they
3 consciously try to speak English in public to avoid being targeted as Muslim. The number and
4 frequency of questions about his national origin and religion that James Doe has received have
5 increased since the issuance of the Executive Orders. When he responds that he is Christian,
6 some customers have confided in him that they “don’t like Muslims,” that they “think all
7 Muslims are bad,” or that they “think that Muslims are terrorists.”
8 87. James Doe is pursuing his claims anonymously because he is afraid of retaliation
9 from the United States government or others for asserting his rights.
10 6. Plaintiff The Episcopal Diocese of Olympia
11

12

88. The Episcopal Diocese of Olympia, also known as the Episcopal Church in

13 Western Washington, is a diocese of The Episcopal Church located in western Washington. It is

14 headquartered in Seattle’s Capitol Hill neighborhood.

15

89. The Episcopal Diocese is a local affiliate of the Episcopal Migration Ministries, a

16 voluntary agency that welcomes refugees through a Cooperative Agreement with the Department

17 of State. The Episcopal Diocese has operated a refugee resettlement program since 1978 and has

18 sponsored more than 15,000 refugees of all religions and nationalities to resettle in the Seattle

19 area. The Episcopal Diocese’s Refugee Resettlement Office (“RRO”) is located in South Seattle

20 and receives and assists refugees from all over the world, including from each of the 7 countries

21 targeted by the Original Executive Order, without regard to race, religion, or country of origin.

22 The RRO is one of eleven ministries offered and provided for by the Episcopal Diocese. The

23 Episcopal Diocese’s refugee resettlement program stems from the moral obligation of the

24 Episcopal faith to welcome and assist strangers, especially those who are poor, sick, and most in

25 need of help.

26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 17

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 21 of 86

1 90. The RRO provides a multitude of services to refugees, including coordinating the
2 arrival of refugees to the United States, housing assistance, job training, providing for basic
3 household needs, advocacy, language tutoring, business training and microenterprise loans, and a
4 savings program to help refugees purchase homes, vehicles, education, or businesses. The RRO
5 has 9.5 full time employees, with 4 full-time equivalent staff working directly to support new
6 arrivals and their survival needs during their first 90 days in the United States. Approximately
7 two dozen volunteers assist the RRO in providing these services.
8 91. Before a refugee arrives in the United States, the RRO is notified by the
9 Department of State that a family has been approved for refugee status and that the RRO should
10 “assure” the case. The RRO is required to make contact with friends or relatives of the arriving
11 refugees living in the U.S. (known as the “U.S. ties”) who were listed on the refugee’s
12 application. The RRO expends significant time making phone calls, sending mail, and making
13 in-person visits to meet with the U.S. tie to evaluate his or her capacity to help the RRO during
14 the resettlement process. The evaluation process includes a home visit to view and evaluate the
15 living space. If there is no possibility that the arriving refugee can live with a U.S. tie, the RRO
16 further interviews the U.S. tie to determine if the relative or friend can assist with transportation,
17 job search, enrollment of kids in school, or any of the other daily tasks with which newly
18 arriving refugees need assistance.
19 92. If the U.S. tie cannot perform these tasks, the RRO invests its own resources to
20 perform this pre-arrival legwork for the incoming refugees. These tasks include, among other
21 things, searching for and obtaining safe housing, furnishing the residence, and stocking it with
22 food and household items prior to the arrival of the refugees. If the refugee family or U.S. tie
23 rejects the apartment or house, RRO staff begin a process of evaluating alternative locations. The
24 RRO undertakes housing inspections that consume significant RRO staff time to ensure that the
25 neighborhood is safe, that there is no bare wiring visible in the living space, no peeling or flaking
26 interior paint or plaster, no visible mold or unsanitary odors, that all windows and doors have

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 18

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 22 of 86

1 working locks, that heat, ventilation, lighting, and running water are adequate, that kitchen
2 appliances and bathroom fixtures are in good repair, and that there are easily accessible storage
3 or disposal facilities for garbage.
4 93. The RRO’s pre-arrival services can also involve cultivation of community groups
5 or churches to help refugees during the first months of their adjustment to life in America. The
6 RRO staff spend time visiting churches and community groups to describe the refugee
7 resettlement process, ask for assistance with specific families that are still en route, and organize
8 committees to help refugee newcomers with specific tasks like searching for employment.
9 94. When the Original Executive Order was issued on January 27, 2017, the RRO
10 was expecting to welcome over 20 refugee families—including families from Syria, Iraq, and
11 Somalia—into the community in the coming days, weeks, and months, and had been actively
12 preparing for their arrival and resettlement in the greater Seattle area by carrying out on their
13 behalves the activities described above. As a result of the RRO’s efforts, these refugee families
14 already had domestic arrangements supporting their arrival in the United States and were
15 approved for travel. Yet, these families had their dreams dashed when they had to abruptly
16 cancel their travel plans as a result of the Original Executive Order.
17 95. Since the Original Executive Order, the RRO’s work has been completely
18 disrupted. The chaos surrounding the implementation of the Original and Revised Executive
19 Orders has also required the RRO to expend additional, unplanned-for resources. RRO staff are
20 working around-the-clock to address the immediate needs of these families in crisis and to
21 respond to questions and concerns from their families and loved ones already in the United
22 States who had been planning for the arrival of these already-approved refugees. In addition,
23 many of the RRO’s resources devoted to these refugee families over the past months have now
24 been wasted.
25 96. The Revised Executive Order only exacerbates the harm to the Diocese and the
26 population it serves. A few of the refugees the Diocese was expecting have arrived between the

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 19

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 23 of 86

1 time the Original Order was halted by court orders and the effective date of the Revised Order.
2 However as of the filing of this Second Amended Complaint, over a dozen families from the
3 Designated Countries and nearly the same number of families from other countries the Diocese
4 was expecting have not arrived and certainly will not be able to complete their trips once the
5 Revised Order goes into effect.
6 97. The Diocese serves refugees and displaced persons of all faiths, but many of its
7 clients are Muslim.
8 98. The Diocese and its RRO believe that the Executive Orders convey an official
9 message of disapproval and hostility by the Defendants toward the Muslim refugees and their
10 families with whom the RRO works, sending the message that the government deems them to be
11 outsiders who are not and should not become full members of the political community. The
12 Diocese and its RRO believe that the Executive Orders thus serve to marginalize these refugees
13 and their families, subjecting them to suspicion, scrutiny, and social and political isolation on the
14 basis of their religion or national origin, and inflicting other stigmatic and dignitary injuries on
15 them.
16 99. Both the Original and Revised Executive Orders have caused and continue to
17 cause significant additional harm to the most vulnerable population that the RRO and Episcopal
18 Diocese are focused on serving. These refugees are fleeing persecution in their country of origin,
19 and are now facing persecution in the safe haven they had been promised in the United States.
20 The dramatic reduction in the overall number of refugees allowed this year will not only rob
21 families of hope and a future but may also cost some of them their lives. The mission and
22 efficacy of the RRO, and through it the Episcopal Diocese, has been thwarted by the Original
23 Executive Order. Because the Revised Executive Order is substantively the same, these injuries
24 will continue once the new Order takes effect.
25
26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 20

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 24 of 86

1

7. Plaintiff The Council on American-Islamic Relations-Washington

2 100. The Council on American-Islamic Relations-Washington (CAIR-WA) is a
3 grassroots civil rights and advocacy group. CAIR-WA is a 501(c)(3) non-profit organization that
4 was incorporated in 2004 and operates from its offices in downtown Seattle.
5 101. The mission of CAIR-WA is to enhance the understanding of Islam in
6 Washington state and throughout the United States by encouraging dialogue, protecting civil
7 liberties, empowering American Muslims, and building coalitions that promote justice and
8 mutual understanding. CAIR-WA also provides direct service to its Muslim constituents in the
9 form of information, training, and access to a network of over 50 pro bono attorneys.
10 102. Since January 27, 2017, and the issuance of the first Executive Order, CAIR-WA
11 has received several inquiries from American-Muslim travelers in Washington who have become
12 the target of unconstitutional and systematic ideological questioning by Transportation Security
13 Administration and Customs and Border Patrol agents about their religious values and political
14 views. The number of such inquiries has increased dramatically since January 27, 2016, and
15 CAIR-WA has devoted and continues to devote considerable unplanned-for resources to respond
16 to these inquiries and to educate the community about its rights in the face of the Executive
17 Orders.
18 103. Since January 27, 2017, CAIR-WA has also been flooded with inquiries from
19 affected persons about the impact of the Executive Orders on their ability or the ability of their
20 families to travel, cross borders, or with respect to visa or immigration status. CAIR-WA has
21 received over 90 such requests for help from US citizens and others between January 27, 2017
22 and April 30, 2017. In all of 2016, CAIR-WA opened a total of about 250 cases—but in just the
23 first four months of 2017, it has already received over 250 requests for assistance, and opened as
24 many cases in the first third of the year as it did in all of 2016.
25

26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 21

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 25 of 86

1 104. In addition to its direct staff, CAIR-WA also works with a network of over 20 pro
2 bono attorneys in Washington who provide direct services to its constituents on civil rights,
3 immigration, and visa issues.
4 105. CAIR-WA has provided referrals and advice to many United States citizens
5 originally from the Affected Countries who are trying to reunite with their immediate families.
6 For example, a Somali national has contacted CAIR-WA regarding his petition to be reunited
7 with his wife and two children who remain in Djibouti. On January 23, 2017, the US Embassy
8 in Djibouti scheduled screening interviews for his family. The Embassy canceled these
9 interviews on January 29, 2017. Despite the injunction preventing the implementation of the
10 Original Order, the US Embassy has refused to reschedule the interviews, and his family is now
11 subject to the restrictions and delays of the Revised Order.
12 106. Another United States citizen originally from Sudan has contacted CAIR-WA
13 regarding her petition for her Sudanese father to receive an IR-5 visa. Her father was scheduled
14 for a screening interview at the US Embassy in the United Arab Emirates on February 15, 2017.
15 The Embassy canceled the interview when the Original Order issued. The interview was
16 rescheduled after the Original Order was enjoined, and her father received his visa on February
17 20, 2017. Unfortunately, however, her father’s efforts to book travel to the United States have
18 been thwarted, due to the issuance of the Revised Order. The airlines have required him to return
19 to the US Embassy to ensure that his recently issued visa is still valid. Her father is now afraid to
20 book his airline travel only to be detained or deported at the border when he tries to enter the
21 United States.
22 107. CAIR-WA assists and advises American Muslims such as those described above
23 and provides education, advocacy, and referrals so they may navigate both the stated and implied
24 ramifications of the Defendants’ Orders.
25 108. CAIR-WA has also experienced a dramatic increase in the number of inquiries
26 from the Muslim community regarding the signed Executive Orders since January 27, 2017, in

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 22

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 26 of 86

1 addition to inquiries about bullying, hate crimes, and other injuries suffered by those it serves as
2 a direct result of Defendants’ open antipathy for those observing the Muslim faith.
3 109. The Executive Orders convey an official message of disapproval and hostility
4 toward CAIR-WA as well as its Muslim members and clients, making clear that the government
5 deems them outsiders, not full members of the political community. CAIR-WA’s Muslim clients
6 in the United States have been marginalized as a result of this anti-Muslim message, have been
7 subjected to baseless suspicion, scrutiny, and social and political isolation on the basis of religion
8 and national origin, and have suffered other dignitary and stigmatic injuries.
9 110. CAIR-WA has had to hire a part-time civil rights team member to handle the
10 extra work. This additional part-time position was not in CAIR’s 2017 budget, but was deemed a
11 necessary expenditure as part of CAIR-WA’s commitment to providing a rapid response to the
12 number of questions and reports of disruption in travel experienced by CAIR-WA constituents.
13 CAIR-WA has also taken on the task of printing and distributing 10,000 business cards, depicted
14 below, that have legal assistance contact information for immigrants and travelers stranded at
15 U.S. airports as a result of the Executive Orders. CAIR-WA had not budgeted for this expense
16 or forecasted its need prior to January 27, 2017, but CAIR-WA decided to do so in direct
17 response to the turmoil caused by the Executive Orders. The printing costs for these business
18 cards was yet another off-budget expenditure necessitated by Defendants’ conduct.
19
20
21
22
23
24
25
26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 23

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 27 of 86

1

2

3

4

5

6

7

8

9

10 111. In direct response to the original and revised Executive Orders, CAIR-WA has

11 also organized several informational presentations for the Washington Muslim community to

12 address the confusion, concern, and fear the Orders have stimulated.

13 112. In 2015 and prior years, at least 98 percent of CAIR-WA’s funding was from

14 individual donors, almost all of whom reside in the state of Washington, or from matching funds

15 from companies that employ its individual donors and volunteers. The remaining 2 percent of

16 CAIR-WA’s funding comes from sponsorship from locally-based non-profits, mosques, and

17 businesses that serve Washington communities.

18 113. The mission and efficacy of CAIR-WA has been thwarted by the Original

19 Executive Order. Because the Revised Executive Order is substantively the same, these injuries

20 will continue once the new Order takes effect.

21 B.
22

Defendants

23

114. Defendant Donald J. Trump is the President of the United States. He is sued in his

24 official capacity.

25

115. Defendant U.S. Department of State (“DOS”) is a cabinet department of the

26 United States federal government that is responsible for issuing visas.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 24

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 28 of 86

1 116. Defendant Rex W. Tillerson is the Secretary of State and has responsibility for

2 overseeing enforcement and implementation of the Original Executive Order by all DOS staff.

3 He is sued in his official capacity.

4 117. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet

5 department of the United States federal government with the primary mission of securing the

6 United States. Its sub-agencies include U.S. Citizenship and Immigration Services (“USCIS”),

7 Customs and Border Protection (“CBP”), and Immigration and Customs Enforcement (“ICE”).

8 118. Defendant John Kelly is the Secretary of DHS and has responsibility for

9 overseeing enforcement and implementation of the Original Executive Order by all DHS staff.

10 He is sued in his official capacity.

11 119. Defendant U.S. Customs and Border Protection (“CBP”) is an agency within DHS

12 with the primary mission of detecting and preventing the unlawful entry of persons and goods

13 into the United States.

14 120. Defendant Kevin K. McAleenan is the Acting Commissioner of CBP has

15 responsibility for overseeing enforcement and implementation of the Original Executive Order

16 by all CBP staff. He is sued in his official capacity.

17 121. Defendant Michele James is the Field Director of the Seattle Field Office of CBP

18 and has responsibility for overseeing enforcement and implementation of the Original Executive

19 Order by all DHS staff in her area, which covers Washington State. She is sued in her official

20 capacity.

21
22 A.
23

IV. FACTUAL BACKGROUND President Trump’s January 27, 2017 Original Executive Order

24

122. On January 27, 2017, Defendant Trump signed the Original Executive Order

25 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” A copy of

26 this Original Executive Order is attached to this Complaint as Exhibit A.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 25

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 29 of 86

1 123. The Original Executive Order cited the threat of domestic terrorism committed by
2 foreign nationals and purported to direct a variety of changes to the manner and extent to which
3 non-citizens may seek and obtain admission to the United States.
4 124. Section 3(c) of the Original Executive Order suspended immigrant and
5 nonimmigrant entry into the country for 90 days for all people from countries referred to in
6 section 217(a)(12) of the INA, 8 U.S.C. § 1187(a)(12), with narrow exceptions not relevant here.
7 The Original Executive Order applied only to nationals of Syria, Sudan, Iraq, Iran, Libya,
8 Somalia, and Yemen (the “Original Targeted Countries”).18 The ban applied regardless of 9
whether such persons held valid visas and regardless of whether their visas were immigration or 10
non-immigration related. 11
125. Section 5(a) suspended the U.S. Refugee Admissions Program for 120 days. 12
126. Section 5(b) stated that “refugee claims made by individuals on the basis of 13
religious-based persecution, provided that the religion of the individual is a minority religion in 14
the individual’s country of nationality” will be prioritized. 15
127. Section 5(c) contained as its statement of government interest a proclamation 16
“that “the entry of nationals of Syria as refugees is detrimental to the interests of the United 17
States,” and suspends the entry of Syrian refugees into the country. 18
128. Section 5(e) provided for nearly unfettered individual discretion by the Secretaries 19
of State and Homeland Security to “jointly determine to admit individuals … as refugees on a 20
case-by-case basis, “in their discretion, but only so long as they determine that the admission of 21
such individuals as refugees is in the national interest—including when the person is a religious 22
minority in his country of nationality facing religious persecution.” 23
129. The Original Executive Order stated that “the United States should not admit 24
those who engage in acts of bigotry or hatred (including . . . the persecution of those who 25
18 Fact Sheet: Protecting The Nation from Foreign Terrorist Entry to The United States, Dep’t of Homeland Sec.
26 (Jan. 29, 2017), https://www.dhs.gov/news/2017/01/29/protecting-nation-foreign-terrorist-entry-united-states (last
accessed Mar. 13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 26

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 30 of 86

1 practice religions different from their own)” and yet it singled out practitioners of a single
2 religion for exclusion. See Exhibit A, § 1.
3

4

1. Visa Revocations Pursuant to the Original Executive Order

5 130. The same day the Original Executive Order issued, the Deputy Assistant
6 Secretary for Visa Services at the Bureau of Consular Affairs of the Department of State, relying
7 on the Original Executive Order, issued a letter purporting to provisionally revoke all valid
8 nonimmigrant and immigrant visas of nationals of the Original Targeted Countries, subject to
9 exceptions not relevant here.
10 131. The Provisional Revocation Letter was not publicized; to the contrary, it was
11 withheld from the public until it was filed four days later under a “Notice of Supplemental
12 Authority” in court cases challenging the Original Executive Order.
13 132. Neither notice nor opportunity to be heard was provided to the members of the
14 Non-Immigrant Visa Class, the members of the Refugee Class, the Episcopal Diocese, CAIR-
15 WA, Plaintiffs, or indeed anyone else prior to the mass revocation of these visas.
16 133. The Provisional Revocation Letter compounded the chaos caused by the Original
17 Executive Order. The federal government issued no public and legally binding guidance
18 regarding the meaning or proper interpretation of the Provisional Revocation Letter. A copy of
19 this letter is attached to this Complaint as Exhibit B.
20 134. The Provisional Revocation Letter also appeared to expand the scope of the
21 Original Executive Order’s application: it applied on its face to persons who were present inside
22 the United States as well as persons outside the United States, rather than being limited to
23 persons seeking to enter the United States. Under section 221(a)(1)(B) of the INA, 8 U.S.C. §
24 1227(a)(i)(B), “[a]ny alien . . . whose nonimmigrant visa . . . has been revoked under section
25 1201(i) of this title” INA § 221(i), referenced in the Provisional Revocation Letter “is
26 deportable.”

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 27

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 31 of 86

1

135. The State Department estimated that it revoked up to 60,000 visas.19

2 136. The CBP stated on its website that all F-1, J-1, and M-1 visas belonging to

3 persons from the affected countries were provisionally revoked.20

4 137. Upon information and belief, all H1B visas belonging to persons from the

5 affected countries were also provisionally revoked.

6

2. Chaos, Confusion, and Whiplash in the Implementation of the Original

7

Executive Order

8 138. The disastrous effects of the Original Executive Order were immediately
9 apparent. Countless news reports document the chaotic scene at airports across the country as
10 those who were legally entitled to entry when they boarded airplanes heading to the United
11 States—refugees, immigrants, and those traveling on non-immigrant visas alike—were
12 designated deportable by the time they landed. For example, 109 travelers from the Original
13 Targeted Countries on non-immigrant visas were in transit to the country at the time the Original
14 Executive Order was signed.21 Up to 13 people were detained at the Seattle-Tacoma 15 International Airport on January 28, 2017 pursuant to the Original Executive Order.22 16
139. Application of the Original Executive Order was inconsistent and confusing, with 17
contradictory official statements issued within days of one another—further heightening 18

19

20 19 Mary Emily O’Hara, Over 100,000 Visas Have Been Revoked by Immigration Ban, Justice Dept. Reveals, NBC

21

News (Feb. 3, 2017), http://www.nbcnews.com/news/us-news/over-100-000-visas-have-been-revokedimmigration-ban-justice-n716121 (last accessed Mar. 13, 2017).

22 20 Q&A for [Original] Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States,
U.S. Customs & Border Prot. (Feb. 2, 2017), https://www.cbp.gov/document/faqs/questions-and-answers-
23 protecting-nation-foreign-terrorist-entry-united-states (last accessed Mar. 13, 2017).

24 21 Jeremy Diamond & Steve Almasy, Trump’s Immigration Ban Sends Shockwaves, CNN (Jan. 30, 2017),
http://www.cnn.com/2017/01/28/politics/donald-trump-executive-order-immigration-reaction/ (last accessed Mar.
25 13, 2017).
22 Liz Jones & Isolde Raftery, Roller Coaster of Heartbreak and Fury at Sea-Tac in Wake of Trump Order,
26 KUOW.org (Jan. 28, 2017), http://kuow.org/post/roller-coaster-heartbreak-and-fury-sea-tac-wake-trump-order
(last accessed Mar. 13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 28

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 32 of 86

1 Plaintiffs’ reasonable and on-going fear that if they left the country, they would not be permitted
2 to return to their work and studies.
3 140. For example, the Secretary of Homeland Security reportedly received his first full
4 briefing on the Original Order as the President signed it,23 resulting in DHS’s position on the 5
application of the Original Executive Order to lawful permanent residents, or green card holders, 6
changing three times over the course of six days following the issuance of the Original Executive 7
Order: 8

9

•

On January 28, 2017, a spokesperson for DHS stated that lawful permanent

residents, or green card holders, would be barred from entry pursuant to the

10

Original Executive Order.

11

•

Secretary Kelly reversed course the next day on January 29th, issuing a statement

12

that: “In applying the provisions of the president’s [Original] Executive Order, I

hereby deem the entry of lawful permanent residents to be in the national interest.

13

Accordingly, absent the receipt of significant derogatory information indicating a

serious threat to public safety and welfare, lawful permanent resident status will

14

be a dispositive factor in our case-by-case determinations.”

15

•

Two days later on January 31, 2017, U.S. Customs and Border Protection, a DHS

16

sub-agency, issued a statement that, while repeating Secretary Kelly’s January

29th statement, then stated in the “Questions and Answers” Section that the entry

17

of lawful permanent residents would depend on receipt of a “national interest

waiver[] consistent with the provisions of the [Original] Executive Order.” 18

19

•

DHS changed its position yet again two days later. This time, the February 2,

2017 version of the “Questions and Answers” stated that “[u]nder the recent

20

guidance from the White House . . . the [Original] Executive Order [issued

January 27, 2017,] does not apply to their [lawful permanent residents] entry to

21

the United States.” As of February 2, 2017, DHS had processed 1,610 waivers for

legal permanent residents to re-enter the United States. 22

23

24

25
23 Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos,
26 N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/2017/01/29/us/politics/donald-trump-rush-immigration-
order-chaos.html?_r=0 (last accessed May 4, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 29

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 33 of 86

1 141. Customs and Border Protection officers were caught unaware and were
2 blindsided, with even managers not seeming to have clear guidance.24 The chief of passenger 3
operations for U.S. Customs and Border Protection at John F. Kennedy International Airport 4 admitted, “[w]e are as much in the dark as everybody else.”25 5
142. In addition, according to two State Department officials, most officials at the 6 department first heard of the Original Executive Order through the media.26 On the day 7
Defendant Trump issued the Original Order, Deputy Assistant Secretary for Visa Services at the 8 U.S. Department of State, Edward J. Ramotowski, issued a letter that 27 “provisionally revoke[d] 9
all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, 10
Syria, and Yemen.” But then on February 1, 2017, White House Counsel Donald F. McGahn 11
II—who is not in the chain of command for any of the Executive Departments—issued 12
“Authoritative Guidance,” admitting there was “reasonable uncertainty” surrounding provisions 13
of the Original Order such that he needed to clarify that sections 3(c) and 3(e) of the Executive 14 Order did not apply to lawful permanent residents.28 15
143. Provisions of the Original Executive Order relating to refugees also were 16
inconsistently interpreted and applied by Defendants, further heightening the need for judicial 17
intervention. 18
144. For example, although Section 5(a) of the Original Executive Order 19
unequivocally stated that “[t]he Secretary of State shall suspend the U.S. Refugee Admissions 20
24 See supra note 21.
21
25 Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports,
22 Agencies, Reuters (Jan. 29, 2017), http://www.reuters.com/article/us-usa-trump-immigration-confusion-
idUSKBN15D07S (last accessed May 4, 2017).
23 26 See supra note 23.
24 27 Letter from Edward J. Ramotowski, Deputy Assistant Secretary for Visa Services at the U.S. Dep’t of State (Jan.
27, 2017), http://www.politico.com/f/?id=00000159-f6bd-d173-a959-ffff671a0001 (last accessed Mar. 14, 2017).
25
28 Emergency Mot. Under Circuit Rule 27-3 for Admin. Stay & Mot. for Stay Pending Appeal at 72, State v. Trump
26 (“State”), No. 17-35105 (9th Cir. Feb. 4, 2017), Dkt. # 14.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 30

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 34 of 86

1 Program (USRAP) for 120 days,” four business days later on February 2, 2017, and in a reversal
2 of the clear mandate in the Original Executive Order, the Acting Director of the U.S.
3 Immigration and Citizenship Services (“USCIS”), a division of DHS, issued a guidance to all
4 USCIS employees that “USCIS will adjudicate Refugee/Asylee Relative Petitions [ ] for all
5 beneficiaries, from any country of nationality, currently in the United States . . . .” A copy of this
6 guidance is attached as Exhibit C.
7 145. In further contradiction of the clear language of unequivocal suspension of
8 USRAP, DHS instructed that “[a]dditionally, USCIS will continue refugee interviews in
9 jurisdictions where there is a preexisting international agreement related to refugee processing.”
10 Exhibit C.
11 146. The February 2, 2017 guidance to USCIS employees also stated that “USCIS will
12 continue refugee interviews when the person is a religious minority in his or her country of
13 nationality facing religious persecution.” Id. (emphasis added).
14 147. As summed up by the Ten National Security Experts:
15

16

[T]he repeated need for the Administration to clarify confusion after the Order

issued suggest that that Order received little, if any advance scrutiny by the

17

Departments of State, Justice, Homeland Security or the Intelligence Community.

18

Nor have we seen any evidence that the Order resulted from experienced

intelligence and security professionals recommending changes in response to

19

identified threats.”

20 Joint Decl. ¶ 7, State v. Trump, No. 17-35105 (9th Cir. Feb. 6, 2017), Dkt. # 28-2 (attached as
21 Exhibit D).
22

23

3. The Discriminatory Intent Behind the Original Executive Order

24 148. The Original Executive Order and the Provisional Revocation Letter applied only
25 to nationals of seven countries, all of which are majority-Muslim: Iraq, Iran, Libya, Somalia,
26 Sudan, Syria, and Yemen.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 31

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 35 of 86

1 149. The Original Executive Order, by its express terms, suspended immigrant and
2 nonimmigrant entry into the United States based on nationality, place of birth or place of
3 residence.
4 150. The Provisional Revocation Letter similarly revoked “all valid nonimmigrant and
5 immigrant visas of nationals” based on nationality, place of birth, or place of residence.
6 151. The Original Executive Order was Defendant Trump’s fulfillment of a clearly
7 stated campaign promise to ban Muslims from entering the United States. In a December 7, 2015
8 written statement, “Donald J. Trump Statement on Preventing Muslim Immigration,” then-
9 candidate Trump said that he was “calling for a total and complete shutdown of Muslims
10 entering the United States.” While the statement was briefly removed due to a glitch post-
11 election, the statement was returned to the website and displayed on the official Trump-Pence
12 website through the morning of May 8, 2017.29 13
152. When questioned about the “shutdown,” and asked whether a customs agent 14
would ask a person his or her religion, then candidate Trump responded, “They would say, ‘Are 15
you Muslim?’” The interviewer then asked, “And if they said, ‘yes,’ they would not be allowed 16 in the country?” “That’s correct,” Mr. Trump responded.30 17
153. Defendant Trump repeatedly referred to a ban on Muslim immigration on the 18 campaign trail.31 19

20
29 Donald J. Trump Statement on Preventing Muslim Immigration, DonaldJTrump.com (Dec. 7, 2015),
21 https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration (last
accessed May 8, 2017); Emily Flitter, Glitch Briefly Removes ‘Muslim Ban’ Proposal from Trump Website,
22 Reuters (Nov. 10, 2016), http://www.reuters.com/article/us-usa-trump-immigration-idUSKBN135284 (last
accessed May 8, 2017); Ann E. Marimow & Robert Barnes, President Trump’s Lawyers on Revised Travel Ban
23 Repeatedly Asked about Campaign Promises, Wash. Post (May 8, 2017),
https://www.washingtonpost.com/local/public-safety/presidents-trump-revised-travel-ban-faces-new-legal-
24 challenges/2017/05/08/c4c6f968-3387-11e7-b373-418f6849a004_story.html?hpid=hp_hp-more-top-
stories_travelban-1238p%3Ahomepage%2Fstory&utm_term=.2642306be29e (last accessed May 8, 2017).

25 30 Nick Gass, Trump Not Bothered by Comparisons to Hitler, Politico (Dec. 8, 2015),

http://www.politico.com/trump-muslims-shutdown-hitler-comparison (last accessed Mar. 13, 2017).
26 31 Donald J. Trump (@realDonaldTrump), Twitter (Dec. 7, 2015, 2:32 PM),

https://twitter.com/realDonaldTrump/status/673993417429524480 (last accessed Mar. 13, 2017); Jenna Johnson,

SECOND AMENDED CLASS

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 36 of 86

1 154. Defendant Trump also indicated that he knew that he would need to find an
2 alternative way to describe the Muslim ban. In response to a question on the July 17, 2016
3 episode of 60 Minutes about the evolution of his earlier rhetoric of an outright ban on Muslim
4 immigration to a ban on persons from territories that have a Muslim majority, the following
5 exchange took place:
6

7

Stahl: [I]n December, you [i.e., Pence] tweeted, and I quote you, “Calls to ban

Muslims from entering the U.S. are offensive and unconstitutional.” 8

Trump: So you call it territories. OK? We’re gonna do territories. We’re not

9

gonna let people come in from Syria that nobody knows who they are.

10

...

11 Stahl: [S]o you’re changing... your position.

12 Trump: —No, I—call it whatever you want. We’ll call it territories, OK?

13 Stahl: So not Muslims?
14

Trump: You know—the Constitution—there’s nothing like it. But it doesn’t

15

necessarily give us the right to commit suicide, as a country, OK? And I’ll tell

16

you this. Call it whatever you want, change territories [sic], but there are territories and terror states and terror nations that we’re not gonna allow the

17

people to come into our country.32

18

155. Seven days later in response to a question on NBC’s Meet the Press about

19 whether his acceptance speech at the Republican National Convention was a rollback on his

20 position, Defendant Trump reiterated the point when he replied:

21

22

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 territory. People were so upset when I used the

23

24

25 Trump Calls for ‘Total and Complete Shutdown of Muslims Entering the United States,’ Wash. Post (Dec. 7, 2015),
http://wpo.st/O0uY2 (last accessed Mar. 13, 2017).
26 32 Lesley Stahl, The Republican Ticket: Trump and Pence, CBS (Jul. 17, 2016), http://www.cbsnews.com/news/60-
minutes-trump-pence-republican-ticket/ (last accessed Mar. 13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 33

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 37 of 86

1

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.33

2

3

156. After the election, on December 22, 2016, a reporter asked Defendant Trump

4 whether his “plans to create a Muslim register or ban Muslim immigration to the United States”

5 had changed. Defendant Trump responded “you’ve known my plans all along” and that he was

6 “100% correct” in his position.34

7

157. After reading the title of the Original Order when signing it, Defendant Trump

8 said, “We all know what that means.”35

9

158. On the day Defendant Trump issued the Original Executive Order, he gave an

10 interview to the Christian Broadcasting Network during which he confirmed his intent to

11 prioritize non-Muslims nationals over Muslim nationals of those countries:

12

They’ve been horribly treated. Do you know if you were a Christian in Syria it

13

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

14

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

15

thought it was very, very unfair.36

16

159. Consistent with Defendant Trump’s expressed intent to favor Christians, Section

17 5(e) of the Original Executive Order authorized the Secretaries of the Departments of State and

18 Homeland Security to admit individuals who are members of “a religious minority in [their]

19

20

21 33 Rebecca Shabad, Donald Trump Says He’s Expanding His Muslim Ban, CBS News (July 25, 2016),
22 http://www.cbsnews.com/news/donald-trump-says-hes-expanding-muslim-ban/ (last accessed Mar. 13, 2017).
34 Katie Reilly, Donald Trump on Proposed Muslim Ban: ‘You Know My Plans,’ Time (Dec. 21, 2016),
23 http://time.com/4611229/donald-trump-berlin-attack (last accessed Mar. 13, 2017).

24 35 Transcript of Ceremonial Swearing in of the Secretary of Defense, CNN (Jan. 27, 2017),
http://transcripts.cnn.com/TRANSCRIPTS/1701/27/cg.02.html (last accessed Mar. 13, 2017).
25 36 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As
Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-
26 exclusive-president-trump-says-persecuted-christians-will-be-given-priority-as-refugees (last accessed Mar. 13,
2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 34

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 38 of 86

1 count[ries] of nationality facing religious persecution.” Exhibit A. This provision directly grants
2 Christians preference over Muslim refugees.
3 160. During a signing ceremony for the Original Executive Order on January 27, 2017,
4 Defendant Trump stated that the purpose of the Original Executive Order was to “establish[] new
5 vetting measures to keep radical Islamic terrorists out of the United States of America.”37 6
161. Senior advisors to Defendant Trump have engaged in anti-Muslim rhetoric that 7
provide additional support for the notion that the Original Executive Order was prompted by 8
animus toward Islam and Muslims. 9
162. In an interview on January 28, 2017, one of Defendant Trump’s senior advisors, 10
Rudolph Giuliani, left no doubt that the ban on entry from nationals of the Original Targeted 11
Countries was intended to carry out a ban on Muslims, and that the Original Executive Order 12
was crafted to create a pretextual cover for a Muslim ban. Mr. Giuliani stated: “I’ll tell you the 13
whole history of it . . . . So, when [Defendant Trump] first announced it, he said, ‘Muslim ban.’ 14
He called me up. He said, ‘Put a commission together. Show me the right way to do it 15 legally.’”38 16
163. On January 29, an anonymous “senior administration official” briefed a staffer of 17
Breitbart.com on the intended purpose of the Original Executive Order: “The reality, though, is 18
that the situation [of large Islamic populations] that exists today in parts of France, in parts of 19 Germany, in Belgium, etcetera, is not a situation we want replicated inside the United States.”39 20

21

22
37 Dan Merica, Trump Signs [Original] Executive Order to Keep out ‘Radical Islamic Terrorists,’ CNN (Jan. 30,
23 2017), http://www.cnn.com/2017/01/27/politics/trump-plans-to-sign-executive-action-on-refugees-extreme-
vetting/ (last accessed Mar. 13, 2017).
24 38 Amy B. Wang, Trump Asked for a ‘Muslim Ban,’ Giuliani Says – and Ordered a Commission to Do it ‘Legally,’
25 Wash. Post (Jan. 29, 2017), http://wpo.st/xzuY2 (last accessed Mar. 13, 2017).
39 Neil Munro, Left Protests While Trump Junks Obama’s Global Immigration Plan, Breitbart.com (Jan. 30, 2017),
26 http://www.breitbart.com/big-government/2017/01/30/trump-changes-immigration-favor-american-values/
(parenthetical in original) (last accessed Mar. 13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 35

AMERICAN CIVIL LIBERTIES UNION
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901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 39 of 86

1 164. While Defendant Trump has subsequently tried to deny that his Original
2 Executive Order was “a Muslim ban, as the media [was] falsely reporting.”40 His own prior 3
conflicting, recorded statements as well as those of his senior advisors make clear the rationale 4
for the Original Executive Order is in fact to ban Muslims from entering the United States[.] 5
165. The Original Executive Order and the manner in which it was implemented 6
caused individual Plaintiffs and members of the proposed classes direct, ongoing, and immediate 7
harm by causing them to suffer “[t]he indignity of being singled out [by a government] for 8
special burdens’” on the basis of religion or assumed religion. Hassan v. City of New York, 804 9
F.3d 277, 289 (3d Cir. 2015), as amended (Feb. 2, 2016) (quoting Locke v. Davey, 540 U.S. 712, 10
731 (2004) (Scalia, J., dissenting)). 11

12 B. President Trump’s March 6, 2017 Revised Executive Order

13 166. During a February 16, 2017 news conference, Donald Trump twice declared that
14 he would follow through on his campaign promise of a Muslim ban, albeit changing his
15 terminology to “radical Islamic terrorists”:
16

17

• “Some of the things I’m doing probably aren’t popular but they’re necessary for

security and for other reasons…I’m here following through on what I pledged to

18

do.”

19

• “We have taken decisive action to keep radical Islamic terrorists out of our

20

country. No parts are necessary and constitutional actions were blocked by

judges, in my opinion, incorrect, and unsafe ruling. [sic]…I got elected on defense

21

of our country. I keep my campaign promises, and our citizens will be very happy

when they see the result. They already are, I can tell you that. Extreme vetting

22

will be put in place and it already is in place in many places.41

23

24 40 Press Release, President Donald J. Trump Statement Regarding Recent [Original] Executive Order Concerning
Extreme Vetting, White House (Jan. 29, 2017), https://www.whitehouse.gov/the-press-
25 office/2017/01/29/president-donald-j-trump-statement-regarding-recent-executive-order (last accessed Mar. 13,
2017).
26 41 Full Transcript: President Donald Trump’s News Conference, CNN (Feb. 16, 2017),
http://www.cnn.com/2017/02/16/politics/donald-trump-news-conference-transcript/ (last accessed Mar. 13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 36

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KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 40 of 86

1

2

167. Defendant Trump also announced during the February 16th news conference that

3 he would be “issuing a new executive action next week that will comprehensively protect our

4 country. . . . That will be done sometime next week, toward the beginning or middle at the latest 5 part.”42 Defendant Trump did not issue a new order that following week.

6

168. On February 21, 2017, Stephen Miller, Senior Advisor to the President, described

7 the administration’s plans with regard to the Revised Order: “Fundamentally, you’re still going

8 to have the same basic policy outcome for the country, but you’re going to be responsive to a lot

9 of very technical issues that were brought up by the court and those will be addressed. But in

10 terms of protecting the country, those basic policies are still going to be in effect.”43

11

169. While the White House indicated that the new order would be signed on March 1,

12 2017—the day after Defendant Trump’s first address to Congress on February 28th44—the

13 signing of the new order was delayed yet again.

14

170. On February 28th, an administration official told a news outlet that the delay was

15 due to the busy news cycle, that Defendant Trump wanted it to get plenty of attention, and “[w]e

16 need [the executive order] to have its own time to breathe.”45

17

171. On March 1, 2017, another senior Administration official told a different news

18 outlet that Defendant Trump delayed plans to sign a reworked travel ban in the wake of positive

19 reaction to his first address to Congress, explaining that “We want the (executive order) to have

20 its own ‘moment.’”46

21 42 Id. 22 43 See infra note 116.

23 44 Justin Fishel, New Trump Order on Travel and Immigration Expected Wednesday, ABC News (Feb. 2, 2017),
http://abcnews.go.com/Politics/trump-order-travel-immigration-expected-wednesday/story?id=45814211 (last
24 accessed on Mar. 13, 2017).
25 45 Shane Goldmacher & Nahal Toosi, Trump Delays Signing New Travel Ban Order, Officials Say, Politico (Feb.
28, 2017), http://www.politico.com/story/2017/02/trump-delays-travel-ban-order-235548 (last accessed Mar. 13,
26 2017).
46 See supra note 9.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 37

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 41 of 86

1 172. Five days later on March 6, 2017, Defendant Trump signed the Revised Executive
2 Order that has the exact same title as the Original Order, “Protecting the Nation from Foreign
3 Terrorist Entry into the United States.” A copy of this Revised Executive Order is attached to
4 this Complaint as Exhibit E.
5 173. Although the Revised Order was designed to appear facially neutral, Defendants
6 cannot erase the history or facts preceding its issuance, see supra Section IV.A.2., the taint of the
7 discriminatory motivation behind it, supra Section IV.A.3., or the complete arbitrariness of its
8 requirements. See infra Section IV.C.
9 174. Indeed, Defendant Trump has openly promoted that the Revised Order was his
10 continued fulfillment of his campaign promises. For example, on the day Defendant Trump
11 signed the Revised Order, he sent a fundraising email requesting support for the Revised Order
12 because he was “implement[ing] the policies you—and millions of American like you—voted
13 for.”47 And at a press conference the next day on March 7, 2017, White House Press Secretary 14
Sean Spicer confirmed that with the issuance of the Revised Order, Defendant Trump was 15
“deliver[ing]” on one of his “most significant campaign promises: protecting the country against 16 radical Islamic terrorism . . . .”48 17
175. At a March 15, 2017 rally, Defendant Trump admitted that the Revised Order is 18 just a “watered-down version” of his first travel ban.49 19

20
47 Matt Zapotosky, David Nakamura, & Abigail Hauslohner, Revised Executive Order Bans Travelers from Six
21 Muslim-Majority Countries from Getting New Visas, Wash. Post (Mar. 6, 2017),
https://www.washingtonpost.com/world/national-security/new-executive-order-bans-travelers-from-six-muslim-
22 majority-countries-applying-for-visas/2017/03/06/3012a42a-0277-11e7-ad5b-
d22680e18d10_story.html?utm_term=.c2b939d5bb80 (last accessed Mar. 13, 2017).
23 48 Press Briefing by Press Secretary Sean Spicer, 3/7/2017, #18, White House (Mar. 7, 2017), 24 https://www.whitehouse.gov/the-press-office/2017/03/07/press-briefing-press-secretary-sean-spicer-372017-18
(last accessed Mar. 13, 2017).
25 49 Matt Zapotosky, Kalani Takase & Maria Sacchetti, Federal Judge in Hawaii Freezes President Trump’s New
Entry Ban, Wash. Post (Mar. 16, 2017), https://www.washingtonpost.com/local/social-issues/lawyers-face-off-on-
26 trump-travel-ban-in-md-court-wednesday-morning/2017/03/14/b2d24636-090c-11e7-93dc-
00f9bdd74ed1_story.html?utm_term=.e95cfd5a6df1&wpisrc=nl_buzz&wpmm=1 (last accessed May 5, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 38

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 42 of 86

1 176. And as recently as April 24, 2017, Defendant Trump once again revealed his true
2 motivation for the Revised Executive Order. During a White House reception for conservative
3 media guests, Defendant Trump stated “I’m Christian,”50 noted that “he had done very well with 4 Christian voters in the election,”51 reiterated that “[n]obody’s been treated worse, it seems to me, 5 than Christians in the Middle East,”52 and once again argued that that it was easier for Muslims 6
to come into the United States as refugees than Christians while it was far more dangerous for 7 Christians there.53 He then declared, “[w]e’re going to be helping the Christians big league.”54 8
177. Pursuant to Section 13 of the Revised Order, the Original Order will be revoked 9
as of the effective date of the Revised Order. 10
178. Pursuant to Section 14 of the Revised Order, it will take effect on March 16, 11 2017.55 12
179. The Revised Order shares two fundamental features with the Original Order: it 13
continues to violate the rights of non-immigrants who need to renew their visas, and it continues 14
to violate the rights of refugees and asylees seeking to reunite with family members who have 15
already cleared all security hurdles. 16

17

18 50 Scott Johnson, At the White House with Trump, Power Line (Apr. 25, 2017),

http://www.powerlineblog.com/archives/2017/04/at-the-white-house-with-trump.php (last accessed May 4, 2017).
19
51 Id.

20 52 Charlie Spiering, Donald Trump Invites Conservative Media to White House for Exclusive Briefing, Breitbart.com

21

(Apr. 24, 2017), http://www.breitbart.com/big-government/2017/04/24/donald-trump-invites-conservative-mediato-white-house-for-exclusive-briefing/ (last accessed May 4, 2017).

22 53 Id.

23 54 Id.

24

55 On March 15, 2017, the Honorable Derrick Watson of the United States District Court for the District of Hawai‘i temporarily enjoined the implementation of Sections 2 and 6 of the Revised Executive Order, Order Granting

25

Motion for Temporary Restraining Order, Hawai‘i v. Trump, No. 17-50 (D. Haw. Mar. 15, 2017), Dkt. # 219, and converted the temporary injunction into a preliminary injunction on March 29, 2017. Order Granting Mot. to

Convert TRO to a Prelim. Inj., Hawai‘i (Mar. 29, 2017), Dkt. # 270. Section 2(c) of the Revised Executive Order
26 was also enjoined by the Honorable Theodore Chuang of the United States District Court for the District of

Maryland on March 16, 2017. Mem. Order, IRAP v. Trump, No. 17-361 (D. Md. Mar. 16, 2017), Dkt. # 149.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 39

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
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KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 43 of 86

1 180. Six of the seven countries targeted in the Original Order are still targeted by the
2 Revised Order. Sections 1(f) and 2(c) of the Revised Order suspend entry into the United States
3 by the nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen for ninety days from the
4 effective date of the Revised Order.
5 181. All six banned countries have overwhelmingly Muslim populations.
6 182. Pursuant to Section 2(e) of the Revised Order, at the end of the ninety-day ban,
7 the Secretary of Homeland Security shall submit to the President a list of countries recommended
8 for inclusion in a Presidential proclamation that would prohibit the entry of categories of foreign
9 nationals of countries that have not provided the requested information until they do so or until
10 the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or
11 has adequately shared information through other means. The names of additional countries may
12 also be submitted to the President.
13 183. Pursuant to Section 3(a) of the Revised Order, the Order shall apply only to
14 foreign nationals of the designated countries who: (i) are outside the United States on the
15 effective date of this order; (ii) did not have a valid visa at 5:00 p.m., eastern standard time on
16 January 27, 2017; and (iii) do not have a valid visa on the effective date of the Revised Order.
17 184. Section 3 of the Revised Order provides for certain “exceptions” and potential
18 “waivers” to the travel ban.
19 185. Section 3(b) states that the Revised Order will not apply to: (i) any lawful
20 permanent resident of the United States; (ii) any foreign national who is admitted to or paroled
21 into the United States on or after the effective date of this order; (iii) any foreign national who
22 has a document other than a visa, valid on the effective date of this order or issued on any date
23 thereafter, that permits him or her to travel to the United States and seek entry or admission, such
24 as an advance parole document; (iv) any dual national of a country designated under section 2 of
25 this order when the individual is traveling on a passport issued by a non-designated country;
26 (v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 40

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 44 of 86

1 Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
2 (vi) any foreign national who has been granted asylum; any refugee who has already been
3 admitted to the United States; or any individual who has been granted withholding of removal,
4 advance parole, or protection under the Convention Against Torture.
5 186. Foreign nationals of the Targeted Countries who do not fall within the categories
6 enumerated in Section 3(b) will be required to seek a waiver to enter the United States for the
7 duration of the Revised Order. Section 3(c) allows a consular officer, or, as appropriate, the
8 Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner’s delegee, to
9 decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a
10 foreign national for whom entry is otherwise suspended if the foreign national has demonstrated
11 to the officer’s satisfaction that denying entry during the suspension period would cause undue
12 hardship, and that his or her entry would not pose a threat to national security and would be in
13 the national interest.
14 187. This waiver provision is of little solace in light of statements and actions taken by
15 Defendants in support of a Muslim ban, such as Defendant Trump’s prior statement that a person
16 who admitted being a Muslim should be denied entry into the country. See supra ¶ 152.
17 188. Defendant Trump’s message and intent of the travel ban has clearly been heard by
18 those with the discretion to admit people into this country and already used to harass Muslims or
19 those perceived to be Muslim at our borders. For example:
20

21

• On February 4, 2017, a woman from the Montreal suburb of Brossard was denied

entry into the U.S. after being fingerprinted, photographed and questioned in

22

detail about her religion and her views on U.S. President Donald Trump;56

23

• On February 7, 2017, the U.S. Customs and Border Protection held Muhammad

24

Ali Jr., the son of the late legendary boxer, as well as his mother for questioning

25
56 Steve Rukavina, Canadian Woman Turned Away from U.S. Border After Questions About Religion, Trump, CBC
26 News (Feb. 8, 2017), http://www.cbc.ca/news/canada/montreal/canadian-woman-turned-away-from-u-s-border-
after-questions-about-religion-trump-1.3972019 (last accessed May 4, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 41

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 45 of 86

1

in a Florida airport because of their Arabic-sounding names, repeatedly asking

them, “Where did you get your name from?” and “Are you Muslim?”57

2

3

• On or about February 27, 2017, a Canadian doctor originally from Afghanistan

was held for over five hours at the US border and questioned about his “tribal

4

chief,” his life in Afghanistan, the family he had left behind and whether he had

seen “a lot of gunmen” while growing up there.58

5

• On April 23, 2017, Dr. Osman “Ozzie” Ahmed, a former NASA shuttle mission

6

physician and a U.S. citizen since 1991 who is an approved "low-risk" traveler,

7

had his passport taken from him and was detained for about an hour by U.S.

Customs and Border Protection officers upon his arrival at Tampa International

8

Airport due to his Muslim name and birthplace (Egypt).59

9

• On April 24, 2017, American composer Mohammed Fairouz was detained for

10

hours at John F. Kennedy International Airport with the only reason given to him for his detention being his Muslim name.60

11

12 These examples demonstrate that the waiver process is in grave danger of being administered in

13 a discriminatory fashion.

14

189. Neither the Original nor Revised Order single out any countries for disfavored

15 treatment that are not majority-Muslim.

16

190. Section 6(a) of the Revised Order suspends all decisions on applications for

17 refugee status as well as travel of refugees into the United States for 120 days. The suspension

18

19

20 57 Jennie Jarvie, Muhammed Ali’s Son May Sue After Being Detained at Florida Airport and Questioned About His
Religion, L.A. Times (Feb. 25, 2017), http://www.latimes.com/nation/la-na-muhammad-ali-son-detained-
21 20170225-story.html (last accessed May 8, 2017).
58 Ashifa Kassam, Afghan-Canadian Doctor Detained at US Border and Asked About ‘Tribal Chief,” Guardian
22 (Mar. 1, 2017), https://www.theguardian.com/world/2017/mar/01/canada-doctor-sardar-ahmad-us-border-detained
(last accessed May 4, 2017).
23 59 Christopher O’Donnell, Former NASA Doctor Says He Was Detained at TIA Because of His Muslim Name, 24 Tampa Bay Times (Apr. 29, 2017), http://www.tbo.com/news/transportation/former-nasa-doctor-says-he-was-
detained-at-tia-because-of-his-muslim-name/2322062 (last accessed May 4, 2017).
25 60 Kristine Phillips, American Composer Says He Was Detained at JFK Because of His ‘Super Common’ Muslim
Name, Wash. Post (May 2, 2017), https://www.washingtonpost.com/news/post-nation/wp/2017/04/29/american-
26 composer-says-he-was-detained-for-hours-at-jfk-for-his-super-common-muslim-name/?utm_term=.1e729661f7a2
(last accessed May 5, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 42

AMERICAN CIVIL LIBERTIES UNION
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 46 of 86

1 required in Section 6 does not apply to refugee applicants who, before the effective date of the
2 Revised Order, have been formally scheduled for transit by the Department of State.
3 191. Section 6(c) allows the Secretary of State and the Secretary of Homeland Security
4 to jointly determine to admit individuals to the United States as refugees on a case-by-case basis,
5 in their discretion, but only so long as they determine that the entry of such individuals as
6 refugees is in the national interest and does not pose a threat to the security or welfare of the
7 United States, including in circumstances such as the following: the individual’s entry would
8 enable the United States to conform its conduct to a preexisting international agreement or
9 arrangement, or the denial of entry would cause undue hardship.
10 192. Like the waiver provision in Section 3 of the Revised Executive Order, the
11 procedure set forth in section 6(e) is of little comfort as Defendant Trump continues to make it
12 clear that his intent is “to be helping the Christians big league.”61 13
193. Refugees or asylees who seek to have a family member(s) join them in the United 14
States must file Refugee/Asylee Relative Petitions (Form I-730). However, the Revised Order 15
will suspend all decisions on these petitions as well as travel for these family members. 16
194. On March 6, 2017, the Department of Homeland Security issued a Q&A: 17
Protecting the Nation from Foreign Terrorist Entry to The United States. A copy of the Q&A is 18
attached as Exhibit F. The Q&A provides: 19

20

Q27. Can the exception for refugee admission be used for Refugee/Asylee

Relative Petitions (Form I-730) cases where a family member is requesting a

21

beneficiary follow to join?

22

No. Individuals who already have valid visas or travel documents that permit

23

them to travel to the United States are exempt from the Executive Order. To the

extent that an individual does not yet have such documents, please contact the

24

Department of State.

25

26
61 See supra note 52.
SECOND AMENDED CLASS ACTION COMPLAINT PAGE 43

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 47 of 86

1

195. Defendant Tillerson issued a series of cables implementing the Revised Order,62

2 including a March 10, 2017 State Department Cable, 17 STATE 23338, with the subject, “New

3 Executive Order 13780: Protecting the Nation from Foreign Terrorist Entry Into the United

4 States – Guidance to Visa-Issuing Posts.” (“Cable 23338”) (attached as Exhibit G). The

5 “guidance” in these cables include mandatory orders regarding implementation of EO-2 and thus

6 constitute final agency action.

7 196. For example, Section 16 of Cable 23338 orders agency employees to suspend the

8 processing of V93 cases:

9

10

16. (SBU) The U.S. Refugee Admissions Program (USRAP) is suspended for 120

days. This includes the processing of boarding foils for any V93 cases, regardless

11

of nationality, since those follow-to-join cases are admitted to the United States as

12

refugees. After receiving cable instructions to implement the new E.O., posts should halt the issuance of these cases immediately and cancel any scheduled V93

13

appointments. [The National Visa Center] will halt the processing of all V93

cases and will not forward these cases to posts. The Department will notify posts

14

when the suspension is lifted.

15 197. “V93 cases” refers to the follow-to-join I-730 petitions filed by refugees such as
16 Plaintiffs James Doe and Joseph Doe.
17 198. While the Original Order suspended USRAP for 120 days, the Revised Executive
18 Order contains slightly different language, specifically suspending travel of refugees into the
19 United States under USRAP as well as decisions on applications for refugee status. However, the
20 cable states that USRAP “is suspended for 120 days.”
21 199. In ordering agency employees to halt the processing of V93 cases and cancel any
22 scheduled V93 appointments, Defendant Tillerson exceeded his authority under the law and
23 failed to fulfill the requirements of the APA.
24

25
62 Yeganeh Torbati, Mica Rosenberg & Arshad Mohammed, Exclusive: U.S. Embassies Ordered to Identify
26 Population Groups for Tougher Visa Screening, Reuters (Mar. 23, 2017), http://www.reuters.com/article/us-usa-
immigration-visas-exclusive-idUSKBN16U12X (last accessed May 4, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 44

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 48 of 86

1

2 C. The Arbitrariness of the Executive Orders

3 200. Despite repeated claims by Defendants regarding the immediate national security
4 need for the Orders, Defendant Trump took thirty-one days after the time this Court issued the
5 first injunction against the Original Order on February 3, 2017, to issue the Revised Order. At
6 least five of those days were due purely to timing of press coverage desired by Defendant Trump
7 and had nothing to do with national security.63 8

9

1. Arbitrariness of the Travel Ban

10

a. The Faulty Logic Behind Invoking the 9/11 Attacks to Justify the

Travel Ban 11

12

201. Section 1 of the Original Executive Order, entitled “Purpose,” stated that at the

13 time of the September 11, 2001 (“9/11”) terrorist attacks, “State Department policy prevented

14 consular officers from properly scrutinizing the visa applications of several of the 19 foreign

15 nationals” involved in those attacks. Further, DHS’s Fact Sheet on the Original Executive Order

16 stated that “[t]he [Original] Executive Order protects the United States from countries 17 compromised by terrorism . . . .”64 The Revised Order continues to justify the actions of

18 Defendants based on events from 2001. See Exhibit E, § 1(h).

19

202. Yet, neither the Original nor the Revised Executive Order impose any restrictions

20 on nationals of Egypt, Lebanon, Saudi Arabia, or the United Arab Emirates—the countries of

21 which the 9/11 attackers were citizens. A March 9, 2017 Breitbart article stated that ISIS boasted

22 that Saudi Arabia is the top provider of terrorists for its group, citing a high-ranking Iraqi

23

24

25
63 See supra note 9.
26 64 See supra note 18.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 45

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 49 of 86

1 intelligence officer as saying, “The Saudi presence in ISIS is very large. What we have left are
2 mainly Iraqis and Saudis.”65 3
203. According to an article published on CNN, “[i]n financial disclosure forms during 4
the presidential campaign, [Defendant Trump] listed two companies with dealings in Egypt and 5
eight with business in Saudi Arabia. And in the UAE, the Trump Organization is partnering with 6 a local billionaire to develop two golf courses in Dubai.”66 7
204. Ten former national security, foreign policy, and intelligence officials at the 8
highest levels of the United States government, including John F. Kerry (former Secretary of 9
State), Avril D. Haines (former Deputy National Security Advisor ), Lisa O. Monaco (former 10
Assistant to the President for Homeland Security and Counterterrorism and Deputy National 11
Security Advisor), and Susan E. Rice (former National Security Advisor)—all of whom were 12
serving in their official capacities and “were current on active intelligence regarding all credible 13
terrorist threat streams directed against the U.S” up until January 20, 2017, just seven days prior 14
to the issuance of the Original Executive Order (“Ten National Security Experts”)—filed a joint, 15
sworn declaration in State v. Trump, No. 17-35105 (9th Cir. Feb. 6, 2017), Dkt. # 28-2 (“Joint 16
Declaration”), attached as Exhibit D, stating that they were “unaware of any specific threat that 17
would justify the travel ban established by the [Original] Executive Order” and that “[t]here is no 18
national security purpose for a total bar on entry for aliens from the seven named countries. See 19
Exhibit D, ¶¶ 3–4. 20
205. These officials who were in office a mere seven days before the Original Order 21
issued “kn[e]w of no interagency process underway before January 20, 2017 to change current 22
vetting procedures, and the repeated need for the Administration to clarify confusion after the 23

24 65 Edwin Mora, Report: More Citizens of Saudi Arabia Have Joined Islamic State Than Any Other Country,
Breitbart.com (Mar. 9, 2017), http://www.breitbart.com/national-security/2017/03/09/report-key-u-s-ally-saudi-
25 arabia-no-1-jihadist-supplier-for-islamic-state/ (last accessed Mar. 13, 2017).
66 Kyle Blaine & Julia Horowitz, How the Trump Administration Chose the 7 Countries in the Immigration
26 [Original] Executive Order, CNN (Jan. 30, 2017), http://www.cnn.com/2017/01/29/politics/how-the-trump-
administration-chose-the-7-countries/ (last accessed Mar. 13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 46

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 50 of 86

1 Order issued suggest that that Order received little, if any advance scrutiny by the Departments
2 of State, Justice, Homeland Security or the Intelligence Community.” Id. ¶ 7. Nor had the
3 officials seen “any evidence that the Order resulted from experienced intelligence and security
4 professionals recommending changes in response to identified threats.” Id.
5 206. Therefore, in their opinion, the Original Executive Order “c[ould] not be justified
6 on national security or foreign policy grounds.” Id. ¶ 3. They explained that:
7

8

Since September 11, 2001, not a single terrorist attack in the United States has

been perpetrated by aliens from the countries named in the Order. Very few

9

attacks on U.S. soil since September 11, 2001 have been traced to foreign

10

nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens. The Administration has identified no information or basis for

11

believing there is now a heightened or particularized future threat from the seven

named countries. Nor is there any rational basis for exempting from the ban

12

particular religious minorities (e.g., Christians), suggesting that the real target of

the ban remains one religious group (Muslims). In short, the Administration offers

13

no reason why it abruptly shifted to group-based bans when we have a tested

14

individualized vetting system developed and implemented by national security professionals across the government to guard the homeland, which is continually

15

re-evaluated to ensure that it is effective.

16 Id. ¶ 4 (emphasis added).

17 207. These respected civil servants, who have collectively “devoted decades to
18 combatting the various terrorist threats that the United States faces in a dynamic and dangerous
19 world” declared, in their professional opinions, that the Original Executive Order “does not
20 perform its declared task” of “protecting the nation from foreign terrorist entry into the United
21 States,” and instead actually undermined the national security of the United States. Id. ¶¶ 2–3.
22 208. Specifically, the Joint Declaration stated that the Original Executive Order:
23 (1) will endanger U.S. troops in the field; (2) will disrupt key counterterrorism, foreign policy,
24 and national security partnerships that are critical to addressing the threat posed by terrorist
25 groups such as ISIL; (3) will endanger intelligence sources in the field; (4) will likely feed the
26 recruitment narrative of ISIL and other extremists that portray the United States as at war with

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 47

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 51 of 86

1 Islam; (5) will disrupt ongoing law enforcement efforts; (6) will have a devastating humanitarian
2 impact; and 7) will cause economic damage to American citizens and residents. Id. ¶ 5.
3 209. The Joint Declaration also described pre-existing national security-based
4 immigration restrictions as “consistently tailored to respond to: (1) specific, credible threats
5 based on individualized information, (2) the best available intelligence and (3) thorough
6 interagency legal and policy review.” Id. ¶ 6. The document further described:
7

8

Since the 9/11 attacks, the United States has developed a rigorous system of

security vetting, leveraging the full capabilities of the law enforcement and

9

intelligence communities. This vetting is applied to travelers not once, but

10

multiple times. Refugees receive the most thorough vetting of any traveler to the

United States, taking on the average more than a year. Successive administrations

11

have continually worked to improve this vetting through robust information

sharing and data integration to identify potential terrorists without resorting to a

12

blanket ban on all aliens and refugees. Because various threat streams are

constantly mutating, as government officials, we sought continually to improve

13

that vetting, as was done in response to particular threats identified by U.S.

14

intelligence in 2011 and 2015. Placing additional restrictions on individuals from

certain countries in the visa waiver program –as has been done on occasion in the

15

past – merely allows for more individualized vettings before individuals with

particular passports are permitted to travel to the United States. 16

17 Id. ¶ 6.

18

210. While the Original Order allowed for the Secretaries of State and Homeland

19 Security to agree to admit travelers from these countries on a case-by-case basis, these experts

20 concluded that “in our experience it would be unrealistic for these overburdened agencies to

21 apply such procedures to every one of the thousands of affected individuals with urgent and

22 compelling needs to travel.” Id. ¶ 5.f.

23

211. On the unprecedented scope of the Original Order, these experts wrote:

24

25

We know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people. Even after 9/11, the U.S.

26

Government did not invoke the provisions of law cited by the Administration to

broadly bar entrants based on nationality, national origin, or religious affiliation.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 48

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 52 of 86

1

In past cases, suspensions were limited to particular individuals or subclasses of

nationals who posed a specific, articulable threat based on their known actions

2

and affiliations. In adopting this Order, the Administration alleges no specific

3

derogatory factual information about any particular recipient of a visa or green card or any vetting step omitted by current procedures.

4 Id. ¶ 8.
5

6

212. Nearly 1,000 current State Department officials formally registered their dissent

7 to the Original Order.67 These career diplomats explained:

8

A policy which closes our doors to over 200 million legitimate travelers in the

9

hopes of preventing a small number of travelers who intend to harm Americans

from using the visa system to enter the United States will not achieve its aim of

10

making our country safer. Moreover, such a policy runs counter to core American

11

values of nondiscrimination, fair play, and extending a warm welcome to foreign

visitors and immigrants. Alternative solutions are available to address the risk of

12

terror attacks which are both more effective and in line with Department of State

and American values… 13

[ ] This ban, which can only be lifted under conditions which will be difficult or

14

impossible for countries to meet, will not achieve its stated aim of to protect the

15

American people from terrorist attacks by foreign nationals admitted to the United

States. Despite the Executive Order’s focus on them, a vanishingly small number

16

of terror attacks on U.S. soil have been committed by foreign nationals who

recently entered the United States on an immigrant or nonimmigrant visa. Rather,

17

the overwhelming majority of attacks have been committed by native-born or

naturalized U.S. citizens--individuals who have been living in the United States

18

for decades, if not since birth. In the isolated incidents of foreign nationals

19

entering the U.S. on a visa to commit acts of terror, the nationals have come from

a range of countries, including many (such as Pakistan or Saudi Arabia) which are

20

not covered by the Executive Order.

21

[ ] Given the near-absence of terror attacks committed in recent years by Syrian,

Iraqi, Irani, Libyan, Somalia, Sudanese, and Yemeni citizens who are in the U.S.

22

in after entering on a visa, this ban will have little practical effect in improving

23

public safety…

24

25
67 Steve Herman & Nike Ching, Sources: Nearly 1,000 at State Department Officially Dissent on Immigration
26 Order, VOA News (Jan. 31, 2017), http://www.voanews.com/a/over-a-thousand-state-dept-personnel-officially-
dissent-to-immigration-order/3700399.html (last accessed Mar. 13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 49

AMERICAN CIVIL LIBERTIES UNION
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 53 of 86

1

The end result of this ban will not be a drop in terror attacks in the United States;

rather, it will be a drop in international good will towards Americans and a threat

2

towards our economy.

3 A copy of this letter is attached as Exhibit H.68

4 213. The Original Order failed to cite a scintilla of evidence supporting the need for the
5 travel ban of nationals from the seven originally banned countries. Nor did or could Defendants
6 provide any such support in any of their briefings in the numerous courts where the Original
7 Order was challenged in the weeks following its signing or the time leading up to the issuance of
8 the Revised Order. This is because Defendants simply do not have the facts to do so.
9

10

b. The Faulty Logic Behind Invoking 2015 Data to Justify the Travel

11

Ban

12

214. The best Defendants could do to try and justify the Revised Order was to cite to a

13 June 2016 Department of State Country Report on Terrorism 2015. However, according to the

14 report, the majority (i.e., over 55%) of all terrorist attacks took place in five countries that are

15 not subject to the travel ban—Iraq, Afghanistan, Pakistan, India, and Nigeria.69 In addition, 74%

16 of all deaths due to terrorist attacks took place in five countries—Iraq, Afghanistan, Nigeria,

17 Syria, and Pakistan— none of which are subject to the travel ban.70

18

215. The Revised Order cites facts purportedly demonstrating why the Targeted

19 Countries continue to present heightened risks to security.71 However, the facts are based on the

20

21

22

23
68 Document also available at https://assets.documentcloud.org/documents/3438487/Dissent-Memo.pdf.
24
69Annex of Statistical Information: Country Reports on Terrorism 2015 at 3, Dep’t of Homeland Sec. (June 2016),
25 https://www.state.gov/documents/organization/257738.pdf (last accessed May 4, 2017).
26 70 Id.
71 Exhibit E, § 1(e).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 50

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 54 of 86

1 June 2015 data that is nearly two years old and which were specifically addressed by changes
2 made to the Visa Waiver Program at that time to respond to the specific information.72 3
216. Further, in relying on information for data from two years ago (or more), 4
Defendants ignore more recent data from not only respected research organizations sources but 5
also the United States government’s own national security experts. 6
217. According to a September 2016 report from the Cato Institute, “[i]ncluding those 7
murdered in the terrorist attacks of September 11, 2001 (9/11), the chance of an American 8
perishing in a terrorist attack on U.S. soil that was committed by a foreigner over the 41-year 9 period studied here is 1 in 3.6 million per year.”73 Similarly, The Boston Globe reported in 2016 10
that “a person living in the United States is more than over 100 times more likely to be killed by 11 falling objects than by a jihadi terrorist.”74 Indeed, it appears that in 2016, Americans were less 12
likely to be killed by Muslim extremists (1 in six million) than for being Muslim (1 in one 13 million).75 14
218. In the process of creating the Revised Order, the Office of Intelligence and 15
Analysis within the Department of Homeland Security that is charged with equipping the 16 Homeland Security Enterprise with timely intelligence and information,76 developed a paper 17
assessing the international terrorist threat to the United States and worldwide posed by citizens of 18

19

20
72 8 U.S.C. § 1187; Visa Waiver Program, U.S. Dep’t of State, https://travel.state.gov/content/visas/en/visit/visa-
21 waiver-program.html (last accessed May 4, 2017).

22

73 Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, 798 Policy Analysis Cato Institute 1 (Sept. 13, 2016), https://object.cato.org/sites/cato.org/files/pubs/pdf/pa798_1_1.pdf (last accessed Mar. 13, 2017).

23 74 Graham Allison, Fear Death from Tree Limbs, Not Terrorists, Boston Globe (Feb. 19, 2016),
https://www.bostonglobe.com/opinion/editorials/2016/02/19/fear-death-from-tree-limbs-not-
24 terrorists/2ZrHzpP54GBHwbv2AVD6aM/story.html (last accessed Mar. 13, 2017).

25 75 Charles Kurzman, Muslim-American Involvement with Violent Extremism, 2016 (Jan. 26, 2017),
http://kurzman.unc.edu/muslim-american-terrorism/ (last accessed Mar. 13, 2017).
26 76 Office of Intelligence & Analysis, Dep’t of Homeland Sec. (last published date Jan. 30, 2017),
https://www.dhs.gov/office-intelligence-and-analysis (last accessed Mar. 13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 51

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OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 55 of 86

1 the seven Original Targeted Countries. Although the paper did not assess the risk of domestic

2 terrorism, included in the key findings were:

3

• citizens of the seven Original Targeted Countries were rarely implicated in US-

4

based terrorism;

5

• “country of citizenship is unlikely to be a reliable indicator of potential terrorist

6

activity”; and

7

• Of the at least 82 primarily US-based individuals who died in the pursuit of or

8

were convicted of any terrorism-related federal offense inspired by a foreign terrorist organization since the beginning of the Syrian conflict in March 2011, of

9

the seven Original Targeted Countries, Iran, Sudan, and Yemen had 1 each, and

there were no individuals from Syria.

10

11 Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States, Office of 12 Intelligence & Analysis, Dep’t of Homeland Sec. (Feb. 2017) (attached as Exhibit I).77

13

219. A second, March 1, 2017, Intelligence Assessment announced in its title that

14 “Most Foreign-born, US-based Violent Extremists Radicalized after Entering Homeland . . . .” 15 (“March 1 Intelligence Assessment”)78 also negates the necessity of the Revised Order’s travel

16 ban. A copy of this report is as it appeared in the MSNBC article attached as Exhibit J.

17

220. The March 1 Intelligence Assessment was based on information available as of

18 December 31, 2016. One of the key judgments of the March 1 Intelligence Assessment was that:

19

[M]ost foreign-born, US-based violent extremists likely radicalized several years

20

after their entry to the United States, limiting the ability of screening and vetting

21

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

22

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

23

States for more than 10 years before their indictment or death. A separate DHS

24 77 Document also available at https://assets.documentcloud.org/documents/3474730/DHS-intelligence-document25 on-President-Donald.pdf.
78 Rachel Maddow, TRMS Exclusive: DHS Document Undermines Trump Case for Travel Ban, MSNBC (Mar. 2,
26 2017), http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-trump-case-travel-
ban (last accessed Mar. 13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 52

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OF WASHINGTON FOUNDATION
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KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 56 of 86

1

study that found recent foreign-born US violent extremists began radicalizing, on

average, 13 years after their entry to the United States further supports our

2

assessment.

3

Id.

4 221. The examples of terrorist activity cited in Section 1(h) of the Revised Order only
5 underscore the points raised in all of these reports and statements by national security experts
6 that the travel ban is unnecessary and will be ineffective. The first example cited relates to two
7 Iraqi nationals; yet, the Revised Order removed Iraq from the list of targeted countries. The
8 second example was of a native of Somali who had been brought to the United States as a child
9 but then committed the act in question after he had been naturalized as a United States citizen
10 and when he was an adult.
11 222. On March 10, 2017, more than 130 foreign policy and national security experts
12 wrote an open letter to President Trump (“Open Letter”) concluding that the Revised Order
13 “suffers from the same core substantive defects as the previous version.” The experts raise the
14 concern that the Revised Order will “weaken U.S. national security” because it “jeopardize[s]
15 our relationships with allies and partners on whom we rely for vital counterterrorism cooperation
16 and information sharing. To Muslims— including those victimized by or fighting against ISIS—
17 it will send a message that reinforces the propaganda of ISIS and other extremist groups, that
18 falsely claim the United States is at war with Islam.” The Open Letter is attached as Exhibit K.79
19 223. The experts explain in the Open Letter: “Following the 9/11 attacks, the United
20 States developed a rigorous system of security vetting for travelers to our homeland, leveraging
21 the full capabilities of the intelligence and law enforcement communities. Since then, the U.S.
22 has added enhanced vetting procedures for travelers and has revised them continuously. Our
23 government applies this process to travelers not once, but multiple times.”80
24

25 79 Document also available at 26 https://assets.documentcloud.org/documents/3515708/LetterFormerOfficialsonMarch6EO-Pdf.pdf.
80 Exhibit K at 1.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 53

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 57 of 86

1 224. In addition, the Revised Order now allows automatic entry for nationals of the
2 Designated Countries with valid visas, an admission by Defendants that the current screening
3 and vetting process for the admission of non-immigrant visa holders is adequate and effective to
4 protect this country’s national security interests.
5 225. Adding to the evidence of the arbitrariness of the travel ban, on March 20, 2017,
6 the Transportation Security Administration—a component of Defendant Department of
7 Homeland Security— issued what was, at first, a confidential directive banning laptops, iPads
8 and other electronics “larger than a cellphone” on flights from 10 airports because “‘evaluated
9 intelligence’ emerged that terrorists favored ‘smuggling explosive devices in various consumer
10 items’”.81 The countries covered by the electronics ban are Jordan, Egypt, Turkey, Saudi Arabia, 11 Morocco, Qatar, Kuwait and the United Arab Emirates82—none of which are covered by either 12
the Original or Revised Executive Orders. 13
226. Rather than wasting the resources of our security agencies banning millions of 14
individuals who are already being thoroughly analyzed through current procedures put in place 15
by national security experts, Defendants should be focusing on the small but very dangerous 16
individuals for whom they have specific information that will lead to actually stopping attacks in 17
this country. 18

19

2. Arbitrariness of the Suspension of the Refugee Admissions Program

20 227. In priming the country for the Revised Order, Defendant Trump relies upon
21 arbitrary and irrational animus towards refugees with no factual basis. For example, in discussing
22 refugees at a February 18, 2017 rally in Melbourne, Florida, he claimed: “We've allowed
23

24

25 81 Sam Thielman & Sam Levin, Experts Criticize US Electronic Devices Ban on Some Flights from Middle East,
Guardian (Mar. 21, 2017), https://www.theguardian.com/us-news/2017/mar/21/us-electronic-devices-ban-flights-
26 tsa-airports (last accessed May 4, 2017).
82 Id.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 54

AMERICAN CIVIL LIBERTIES UNION
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 58 of 86

1 thousands and thousands of people into our country and there was no way to vet those people.
2 There was no documentation. There was no nothing. So we’re going to keep our country safe.”83 3
228. However, according to the State Department’s January 20, 2017 Bureau of 4
Population, Refugees, and Migration Fact Sheet: 5

6

All refugees undergo the most intensive security screening of any traveler to the

United States. This screening includes multiple federal intelligence, security, and

7

law enforcement agencies, including the National Counterterrorism Center, the

8

FBI Terrorist Screening Center, and the Departments of Homeland Security,

State, and Defense. Syrian refugees go through yet additional forms of security

9

screening. A refugee applicant cannot be approved for travel until all required

security checks have been completed and cleared.84

10

11

229. The U.S. Government has a great deal of experience screening and admitting

12 large numbers of refugees from chaotic environments, including where intelligence holdings are

13 limited.

14

230. According to the U.S. Citizenship and Immigration Services (“USCIS”), the

15 government agency that oversees lawful immigration to the United States:

16

Refugee applicants are subject to intensive biographic and biometric security

17

checks. Through close coordination with the federal law enforcement and

18

intelligence communities, these checks are continually reviewed and enhanced to

address specific populations that may pose particular threats.

19 The United Nations High Commissioner for Refugees (UNHCR) identifies and

20

refers many refugees to the U.S. Refugee Admissions Program (“USRAP”) for

resettlement consideration. UNHCR also provides important information about

21

the worldwide refugee situation.

22

The Department of State (State) coordinates and manages the USRAP.

23

Resettlement Support Centers (RSCs) work with State to carry out administrative

24 83 Jacob Gardenswartz, Transcript: President Donald Trump’s Rally in Melborne, Florida, Vox (Feb. 18, 2017), 25 https://www.vox.com/2017/2/18/14659952/trump-transcript-rally-melbourne-florida (last accessed Mar. 13, 2017).
84 Fact Sheet: U.S. Refugee Admissions Program FAQ’s, U.S. Dep’t of State-Bureau of Population, Refugees, and
26 Migration (Jan. 20, 2017), https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm (last accessed Mar.
13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 55

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 59 of 86

1

and processing functions, such as file preparation, data collection, and out-

processing activities during the refugee admissions process. 2

USCIS conducts interviews with applicants to determine their eligibility for

3

refugee status, including whether they are credible, meet the refugee definition,

4

and are otherwise admissible to the United States under U.S. law.85

5

231. The general refugee process encompasses the following: 86

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

232. The non-existent vetting process claimed by Defendant Trump actually consists of

23 the following numerous steps:

24

25 85 Refugee Processing and Security Screening, U.S. Citizenship & Immigration Servs., Dep’t of Homeland Sec. (last 26 reviewed/updated Dec. 3, 2015), https://www.uscis.gov/refugeescreening (last accessed Mar. 2, 2017).
86 Id.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 56

AMERICAN CIVIL LIBERTIES UNION
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 60 of 86

1

USRAP Screening

2

USRAP screening is a shared responsibility. It includes both biometric and

biographic checks at multiple stages during the process, including immediately

3

before a refugee’s departure to the United States and upon his or her arrival in the

4

United States.

5

The screening of refugee applicants involves numerous biographic checks that are

initiated by the RSCs and reviewed and/or resolved by USCIS. These include:

6

The Department of State’s Consular Lookout and Support System (CLASS)

7

State initiates CLASS name checks for all refugee applicants when they are

8

being prescreened by an RSC. Name checks are conducted on the applicant’s

9

primary names as well as any variations used by the applicant. Responses are received before the USCIS interview, and possible matches are reviewed and

10

adjudicated by USCIS headquarters. Evidence of the response is included in

the case file. If a new name or variation is identified at the interview, USCIS

11

requests another CLASS name check on the new name and places the case on

hold until that response is received. 12

13

CLASS is owned by State. The name-check database provides access to critical information for adjudicating immigration applications. The system

14

contains records provided by numerous agencies and includes information on

individuals who have been denied visas, immigration violations, criminal

15

histories, and terrorism concerns, as well as intelligence information and child

support enforcement data. 16

In addition to containing information from State sources, CLASS also

17

includes information from:

18

o National Counterterrorism Center/Terrorist Screening Center (terrorist

19

watch lists),

o TECS,

20

o Interpol,

o Drug Enforcement Administration,

21

o Health and Human Services, and

22

o FBI (extracts of the National Crime Information Center’s Wanted Persons File, Immigration Violator File, Foreign Fugitive File, Violent Gang and

23

Terrorist Organization File (and the Interstate Identification Index)).

24

Security Advisory Opinion (SAO)

25

State initiates SAO name checks for certain refugee applicants when they are

26

being prescreened by an RSC. The SAO biographic check is conducted by the FBI and intelligence community partners. SAOs are conducted for an

applicant who is a member of a group or nationality that the U.S. government

SECOND AMENDED CLASS

AMERICAN CIVIL LIBERTIES UNION

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 61 of 86

1

has designated as requiring this higher level check. SAOs are processed, and a

response must be received before finalizing the decision. If there is a new

2

name or variation identified at the interview, USCIS requests another SAO for

3

the new name and places the case on hold until that response is received.

4

The SAO process was implemented after Sept. 11, 2001, to provide an

additional security mechanism to screen individuals in certain higher-risk

5

categories who are seeking to enter the United States through a variety of

means, including refugee applicants.

6

Interagency Check (IAC) 7

The IAC screens biographic data, including names, dates of birth, and other

8

additional data of all refugee applicants within designated age ranges. This

9

information is captured at the time the applicant is prescreened and is

provided to intelligence community partners. This screening procedure began

10

in 2008 and has expanded over time to include a broader range of applicants

and records. These checks occur throughout the process. 11

At the time of USCIS interview, USCIS staff collects fingerprints and begins

12

biometric checks. These checks include:

13

• FBI Fingerprint Check through Next Generation Identification

14

(NGI): Recurring biometric record checks pertaining to criminal history

and previous immigration data.

15

• DHS Automated Biometric Identification System (IDENT - f/n/a US-

16

VISIT): A biometric record check related to travel and immigration

17

history as well as immigration violations, and law enforcement and national security concerns. Enrollment in IDENT also allows U.S.

18

Customs and Border Protection (CBP) to confirm the applicant’s identity

at U.S. ports of entry.

19

• DOD Defense Forensics and Biometrics Agency (DFBA)’s Automated

20

Biometric Identification System (ABIS): A biometric record check of

21

the Department of Defense’s (DOD) records collected in areas of conflict (predominantly Iraq and Afghanistan). DOD screening began in 2007 for

22

Iraqi applicants and has now been expanded to all nationalities. CBP’s

National Targeting Center-Passenger (NTC-P) conducts biographic vetting

23

of all ABIS biometric matches against various classified and unclassified

U.S. government databases. 24

25

USCIS Interview

26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 58

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 62 of 86

1

The USCIS refugee interview is an important part of the refugee screening

process. Highly trained USCIS officers conduct extensive interviews with each

2

refugee applicant to learn more about the applicant's claim for refugee status and

3

admissibility. These officers have undergone specialized and extensive training on:

4

• Refugee law,

5

• Grounds of inadmissibility,

• Fraud detection and prevention,

6

• Security protocols,

7

• Interviewing techniques,

• Credibility analysis, and

8

• Country conditions research.

9

Before deploying overseas, officers also receive additional training on the specific

10

population that they will be interviewing, detailed country of origin information,

and updates on any fraud trends or security issues that have been identified.

11 Officers conducting interviews of Syrian applicants undergo an expanded 1-week

12

training focusing on Syria-specific topics, including a classified intelligence

briefing. During the interview, the officer develops lines of questioning to obtain

13

information on whether the applicant has been involved in terrorist activity,

14

criminal activity, or the persecution/torture of others. The officer will also conduct a credibility assessment on each applicant.

15 Controlled Application Review and Resolution Process (CARRP)

16 During the process of adjudicating any USCIS benefit, if any national security

17

concerns are raised, either based on security and background checks or personal

interviews or testimony, USCIS conducts an additional review through the

18

internal CARRP process. CARRP is an internal USCIS process that a case can go

19

through to ensure that immigration benefits or services are not granted to

individuals who pose a threat to national security and/or public safety, or who

20

seek to defraud our immigration system.

21

Enhanced Review for Syrian Applicants

22

USCIS’ Refugee, Asylum, and International Operations Directorate and Fraud

Detection and National Security Directorate (FDNS) work together to provide

23

enhanced review of certain Syrian cases. This review involves FDNS providing

24

intelligence-driven support to refugee adjudicators, including identifying threats

and suggesting topics for questioning. FDNS also monitors terrorist watch lists

25

and disseminates intelligence information reports on any applicants who are

determined to present a national security threat.

26

CBP Vetting

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 59

AMERICAN CIVIL LIBERTIES UNION
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KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 63 of 86

1

CBP inspects all applicants who are approved for refugee resettlement to the

United States to determine their admissibility before they are admitted as

2

refugees. CBP receives a manifest of all approved individuals who have been

3

booked for travel to the United States. CBP receives this manifest 8 days before the scheduled travel. CBP begins vetting the individuals before they arrive at a

4

U.S. airport and then conducts an inspection and additional background checks of

these individuals upon their arrival at a U.S. airport.87

5

6

233. Defendant Trump has misrepresented that “there was no way to vet those people”

7 in an attempt to justify his arbitrary and unjustified suspension of the refugee admissions

8 program. However, USCIS Director León Rodriguez’s explained in his September 28, 2016

9 written testimony for a Senate Committee on the Judiciary, Subcommittee on Immigration and

10 the National Interest hearing that “[a]ll refugees entering our country are subject to the highest

11 level of security check of any category of any traveler to the United States and admitted only

12 after successfully completing a stringent security screening process.”88 He further detailed:

13

Recognizing that a well-trained cadre of officers is critical to protecting the

14

integrity of the refugee process, we have focused our efforts on providing the

15

highest quality training to our officers. In addition to the basic training required of all USCIS officers, refugee officers receive nine weeks of specialized training that

16

includes comprehensive instruction on all aspects of the job, including refugee

law, grounds of inadmissibility, fraud detection and prevention, security

17

protocols, interviewing techniques, credibility analysis, and country conditions

research. Before deploying overseas, officers also receive pre-departure training,

18

which focuses on the specific population that they will be interviewing. This

19

includes information on the types of refugee claims that they are likely to

encounter, detailed country of origin information, and updates on any fraud trends

20

or security issues that have been identified. With the advent of large-scale

processing of Iraqi applicants in 2007, USCIS officers who adjudicate Iraqi

21

refugee applications began receiving an additional two-day training on country-

specific issues, including briefings from outside experts from the law

22

enforcement, intelligence, policy, and academic communities. This training has

23

24 87 Id.
25 88 Written Testimony of USCIS Director Leon Rodriguez for a Senate Committee on Immigration and the National
Interest Hearing titled “Oversight of the Administration’s FY 2017 Refugee Resettlement Program,” Dep’t of
26 Homeland Sec. (Sep. 28, 2016), https://www.dhs.gov/news/2016/09/28/written-testimony-uscis-director-senate-
judiciary-subcommittee-immigration-and (last accessed Mar. 13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 60

AMERICAN CIVIL LIBERTIES UNION
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KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 64 of 86

1

since expanded to a one-week training in order to include Syria-specific topics in

addition to Iraqi ones. 2

In order to fully explore refugee claims and to identify any possible grounds of

3

ineligibility, specially-trained USCIS officers conduct an in-person, in-depth

4

interview of every principal refugee applicant. The officer assesses the credibility

of the applicant and evaluates whether the applicant’s testimony is consistent with

5

known country conditions. These officers also interview each accompanying

family member age 14 and older. All applicants must establish admissibility to the

6

United States before the case (i.e., the collection of applicants) is approved. In

addition, refugee applicants are subject to robust security screening protocols to

7

identify potential fraud, criminal or national security issues. All refugee status

8

determinations made by interviewing officers undergo supervisory review before

a final decision is made. Refugee Affairs Division policy requires officers to

9

submit certain categories of sensitive cases – including certain national security-

related cases – to Refugee Affairs Division Headquarters to obtain concurrence

10

prior to the issuance of a decision. This allows for Headquarters staff to conduct

11

additional research, liaise with law enforcement or intelligence agencies, or consult with an outside expert before finalizing the decision.89

12

13

234. In addition, as recently as January 20, 2017, the U.S. Department of State issued a

14 Fact Sheet that makes clear that the reality of the refugee screening process was, is, and

15 continues to be the complete opposite of what Defendant Trump has claimed:

16 No traveler to the United States is subject to more rigorous security screening

17

than the refugees the U.S. Government considers for admission. Only after the

U.S. Government’s rigorous and lengthy security screening process has been

18

completed and an applicant is not found to pose a threat does the U.S.

Government grant that individual refugee admission to the U.S. Security

19

screening of all refugees involves multiple U.S. agencies, including the

20

Departments of State, Homeland Security (DHS), and Defense, the Federal

Bureau of Investigation, The National Counterterrorism Center, the Terrorist

21

Screening Center, and two federal intelligence agencies.90

22 Emphasis added.

23 235. Finally, the Open Letter from the foreign policy and national security experts
24 affirms:
25
26 89 Id.
90 See supra note 84.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 61

AMERICAN CIVIL LIBERTIES UNION
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KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 65 of 86

1

2

[r]efugees are vetted more intensively than any other category of traveler. They

are screened by national intelligence agencies and INTERPOL, their fingerprints

3

and other biometric data are checked against terrorist and criminal databases, and

4

they are interviewed several times. These processes undergo review on an

ongoing basis to ensure that the most updated and rigorous measures are applied,

5

and any additional enhancements can be added without halting refugee

resettlement or banning people from certain countries.91

6

7

236. A person who is granted refugee status in the United States can petition to have

8 their spouse and children join them. However, the family members are subject to a lengthy 9 screening process that includes, inter alia,92 confirming the beneficiary’s identity and

10 relationship to the petitioner in the United States, the collection of fingerprint scans, medical

11 examinations, and interviews. The required medical clearances have a limited shelf life and

12 expire after six months, so if travel is not scheduled within six months of receiving medical 13 clearance, medical clearance must be obtained again.93

14

237. The actual facts are that the already existing refugee admissions process is

15 stringent, robust, lengthy, and rigorous. Extreme vetting is already in place.

16

238. Flailing for additional support for the misguided suspension of refugee travel into

17 the United States, the Executive Order includes two curious anecdotes from 2013 and 2014. The 18 first situation was one that was specifically addressed by the previous administration.94 The

19 second situation involved a refugee brought to this country as a child refugee and radicalized

20 years after he had arrived, only amplifying the finding in the March 1, 2017 Intelligence

21 Assessment that most foreign-born, US-based violent extremists are radicalized years after

22 23 91 Exhibit K at 1.
92 Follow-to-Join Refugees and Asylees, U.S. Dep’t of State-Bureau of Consular Affairs,
24 https://travel.state.gov/content/visas/en/immigrate/join-refugees-and-asylees.html (last accessed May 4, 2017).
25 93 9 FAM 302.2-3(C) (U) Validity Period of an Applicant’s Medical Examination for Immigrant Visa Applicants,
U.S. Dep’t of State (Sept. 15, 2016), https://fam.state.gov/fam/09FAM/09FAM030202.html (last accessed May 4,
26 2017).
94 See supra note 72.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 62

AMERICAN CIVIL LIBERTIES UNION
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901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 66 of 86

1 entering the United States, calling into question the effectiveness of the refugee travel ban in the
2 Revised Order.95 3
239. The Revised Order also claims that more than 300 persons who entered the 4
United States as refugees are currently the subjects of counterterrorism investigations by the 5 Federal Bureau of Investigation.96 But according to a Washington Post article: 6

7

[O]fficials familiar with the list say that at least 70 percent of the people under

review are from countries not targeted by the new travel ban. More than half are

8

or were at one time Iraqi nationals. Officials familiar with the data said roughly

9

two-thirds of the people on the administration’s tally also arrived seven or more years ago, before the government significantly tightened its vetting procedures for

10

Iraqis entering the United States.

11

Roughly 20 percent of the individuals came to the United States from Somalia,

which is covered by the ban. Others hail from a range of countries, including

12

several that the Trump administration has never indicated as a national security

threat. For example, there are more nationals from Ethiopia, Uzbekistan and

13

Bosnia that are subjects in counterterrorism investigation than there are from

14

some of the banned countries, such as Yemen, Iran and Libya.

15

The list refers to people who are under some form of investigation, but officials

familiar with the data cautioned that the classification of those people varies

16

widely from individuals who have aroused serious suspicion to those who might

have a relative who is a convicted or suspected terrorist. None of the individuals

17

on the list have been charged with a -terrorism-related crime, and the number of

18

people under investigation by the FBI at any given time fluctuates regularly as investigations are started and concluded.97

19

20

240. Defendant Trump repeatedly demonized Syrian refugees,98 and made clear his

21 intention to ban them from the country:

22
95 See supra note 78.
23 96 Exhibit E, § 1(h).

24 97 Devlin Barrett, Abigail Hauslohner & David Nakamura, International Trump Administration Data Undercuts

Travel Ban, Wash. Post (Mar. 16, 2017), https://www.washingtonpost.com/world/national-security/internal-trump-
25 administration-data-undercuts-travel-ban/2017/03/16/9a2dc6b4-098e-11e7-93dc-

00f9bdd74ed1_story.html?utm_term=.fcc94e54867e (last accessed May 5, 2017).
26 98 Jesselyn Cook, 7 Lies Donald Trump Has Spread About Syrian Refugees Entering the U.S., Huffington Post (Oct.

20, 2016), http://www.huffingtonpost.com/entry/donald-trump-refugee-crisis_us_5807809ae4b0180a36e7ac14

SECOND AMENDED CLASS

AMERICAN CIVIL LIBERTIES UNION

KELLER ROHRBACK L.L.P.

ACTION COMPLAINT PAGE 63

OF WASHINGTON FOUNDATION
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 67 of 86

1

2

3

4

5

6

7

8

9

10

11

12

13

14

241. In line with his rhetoric and on the list of goals of his chief strategist,99 the

15 Original Order indefinitely suspended the admission of Syrian refugees because the “entry of

16 nationals of Syria as refugees is detrimental to the interests of the United States.” Original Order

17 Section 5(c).

18 242. The Revised Order removed the provision suspending the admission of Syrian

19 refugees indefinitely, further demonstrating the farce behind the assertion in the Original Order

20 that their entry was detrimental to the national interests of the country and highlighting the

21 arbitrary nature in which Defendants have gone about developing and implementing both the

22 Original and Revised Executive Orders.

23

24 (last accessed Mar. 13, 2017); Donald J. Trump (@realDonaldTrump), Twitter (Apr. 7, 2016, 7:48 PM),
https://twitter.com/realDonaldTrump/status/718269255872081922.
25 99 Z. Byron Wolf, Steve Bannon’s White House Whiteboard Revealed, CNN (May 3, 2017),
http://www.cnn.com/2017/05/03/politics/steve-bannons-white-house-whiteboard/index.html (listed and checked
26 off on the white board of Steve Bannon, White House Chief Strategist, is “[s]uspend the Syrian refugee program”)
(last accessed May 4, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 64

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 68 of 86

1

2 D. 3

President Trump’s Continuing Defiance of Court Orders Regarding the Executive Orders

4

243. Although both this Court and other courts around the country have granted writs

5 of habeas, temporary restraining orders and preliminary injunctions (some nationwide) and the

6 Original Order has been rescinded, Plaintiffs are compelled to continue this action to ensure their

7 rights are protected. Many, if not all, of the existing litigation and court orders do not help

8 Washington residents who entered the country on single entry or now expired multiple entry

9 non-immigrant visas. They are now stuck inside the country. In addition, numerous Washington

10 residents who are asylees still await the arrival of their families who have completed the rigorous

11 refugee security clearance process.

12

244. In addition, despite the fact that he revoked the Original Executive Order,

13 Defendants’ repeated actions and statements make it far from clear that Defendant Trump will

14 not revert to his original position.

15

245. Immediately after the first nationwide stay was granted, see Darweesh v. Trump,

16 No. 17-480, 2017 WL 388504, at *1 (E.D.N.Y. Jan. 28, 2017), Defendant DHS issued a

17 statement that “President Trump’s Original Executive Orders remain in place—prohibited travel

18 will remain prohibited, and the U.S. government retains its right to revoke visas at any time if

19 required for national security or public safety.”100 And Defendant Trump claimed, “If the ban

20 were announced with a one week notice, the ‘bad’ would rush into our country during that week.

21 A lot of bad ‘dudes’ out there!”101

22

246. On January 30, 2017, acting United States Attorney General Sally Yates issued a

23 memorandum to Department of Justice employees instructing them to not act to enforce the

24 100 Department of Homeland Security Response To Recent Litigation, Dep’t of Homeland Sec. (Jan. 29, 2017), 25 https://www.dhs.gov/news/2017/01/29/department-homeland-security-response-recent-litigation (last accessed
Mar. 13, 2017).
26 101 Donald J. Trump (@realDonaldTrump, Twitter (Jan. 30, 2017 5:31 AM),
https://twitter.com/realdonaldtrump/status/826060143825666051.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 65

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OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 69 of 86

1 Original Executive Order because she was “not convinced . . . that the [Original] Executive

2 Order is lawful.”102 Ms. Yates wrote:

3

My responsibility is to ensure that the position of the Department of Justice is not

4

only legally defensible, but is informed by our best view of what the law is after

consideration of all the facts. In addition, I am responsible for ensuring that the

5

positons we take 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

6

convinced that the defense of the [Original] Executive Order is consistent with

these responsibilities nor am I convinced that the [Original] Executive Order is

7

lawful.103

8 247. Within hours of her issuance of this statement, and its hand-delivery to Defendant

9 Trump, Defendant Trump fired Ms. Yates, calling her statement a “betrayal.”

10 248. After this Court issued a Temporary Restraining Order (“TRO”) on February 3,

11 2017 and the Ninth Circuit issued a unanimous decision upholding the TRO on February 9,

12 2017, Defendants vowed to keep fighting the court orders.

13 249. Even more unusual were Defendant Trump’s statements that followed the District

14 Court and Ninth Circuit’s Orders:

15

•

@realDonaldTrump: “The opinion of this so-called judge, which essentially takes

16

law-enforcement away from our country, is ridiculous and will be overturned!” --

5:12 AM - 4 Feb 2017104 17

18

•

@realDonaldTrump: “What is our country coming to when a judge can halt a

Homeland Security travel ban and anyone, even with bad intentions, can come

19

into U.S.?” -- 12:44 PM - 4 Feb 2017105

20

21

22 102 Letter from Sally Yates to Dep’t of Justice, N.Y. Times (Jan. 30, 2017),

23

https://www.nytimes.com/interactive/2017/01/30/us/document-Letter-From-Sally-Yates.html?_r=1 (last accessed Mar. 13, 2017).

24 103 Id.

25 104 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 5:12 AM),
https://twitter.com/realdonaldtrump/status/827867311054974976.
26 105 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 12:44 PM),
https://twitter.com/realDonaldTrump/status/827981079042805761.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 66

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 70 of 86

1

•

@realDonaldTrump: “Because the ban was lifted by a judge, many very bad and

dangerous people may be pouring into our country. A terrible decision” -- 1:44

2

PM - 4 Feb 2017106

3

•

@realDonaldTrump: “Why aren’t the lawyers looking at and using the Federal

4

Court decision in Boston, which is at conflict with ridiculous lift ban decision?” --

3:37 PM - 4 Feb 2017107

5

•

@realDonaldTrump: “The judge opens up our country to potential terrorists and

6

others that do not have our best interests at heart. Bad people are very happy!” --

7

4:48 PM - 4 Feb 2017108

8

•

@realDonaldTrump: “Just cannot believe a judge would put our country in such

peril. If something happens blame him and court system. People pouring in. Bad!”

9

-- 12:39 PM - 5 Feb 2017109

10

•

@realDonaldTrump: “I have instructed Homeland Security to check people

coming into our country VERY CAREFULLY. The courts are making the job

11

very difficult!” -- 12:42 PM - 5 Feb 2017110

12

•

@realDonaldTrump: “SEE YOU IN COURT, THE SECURITY OF OUR

13

NATION IS AT STAKE!” -- 3:35 PM - 9 Feb 2017111

14

•

@realDonaldTrump” “Our legal system is broken! ‘77% of refugees allowed into

U.S. since travel reprieve hail from seven suspect countries.’ (WT) [sic] SO

15

DANGEROUS!” -- 4:12 AM - 11 Feb 2017112

16

17

18 106 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 1:44 PM), 19 https://twitter.com/realDonaldTrump/status/827996357252243456.
107 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 3:37 PM),
20 https://twitter.com/realDonaldTrump/status/828024835670413312.

21 108 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 4:48 PM),
https://twitter.com/realDonaldTrump/status/828042506851934209.
22 109 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 5, 2017, 12:39 PM),
23 https://twitter.com/realDonaldTrump/status/828342202174668800.
110 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 5, 2017, 12:42 PM),
24 https://twitter.com/realDonaldTrump/status/828343072840900610.

25 111 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 9, 2017, 3:35 PM),
https://twitter.com/realDonaldTrump/status/829836231802515457.
26 112 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 11, 2017, 4:12 AM),
https://twitter.com/realDonaldTrump/status/830389130311921667.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 67

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 71 of 86

1 250. The day before the Ninth Circuit issued its ruling, Defendant Trump declared that
2 the Original Order was “so simple and so beautifully written and so perfectly written”113 and cast 3
further aspersions this country’s judicial system, stating, “I don't ever want to call a court biased, 4
so I won't call it biased. And we haven't had a decision yet. But courts seem to be so political and 5
it would be so great for our justice system if they would be able to read a statement and do what's 6
right.” 7
251. In their February 16, 2017 supplemental brief regarding review of the Ninth 8
Circuit’s decision to deny Defendant’s request for a stay of the TRO by the entire panel, 9
Defendants represented that “[r]ather than continuing this litigation, the President intends in the 10
near future to rescind the Order and replace it with a new, substantially revised Executive Order . 11 . . .” 114 12
252. Yet on that very same day, Defendant Trump directly contradicted the 13
representations made to the Ninth Circuit in the supplemental briefing filed by the United States 14
government on his behalf. During a news conference, Defendant Trump stated: “We’re issuing a 15
new executive action next week that will comprehensively protect our country. So we’ll be going 16
along the one path and hopefully winning that, at the same time we will be issuing a new and 17 very comprehensive order to protect our people.”115 18
253. Further, on February 21, 2017, senior policy adviser Stephen Miller not only 19
claimed “[n]othing was wrong with the first executive order” but also revealed that the revised 20

21

22

23 113 Matt Zapotosky & Robert Barnes, As Judges Weigh Travel Ban, Trump Asserts that Courts are ‘so Political,’
Wash. Post (Feb. 8, 2017), http://www.chicagotribune.com/news/nationworld/politics/ct-trump-defends-travel-
24 ban-20170208-story.html (last accessed Mar. 13, 2017).

25 114 Suppl. Br. on En Banc Consideration at 4, State (9th Cir. Feb. 16, 2017), Dkt. # 154.
115 Presidential News Conference, N.Y. Times (Feb. 16, 2017), transcript and video is available at
26 https://www.nytimes.com/video/us/politics/100000004937194/trump-labor-secretary.html (last accessed Mar. 13,
2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 68

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 72 of 86

1 travel ban will have “mostly minor technical differences” from the Original Order and
2 “fundamentally” would be “the same basic policy outcome for the country.”116 3
254. In addition, during White House press briefings on February 21, 22, and 23, 2017, 4
Press Secretary Sean Spicer stated that the Defendant Trump will continue to pursue the case in 5
the Ninth Circuit. In particular, Mr. Spicer stated: 6

7

• On February 21, 2017: The President has “made very clear” that there will be

a “dual-track system” and is 117“confident that we’re still going to prevail on

8

the case—the merits of the case.”

9 • On February 22, 2017: The President is “fighting this on both fronts, making

10

sure that we keep evolving through the 118court system on the existing EO,”

while drafting an additional executive order. 11

12

• On February 23, 2017: “So with respect to the executive order [on

immigration], there are several courts that this is being fought in—10 or so—

13

and we continue to deal with that in all of those venues. And then again, I

guess, the only way to say this is, then obviously on the dual-track side we

14

have the additional executive order that we’ve talked about earlier that will

come out and further address the problems. We continue to believe that the

15

issues that we face specifically in the 9th district—9th Circuit, rather, that we

16

will prevail on, on the merits of that. But on the other challenges that have

come and the other venues and the others—that we feel equally confident, as

17

we did in Massachusetts and other venues. So it’s not a single-track

system.”119

18

19

20 116 Martha McCallum, Miller: New Order Will Be Responsive to the Judicial Ruling; Rep. Ron DeSantis: Congress

21

has Gotten Off to a Slow Start, Fox (Feb. 21, 2017), http://www.foxnews.com/transcript/2017/02/21/miller-neworder-will-be-responsive-to-judicial-ruling-rep-ron-desantis/ (last accessed Mar. 13, 2017).

22 117 Press Briefing by Press Secretary Sean Spicer, 2/21/17, #13, White House (Feb. 21, 2017),
https://www.whitehouse.gov/the-press-office/2017/02/21/press-briefing-press-secretary-sean-spicer-2212017-13
23 (last accessed Mar. 13, 2017).

24 118Press Briefing by Press Secretary Sean Spicer, 2/22/17, #14, White House (Feb. 22, 2017),
https://www.whitehouse.gov/the-press-office/2017/02/22/press-briefing-press-secretary-sean-spicer-2222017-14
25 (last accessed Feb. 27, 2017).
119 Press Briefing by Press Secretary Sean Spicer, 2/23/17, #15, White House (Feb. 23, 2017),
26 https://www.whitehouse.gov/the-press-office/2017/02/23/press-briefing-press-secretary-sean-spicer-2232017-15
(last accessed Feb. 27, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 69

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 73 of 86

1 255. On February 27, 2017, Press Secretary Spicer reiterated that as to the Revised
2 Order, “the goal is obviously to maintain the way that we did it the first time.”120 3
256. Defendants’ statements appear to be designed to inflame and incite further animus 4
against persons affected by the ban, and grossly distort and misrepresent the actual process 5
through which Plaintiffs were screened and reviewed before their admittance to the United States 6
was allowed. 7
257. Defendants’ statements underscore the continued discriminatory motive behind 8
the Revised Order. And Defendants’ statements make it abundantly clear that there is no 9
guarantee that Defendants will not revert to the Original Order at some point in time. 10
258. Indeed, as recently as on March 1, 2017, Vice President Pence stated during an 11
interview on CBS This Morning that “[t]he president is just determined to not only defend the 12
first executive order in the courts, which we continue to believe is fully within his purview and in 13
his presidential authority, but also to take that authority that is undisputed in the law within the 14 executive order.”121 15
259. Given the numerous, inconsistent positions Defendants have taken with regard to 16
the Original and Revised Orders over time, individual Plaintiffs and members of the Non17
Immigrant Visa Class reasonably fear that, if they attempt to enter or re-enter the United States, 18
they will be denied permission to do so, notwithstanding their previously established lawful 19
presence in the United States and the fact that they have otherwise been deemed appropriate by 20
the U.S. government for admission. 21
260. Because the Revised Order continues to suspend the refugee admissions program, 22
Joseph Doe and others similarly situated are left in the exact same purgatory they were in with 23
the Original Order. 24

25 120 Press Briefing by Press Secretary Sean Spicer, 2/27/17, #17, White House (Feb 27, 2017),
https://www.whitehouse.gov/the-press-office/2017/02/27/press-briefing-press-secretary-sean-spicer-2272017-17
26 (last accessed Mar. 13, 2017).
121 See supra note 9.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 70

AMERICAN CIVIL LIBERTIES UNION
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 74 of 86

1 261. The Revised Order effectively traps members of the Non-Immigrant Visa Class in
2 the United States, interferes with the relationships of the Non-Immigrant Visa Class as well as
3 the I-730 Class and their family members, and imposes arbitrary and irrational burdens on them
4 that do not serve any valid governmental interest.
5 V. CLASS ACTION ALLEGATIONS
6

7

262. Plaintiffs Jack Doe and Jason Doe, bring this action as a class action pursuant to

8 Fed. R. Civ. P. 23(b)(1) and (b)(2), on their own behalf and on behalf of all other Washington

9 residents who are nationals of the Designated Countries with non-immigrant visas and who do

10 not have unexpired multiple-entry visas (“the Non-Immigrant Visa Class”).

11

263. Plaintiffs Joseph Doe and James Doe bring this action as a class action pursuant to

12 Fed. R. Civ. P. 23(b)(1) and (b)(2), on their own behalf and on behalf of all other refugees and

13 asylees, including those who have since adjusted their status to Lawful Permanent Resident, who

14 now reside in Washington, and who have filed I-730 applications for and await the arrival of

15 their family members who have completed and cleared their final security screenings as of the

16 effective date of the Revised Order (“the Refugee Class”).

17

264. Upon information and belief, both Plaintiff Classes are so numerous that joinder

18 is impracticable. According to the Annual Report of the Visa Office of the U.S. Department of

19 State, in 2015, the last year for which data are available, the United States issued over 58,663

20 non-immigrant visas to nationals from the Designated Countries.122 59% of all Muslim refugees

21 who entered the United States in FY 2016 hailed from the six countries to which Section 2(c) of

22 the new Executive Order applies. On information and belief, a large number of such persons

23 reside in Washington.

24

25 122 Table XVIII: Nonimmigrant Visas Issued by Nationality (Including Border Crossing Cards) Fiscal Year 2006-
2015, U.S. Dep’t of State-Bureau of Consular Affairs,
26 https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2015AnnualReport/FY15AnnualReport-
TableXVIII.pdf (last accessed Mar. 13, 2017).

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 71

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 75 of 86

1 265. The claims of the Non-Immigrant Visa Class as well as the Refugee Class
2 members share common issues of law, including but not limited to whether the Revised
3 Executive Order violates their associational, religious exercise, and due process rights under the
4 First and Fifth Amendments; the Religious Freedom Restoration Act; and the Administrative
5 Procedure Act.
6 266. The claims of the Plaintiff Class members share common issues of fact, including
7 but not limited to whether the Revised Executive Order is being or will be enforced so as to
8 prevent them or their family members from entering the United States from abroad or from re-
9 entering the United States should they choose to leave the United States briefly, even though
10 they would otherwise be admissible.
11 267. The claims or defenses of the named Plaintiffs are typical of the claims or
12 defenses of members of each of the Plaintiff Classes.
13 268. Jack Doe and Jason Doe will fairly and adequately protect the interests of the
14 Non-Immigrant Visa Class, and Joseph Doe and James Doe will fairly and adequately protect the
15 interests of the Refugee Class. None of the named Plaintiffs have any interest that is now or may
16 be potentially antagonistic to the interests of the Plaintiff class they seek to represent. The
17 attorneys representing the named Plaintiffs include experienced civil rights attorneys and are
18 considered able practitioners in federal constitutional litigation. These attorneys should be
19 appointed as class counsel.
20 269. Defendants have acted, have threatened to act, and will act on grounds generally
21 applicable to both Plaintiff Classes, thereby making final injunctive and declaratory relief
22 appropriate to the class as a whole. Both Plaintiff Classes may therefore be properly certified
23 under Fed. R. Civ. P. 23(b)(2).
24 270. Prosecution of separate actions by individual members of either of the Plaintiff
25 Classes would create the risk of inconsistent or varying adjudications and would establish
26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 72

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KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 76 of 86

1 incompatible standards of conduct for individual members of each Plaintiff Class. Both Plaintiff

2 Classes may therefore be properly certified under Fed. R. Civ. P. 23(b)(1).

3 VI. CAUSES OF ACTION

4 COUNT ONE

5

FIRST AMENDMENT – ESTABLISHMENT, FREE EXERCISE, SPEECH AND

ASSEMBLY CLAUSES

6

(Against All Defendants, Asserted by All Plaintiffs)

7

271. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

9

272. The First Amendment prohibits the establishment of a religion or the prohibition

10 of the free exercise of religion.

11

273. The Original and Revised Executive Orders violate the Establishment Clause by

12 singling out Muslims for disfavored treatment. It has the purpose and effect of inhibiting

13 religion, and it is neither justified by, nor closely fitted to, any compelling governmental interest.

14

274. The Original and Revised Executive Order discriminates on the basis of religion

15 and national origin, each a suspect classification, and is not narrowly tailored to serve a

16 compelling governmental interest, and thereby violates the equal protection component of the

17 Due Process Clause.

18

275. The Original and Revised Executive Orders constitute an unlawful attempt to

19 discriminate against Muslims and to establish a preference for one religion over another.

20 References in the Original and Revised Executive Orders to the Designated Countries are

21 transparently a pretext to establish this preference. And the removal of the language prioritizing

22 the admission of refugees of the minority religion of their countries that was in Section 5 of the

23 Original Executive Order from Section 6 of the Revised Executive Order cannot erase the taint

24 nor the true motivation behind either the Original or Revised Executive Orders. Singling out

25 Muslims for disfavored treatment and granting special preferences to non-Muslims is neither

26 justified by, nor closely fitted to, any compelling governmental interest.

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 73

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OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 77 of 86

1 276. The Original and Revised Executive Orders also violate the rights of Plaintiffs the

2 Episcopal Diocese and CAIR-WA to receive information and speech from, and to associate

3 freely with, refugees who are Muslim or who are from the majority-Muslim Designated

4 Countries.

5 COUNT TWO

6

RELIGIOUS FREEDOM RESTORATION ACT

(Against All Defendants, Asserted by All Plaintiffs)

7 277. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

9 278. Pursuant to the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 et seq.,

10 the government “shall not substantially burden a person’s exercise of religion” unless it “(1) is in

11 furtherance of a compelling government interest; and (2) is the least restrictive means of

12 furthering that compelling governmental interest.” Id. (emphasis added).

13 279. The Original and Revised Executive Orders have the effect of imposing a special

14 disability on the basis of religious views or religious status, by withdrawing important

15 immigration benefits principally from Muslims on account of their religion. In doing so, the

16 Original and Revised Executive Orders place a substantial burden on Muslims’ exercise of

17 religion in a way that is not the least restrictive means of furthering a compelling governmental

18 interest.

19 280. Defendants’ actions therefore constitute a violation of the Religious Freedom

20 Restoration Act, 42 U.S.C. § 2000bb-1 et seq.

21

COUNT THREE

22

FIFTH AMENDMENT – EQUAL PROTECTION

(Against All Defendants, Asserted by Jack Doe, Jason Doe and the

23

Non-Immigrant Visa Class)

24

281. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 74

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 78 of 86

1 282. The Original and Revised Executive Orders discriminate against Plaintiffs Jack

2 Doe, Jason Doe and the members of the Non-Immigrant Visa Class on the basis of their country

3 of origin without sufficient justification and therefore violates the equal protection component of

4 the Due Process Clause of the Fifth Amendment.

5 283. The Original and Revised Orders bar them from traveling and imposes additional

6 burdens such as requiring them to seek a waiver.

7 284. Additionally, the Original and Revised Executive Orders were substantially

8 motivated by animus toward—and has a disparate effect on—Muslims, which also violates the

9 equal protection component of the Due Process Clause of the Fifth Amendment.

10 COUNT FOUR

11

FIFTH AMENDMENT – PROCEDURAL DUE PROCESS

(Against All Defendants, Asserted by All Plaintiffs except John Doe and Jack Doe)

12 285. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

14 286. The Due Process Clause of the Fifth Amendment provides that “[n]o person

15 shall…be deprived of life, liberty, or property, without due process of law.”

16 287. Procedural due process requires that the government be constrained before it acts

17 in a way that deprives individuals of liberty or property interests protected under the Due Process

18 Clause of the Fifth Amendment.

19 288. Defendants’ actions, as described above, have deprived Plaintiffs of their liberty

20 and/or property interests without notice or opportunity to be heard.

21 COUNT FIVE

22

FIFTH AMENDMENT – SUBSTANTIVE DUE PROCESS

(Against All Defendants, Asserted by Jason Doe and the

23

Non-Immigrant Visa Class)

24
289. Plaintiffs repeat and incorporate by reference each and every allegation contained 25
in the preceding paragraphs as if fully set forth herein. 26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 75

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 79 of 86

1 290. Plaintiffs Jack Doe, Jason Doe and members of the Non-Immigrant Visa Class
2 have a constitutionally protected, fundamental liberty interest in freedom of movement that
3 encompasses their right to travel abroad.
4 291. Defendants’ actions, as described above, have denied Plaintiffs Jack Doe, Jason
5 Doe and members of the Non-Immigrant Visa Class the opportunity to travel outside the United
6 States for fear that they will be denied re-entry. Such actions, taken pursuant to the Revised
7 Executive Order, are not justified by a compelling government interest and therefore violate the
8 substantive due process rights guaranteed by the Fifth Amendment to Plaintiffs Jack Doe, Jason
9 Doe, and members of the Non-Immigrant Visa Class.
10

11 COUNT SIX

12

FIFTH AMENDMENT – SUBSTANTIVE DUE PROCESS

(Against All Defendants, Asserted by Joseph Doe, James Doe, and the Refugee Class) 13

14

292. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

16

293. Plaintiffs Joseph Doe, James Doe, and members of the Refugee Class have a

17 constitutionally protected, fundamental liberty interest in their marriage and their family lives.

18

294. Defendants’ arbitrary suspension of the travel of refugees into the United States

19 and the decision on applications for refugee status, including follow-to-join Refugee/Asylee

20 Relative Petitions, violate the substantive due process rights guaranteed by the Fifth Amendment

21 to them. Defendants’ arbitrary suspension of the refugee program has deprived Plaintiffs Joseph

22 Doe, James Doe, and members of the Refugee Class of their fundamental right to be with their

23 families and is not justified by a compelling government interest.

24

25

26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 76

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 80 of 86

1

COUNT SEVEN

VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT

2

(Against all Defendants, Asserted by Jason Doe, Joseph Doe, James Doe, and the

Non-Immigrant Visa and Refugee Classes)

3 295. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

5 296. The formulation of policies pertaining to the entry of aliens is entrusted

6 exclusively to Congress. Galvan v. Press, 347 U.S. 522, 531 (1954). Through the enactment of

7 and amendments to the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq.,

8 Congress has established an extensive statutory scheme governing the admission and exclusion

9 of aliens. Where Congress has delegated authority to the Executive, that authority remains

10 constrained by the parameters of the INA. Defendants have exceeded the scope of their delegated

11 authority because their actions are contrary to the INA.

12 297. Specifically, INA section 212(a) establishes, in detail, the classes of aliens who

13 are ineligible for visas or admission into the United States, including under “Security and related

14 grounds,” section 212(a)(3), 8 U.S.C. § 1182(a)(3). INA section 212(a)(3)(C)(iii) prohibits

15 ideological exclusions like those embodied in Defendants’ Orders. Namely, an alien may not be

16 excludable or subject to restrictions or conditions on entry “because of the alien’s past, current,

17 or expected beliefs, statements, or associations.” 8 U.S.C. § 1182(a)(3)(C)(iii).

18 298. In enacting this provision of the INA, Congress specifically sought to end a

19 practice of excluding or denying entry to aliens based on their beliefs.

20 299. Defendants, in issuing the Orders, have directly contradicted the expressed will of

21 Congress and violated the INA. To the extent that the delegation of authority in INA section

22 212(f) is viewed as encompassing the authority to violate the expressed will of Congress, it is an

23 unconstitutional delegation of authority.

24

25

26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 77

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 81 of 86

1

COUNT EIGHT

ADMINISTRATIVE PROCEDURE ACT— PROCEDURAL VIOLATION

2

(Against all Defendants except Defendant Trump, Asserted by All Plaintiffs)

3 300. Plaintiffs repeat and incorporate by reference each and every allegation contained
4 in the preceding paragraphs as if fully set forth herein.
5 301. Defendants U.S. Department of State, U.S. Department of Homeland Security.
6 and U.S. Customs and Border Protection are “agencies” under the APA. See 5 U. S. C. § 551(1).
7 302. Sections 553 and 706 of the Administrative Procedure Act, 5 U. S. C. §§ 553
8 and 706 (2), require that federal agencies conduct formal rule making before engaging in action
9 that impacts substantive rights.
10 303. The APA further requires courts to hold unlawful and set aside any agency action
11 taken “without observance of procedure required by law.” 5 U. S. C. § 706(2)(D).
12 304. The creation of the administrative rules contained in Sections 3 and 5 of the
13 Original Executive Order and Sections 2, 3, and 6 of the Revised Executive Order was an agency
14 action subject to the APA.
15 305. Additionally, in implementing Sections 3 and 5 of the Original Executive Order
16 and Sections 2, 3, and 6 of the Revised Executive Order, Defendants federal agencies and
17 Defendant secretaries and/or directors of those agencies have taken an agency action subject to
18 the APA because they have changed the substantive criteria by which individuals from the
19 Designated Countries may enter the United States, which impacts substantive rights.
20 306. In addition, in issuing Cable 23338, an agency action under the APA, Defendant
21 Secretary of State failed to fulfill the procedural requirements of the APA. Defendants federal
22 agencies and Defendant secretaries and/or directors of those agencies did not follow the
23 procedures required by the APA before taking action impacting the substantive rights of the
24 Plaintiffs.
25 307. By failing to follow the rulemaking procedures required of them prior to changing
26 the substantive criteria by which individuals from the Designated Countries may enter the United

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 78

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 82 of 86

1 States, Defendants federal agencies and Defendant secretaries and/or directors of those agencies

2 violated the APA.

3 308. These violations continue to cause ongoing harm to Plaintiffs.

4 COUNT NINE

5

ADMINISTRATIVE PROCEDURE ACT—SUBSTANTIVE VIOLATION

(Against all Defendants except Defendant Trump, Asserted by all Plaintiffs)

6 309. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

8 310. Defendants U.S. Department of State, U.S. Department of Homeland Security.

9 and U.S. Customs and Border Protection are “agencies” under the APA. See 5 U. S. C. § 551(1).

10 311. The Administrative Procedure Act prohibits federal agency action that is

11 “contrary to constitutional right, power, privilege, or immunity,” 5 U. S. C. § 706(2)(B), or “in

12 excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U. S. C. §

13 706(2)(C), or “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with

14 law.” 5 U. S. C. § 706(2)(A).

15 312. The creation of the administrative rules contained in Sections 3 and 5 of the

16 Original Executive Order and Sections 2, 3, and 6 of the Revised Executive Order was an agency

17 action subject to the APA.

18 313. Additionally, in implementing Sections 3 and 5 of the Original Executive Order

19 and Sections 2, 3, and 6 of the Revised Executive Order, Defendants federal agencies and

20 Defendant secretaries and/or directors of those agencies have taken unconstitutional and

21 unlawful action, as alleged in this Complaint, in violation of the Administrative Procedure Act.

22 314. In implementing Sections 3 and 5 of the Original Executive Order and Sections

23 2(c), 3(c), and 6(c) and (d) of the Revised Executive Order, Defendants federal agencies have

24 arbitrarily and capriciously exercised their discretion.

25 315. In implementing Sections 3 and 5 of the Original Executive Order and Sections 2,

26 3, and 6 of the Revised Executive Order, Defendants federal agencies and Defendant secretaries

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 79

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 83 of 86

1 and/or directors of those agencies exceeded their statutory authority and engaged in nationality
2 and religion-based discrimination in violation of RFRA.
3 316. In addition, the issuance of Cable 23338, an agency action under the APA, is
4 arbitrary and capricious.
5 317. Finally, in implementing Sections 3 and 5 of the Original Executive Order and
6 Sections 2, 3, and 6 of the Revised Executive Order, Defendants’ actions as set forth above were
7 arbitrary, capricious, or discriminatory. Defendants have offered no satisfactory explanation for
8 the countries that are or are not included within the scope of the Revised Order while banning
9 millions of people with no connection whatsoever to terrorism and causing harm to Plaintiffs.
10 Accordingly, Defendants have violated the substantive requirements of the Administrative
11 Procedure Act.
12 PRAYER FOR RELIEF
13 WHEREFORE, Petitioners pray that this Court grant the following relief:
14 1. A determination that the Individual Plaintiffs’ claims may properly be maintained
15 as a class action pursuant to Fed. R. Civ. P. 23(b)(1) and (b)(2);
16 2. A declaration that Sections 3(c), 5(a)–(c), and 5(e) of the Original Executive
17 Order and Sections 1(f), 2(c), and 6(a) of the Revised Executive Order violate the rights of all
18 Plaintiffs as well as members of the Non-Immigrant Visa Class and the Refugee Class for the
19 reasons set forth above.
20 3. A declaration that Sections 1(f), 2(c), and 6(a) of the Revised Executive Order
21 and the manner in which they will be implemented are in violation of the rights of all Plaintiffs
22 as well as members of the Non-Immigrant Visa Class and the Refugee Class for the reasons set
23 forth above.
24 4. An injunction that the Original and Revised Executive Order may not be enforced
25 as against Plaintiffs or members of members of the Non-Immigrant Visa Class or the Refugee
26 Class in connection with their entry or re-entry into the United States;

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 80

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 84 of 86

1 5. A permanent injunction of the Original and Revised Executive Orders as contrary
2 to the Constitution;
3 6. An award to the Plaintiffs as well as members of the Non-Immigrant Visa Class
4 and the Refugee Class of reasonable costs and attorneys’ fees; and,
5 7. Such other and further relief that this Court may deem fit and proper.
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 81

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 85 of 86

1 DATED this 14th day of May, 2017.

2 AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION 3

By: /s/ Emily Chiang

g

4

Emily Chiang, WSBA # 50517

5

La Rond Baker, WSBA # 43610

901 Fifth Avenue, Suite 630

6

Seattle, Washington 98164

7

Telephone: (206) 624-2184 Email: echiang@aclu-wa.org

8

Attorney for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

KELLER ROHRBACK L.L.P.

By: /s/ Lynn Lincoln Sarko

n

By: /s/ Tana Lin

n

By: /s/ Amy Williams-Derry

y o

By: /s/ Derek W. Loeser______________

By: /s/ Alison S. Gaffney_____________r

Lynn Lincoln Sarko, WSBA # 16569 Tana Lin, WSBA # 35271 Amy Williams-Derry, WSBA #28711 Derek W. Loeser, WSBA # 24274 Alison S. Gaffney, WSBA # 45565 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 Email: lsarko@kellerrohrback.com
tlin@kellerrohrback.com awilliams-derry@kellerrohrback.com dloeser@kellerrohrback.com agaffney@kellerrohrback.com

By: /s/ Laurie B. Ashton

N

Laurie B. Ashton (Pro Hac Vice) 3101 North Central Avenue, Suite 1400 Phoenix, Arizona 85012-2600 Telephone: (602) 248-0088 Facsimile: (602) 248-2822 Email: lashton@kellerrohrback.com

By: /s/ Alison Chase

e

Alison Chase (Pro Hac Vice) 1129 State Street, Suite 8 Santa Barbara, CA 93101 Telephone: (805) 456-1496 Facsimile: (805) 456-1497 Email: achase@kellerrohrback.com

Attorneys for Plaintiffs/Cooperating Attorneys for the American Civil Liberties Union Of Washington Foundation

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 82

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30 Filed 05/08/17 Page 86 of 86

1

CERTIFICATE OF SERVICE

2 I hereby certify that on May 8, 2017, I electronically filed the foregoing Second
3
4 Amended Class Action Complaint for Declaratory and Injunctive Relief with the Clerk of the

5 Court using the CM/ECF system, which will send notification of such filing to the email

6 addresses on the Court’s Electronic Mail Notice List.

7 DATED this 8th day of May, 2017. 8
9

KELLER ROHRBACK L.L.P.

10

By: /s/ Tana Lin

n

11

Tana Lin, WSBA # 35271

12

1201 Third Avenue, Suite 3200

Seattle, WA 98101

13

Telephone: (206) 623-1900

Facsimile: (206) 623-3384

14

Email: tlin@kellerrohrback.com

15

Attorney for Plaintiffs/Cooperating

Attorney for the American Civil

16

Liberties Union Of Washington

17

Foundation

18

19

20

21

22

23

24

25

26

SECOND AMENDED CLASS ACTION COMPLAINT PAGE 83

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 1 of 96
EXHIBIT A

Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 2 of 96

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Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 3 of 96
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Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 4 of 96
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9;91!

Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 5 of 96
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Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 6 of 96
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Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 8 of 96
EXHIBIT B

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Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 10 of 96
EXHIBIT C

Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 11 of 96
AILA Doc. No. 17020332. (Posted 2/3/17)

Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 12 of 96

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AILA Doc. No. 17020332. (Posted 2/3/17)

Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 13 of 96
EXHIBIT D

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t33002-8192F, iDlekdtE0n5t/r0y8:/2187-2,PPaaggee124 of 1976

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 17-35105

STATE OF WASHINGTON, et al.

)

)

Plaintiffs-Appellees, )

) JOINT DECLARATION OF

vs.

) MADELEINE K. ALBRIGHT,

) AVRIL D. HAINES

) MICHAEL V. HAYDEN

) JOHN F. KERRY

) JOHN E. McLAUGHLIN

DONALD J. TRUMP, President of the

) LISA O. MONACO

United States, et al.,

) MICHAEL J. MORELL

) JANET A. NAPOLITANO

Defendants-Appellants. ) LEON E. PANETTA

) SUSAN E. RICE

)

)

)

We, 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, and Susan E. Rice declare as follows:
1. We are former national security, foreign policy, and intelligence officials in the United States Government:
a. 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 and has been a member of the Central Intelligence Agency External Advisory Board since 2009 and the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States.
b. Avril D. Haines served as Deputy Director of the Central Intelligence Agency from 2013 to 2015, and as Deputy National Security Advisor from 2015 to January 20, 2017.
c. Michael V. Hayden served as Director of the National Security Agency from 1999 to 2005, and Director of the Central Intelligence Agency from 2006 to 2009.
d. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t33002-8192F, iDlekdtE0n5t/r0y8:/2187-2,PPaaggee135 of 1976
e. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000-2004 and Acting Director of CIA in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.
f. 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.
g. Michael J. Morell served as Acting Director of the Central Intelligence Agency in 2011 and from 2012 to 2013, Deputy Director from 2010 to 2013, and as a career official of the CIA from 1980. His duties included briefing President George W. Bush on September 11, 2001, and briefing President Barack Obama regarding the May 2011 raid on Osama bin Laden.
h. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.
i. Leon E. Panetta served as Director of the Central Intelligence Agency from 2009-11 and as Secretary of Defense from 2011-13.
j. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009-13 and as National Security Advisor from 2013 to January 20, 2017.
2. We have collectively devoted decades to combatting the various terrorist threats that the United States faces in a dynamic and dangerous world. We have all held the highest security clearances. A number of us have worked at senior levels in administrations of both political parties. Four of us (Haines, Kerry, Monaco and Rice) were current on active intelligence regarding all credible terrorist threat streams directed against the U.S. as recently as one week before the issuance of the Jan. 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Order”).
3. 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. It does not perform its declared task of “protecting the nation from foreign terrorist entry into the United States.” To the contrary, the Order disrupts thousands of lives, including those of refugees and visa holders all previously vetted by standing procedures that the Administration has not shown to be inadequate. It could do long-term damage to our national security and foreign policy interests, endangering U.S. troops in the field and disrupting counterterrorism and national security partnerships. It will aid ISIL’s propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam. It will hinder relationships with the very communities that law enforcement professionals need to address the threat. It will have a damaging humanitarian and economic impact on the lives and jobs of American citizens and residents. And apart from all of these concerns, the Order offends our nation’s laws and values.
2

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t33002-8192F, iDlekdtE0n5t/r0y8:/2187-2,PPaaggee146 of 1976
4. There is no national security purpose for a total bar on entry for aliens from the seven named countries. Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order. Very few attacks on U.S. soil since September 11, 2001 have been traced to foreign nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens. The Administration has identified no information or basis for believing there is now a heightened or particularized future threat from the seven named countries. Nor is there any rational basis for exempting from the ban particular religious minorities (e.g., Christians), suggesting that the real target of the ban remains one religious group (Muslims). In short, the Administration offers no reason why it abruptly shifted to group-based bans when we have a tested individualized vetting system developed and implemented by national security professionals across the government to guard the homeland, which is continually re-evaluated to ensure that it is effective.
5. In our professional opinion, the Order will harm the interests of the United States in many respects:
a. The Order will endanger U.S. troops in the field. Every day, American soldiers work and fight alongside allies in some of the named countries who put their lives on the line to protect Americans. For example, allies who would be barred by the Order work alongside our men and women in Iraq fighting against ISIL. To the extent that the Order bans travel by individuals cooperating against ISIL, we risk placing our military efforts at risk by sending an insulting message to those citizens and all Muslims.
b. The Order will disrupt key counterterrorism, foreign policy, and national security partnerships that are critical to our obtaining the necessary information sharing and collaboration in intelligence, law enforcement, military, and diplomatic channels to address the threat posed by terrorist groups such as ISIL. The international criticism of the Order has been intense, and it has alienated U.S. allies. It will strain our relationships with partner countries in Europe and the Middle East, on whom we rely for vital counterterrorism cooperation, undermining years of effort to bring them closer. By alienating these partners, we could lose access to the intelligence and resources necessary to fight the root causes of terror or disrupt attacks launched from abroad, before an attack occurs within our borders.
c. The Order will endanger intelligence sources in the field. For current information, our intelligence officers may 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 Americans safe – and whom our officers had promised always to protect with the full might of our government and our people.
d. Left in place, the Executive Order will likely feed the recruitment narrative of ISIL and other extremists that portray the United States as at war with Islam. As government officials, we took every step we could to counter violent extremism. Because of the Order’s disparate impact against Muslim travelers and immigrants, it feeds ISIL’s narrative and sends the wrong message to the Muslim community here at home and all over the world: that
3

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t33002-8192F, iDlekdtE0n5t/r0y8:/2187-2,PPaaggee157 of 1976
the U.S. government is at war with them based on their religion. The Order may even endanger Christian communities, by handing ISIL a recruiting tool and propaganda victory that spreads their message that the United States is engaged in a religious war. e. The Order will disrupt ongoing law enforcement efforts. By alienating Muslim-American communities in the United States, it 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. f. The Order will have a devastating humanitarian impact. When the Order issued, those disrupted included women and children who had been victimized by actual terrorists. Tens of thousands of travelers today face deep uncertainty about whether they may travel to or from the United States: for medical treatment, study or scholarly exchange, funerals or other pressing family reasons. While the Order allows for the Secretaries of State and Homeland Security to agree to admit travelers from these 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. g. The Order will cause economic damage to American citizens and residents. The Order will affect many foreign travelers, particularly students, who annually inject hundreds of billions into the U.S. economy, supporting well over a million U.S. jobs. Since the Order issued, affected companies have noted its adverse impacts on many strategic economic sectors, including defense, technology, medicine, culture and others.
6. As a national security measure, the Order is unnecessary. National security-based immigration restrictions have consistently been tailored to respond to: (1) specific, credible threats based on individualized information, (2) the best available intelligence and (3) thorough interagency legal and policy review. This Order rests not on such tailored grounds, but rather, on (1) general bans (2) not supported by any new intelligence that the Administration has claimed, or of which we are aware, and (3) not vetted through careful interagency legal and policy review. Since the 9/11 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 is applied to travelers not once, but multiple times. Refugees receive the most thorough vetting of any traveler to the United States, taking on the average more than a year. Successive administrations have continually worked to improve this vetting through robust informationsharing and data integration to identify potential terrorists without resorting to a blanket ban on all aliens and refugees. Because various threat streams are constantly mutating, as government officials, we sought continually to improve that vetting, as was done in response to particular threats identified by U.S. intelligence in 2011 and 2015. Placing additional restrictions on individuals from certain countries in the visa waiver program –as has been done on occasion in the past – merely allows for more individualized vettings before individuals with particular passports are permitted to travel to the United States.
7. In our professional opinion, the Order was ill-conceived, poorly implemented and ill-explained. The “considered judgment” of the President in the prior cases where courts have
4

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t33002-8192F, iDlekdtE0n5t/r0y8:/2187-2,PPaaggee168 of 1976
deferred was based upon administrative records showing that the President’s decision rested on cleared views from expert agencies with broad experience on the matters presented to him. Here, there is little evidence that the Order underwent a thorough interagency legal and policy processes designed to address current terrorist threats, which would ordinarily include a review by the career professionals charged with implementing and carrying out the Order, an interagency legal review, and a careful policy analysis by Deputies and Principals (at the cabinet level) before policy recommendations are submitted to the President. We know of no interagency process underway before January 20, 2017 to change current vetting procedures, and the repeated need for the Administration to clarify confusion after the Order issued suggest that that Order received little, if any advance scrutiny by the Departments of State, Justice, Homeland Security or the Intelligence Community. Nor have we seen any evidence that the Order resulted from experienced intelligence and security professionals recommending changes in response to identified threats.
8. The Order is of unprecedented scope. We know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people. Even after 9/11, 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. In past cases, suspensions were limited to particular individuals or subclasses of nationals who posed a specific, articulable threat based on their known actions and affiliations. In adopting this Order, the Administration alleges no specific derogatory factual information about any particular recipient of a visa or green card or any vetting step omitted by current procedures.
9. Maintaining the district court’s temporary restraining order while the underlying legal issues are being adjudicated would not jeopardize national security. It would simply preserve the status quo ante, still requiring that individuals be subjected to all the rigorous legal vetting processes that are currently in place. Reinstating the Executive Order would wreak havoc on innocent lives and deeply held American values. Ours is a nation of immigrants, committed to the faith that we are all equal under the law and abhor discrimination, whether based on race, religion, sex, or national origin. As government officials, we sought diligently to protect our country, even while maintaining an immigration system free from intentional discrimination, that applies no religious tests, and that measures individuals by their merits, not stereotypes of their countries or groups. Blanket bans of certain countries or classes of people are beneath the dignity of the nation and Constitution that we each took oaths to protect. Rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the United States” does not disguise the Order’s discriminatory intent, or make it necessary, effective, or faithful to America’s Constitution, laws, or values.
5

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t33002-8192F, iDlekdtE0n5t/r0y8:/2187-2,PPaaggee179 of 1976
10. For all of the foregoing reasons, in our professional opinion, the January 27 Executive Order does not further – but instead harms – sound U.S. national security and foreign policy.
Respectfully submitted, s/MADELEINE K. ALBRIGHT* s/AVRIL D. HAINES s/MICHAEL V. HAYDEN s/JOHN F. KERRY s/JOHN E. McLAUGHLIN s/LISA O. MONACO s/MICHAEL J. MORELL s/JANET A. NAPOLITANO s/LEON E. PANETTA s/SUSAN E. RICE
*All original signatures are on file with Harold Hongju Koh, Rule of Law Clinic, Yale Law School, New Haven, CT. 06520-8215 203-432-4932 We declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. [Individual signature pages follow]
6

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t33002-8192F, iDlekdtE0n5t/r0y8:/2187-2,PPaaggee280 of 1976

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t33002-8192F, iDlekdtE0n5t/r0y8:/2187-2,PPaaggee291 of 1976

CCaassee2: :1177--3c5v1-0051, 7082-/J0L6R/201D7o,cIuDm: 1e0n3t 03208-192,FDilekdtE0n5tr/y0:82/187-2,PPaaggee2120ooff9167

CCaassee2: :1177--3c5v1-0051, 7082-/J0L6R/201D7o,cIuDm: 1e0n3t 03208-192,FDilekdtE0n5tr/y0:82/187-2,PPaaggee2131ooff9167

LIOZ'KmnrqeCJo f,ep q,g slql CgJOlgXg

CCaassee2: :1177--3c5v1-0051, 7082-/J0L6R/201D7o,cIuDm: 1e0n3t 03208-192,FDilekdtE0n5tr/y0:82/187-2,PPaaggee2142ooff9167

NITHJOY'ICW'g NIHO 73

CCaassee2: :1177--3c5v1-0051, 7082-/J0L6R/201D7o,cIuDm: 1e0n3t 03208-192,FDilekdtE0n5tr/y0:82/187-2,PPaaggee2153ooff9167

CCaassee2: :1177--3c5v1-0051, 7082-/J0L6R/201D7o,cIuDm: 1e0n3t 03208-192,FDilekdtE0n5tr/y0:82/187-2,PPaaggee2164ooff9167

CCaassee2: :1177--3c5v1-0051, 7082-/J0L6R/201D7o,cIuDm: 1e0n3t 03208-192,FDilekdtE0n5tr/y0:82/187-2,PPaaggee2175ooff9167
EXECUTED this 5th day of February, 2017 __________/s/_________________ JANET A. NAPOLITANO

CCaassee2: :1177--3c5v1-0051, 7082-/J0L6R/201D7o,cIuDm: 1e0n3t 03208-192,FDilekdtE0n5tr/y0:82/187-2,PPaaggee2186ooff9167

CCaassee2: :1177--3c5v1-0051, 7082-/J0L6R/201D7o,cIuDm: 1e0n3t 03208-192,FDilekdtE0n5tr/y0:82/187-2,PPaaggee2197ooff9167
EXECUTED this 5th day of February, 2017 ________/s/___________________ SUSAN E. RICE

Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 30 of 96
EXHIBIT E

Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 31 of 96

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Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 32 of 96
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Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 33 of 96
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24323!

Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 34 of 96
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EXHIBIT F

Q&A: Protecting the Nation From Foreign Terrorist Entry To The United States | Homela... Page 1 of 20 Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 43 of 96

Official website of the Department of Homeland Security

Contact Us Quick Links Site Map A-Z Index

Q&A: Protecting the Nation From Foreign Terrorist Entry To The United States
Release Date: March 6, 2017
March 6, 2017 11:30 a.m. EST Office of Public Affairs Contact: 202-282-8010
Q1. Who is subject to the suspension of entry under the Executive Order?
Per the Executive Order, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen, who are outside the United States and who did not have a valid visa at 5 p.m. Eastern Standard Time on January 27, 2017, and do not have a valid visa on the effective date of this order are not eligible to enter the United States while the temporary suspension remains in effect. Thus any individual who had a valid visa either on January 27,
https://www.dhs.gov/news/2017/03/06/qa-protecting-nation-foreign-terrorist-entry-united-... 3/13/2017

Q&A: Protecting the Nation From Foreign Terrorist Entry To The United States | Homela... Page 2 of 20 Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 44 of 96
2017 (prior to 5:00 PM) or holds a valid visa on the effective date of the Executive Order is not barred from seeking entry.
Q2. Will “in-transit” travelers within the scope of the Executive Order be denied entry into the United States and returned to their country of origin?
Those individuals who are traveling on valid visas and arrive at a U.S. port of entry will still be permitted to seek entry into the United States. All foreign nationals traveling with a visa must continue to satisfy all requirements for entry, including demonstrating that they are admissible. Additional information on applying for admission to the United States is available on CBP.gov. (https://www.cbp.gov/travel/international-
visitors/applying-admission-united-states)
Q3. I am a national from one of the six affected countries currently overseas and in possession of a valid visa, but I have no prior travel to
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the United States. Can I travel to the United States?
Per the Executive Order, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who have valid visas will not be affected by this Executive Order. No visas will be revoked solely based on this Executive Order.
Q4. I am presently in the United States in possession of a valid single entry visa but I am a national of one of the six impacted countries. Can I travel abroad and return to the United States?
Regardless of the Executive Order, your visa is not valid for multiple entries into the Unites States. While the Executive Order does not apply to those within the United States and your travel abroad is not limited, a valid visa or other document permitting you to travel to and seek admission to the United States is still required for any subsequent entry to the United States.
Q5. I am presently in the United States in possession of a valid multiple entry visa
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but am a national of one of the six affected countries, can I travel abroad and return to the United States?
Yes. Individuals within the United States with valid multiple entry visas on the effective date of the order are eligible for travel to and from the United States, provided the visa remains valid and the traveler is otherwise admissible. All foreign nationals traveling with a visa must satisfy all admissibility requirements for entry. Additional information on applying for admission to the United States is available on CBP.gov.
(https://www.cbp.gov/travel/international-visitors/applyingadmission-united-states)
Q6. I am from one of the six countries, currently in the United States in possession of a valid visa and have planned overseas travel. My visa will expire while I am overseas, can I return to the United States?
Travelers must have a valid visa to travel to the United States, regardless of the Executive Order. Travelers who
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do not have a valid visa due to its expiration while abroad must obtain a new valid visa prior to returning to the United States.
Q7. Will the Department of Homeland Security (DHS) and the Department of State (DOS) be revoking the visas of persons ineligible to travel under the revised Executive Order?
Visas will not be revoked solely as a result of the Executive Order. The Department of State has broad authority under Section 221(i) of the Immigration and Nationality Act to revoke visas.
Q8. What is the process for overseas travelers affected by the Executive Order to request a waiver?
Waivers for overseas travelers without a valid U.S. visa will be adjudicated by the Department of State in conjunction with a visa application.
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Q9. How are returning refugees and asylees affected by the Executive Order?
Returning refugees and asylees, i.e., individuals who have already been granted asylum or refugee status in the United States, are explicitly excepted from this Executive Order. As such, they may continue to travel consistent with existing requirements.
Q10. Are first-time arrival refugees with valid /travel documents allowed to travel to the United States?
Yes, but only refugees, regardless of nationality, whose travel was already formally scheduled by the Department of State, are permitted to travel to the United States and seek admission. The Department of State will have additional information.
Q11. Will unaccompanied minors within the scope of the Executive Order be denied boarding and or
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denied entry into the United States?
The Executive Order applies to those who do not have valid visas. Any individuals, including children, who seek entry to the United States must have a valid visa (or other approved travel document) before travel to the United States. The Secretary of State may issue a waiver on a case-by-case basis when in the national interest of the United States. With such a waiver, a visa may be issued.
Q12. Is DHS complying with all court orders?
DHS is complying, and will continue to comply, with all court orders in effect.
Q13. When will the Executive Order be implemented?
The Executive Order is effective at 12:01 A.M., Eastern Standard Time, on March 16, 2017.
Q14. Will the Executive Order impact Trusted Traveler Program membership?
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No. Currently, CBP does not have reciprocal agreements for a Trusted Traveler Program with any of the countries designated in the Executive Order.
Q15. When will CBP issue guidance to both the field and airlines regarding the Executive Order?
CBP will issue guidance and contact stakeholders to ensure timely implementation consistent with the terms of the Executive Order.
Q16. Will first-time arrivals with valid immigrant visas be allowed to travel to the U.S.?
Yes. Individuals holding valid visas on the effective date of the Executive Order or on January 27, 2017 prior to 5:00 PM do not fall within the scope of the Order.
Q17. Does this affect travelers at all ports of entry?
Yes, this Executive Order applies to travelers who are applying for entry into the United States at any port of
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entry—air, land, or sea—and includes preclearance locations.
Q18. What does granting a waiver to the Executive Order mean? How are waivers applied to individual cases?
Per the Executive Order, the Departments of Homeland Security and State can review individual cases and grant waivers on a case-by-case basis if a foreign national demonstrates that his or her entry into the United States is in the national interest, will not pose a threat to national security, and that denying entry during the suspension period will cause undue hardship.
Q19. Does “from one of the six countries” mean citizen, national, or born in?
The Executive Order applies to both nationals and citizens of the six countries.
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Q20. How does the lawsuit/stay affect DHS operations in implementing this Executive Order?
Questions regarding the application of specific federal court orders should be directed to the Department of Justice.
Q21. Will nationals of the six countries with valid green cards (lawful permanent residents of the United States) be allowed to return to the United States?
Per the Executive Order, the suspension of entry does not apply to lawful permanent residents of the United States.
Q22. Can a dual national who holds nationality with one of the six designated countries traveling with a passport from an
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unrestricted country travel to the United States?
The Executive Order exempts from its scope any dual national of one of the six countries when the individual is traveling on a passport issued by a different nondesignated country.
Q23. Can a dual national who holds nationality with one of the six designated countries and is currently overseas, apply for an immigrant or nonimmigrant visa to the United States?
Please contact the Department of State for information about how the Executive Order applies to visa applicants.
Q24. Are international students, exchange visitors, and their dependents from the six countries (such as F, M, or J visa holders)
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included in the Executive Order? What kind of guidance is being given to foreign students from these countries legally in the United States?
The Executive Order does not apply to individuals who are within the United States on the effective date of the Order or to those individuals who hold a valid visa. Visas which were provisionally revoked solely as a result of the enforcement of Executive Order 13769 are valid for purposes of administering this Executive Order. Individuals holding valid F, M, or J visas may continue to travel to the United States on those visas if they are otherwise valid.
Please contact the State Department for information about how the Executive Order applies to visa applicants.
Q25. What happens to international students, exchange visitors or their dependents from the six countries, such as F, M or J visa holders if their visa
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expires while the Executive Order is in place and they have to depart the country?
The Executive Order does not affect F, M, or J visa holders if they currently have a valid visa on the effective date or held a valid visa on January 27, 2017 prior to the issuance of the Executive Order. With that said, travelers must have a valid visa to travel to the United States, regardless of the Executive Order. Travelers whose visa expires after the effective date of the Executive Order must obtain a new, valid visa to return to the United States.
Q26. Can U.S. Citizenship and Immigration Services (USCIS) continue refugee interviews?
The Departments of Homeland Security and State will conduct interviews as appropriate and consistent with the Executive Order. However, the Executive Order suspends decisions on applications for refugee status, unless the Secretary of Homeland Security and the Secretary of State jointly determine, on a case-by-case basis, that the entry of an individual as a refugee is in the national interest and would not pose a threat to the security or welfare of the United States.
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Q27. Can the exception for refugee admission be used for Refugee/Asylee Relative Petitions (Form I-730) cases where a family member is requesting a beneficiary follow to join?
No. Individuals who already have valid visas or travel documents that permit them to travel to the United States are exempt from the Executive Order. To the extent that an individual does not yet have such documents, please contact the Department of State.
Q28. Does the Executive Order apply to those currently being adjudicated for naturalization or adjustment of status?
USCIS will continue to adjudicate Applications for Naturalization (Form N-400) and Applications to Register Permanent Residence or Adjust Status (Form I-485) and grant citizenship consistent with existing practices.
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Q29. Will landed immigrants of Canada affected by the Executive Order be eligible for entry to the United States?
Landed immigrants of Canada who hold passports from one of the six countries are eligible to apply for a visa, and coordinate a waiver, at a location within Canada.
Q30. Has CBP issued clear guidance to CBP officers at ports of entry regarding the Executive Order?
CBP has and will continue to issue any needed guidance to the field with respect to this Executive Order.
Q31. What coordination is being done between CBP and the carriers?
CBP has been and will remain in continuous communication with the airlines through CBP regional carrier liaisons. In addition, CBP will hold executive level calls with airlines in order to provide guidance, answer questions, and address concerns.
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Q32. What additional screening will nationals of restricted countries (as well as any visa applications) undergo as a result of the Executive Order?
In making admission and visa eligibility determinations, DHS and DOS will continue to apply all appropriate security vetting procedures.
Q33. Why is a temporary suspension warranted?
The Executive Order signed on March 6, 2017, allows for the proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals. The Executive Order protects the United States from countries compromised by terrorism and ensures a more rigorous vetting process. Protecting the American people is the highest priority of our Government and this Department.
Congress and the Obama Administration designated these six countries as countries of concern due to the national security risks associated with their instability and the prevalence of terrorist fighters in their territories.The conditions in the six designated countries present a recognized threat, warranting additional scrutiny of their nationals seeking to travel to and enter the United States. In order to ensure that the U.S.
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Government can conduct a thorough and comprehensive analysis of the national security risks, the Executive Order imposes a 90-day suspension on entry to the United States of nationals of those countries.
Based on commitments from the Government of Iraq, the suspension of entry in this Executive Order will not apply to nationals of Iraq. Iraq has taken steps to increase their cooperation with the United States in the vetting of Iraqi nationals and as such it was determined that a temporary suspension is not warranted.
DHS will faithfully execute the immigration laws and the President’s Executive Order, and will treat all of those we encounter humanely and with professionalism.
Q34. Why is a suspension of the refugee program warranted?
Some of those who have entered the United States as refugees have also proved to be threats to our national security. For example, in October 2014, an individual admitted to the United States as a refugee from Somalia, and who later became a naturalized U.S. citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction in connection with a plot to set off a bomb at a Christmas tree-lighting ceremony in Portland, Oregon. The Federal Bureau of Investigation has reported that approximately 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations.
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Q35. How were the six countries designated in the Executive Order selected?
The six countries, Iran, Libya, Somalia, Sudan, Syria, and Yemen, had already been identified as presenting concerns about terrorism and travel to the United States.Specifically, the suspension applies to countries referred to in, or designated under—except Iraq—section 217(a)(12) of the INA, 8 U.S.C. § 1187(a)(12).In that provision Congress restricted use of the Visa Waiver Program by dual nationals of, and aliens recently present in, (A) Syria and Iraq, (B) any country designated by the Secretary of State as a state sponsor of terrorism (currently Iran, Syria, and Sudan), and (C) any other country designated as a country of concern by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence.In 2016, the former Secretary of Homeland Security designated Libya, Somalia, and Yemen as additional countries of concern regarding aliens recently present in those countries.
For the purposes of this Executive Order, although Iraq has been previously identified, based on commitments from the Government of Iraq, the suspension of entry in this Executive Order will not apply to nationals of Iraq. However, those who are dual nationals of Iraq and aliens recently present in Iraq continue to have restricted use of the Visa Waiver Program.
On the basis of negotiations that have taken place between the Government of Iraq and the U.S. Department of State in the last month, Iraq will increase
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cooperation with the U.S. Government on the vetting of its citizens applying for a visa to travel to the United States.As such it was determined that a temporary suspension with respect to nationals of Iraq is not warranted at this time.
Q36. Why was Iraq treated differently in this Executive Order?
The close cooperative relationship between the United States and the democratically-elected Iraqi government, the strong U.S. diplomatic presence in Iraq, the significant presence of U.S. forces in Iraq, and Iraq’s commitment to combat ISIS justify different treatment.In particular, those Iraqi government forces that have fought to regain more than half of the territory previously dominated by ISIS have earned special status.In addition, since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to provide additional information about its citizens for purposes of our immigration decisions.Accordingly, it is no longer necessary to include Iraq in the temporary suspension applicable to the other six countries, but visa applications and applications for admission to the United States by Iraqi nationals will be subjected to additional scrutiny to determine if they have connections with ISIS or other terrorist organizations.
Q37. Are Iraqi nationals subject to the Executive Order? Will they require a
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waiver to travel to the United States?
This Executive Order does not presently suspend the entry of nationals of Iraq. However, all travelers must have a valid travel document in order to travel to the United States. Admissibility will be determined by a CBP officer upon arrival at a Port of Entry. Please contact the Department of State for information related to visa eligibility and application.
Topics: Border Security (/topics/border-security) , Homeland Security Enterprise (/topics/homeland-security-enterprise) , Immigration Enforcement (/topics/immigration-enforcement) Keywords: immigration (/keywords/immigration) , immigration enforcement (/keywords/immigration-enforcement) Last Published Date: March 6, 2017
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EXHIBIT G

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FROM
Live: U.S. Politics
MRN: 17 STATE 23338 Date/DTG: Mar 10, 2017 / 102253Z MAR 17 From: SECSTATE WASHDC Action: SOMALIA, USMISSION ROUTINE ; ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE ROUTINE E.O.: 13526 TAGS: CMGT, KPAO, PTER, KHLS Captions: SENSITIVE Reference: A) 17 STATE 8708 B) 17 STATE 9516 C) 17 STATE 11004 D) 17 STATE 21026 Subject: (SBU) NEW EXECUTIVE ORDER 13780: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES - GUIDANCE TO VISA-ISSUING POSTS 1. (SBU) Summary: On March 6, 2017, the President issued a new Executive Order, E.O. 13780, (new E.O.), entitled Protecting the Nation from Foreign Terrorist Entry into the United States. The new E.O. contains provisions that will impact visa adjudication and issuance procedures beginning on the new E.O.’s effective date, 12:01 a.m. Eastern Daylight Time (EDT) March 16, 2017. The new E.O. rescinds its predecessor, E.O. 13769 (“old E.O.”). We are working with the Department of Justice to determine when and how we may proceed with implementing the new E.O., in light of pending litigation. All visa issuing posts should carefully review and prepare to implement this guidance effective 12:01 a.m. EDT March 16, 2017. Although posts should be prepared to implement this guidance as of that date and time, do not begin implementation until you receive authorization to do so; such authorization will be sent in a subsequent cable. Any modifications to this guidance, due to litigation or other reasons, will also be sent in a subsequent cable. Public talking points and additional operational resources will be updated and available on CA Web. The full text of the E.O. is available here.
2. (SBU) Suspension of entry into the United States for aliens from certain countries: The new E.O. exercises the President’s authority under sections 212(f) and 215(a)(1) of the Immigration and Nationality Act (INA) to suspend entry into the United States of certain aliens from the following countries for 90 days as of the new E.O.’s effective date, 12:01 a.m. EDT March 16, 2017: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Additionally, posts must complete required additional visa screening steps for nationals of Iraq. Guidance will be sent septel outlining the new issuance procedures for Iraqi nationals. The suspension of entry in the new E.O. does not apply to individuals who are inside the United States on the effective date of the new E.O. (i.e., 12:01 a.m. EDT March 16, 2017), who have a valid visa on the effective date of the new E.O. or who had a valid visa at 5:00 p.m. EDT January 27, 2017, even after their visas expire or they leave the United States. The suspension of entry also does not apply to other categories of individuals, as detailed below. The new E.O. states that no visas will be revoked based on the new E.O. New applicants will be reviewed on a case-by-case basis, with consular officers taking into account the scope and exception provisions in the new E.O. and the applicant’s qualification for a discretionary waiver. End summary.
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Nonimmigrant Visas 3. (SBU) GSS vendors and posts should continue scheduling NIV applicants of the six indicated nationalities. The new E.O. provides for a number of exemptions from its scope and includes waiver provisions, and whether an applicant is exempt or qualified for a waiver can only be determined on a case-by-case basis during the course of a visa interview.
4. (SBU) After the Department sends the cable instructing posts to begin implementing the new E.O., NIV applicants presenting passports from any of the six countries included in the new E.O. should be interviewed and adjudicated following these procedures: a.) Officers should first determine whether the applicant is eligible for a visa under the INA, without regard to the new E.O. If the applicant is not eligible, the appropriate refusal code should be entered into the Consular Lookout and Support System (CLASS). See 9 FAM 303.3-4(A). Posts must follow existing FAM guidance in 9 FAM 304.2 to determine whether an SAO must be submitted. Applicants found ineligible for grounds unrelated to the new E.O. should be refused according to standard procedures. b.) If an applicant is found otherwise eligible for the visa, the consular officer will need to determine during the interview whether the applicant is exempt from the new E.O.’s suspension of entry provision (see paragraphs 8-9), and if not, whether the individual qualifies for a waiver (see paragraphs 10-14). c.) Applicants who are not exempt from the new E.O.’s suspension of entry provision and who do not qualify for a waiver should be refused by entering the code “EO17” into the Consular Lookout and Support System (CLASS). As coordinated with DHS, this code represents a Section 212(f) denial under the new E.O. Immigrant Visas
5. (SBU) The National Visa Center (NVC) will continue to schedule immigrant visa (IV) appointments for all categories and all nationalities. However, NVC will not send any V93 cases to posts. After receiving cable instructions to begin implementing the new E.O., posts should halt the issuance of V93 foils immediately and cancel any scheduled V93 appointments (please see refugee paragraph below). Posts should continue to interview all other IV applicants presenting passports from any of the six countries included in the new E.O., following these procedures: a.) Officers should first determine whether the applicant is eligible for the visa, without regard to the new E.O. If the applicant is not eligible, the application should be refused according to standard procedures. b.) If an applicant is found otherwise eligible for the visa, the consular officer will need to determine during the interview whether the applicant is exempt from the new E.O.’s suspension of entry provision (see paragraphs 8-9), and if not, whether the applicant qualifies for a waiver (paragraphs 10-14). c.) Immigrant visa applicants who are not exempt from the new E.O.’s suspension of entry provision and who do not qualify for a waiver should be refused 221(g) and the consular officer should request an advisory opinion from VO/L/A. Diversity Visas
6. (SBU) For Diversity Visa (DV) applicants already scheduled for interviews falling after the new E.O. effective date of 12:01 a.m. EDT March 16, 2017, post should interview the applicants. After receiving cable instructions to implement the new E.O., posts should interview applicants following these procedures: a.) Officers should first determine whether the applicant is eligible for the DV, without regard to the new E.O. If the applicant is not eligible, the application should be refused according to standard procedures. b.) If an applicant is found otherwise eligible, the consular officer will need to determine during the interview whether the applicant is exempt from the new E.O.’s suspension of entry provision (see paragraphs 8-9), and if not, whether the applicant qualifies for a waiver (paragraphs 10-14). Based on the Department’s experience with the DV program, we anticipate that very few DV applicants are likely to be exempt from the E.O.’s suspension of entry or to qualify for a waiver. If a scheduled applicant is not exempt and does not qualify for a waiver, please request an advisory opinion from VO/L/A.
7. (SBU) The Kentucky Consular Center (KCC) will schedule additional DV appointments on dates after the period of suspension ends for cases in which the

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principal applicant is from one of these six nationalities. If a derivative applicant appears qualified but is subject to the new E.O., KCC will enter a case note in the DS260 to alert post. If post becomes aware of a DV case that has not been scheduled from one of these six countries due to this guidance, but which may not be covered by the new E.O., or may qualify for a waiver, coordinate with KCC to schedule the case for an interview (if the case is current) and a determination by a consular officer of whether or not the E.O. applies. Individuals Who Are Exempt from the New E.O.’s Suspension of Entry
8. (SBU) The new E.O.’s suspension of entry does not apply to the following: a.) Any applicant who was in the United States on the new E.O.’s effective date of March 16, 2017; b.) Any applicant who had a valid visa at 5:00 p.m. EST on January 27, 2017, the day the old E.O. 13769 was signed; c.) Any applicant who had a valid visa on the new E.O.’s effective date of March 16, 2017. d.) Any lawful permanent resident of the United States; e.) Any applicant who is admitted to or paroled into the United States on or after the effective date of the new E.O.; f.) Any applicant who has a document other than a visa, valid on the effective date of the new E.O. or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as advance parole; g.) Any dual national of a country designated under the order when traveling on a passport issued by a non-designated country; h.) Any applicant traveling on an A-1, A-2, NATO-1 through NATO-6 visa, C-2 for travel to the United Nations, C-3, G-1, G-2, G-3, or G-4 visa, or a diplomatic-type visa of any classification; and i.) Any applicant who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
9. (SBU) When issuing an IV or an NIV to an individual who falls into one of the categories listed in paragraph 8, the visa should be annotated to state, “Exempt from E.O. 13780.” Interviewing officers must also enter a clear case note stating the specific reason why the applicant is exempt from the new E.O.’s suspension of entry.
Qualification for a Waiver and Process
10. (SBU) The new E.O. permits consular officers to grant waivers and authorize the issuance of a visa on a case-by-case basis when the applicant demonstrates to the officer’s satisfaction that: a.) Denying entry during the 90-day suspension would cause undue hardship; b.) His or her entry would not pose a threat to national security; and c.) His or her entry would be in the national interest.
11. (SBU) The new E.O. lists the following examples of circumstances in which an applicant may be considered for a waiver, subject to meeting the three requirements above. Unless the adjudicating consular officer has particular concerns about a case, determining that a case falls under any circumstance listed in this paragraph is a sufficient basis for concluding a waiver is in the national interest. Determining that a case falls under some of these circumstances may also be a sufficient basis for concluding that denying entry during the 90-day suspension would cause undue hardship: a.) The applicant had previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity; b.) The applicant has previously established significant contacts with the United States but is outside the United States on the effective date of the new E.O. for work, study, or other lawful activity; c.) The applicant seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations; d.) The applicant seeks to enter the United States to visit or reside with a close family

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member (e.g., a spouse, child, or parent) who is a U.S. citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship; e.) The applicant is an infant, a young child, or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case; f.) The applicant has been employed by, or on behalf of, the United States government (or is the eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States government; g.) The applicant is traveling for purposes related to an international organization designated under the International Organizations Immunities Act, traveling for purposes of conducting meetings or business with the United States government, or traveling to conduct business on behalf of an international organization not designated under the IOIA; h.) The applicant is a legal resident of Canada who applies for a visa at a location within Canada; or i.) The applicant is traveling as a U.S. government-sponsored exchange visitor.
12. (SBU) Listed in this paragraph are other circumstances in which an applicant may be considered for a waiver, subject to meeting the three requirements in paragraph 10. Unless the adjudicating consular officer has particular concerns about a case, determining that a case falls under any circumstance listed in this paragraph is a sufficient basis for concluding a waiver is in the national interest. Determining that a case falls under some of these circumstances may also be a sufficient basis for concluding that denying entry during the 90-day suspension would cause undue hardship: a.) The applicant is a high-level government official traveling on official business who is not eligible for the diplomatic visa normally accorded to foreign officials of national governments (A or G visa). Examples include governors and other appropriate members of sub-national (state/local/regional) governments; and members of subnational and regional security forces; b.) The applicant is traveling to participate in a Department of Defense (DoD) program that DoD deems mission critical; c.) The applicant is traveling to participate in a major cultural, media, and other national event such as a U.S. Olympic Committee sponsored competition that would support U.S. government objectives; and d.) Cases where all three criteria in paragraph 10 are met and the Chief of Mission or Assistant Secretary of a Bureau supports the waiver.
13. (SBU) If the applicant qualifies for a waiver based on criteria in paragraph 11 or 12, the consular officer may issue the visa with the concurrence of the Visa Chief (IV or NIV) or the Consular Section Chief. The visa should be annotated to read, “Waiver of Executive Order Approved.” Case notes must reflect the basis for the waiver; the undue hardship that would be caused by denying entry during the suspension; the national interest; and the position title of the manager concurring with the waiver. To document national interest in case notes in circumstances falling under paragraph 11 or paragraph 12(a), (b), or (c), the consular officer may write, “National interest was established by the applicant demonstrating satisfaction of the requirements for the waiver based on [insert brief description of category of waiver].”
14. (SBU) If the applicant does not qualify under one of the listed waiver categories in paragraphs 11 or 12, but the interviewing officer and consular manager believe that the applicant meets the requirements in paragraph 10 above and therefore should qualify for a waiver, then the case should be submitted to the Visa Office for consideration. These cases should be submitted via email to countries-of-concerninquiries@state.gov. The Visa Office will review these requests and reply to posts within two business days. Consular officers should be able to approve the majority of waiver cases without review by the Visa Office due to the broad authority granted in the new E.O.
Special Visa Issuance Procedures for Nationals of Iraq
15. (SBU) Guidance will be sent septel outlining new issuance procedures for Iraqi nationals. Refugees

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16. (SBU) The U.S. Refugee Admissions Program (USRAP) is suspended for 120 days. This includes the processing of boarding foils for any V93 cases, regardless of nationality, since those follow-to-join cases are admitted to the United States as refugees. After receiving cable instructions to implement the new E.O., posts should halt the issuance of these cases immediately and cancel any scheduled V93 appointments. NVC will halt the processing of all V93 cases and will not forward these cases to posts. The Department will notify posts when the suspension is lifted.
V92 Cases
17. (SBU) Guidance on V92 cases will follow.
Revocations or Cancellations Under E.O. 13769
18. (SBU) The new E.O. states that any individual whose visa was marked revoked or marked canceled as a result of the old E.O. shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry. CA has already begun working with CBP to issue travel documents for certain individuals whose visas were either cancelled or revoked. Please contact your VO/F post liaison officer for instructions if you are contacted by any individual requesting a travel document under Section 12(d) of the new E.O.
Interview Waiver Program
19. (SBU) The Interview Waiver Program guidance in ref A remains unchanged, except that posts may now continue waiving interviews using current guidance for TECRO E-1 visa applicants, in addition to the categories listed in ref A.
in CA/VO/F. 21. (U) Minimize considered. Signature: Tillerson
by cassandra.garrison 3/23/2017 1:12:35 PM March 23 at 6:12 AM View the full stream Powered by ScribbleLive Content Marketing Software Platform

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EXHIBIT H

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EXHIBIT I

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EXHIBIT J

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-tru... 3/6/2017

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-tru... 3/6/2017

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-tru... 3/6/2017

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-tru... 3/6/2017

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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Explore: The MaddowBlog
Thursday's Mini-Report, 3.2.17

Team Trump's Russian communications come...

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EXHIBIT K

Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 89 of 96
March 10, 2017
The Honorable Donald J. Trump The White House 1600 Pennsylvania Avenue NW Washington, D.C. 20050
Dear Mr. President,
We have worked for years, under both Democratic and Republican administrations, to protect America’s national security. We are deeply concerned that the March 6, 2017 executive order halting refugee resettlement and suspending visa issuance and travel from six Muslim-majority countries will, like the prior version, weaken U.S. national security and undermine U.S. global leadership. The United States faces serious 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. But the recent order suffers from the same core substantive defects as the previous version.
The revised executive order will jeopardize our relationships with allies and partners on whom 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.
We must remain vigilant to keep our nation safe from terrorists, whether foreign or homegrown. At the same time, we must remain true to our ideals. These are not mutually exclusive goals. In fact, resettlement initiatives advance U.S. national security interests by protecting the stability of U.S. allies and partners struggling to host large numbers of refugees.
Following the 9/11 attacks, the United States developed a rigorous system of security vetting for travelers to our homeland, leveraging the full capabilities of the intelligence and law enforcement communities. Since then, the U.S. has added enhanced vetting procedures for travelers and has revised them continuously. Our government applies this process to travelers not once, but multiple times. Refugees are vetted more intensively than any other category of traveler. They are screened by national intelligence agencies and INTERPOL, their fingerprints and other biometric data are checked against terrorist and criminal databases, and they are interviewed several times. These processes undergo review on an ongoing basis to ensure that the most updated and rigorous measures are applied, and any additional enhancements can be added without halting refugee resettlement or banning people from certain countries.
We welcome the removal of Iraq from the 90-day travel ban, but we remain concerned that the Iraqis who risked their lives to work with the U.S. military, U.S. government and other U.S. organizations will be left in harm’s way for even longer due to the order’s 120-day suspension of the U.S. Refugee Admissions Program and overall reduction in refugee admissions. These individuals were given priority access to U.S. resettlement under the Refugee Crisis in Iraq Act, but their resettlement, like that of many
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other vetted refugees, will now likely be delayed as security clearances and other approvals expire, adding many more months onto their processing. The United States has a moral obligation to protect these allies.

Bans like those included in this order are harmful to U.S. national security and beneath the dignity of our great nation. Further, the order’s drastic reduction in the number of refugees to be resettled in this fiscal year after the 120-day moratorium weakens this country’s ability to provide global leadership and jeopardizes our national security interests by failing to support the stability of our allies that are struggling to host large numbers of refugees. America’s much-admired compassion and openness are sources not of weakness but strength. These qualities accord with the ideals on which our nation was founded, and on which our greatness rests.

The revised executive order is damaging to the strategic and national security interests of the United States. We urge that, in moving forward, the United States: ensure any vetting enhancements are necessary, non-discriminatory and otherwise consistent with the U.S. Constitution; implement any necessary enhancements without a counterproductive ban or suspension on entry of nationals of particular countries or religions; and immediately restart a strong non-discriminatory refugee resettlement initiative, which will in turn advance U.S. global leadership and national security interests.

We firmly believe that these steps will strengthen U.S. national security and appreciate your attention to the concerns we raise in this letter.

Sincerely, (names in alphabetical order)

Wally Adeyemo Former Deputy Assistant to the President and Deputy National Security Advisor for International Economics

Christopher Le Mon Former Special Assistant to the President for National Security Affairs

Dr. Madeleine K. Albright Former Secretary of State

Marcel Lettre Former Under Secretary of Defense for Intelligence

Steven L. Arnold Lieutenant General U.S. Army (Ret.)

George Little Former Assistant Secretary of Defense for Public Affairs

Alyssa Ayres Former Deputy Assistant Secretary of State for South Asia

Albert J. Madora Major General U.S. Army (Ret.)

Jeremy Bash Former Chief of Staff, Department of Defense

Kelly Magsamen Former Principal Deputy Assistant Secretary of Defense for Asian and Pacific Security Affairs
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Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 91 of 96

Rand Beers Former Acting Secretary of the Department of Homeland Security

Thomas Malinowski Former Assistant Secretary of State for Democracy, Human Rights, and Labor

Daniel Benjamin Former Coordinator for Counterterrorism, Department of State

Robert Malley Former Special Assistant to the President and White House Coordinator for the Middle East, North Africa, and the Persian Gulf Region

Rob Berschinski Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor

Brian McKeon Former Acting Under Secretary of Defense for Policy

Nisha Biswal Former Assistant Secretary of State for South and Central Asian Affairs

Pete McCloskey, Jr. U.S. Congressman, 1967-1983 11th, 17th, and 12th Congressional Districts of CA

Jarrett Blanc Former Deputy Special Representative to Afghanistan and Pakistan

John McLaughlin Former Deputy Director and Acting Director of Central Intelligence Agency

Charles Blanchard Former General Counsel U.S. Air Force

Philip McNamara Former Assistant Secretary for Partnerships and Engagement, Department of Homeland Security

Antony Blinken Former Deputy Secretary of State

Bernadette Meehan Former Special Assistant to the President for National Security Affairs

Max Boot Jeane J. Kirkpatrick Senior Fellow in National Security Studies Council on Foreign Relations

Sarah Mendelson Former Ambassador to the Economic and Social Council, United Nations

David M. Brahms Brigadier General U.S. Marine Corps (Ret.)

James Miller Former Undersecretary of Defense for Policy

Michael Breen Retired United States Army Officer

Lisa Monaco Former Assistant to President for Homeland Security and Counterterrorism and Deputy National Security Advisor

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Rosa Brooks Former Counselor to Under Secretary of Defense for Policy

Alberto Mora Former General Counsel, Department of the Navy

Ambassador (ret.) Nicholas Burns Former Under Secretary of State for Political Affairs, Ambassador to NATO and to Greece

Janet Napolitano Former Secretary of the Department of Homeland Security

Ambassador William J. Burns Former Deputy Secretary of State

William L. Nash Major General U.S. Army (Ret.)

Luis C.deBaca Former Ambassador at Large to Monitor and Combat Trafficking in Persons

Thomas Nides Former Deputy Secretary of State for Management and Resources

Michael Carpenter Former Deputy Assistant Secretary of Defense for Russia, Ukraine, Eurasia

Michael P. Noonan U.S. Army Veteran Director of Research, Foreign Policy Research Institute

Derek Chollet Former Assistant Secretary of Defense for International Security Affairs

Suzanne Nossel Former Deputy Assistant Secretary of State for International Organizations Affairs

Richard Clarke Former National Coordinator for Security, Infrastructure Protection and Counterterrorism for the U.S.

James C. O’Brien Former Special Envoy for Hostage Recovery

David Cohen Former Deputy Director, Central Intelligence Agency

Matthew Olsen Former Director of the National Counterterrorism Center

Bathsheba Crocker Former Assistant Secretary of State for International Organization Affairs

Rick Olson Former Special Representative for Afghanistan and Pakistan

Ryan C. Crocker Former U.S. Ambassador to Lebanon, Kuwait, Syria, Pakistan, Iraq, and Afghanistan

Charles Otstott Lieutenant General U.S. Army (Ret.)

James P. Cullen Brigadier General U.S. Army (Ret.)

Eric Pelofsky Former Special Assistant to the President and Senior Director for North Africa and Yemen

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Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 93 of 96

Mary DeRosa Former Deputy Counsel to the President for National Security Affairs

Gale Pollock Major General U.S. Army (Ret.)

Daniel Drezner Professor Fletcher School of Law and Diplomacy

Amy Pope Former Deputy Homeland Security Advisor and Deputy Assistant to the President for National Security Affairs

Paul D. Eaton Major General U.S. Army (Ret.)

Michael Posner Former Assistant Secretary of State for Democracy, Human Rights and Labor

Mari K. Eder Major General U.S. Army (Ret.)

Samantha Power Former United States Ambassador to the United Nations

Brian Egan Former Legal Adviser U.S. State Department

Jeffrey Prescott Former Senior Director for Iran, Iraq, Syria, and the Gulf States, National Security Council

Evelyn Farkas Former Executive Director, Commission on the Prevention of WMD Proliferation and Terrorism

Ned Price Former Special Assistant to the President and National Security Council Spokesperson

Daniel Feldman Former Special Representative for Afghanistan and Pakistan

Dafna Rand Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor

Steve Feldstein Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor

William D. Razz Waff Major General U.S. Army (Ret.)

Jose W. Fernandez Former Assistant Secretary of State for Economic, Energy, and Business Affairs

Susan Rice Former National Security Advisor to the President of the U.S.

Jonathan Finer

Bill Richardson

Former Director of Policy Planning, Department of Former Governor of New Mexico and United

State

States Ambassador to the United Nations

Michele Flournoy Former Under Secretary of Defense for Policy

Leon Rodriguez Former Director, U.S. Citizenship and Immigration Services

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Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 94 of 96

Eugene Fox Major General U.S. Army (Ret.)

Laura Rosenberger Former Chief of Staff to the Deputy Secretary of State

Danielle Garbe

Tommy Ross

Former Director for Lebanon and Jordan, National Former Deputy Assistant Secretary of Defense for

Security Council

Security Cooperation

Dennis P. Geoghan Brigadier General U.S. Army (Ret.)

Murray G. Sagsveen Brigadier General U.S. Army (Ret.)

Suzy George Former Deputy Assistant to the President, Chief of Staff and Executive Secretary, National Security Council

Eric Schwartz Former Assistant Secretary of State for Population, Refugees, and Migration

F. Stephen Glass Rear Admiral, JAGC U.S. Navy (Ret.)

Norman R. Seip Lieutenant General U.S. Air Force (Ret.)

Rachel Goldbrenner Former Senior Policy Advisor to the U.S. Ambassador to the United Nations

Wendy Sherman Former Under Secretary of State for Political Affairs

Mary Beth Goodman Former Special Assistant to the President for Development and Democracy

Vikram Singh Former Deputy Assistant Secretary of Defense for South and Southeast Asia

Philip Gordon Former Special Assistant to the President and White House Coordinator for the Middle East, North Africa, and the Persian Gulf Region

Elissa Slotkin Former Acting Assistant Secretary of Defense for International Security Affairs

Wilton Scott Gorske Major General U.S. Army (Ret.)

Jeff Smith Former General Counsel, Central Intelligence Agency

Donald J. Guter Rear Admiral, JACG U.S. Navy (Ret.)

Julianne “Julie” Smith Former Deputy National Security Advisor to the Vice President of the United States

Ziad Haider Former Special Representative for Commercial and Business Affairs, U.S. Department of State

Tara Sonenshine Former Under Secretary of State for Public Diplomacy and Public Affairs

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Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 95 of 96

Irv Halter Major General U.S. Air Force (Ret.)

Matthew Spence Former Deputy Assistant Secretary of Defense for Middle East Policy

Lee H. Hamilton U.S. Congressman, 1965-1999 9th Congressional District of IN

James Steinberg Former Deputy Secretary of State

Keith Harper

Nik Steinberg

Former Ambassador to the United Nations Human Former Counselor to the U.S. Permanent

Rights Council

Representative to the United Nations

Luke Hartig Former Senior Director for Counterterrorism National Security Council

Seth M.M. Stodder Former Assistant Secretary of Homeland Security for Border, Immigration & Trade Policy

Caitlin Hayden Former National Security Council Spokesperson

Jake Sullivan Former National Security Advisor to the Vice President of the U.S.

Leif H. Hendrickson Brigadier General U.S. Marine Corps (Ret.)

Timothy S. Sullivan Rear Admiral U.S. Coast Guard (Ret.)

Heather Higginbottom Former Deputy Secretary of State for Management and Resources

Antonio M. Taguba Major General U.S. Army (Ret.)

John D. Hutson Rear Admiral, JACG U.S. Navy (Ret.)

Jim Townsend Former Deputy Assistant Secretary of Defense for European and NATO Policy

David. R. Irvine Brigadier General U.S. Army (Ret.)

Michael G. Vickers Former Under Secretary of Defense for Intelligence

John H. Johns Brigadier General U.S. Army (Ret.)

David Wade Former Chief of Staff, Department of State

Colin Kahl Former National Security Advisor to the Vice President of the United States

William Wechsler Former Deputy Assistant Secretary of Defense for Counterterrorism and Special Operations

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Case 2:17-cv-00178-JLR Document 30-1 Filed 05/08/17 Page 96 of 96

Gil Kerlikowske

Moira Whelan

Former Commissioner, United States Customs and Former Deputy Assistant Secretary of State for

Border Protection

Public Affairs

John Kerry Former Secretary of State

Catherine Wiesner Former Deputy Assistant Secretary of State, Bureau of Population, Refugees, and Migration

Jeremy Konyndyk Former Director, Office of U.S. Foreign Disaster Assistance, USAID

Douglas Wilson Former Assistant Secretary of Defense for Public Affairs

Charles Kupchan Former Special Assistant to the President for National Security Affairs

Tamara Cofman Wittes Former Deputy Assistant Secretary of State for Near Eastern Affairs

Mark P. Lagon Former U.S. Ambassador-at-Large to Combat Trafficking in Persons

Jon Brook Wolfsthal Former Special Assistant to the President for National Security Affairs

Jonathan Lee Former Deputy Chief of Staff, Department of Homeland Security

Lee Wolosky Former Special Envoy for Guantanamo Closure

Michael R. Lehnert Major General U.S. Marine Corps (Ret.)

Tom Wyler Former Counselor to the Secretary of Commerce and Senior Advisor for International Economics

Paul N. Lekas

Stephen N. Xenakis

Former Deputy General Counsel for Legal Counsel, Brigadier General

Department of Defense

U.S. Army (Ret.)

CC: The Honorable Rex W. Tillerson, Secretary of State The Honorable James N. Mattis, Secretary of Defense The Honorable Jefferson B. Sessions, Attorney General of the United States The Honorable John F. Kelly, Secretary of Homeland Security The Honorable Michael P. Dempsey, Acting Director of National Intelligence

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 Case 2:17-cv-00178-JLR Document 33 Filed 05/26/17 Page 1 of 7

1

The Honorable James L. Robart

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

JOHN DOE, et al.,

No. 2:17-cv-00178 (JLR)

10

Plaintiffs,

11 v.
12 DONALD TRUMP, in his official

STIPULATION AND [PROPOSED] ORDER TO STAY PROCEEDINGS

13

capacity as President of the United

States, et al., 14
Defendants.

Noted for Consideration: May 26, 2017

15

16

17

Pursuant to the Court’s May 22, 2017, Order to Show Cause, Dkt. # 32, Plaintiffs and

18 Defendants, through their respective undersigned counsel, hereby stipulate and agree as follows:

19

1. Plaintiffs challenge Executive Order 13,780, titled “Protecting the Nation from

20 Foreign Terrorist Entry into the United States” (“EO2”). See 82 Fed. Reg. 13,209 (Mar. 6, 2017).
21 Plaintiffs have filed a Second Amended Class Action Complaint for Declaratory and Injunctive 22
Relief contesting the legality of EO2, Dkt. # 30, as well as a Motion for Class Certification, Dkt. 23
# 19. Pursuant to earlier Stipulations and Orders, Defendants’ response to the Second Amended 24
25 Complaint is currently due on June 1, 2017 and their response to Plaintiffs’ class certification

26 STIPULATION AND
[PROPOSED] ORDER TO STAY PROCEEDINGS (2:17-cv-00178-JLR) - 1

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 33 Filed 05/26/17 Page 2 of 7

1 motion is currently due fourteen days after the Ninth Circuit’s ruling in Hawai‘i v. Trump, No.

2 17-50 (D. Haw.). See Dkt. #s 18, 29.
3 2. On May 17, 2017, and May 22, 2017, respectively, the Court entered orders
4 staying the proceedings in Washington v. Trump, No. 17-141JLR (W.D. Wash.), Dkt. # 189, and
5 Ali v. Trump, No. 17-135JLR (W.D. Wash.), Dkt. # 95, pending resolution of the appeal in
6
7 Hawai‘i v. Trump (Hawai‘i), No. 17-15589 (9th Cir.). The Court further ordered the parties to

8 file a joint status report within ten days of the Ninth Circuit’s ruling in Hawaii so that the Court

9 could evaluate the continued appropriateness of the stay at that time. The Court also noted that

10 any party may move to lift the stay should circumstances change such that lifting the stay is

11 warranted.
12 3.
13

In light of the Court’s orders staying the proceedings in Washington and Ali,

14 Plaintiffs and Defendants agree that a similar stay is appropriate in this case. Accordingly, the

15 parties stipulate and agree as follows:

16

a. Proceedings in this case (including Defendants’ deadlines to respond to

17

the Second Amended Complaint and class certification motion) shall be

18

stayed pending the Ninth Circuit’s resolution of the appeal in Hawaii v.

19 Trump.
20 b. The parties shall file a joint status report within ten days of the Ninth
21

22

Circuit’s ruling in Hawaii so that the Court may evaluate the continued

23

appropriateness of a stay at that time.

24

c. Should circumstances change such that lifting the stay is warranted, any

25

party may move to lift the stay. For example, if the Ninth Circuit lifts or

26 STIPULATION AND
[PROPOSED] ORDER TO STAY PROCEEDINGS (2:17-cv-00178-JLR) - 2

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 33 Filed 05/26/17 Page 3 of 7

1

narrows the preliminary injunction in Hawaii, Plaintiffs may seek to lift

2

the stay for the purpose of filing a motion for temporary restraining order

3

or preliminary injunction.1

4 d. As the Court noted in Washington, Dkt. # 189 at 8-9, Plaintiffs may send
5

preservation letters to third parties to notify them of the litigation and 6

7

request that they preserve any potentially relevant evidence. If Plaintiffs

8

do not believe that sending such letters will resolve the issue of third-party

9

evidentiary preservation, Plaintiffs may move for a limited modification

10

of the stay order to allow Plaintiffs to issue subpoenas to third parties. If

11 any such motion is granted, the Court would then stay any required
12 production under or response to the subpoenas until such time as the stay
13

14

is fully lifted.

15

Accordingly, IT IS HEREBY STIPULATED AND AGREED, by and between Plaintiffs

16 and Defendants, subject to the Court’s approval, that:

17

A. Proceedings in this case (including Defendants’ deadlines to respond to the

18 Second Amended Complaint and class certification motion) are stayed pending the Ninth
19 Circuit’s resolution of the appeal in Hawaii v. Trump.
20

21

22

23

24

1 Plaintiffs were preparing to file a motion for preliminary injunction in mid-March when this Court

stayed the temporary restraining order proceedings in Ali v. Trump. Order Staying Pls.’ Mot. TRO & Prelim.

25 Injunctive Relief, Ali, No. 17-135JLR (W.D. Wash. Mar. 17, 2017), Dkt. # 79. Using that order as a guide, the

Doe Plaintiffs did not file their motion.

26 STIPULATION AND
[PROPOSED] ORDER TO STAY PROCEEDINGS (2:17-cv-00178-JLR) - 3

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 33 Filed 05/26/17 Page 4 of 7

1

B. The parties shall file a joint status report within ten days of the Ninth Circuit’s

2 ruling in Hawaii so that the Court may evaluate the continued appropriateness of a stay at that
3 time.
4 C. Should circumstances change such that lifting the stay is warranted, any party
5 may move to lift the stay. For example, if the Ninth Circuit lifts or narrows the preliminary
6
7 injunction in Hawaii, Plaintiffs may seek to lift the stay for the purpose of filing a motion for

8 temporary restraining order or preliminary injunction.

9

D. Plaintiffs may send preservation letters to third parties to notify them of the

10 litigation and request that they preserve any potentially relevant evidence. If Plaintiffs do not
11 believe that sending such letters will resolve the issue of third-party evidentiary preservation,
12 Plaintiffs may move for a limited modification of the stay order to allow Plaintiffs to issue
13 14 subpoenas to third parties. If any such motion is granted, the Court would then stay any required

15 production under or response to the subpoenas until such time as the stay is fully lifted.

16

17 DATED this 26th day of May, 2017. 18

19

20

21

22

23

24

25

26 STIPULATION AND
[PROPOSED] ORDER TO STAY PROCEEDINGS (2:17-cv-00178-JLR) - 4

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 33 Filed 05/26/17 Page 5 of 7

1 Presented by:

2 KELLER ROHRBACK L.L.P.

CHAD A. READLER

Acting Assistant Attorney General

3 By: /s/ Lynn Lincoln Sarko By: /s/ Tana Lin
4 By: /s/ Amy Williams-Derry

JENNIFER D. RICKETTS Director, Federal Programs Branch

5

By: /s/ Derek W. Loeser By: /s/ Alison S. Gaffney

JOHN R. TYLER Assistant Director, Federal Programs

6

Lynn Lincoln Sarko, WSBA # 16569

Branch

7 8

Tana Lin, WSBA # 35271 Amy Williams-Derry, WSBA #28711 Derek W. Loeser, WSBA # 24274 Alison S. Gaffney, WSBA #45565

/s/ Michelle R. Bennett MICHELLE R. BENNETT Trial Attorney U.S. Department of Justice

9

1201 Third Avenue, Suite 3200

Civil Division, Federal Programs Branch

Seattle, WA 98101

20 Massachusetts Avenue, NW

10

Telephone: (206) 623-1900

Washington, DC 20530

Facsimile: (206) 623-3384

Tel: (202) 305-8902

11

Email: lsarko@kellerrohrback.com

Fax: (202) 616-8470

tlin@kellerrohrback.com

Email: michelle.bennett@usdoj.gov

12

awilliam-derry@kellerrohrback.com

dloeser@kellerrohrback.com

Attorneys for Defendants

13

agaffney@kellerrohrback.com

14 By: /s/ Laurie B. Ashton

15

Laurie B. Ashton (Pro Hac Vice)

3101 North Central Avenue, Suite 1400

16

Phoenix, Arizona 85012-2600

Telephone: (602) 248-0088

17

Facsimile: (602) 248-2822

18

Email: lashton@kellerrohrback.com

19 By: /s/ Alison Chase

20

Alison Chase (Pro Hac Vice) 801 Garden Street, Suite 301

21

Santa Barbara, CA 93101

Telephone: (805) 456-1496

22

Facsimile: (805) 456-1497

Email: achase@kellerrohrback.com

23 Attorneys for Plaintiffs/Cooperating

24

Attorneys for the American Civil

Liberties Union Of Washington

25

Foundation

26 STIPULATION AND
[PROPOSED] ORDER TO STAY PROCEEDINGS (2:17-cv-00178-JLR) - 5

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 33 Filed 05/26/17 Page 6 of 7

1
AMERICAN CIVIL LIBERTIES UNION OF 2 WASHINGTON FOUNDATION

3 By: /s/ Emily Chiang

By: /s/ La Rond Baker

4

Emily Chiang, WSBA # 50517

La Rond Baker WSBA # 43610

5

901 Fifth Avenue, Suite 630

6

Seattle, Washington 98164 Telephone: (206) 624-2184

7

Email: echiang@aclu-wa.org lbaker@aclu-wa.org

8

Attorney for Plaintiffs

9

10 ORDER
11
12 PURSUANT TO STIPULATION, IT IS SO ORDERED.

13

14

15 Date: 16

By: JAMES L. ROBART United States District Judge

17

18

19

20

21

22

23

24

25

26 STIPULATION AND
[PROPOSED] ORDER TO STAY PROCEEDINGS (2:17-cv-00178-JLR) - 6

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 33 Filed 05/26/17 Page 7 of 7

1

CERTIFICATE OF SERVICE

2

I hereby certify that, on May 26, 2017, a copy of the foregoing document was

3 electronically filed with the Clerk of the Court using the CM/ECF system which will send

4 notification of such filing to all counsel of record.

5 DATED this 26th day of May, 2017.
6
7

KELLER ROHRBACK L.L.P.

8

By: /s/ Tana Lin

n

9

Tana Lin, WSBA # 35271

10

1201 Third Avenue, Suite 3200

Seattle, WA 98101

11

Telephone: (206) 623-1900

12

Facsimile: (206) 623-3384 Email: tlin@kellerrohrback.com

13

Attorney for Plaintiffs/Cooperating

14

Attorney for the American Civil Liberties Union Of Washington

15

Foundation

16

17

18

19

20

21

22

23

24

25

26 STIPULATION AND
[PROPOSED] ORDER TO STAY PROCEEDINGS (2:17-cv-00178-JLR) - 7

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

 
 Case 2:17-cv-00178-JLR Document 38 Filed 07/14/17 Page 1 of 6

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 JOHN DOE, et al.,

10

Plaintiffs,

11

v.

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

No. 2:17-cv-00178-JLR JOINT STATUS REPORT

14

Defendants.

15

16

I. INTRODUCTION

17

Pursuant to a stipulation of the parties, the Court ordered the parties to file a joint status

18 report by July 14, 2017, on the continued appropriateness of the stay in this case. Stipulation and

19 Order to Extend Deadline for Submitting Joint Status Report, ECF No. 35 at 3. The parties

20 submit the following report in which they agree that it is appropriate for a stay to remain in place

21 until the conclusion of Supreme Court proceedings in Trump v. Hawai‘i and Trump v.
22 International Refugee Assistance Project.
23

24

II. RELEVANT PROCEDURAL HISTORY

25

Plaintiffs filed this suit on February 7, 2017, challenging Executive Order 13769. Compl.,

26 ECF No. 1. On March 14, 2017, Plaintiffs amended their complaint to add challenges to

JOINT STATUS REPORT (2:17-cv-00178-JLR) - 1

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 38 Filed 07/14/17 Page 2 of 6

1 Executive Order 13780, First Amended Compl., ECF No. 10, and on May 8, 2017, Plaintiffs

2 again amended their complaint. Second Amended Compl., ECF No. 30. Plaintiffs also filed a
3 motion for class certification on April 11, 2017. Mot. for Class Cert., ECF No. 19. 4
On March 15, the U.S. District Court for the District of Hawai‘i issued a temporary 5
restraining order (TRO) enjoining enforcement nationwide of Sections 2 and 6 of Executive 6 7 Order 13780. Hawai‘i v. Trump, No. 1:17-cv-00050-DKW-KSC (D. Haw. Mar. 15, 2017), ECF
8 No. 219. Two weeks after issuing the TRO, the Hawai‘i court converted it into a preliminary

9 injunction. See Hawai‘i, No. 1:17-cv-00050 (D. Haw. Mar. 29, 2017), ECF No. 270.

10

On May 17, 2017, and May 22, 2017, respectively, the Court entered orders staying the

11 proceedings in Washington v. Trump, No. 17-141JLR (W.D. Wash.), ECF No. 189, and Ali v.
12 Trump, No. 17-135JLR (W.D. Wash.), ECF No. 95, pending resolution of the appeal in Hawai‘i
13
v. Trump, No. 17-15589 (9th Cir.). 14

15

In light of the Court’s orders staying proceedings in Washington and Ali, Plaintiffs and

16 Defendants stipulated to a similar stay in this case. Pursuant to the parties’ stipulation, on May

17 30, 2017, the Court entered an Order staying all proceedings in this case pending the Ninth

18 Circuit’s resolution of the appeal in Hawai‘i. See Stipulation and Order to Stay Proceedings,
19 ECF No. 34. The Court further ordered the parties to file a joint status report within ten days of
20 the Ninth Circuit’s ruling in Hawai‘i so that the Court could evaluate the continued
21
22 appropriateness of a stay at that time.

23

The Ninth Circuit issued its opinion on June 12, 2017, affirming in part and vacating in

24 part the district court’s entry of a preliminary injunction against enforcement of Sections 2 and 6

25 of the Executive Order. Hawai‘i v. Trump, 859 F.3d 741 (9th Cir. 2017) (per curiam). The Ninth 26 Circuit overturned certain portions of the injunction involving internal-review procedures, but it

JOINT STATUS REPORT (2:17-cv-00178-JLR) - 2

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 38 Filed 07/14/17 Page 3 of 6

1 upheld the remainder based on statutory grounds. Accordingly, the parties’ joint status report

2 would have been due on June 22, 2017.

3

On May 25, 2017, the Fourth Circuit issued a decision in International Refugee

4 Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc), affirming a preliminary
5 injunction against enforcement of Section 2(c) of the Executive Order on Establishment Clause
6

7 grounds.

8

The Defendants petitioned the Supreme Court for a writ of certiorari, applied for a stay

9 pending appeal, and requested that the Hawai‘i case be consolidated with Trump v. International

10 Refugee Assistance Project, 857 F.3d 554 (4th Cir. 2017) (en banc). To permit the parties to be

11 informed by the Supreme Court's decisions on the certiorari petitions and stay applications, the
12 parties here agreed to an extension of time to submit their joint status report, extending the
13
deadline until July 14, 2017. 14

15

On June 26, 2017, the Supreme Court granted certiorari, granted the stay application in

16 part, and consolidated Trump v. Hawai‘i and Trump v. International Refugee Assistance Project.

17 Nos. 16-1436 (16A1190), 16-1540 (16A1191), 2017 WL 2722580 (U.S. June 26, 2017). The
18 cases will be heard during the first session October Term 2017. Id. at *5.
19 III. STATUS REPORT
20 The parties agree that it is appropriate for a stay to remain in place until the conclusion of
21 Supreme Court proceedings in Hawai‘i and International Refugee Assistance Project. The
22
23 parties further agree that, should circumstances change such that lifting the stay is warranted, any

24 party may move to lift the stay.

25

In addition, Plaintiffs wish to inform the Court that Plaintiff James Doe’s family recently

26 arrived in the United States.

JOINT STATUS REPORT (2:17-cv-00178-JLR) - 3

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 38 Filed 07/14/17 Page 4 of 6

1 DATED: JULY 14, 2017

2 Respectfully submitted by:

3 KELLER ROHRBACK L.L.P.

CHAD A. READLER

4

Acting Assistant Attorney General

By: /s/ Lynn Lincoln Sarko 5 By: /s/ Tana Lin
By: /s/ Amy Williams-Derry 6 By: /s/ Derek W. Loeser

JENNIFER D. RICKETTS Director, Federal Programs Branch

7

By: /s/ Alison S. Gaffney

JOHN R. TYLER Assistant Director, Federal Programs Branch

8 9 10

Lynn Lincoln Sarko, WSBA # 16569 Tana Lin, WSBA # 35271 Amy Williams-Derry, WSBA #28711 Derek W. Loeser, WSBA # 24274 Alison S. Gaffney, WSBA #45565 1201 Third Avenue, Suite 3200

/s/ Michelle R. Bennett MICHELLE R. BENNETT Trial Attorney U.S. Department of Justice

11

Seattle, WA 98101

Civil Division, Federal Programs Branch

Telephone: (206) 623-1900

20 Massachusetts Avenue, NW

12

Facsimile: (206) 623-3384

Washington, DC 20530

Email: lsarko@kellerrohrback.com

Tel: (202) 305-8902

13

tlin@kellerrohrback.com

Fax: (202) 616-8470

14

awilliams-derry@kellerrohrback.com dloeser@kellerrohrback.com

Email:

michelle.bennett@usdoj.gov

15

agaffney@kellerrohrback.com

Attorneys for Defendants

By: /s/ Laurie B. Ashton

N

16

Laurie B. Ashton (Pro Hac Vice)

17

3101 North Central Avenue, Suite 1400

Phoenix, Arizona 85012-2600

18

Telephone: (602) 248-0088

19

Facsimile: (602) 248-2822 Email: lashton@kellerrohrback.com

20 By: /s/ Alison Chase

e

21

Alison Chase (Pro Hac Vice)

22

801 Garden Street, Suite 301 Santa Barbara, CA 93101

23

Telephone: (805) 456-1496

Facsimile: (805) 456-1497

24

Email: achase@kellerrohrback.com

25

Attorneys for Plaintiffs/Cooperating

Attorneys for the American Civil

26

Liberties Union Of Washington

Foundation

JOINT STATUS REPORT (2:17-cv-00178-JLR) - 4

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 38 Filed 07/14/17 Page 5 of 6

1 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION

2

By: /s/ Emily Chiang 3

Emily Chiang, WSBA # 50517

4

901 Fifth Avenue, Suite 630

Seattle, Washington 98164

5

Telephone: (206) 624-2184

Email: echiang@aclu-wa.org 6

7

8

Attorney for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

JOINT STATUS REPORT (2:17-cv-00178-JLR) - 5

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 38 Filed 07/14/17 Page 6 of 6

1

CERTIFICATE OF SERVICE

2 I hereby certify that on July 14, 2017, I electronically filed the foregoing Joint Status
3
4 Report using the Court’s CM/ECF system, causing a notice of filing to be served upon all

5 counsel of record.

6

KELLER ROHRBACK L.L.P.

7

8

By: /s/ Tana Lin

n

9

Tana Lin, WSBA # 35271

10

1201 Third Avenue, Suite 3200 Seattle, WA 98101

11

Telephone: (206) 623-1900 Facsimile: (206) 623-3384

12

Email: tlin@kellerrohrback.com

13

Attorney for Plaintiffs/Cooperating

Attorney for the American Civil

14

Liberties Union Of Washington

Foundation

15

16

17

18

19

20

21

22

23

24

25

26

JOINT STATUS REPORT (2:17-cv-00178-JLR) - 6

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

 
 Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 1 of 98

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 John Doe, Jack Doe, Jason Doe, Joseph Doe James Doe, Jeffrey Doe, individually, and on
10 behalf of all others similarly situated; the Episcopal Diocese of Olympia, and the Council
11 on American Islamic Relations-Washington,

12

Plaintiffs,

13

v.

14 Donald Trump, President of The United States;

15 U.S. Department of State; Rex Tillerson,

Secretary of State; U.S. Department of 16 Homeland Security; Elaine Duke, Acting

17

Secretary of Homeland Security; U.S. Customs and Border Protection; Kevin McAleenan,

18 Acting Commissioner of U.S. Customs and Border Protection; Michele James, Field

19 Director of the Seattle Field Office of U.S.

Customs and Border Protection; Office of the 20 Director of National Intelligence; and Daniel

21

Coats, Director of the Office of the Director of National Intelligence

22 Defendants.

23

No. 2:17-cv-00178-JLR
THIRD AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

24

25

26

THIRD AMENDED CLASS ACTION COMPLAINT
`

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 2 of 98

1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION........................................................................................................ 1

4 II. JURISDICTION AND VENUE.................................................................................... 5

5 III. 6 7 8 9 10 11 12 13 14 15 16 17
IV. 18 19 20 21 22 23 24 25 26

PARTIES ..................................................................................................................... 6 A. Plaintiffs ........................................................................................................... 6
1. Plaintiff John Doe.................................................................................. 6 2. Plaintiff Jack Doe .................................................................................. 8 3. Plaintiff Jason Doe .............................................................................. 10 4. Plaintiff Joseph Doe ............................................................................ 12 5. Plaintiff James Doe.............................................................................. 15 6. Plaintiff Jeffrey Doe ............................................................................ 17 7. Plaintiff the Episcopal Diocese of Olympia.......................................... 20 8. Plaintiff the Council on American-Islamic Relations-
Washington ......................................................................................... 23 B. Defendants...................................................................................................... 27 FACTUAL BACKGROUND ..................................................................................... 28 A. President Trump’s January 27, 2017 Original Executive Order ....................... 28
1. Chaos, Confusion, and Whiplash in the Implementation of EO-1.................................................................................................... 29
2. The Discriminatory Intent Behind EO-1 .............................................. 33 B. President Trump’s March 6, 2017 Executive Order ......................................... 37 C. President Trump’s September 27, 2017 Proclamation...................................... 44 D. President Trump’s October 24, 2017 Executive Order and Agency
Implementation of the Order ........................................................................... 47 E. The Arbitrariness of the Orders ....................................................................... 51

THIRD AMENDED CLASS ACTION COMPLAINT PAGE i
`

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 3 of 98

1 2 3 4 5 6 7 8 9 V. 10 VI. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

1. Arbitrariness of the Travel Ban............................................................ 52
a. The Faulty Logic Behind Invoking the 9/11 Attacks to Justify the Travel Ban .......................................................... 52
b. The Faulty Logic Behind Invoking 2015 Data to Justify the Travel Ban .............................................................. 56
2. Arbitrariness of the Suspension of the USRAP .................................... 62
F. President Trump’s Continuing Defiance of Court Orders Regarding the Executive Orders and Insistence on His Muslim Travel Ban ...................................................................................................... 74
CLASS ACTION ALLEGATIONS ............................................................................ 82
CAUSES OF ACTION............................................................................................... 84

THIRD AMENDED CLASS ACTION COMPLAINT PAGE ii

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 4 of 98

1

I. INTRODUCTION

2

1. Just as “the world is not made brand new every morning,” McCreary Cty. v.

3 ACLU, 545 U.S. 844, 866 (2005), “a person is not made brand new simply by taking the oath of

4 office.” Aziz v. Trump, 234 F. Supp. 3d 724, 734 (E.D. Va. 2017). Impermissible animus cannot

5 be cleansed with a few “mostly minor technical differences”:1 a Muslim ban is a Muslim ban.

6 Ten months into this Administration, Defendants have issued a third set of orders and memos

7 that causes the same harms as Defendants’ prior actions, imposes an indefinite suspension on the

8 admission of the spouses and children of former refugees, and continues to effectuate an

9 unlawful Muslim ban. The order and memos cannot be separated from the context in which they

10 arose.

11

2. One week after taking the oath of office as President of the United States, on

12 January 27, 2017, Defendant Trump carried out a promise he made repeatedly and explicitly on

13 the campaign trail, launching “a total and complete shutdown of Muslims entering the United

14 States”2 with his signature on Executive Order 13769 “Protecting the Nation from Foreign

15 Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Jan. 27, 2017) (“EO-1”).

16

3. With the stroke of a pen, he threw into chaotic uncertainty the lives of tens of

17 thousands of individuals who had been granted valid student and work visas and disrupted the

18 passage to safety for refugees and their families, including women and children who had been

19 victimized by actual terrorists, all of whom had already been subjected to an exhaustive and

20 thorough screening by the United States government.

21

4. Multiple courts—including this Court and the Ninth Circuit Court of Appeals—

22 recognized the ban for the affront to our Constitution it was and promptly stayed it. While

23 continuing to insist “nothing was wrong” with EO-1, Defendants openly advertised that the

24 1 Martha McCallum, Miller: New Order Will Be Responsive to the Judicial Ruling; Rep. Ron DeSantis: Congress 25 has Gotten off to a Slow Start, Fox (Feb. 21, 2017), http://fxn.ws/2lSaxl2 (last visited Nov. 4, 2017).
2 Donald J. Trump Statement on Preventing Muslim Immigration, DonaldJTrump.com (Dec. 7, 2015),
26 https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration (last
visited May 8, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 1

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 5 of 98

1 revised order would have “mostly minor technical differences” from EO-1 and “fundamentally”
2 would be “the same basic policy outcome for the country.”3 Defendants then spent more than a 3
month publicly struggling to figure out how to do exactly what they repeatedly said they wanted 4
to do: ban Muslims. 5
5. On March 6, 2017, Defendant Trump signed Executive Order 13780, also titled 6
“Protecting the Nation from Foreign Terrorist Entry into the United Sates.” 82 Fed. Reg. 13209 7
(Mar. 6, 2017) (“EO-2”). As Defendant Trump admitted, other than a few cosmetic changes to 8
address some of the most obvious facial legal deficiencies, EO-2 was just a “watered-down 9 version” of his first travel ban.4 10
6. Multiple courts again enjoined key provisions of EO-2, the Fourth and Ninth 11
Circuits largely upheld those injunctions, and the Supreme Court declined to stay the injunctions 12
except as to foreign nationals who lacked any credible claim to a bona fide relationship with a 13
person or entity in the United States. 14
7. On September 24, 2017, Defendant Trump issued a Presidential Proclamation 15
titled, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the 16
United States by Terrorists or Other Public-Safety Threats.” 82 Fed. Reg. 45,161 (Sept. 24, 17
2017) (“EO-3”). EO-3 imposes an indefinite ban on the issuance of immigrant and non18
immigrant visas to nationals of six Muslim-majority countries. For a third time, multiple courts 19
have issued injunctions, blocking key provisions of EO-3 from going into effect. 20
8. EO-3 did not address the issue of refugee admissions. On October 23, 2017, 21
Defendants Tillerson, Duke, and Coates issued a Memorandum to the President titled “Resuming 22
the United States Refugee Admissions Program with Enhanced Vetting Capabilities” (“October 23

24

25 3 See supra note 1.
26 4 Matt Zapotosky, Kalani Takase & Maria Sacchetti, Federal Judge in Hawaii Freezes President Trump’s New
Entry Ban, Wash. Post (Mar. 16, 2017), http://wapo.st/2zm2Zfy (last visited Nov. 6, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 2

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 6 of 98

1 2017 Agency Memo”).5 The next day, on October 24, 2017, Defendant Trump signed Executive 2
Order 13815 titled “Resuming the United States Refugee Admissions Program with Enhanced 3
Vetting Capabilities.” 82 Fed. Reg. 50,055 (Oct. 24, 2017) (“EO-4”). EO-4 purports to resume 4
the U.S. Refugee Admissions Program (“USRAP”) when in fact the October 2017 Agency 5
Memo indefinitely bans many of the same refugees that courts already told Defendants they 6
could not ban in EO-2. 7
9. The Constitution is not so easily fooled. Changes made openly and explicitly to 8
evade judicial scrutiny fail to mask the discriminatory animus that pervades Defendants’ actions. 9
Even if the discriminatory intent of EO-2, EO-3, and the October 2017 Agency Memo is not as 10
plain on its face as with EO-1, the current set of orders remain in contravention of “[t]he clearest 11
command of the Establishment Clause . . . that one religious denomination cannot be officially 12
preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). 13
10. Although the list of countries changed slightly from EO-1 and EO-2, EO-3 14
indefinitely bans or severely restricts the entry into this country of nationals from six Muslim15
majority countries: Chad, Iran, Libya, Somalia, Syria, and Yemen (the “Designated Countries”). 16
11. And although EO-4 purports to reinstate USRAP, the October 2017 Agency 17
Memo makes clear Defendants will do no such thing: the October 2017 Agency Memo continues 18
a de facto Muslim ban on refugees by banning refugees from eleven countries on the Security 19
Advisory Opinion (“SAO”) list (“SAO List Countries”), see infra ¶ 215, and all I-730 following20
to-join derivative (“I-730 follow to-join” or “follow-to-join”) refugees (the spouses and children 21
of former refugees). 22
12. Far from eliminating the need for judicial scrutiny, EOs 1-3 and the October 2017 23
Agency Memo (collectively “the Orders”) underscore the need for it. The Orders have created an 24
unstable, unpredictable, and uncertain situation. 25

26 5 Memorandum from Rex W. Tillerson, Elaine Duke, and Daniel Coats to the President (Oct. 23, 2017),
http://bit.ly/2z36fdw (last visited Nov. 2, 2017), attached to this Complaint as Exhibit J.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 3

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 7 of 98

1 13. Plaintiffs are Washington residents from the Designated Countries with lawful
2 non-immigrant status but without re-entry visas (e.g., expired multiple-entry visas or used single-
3 entry visas) who are trapped inside the United States—unable to have their families (including
4 grandparents and parents) visit them and unable to leave the United States to visit their families
5 in their home countries or carry out education-related travel for fear they will be unable to return
6 to their lives here (“the Non-Immigrant Visa Class”). Unlike similarly situated people from the
7 non-Designated Countries, once members of the Non-Immigrant Visa class leave the country,
8 they know they will be singled out: the default for them is denial of a new visa unless they are
9 fortunate enough to procure a waiver from the general ban.
10 14. Plaintiffs are also refugees and asylees who reside in Washington and have filed
11 petitions to reunify with their family members who have completed and cleared their final
12 security screenings (“the Refugee Class”). They have fled war-torn countries, survived brutal
13 conditions in refugee camps, and finally made it into the United States—some, after years of
14 uncertainty and fear. They anxiously await reunification with dearly loved family members who
15 were cleared for travel prior to the issuance of the Orders and now reasonably fear those family
16 members will never make it into the United States. Plaintiffs seek to directly represent
17 themselves and others similarly situated.
18 15. Also harmed by Orders is Plaintiff the Episcopal Diocese of Olympia (the
19 “Episcopal Diocese” or “Diocese”), a religious entity organized in the State of Washington to do
20 charitable works, including to support the resettlement of refugees in Washington. The Diocese
21 has had its refugee resettlement activities completely upended as a result of the Orders which
22 barred and continue to bar the arrival of persons admitted through the USRAP. As of the filing of
23 the Third Amended Complaint, nearly thirty families from the SAO List Countries whom the
24 Episcopal Diocese was supporting in resettlement, were granted refugee status, and approved for
25 travel to the United States will have their trips canceled as a result of the Orders, wasting
26 precious resources and frustrating the activities of the Diocese. In addition, several clients whom

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 4

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 8 of 98

1 the Diocese has helped file I-730 follow-to-join petitions—and whose families the Diocese had
2 assured—are now stuck in limbo.
3 16. The Council on American-Islamic Relations-Washington (“CAIR-WA”) is
4 harmed by the Orders. CAIR-WA is a non-profit organization based in Seattle that works to
5 promote an understanding of Islam through dialogue, education, protection of civil liberties, and
6 coalition-building. As a result of the Orders, CAIR-WA has received numerous inquiries from its
7 constituents about American-Muslim travelers who have become the target of unconstitutional
8 ideological questioning by Transportation Security Administration and Customs and Border
9 Protection agents about their personal beliefs. CAIR-WA has had to devote substantial,
10 unplanned-for resources to respond to this new spike.
11 17. The Episcopal Diocese, CAIR-WA, and the individual Plaintiffs—on behalf of
12 themselves and three classes of similarly situated people in Washington State—(collectively,
13 “Plaintiffs”) bring this suit to challenge the provisions and implementation of the Orders that
14 violate the First Amendment, the Fifth Amendment, the Religious Freedom Restoration Act
15 (“RFRA”), 42 U.S.C. § 2000bb et seq., the Immigration and Nationality Act (“INA”), 8 U.S.C. §
16 1101 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.
17 18. Plaintiffs currently suffer serious irreparable harm and will continue to suffer such
18 harm until and unless this Court preliminarily and permanently enjoins the Orders. Plaintiffs
19 have no adequate remedy at law.
20 II. JURISDICTION AND VENUE
21 19. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 over Plaintiffs’
22 claims under the U.S. Constitution and federal statutes, as well as under the APA, 5 U.S.C. §
23 706.
24 20. The Court has the authority to grant declaratory relief pursuant to the Declaratory
25 Judgment Act, 28 U.S.C. §§ 2201 and 2202.
26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 5

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 9 of 98

1 21. Venue is proper under 28 U.S.C. § 1391(b)(2) and (e)(1). A substantial part of the
2 events or omissions giving rise to the claims occurred in this district, and all individual Plaintiffs
3 reside in this District. Further, Defendants are officers or employees of the United States acting
4 in their official capacities, and agencies of the United States.
5 22. Plaintiff the Episcopal Diocese, also known as the Episcopal Church in Western
6 Washington, is a diocese of the Episcopal Church in Washington State, west of the Cascade
7 Range. The Episcopal Diocese is headquartered in Seattle and is a registered 501(c)(3)
8 corporation.
9 23. The CAIR-WA is a 501(c)(3) non-profit organization that operates from its
10 offices in downtown Seattle.
11

12

III. PARTIES

13 A. Plaintiffs

14

1. Plaintiff John Doe

15 24. Plaintiff John Doe is an Iranian national who resides in Seattle, Washington. John
16 Doe has F-1 status as a fifth-year Ph.D. candidate in Aeronautic and Astronautic Engineering at
17 the University of Washington. John Doe simultaneously studied for a master’s degree in applied
18 mathematics at the University of Washington and graduated in April 2017. John Doe has a
19 provisional patent, “patent pending,” in the United States pertaining to battery function. He also
20 was a graduate fellow with the Clean Energy Institute of Washington State.
21 25. John Doe holds a multiple-entry visa that expired on August 31, 2017. This was
22 his second such visa that allowed him to pursue full-time educational study in the United States.
23 John Doe received his F-1 status and both multiple-entry visas after an intensive vetting and
24 screening process abroad that included an in-person interview and proof of his admission status
25 at the University of Washington as a full-time doctoral student.
26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 6

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 10 of 98

1 26. John Doe first arrived in the United States in 2012. Before that he studied for a
2 master’s degree in civil engineering in the Netherlands, and then worked for a year in the
3 Netherlands for an international offshore oil and gas company. John Doe has also served as a
4 visiting researcher at ETH Zurich in Switzerland studying nonlinear solitary waves, and at the
5 University of South Carolina studying nonlinear wave propagation. John Doe received his
6 undergraduate bachelors of science degree in civil engineering in Iran.
7 27. John Doe’s immediate and extended family, including maternal grandparents, all
8 live in Iran.
9 28. John Doe is engaged in collaborative research with the Chinese Academy of
10 Science. He co-authors publications with Chinese researchers and is actively advising and
11 directing joint research with students in the United States and China on these projects. As part of
12 this collaboration, John Doe conducted research in China for three months in 2016. John Doe has
13 missed several opportunities to attend conferences abroad, including one where he was invited as
14 the keynote speaker, because he was and continues to be fearful of what position Defendants
15 may take next that might potentially leave him stranded outside the country if he travels.
16 29. As part of his doctorate studies, it is anticipated and expected that John Doe will
17 participate in international conferences, because such endeavors are essential to his training and
18 his ability to be fully active in the scientific and research community. There are numerous
19 upcoming academic conferences that John Doe was planning to attend. However, as the
20 submission deadline for the conferences are often several months before the event, and given the
21 multiple times Defendants changed their mind while implementing EO-1 and EO-2, John Doe
22 has not submitted proposals for several of the conferences to which he otherwise would have
23 applied to make presentations as a result of Defendants’ actions. In addition, given the
24 uncertainty surrounding the enhanced screening and vetting (in addition to what he has already
25 been through) and the uncertainty that remains with the waiver process required by EO-3, he
26 continues to fear that if he leaves the United States to attend an academic conference, he may be

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 7

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 11 of 98

1 prevented from reentering the United States. John Doe’s inability to reenter the United States
2 would prevent him from completing his doctorate.
3 30. John Doe’s research and career have suffered and will continue to suffer as long
4 as the Orders are in place.
5 31. John Doe’s parents were in the process of applying for a visa to visit him when
6 EO-3 issued. His parents have since put their plans on hold. He is now uncertain whether he will
7 be able to see his parents any time in the near future.
8 32. John Doe is pursuing his claims anonymously because he is afraid of retaliation
9 from the United States government or others for asserting his rights.
10 2. Plaintiff Jack Doe
11

12

33. Plaintiff Jack Doe is an Iranian national who resides in Seattle.

13

34. Jack Doe was born and raised in a Muslim family.

14

35. Jack Doe has an undergraduate degree in Electrical Engineering from Sharif

15 University in Tehran. Jack Doe first came to the United States in 2006 with an F-1 visa to work

16 on a Ph.D. at the University of Maryland. He obtained his first F-1 student visa from the United

17 States embassy in Cypress. He completed his Ph.D. program in 2014.

18

36. Until a few months ago, Jack Doe was a post-doctorate researcher at the

19 University of Washington. He was working under his F-1 Optional Practical Training (“OPT”)

20 status, and subsequent extension for STEM students (“STEM OPT”), which together allowed

21 him, after completing his degree, to work for three years in academia. OPT is temporary

22 employment that is directly related to an F-1 student’s major area of study, and the STEM OPT

23 extension allows certain F-1 students who receive science, technology, engineering, and

24 mathematics (STEM) degrees, and who meet other specified requirements, to apply for a 24-

25 month extension of their post-completion OPT. Application for both OPT and STEM OPT

26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 8

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 12 of 98

1 requires endorsement by the student’s “designated school official” at the student’s United States
2 academic institution.
3 37. The University of Washington also sponsored an academic H1-B visa for Jack
4 Doe. A few months ago, however, Jack Doe accepted a job offer in his field, which meant he no
5 longer had H1-B status. He is currently working pursuant to an Employment Authorization
6 Document (“EAD”), which he obtained based on a pending application for permanent residency.
7 38. Although Jack Doe is residing and working in the United States legally, the
8 Orders have made it very difficult for him to find long-term employment. Prior to the issuance of
9 the Orders, Jack Doe had been interviewing with employers. His future employment prospects
10 are now in jeopardy because his EAD is temporary and, as a result of EO-3, he would be unable
11 to get H1-B status if necessary to continue working after his EAD expires. Jack Doe fears that
12 employers will be reluctant to hire him for this reason, and he is therefore at a significant
13 disadvantage compared to other foreign nationals who are not from one of the Designated
14 Countries.
15 39. Most of Jack Doe’s family lives in Iran, and he has not been able to see them
16 since 2008 when he was able to return to Iran for a brief visit. Jack Doe has not seen his parents
17 since 2012, when they came to the United States to visit him and his sister. More recently, his
18 parents had applied for visas to visit him, and while his mother’s visa was approved, his father’s
19 is still under “administrative processing,” leaving Jack Doe uncertain as to what will happen with
20 his father’s visa.
21 40. Since the issuance of the Orders, Jack Doe has felt marginalized, stigmatized, and
22 less than a full member of the community. Jack Doe feels subjected to increased suspicion,
23 scrutiny, and social and political isolation on the basis of his religion (or perceived religion) and
24 national origin. He had plans to take some business and leisure trips within the United States but
25 has cancelled them because he fears for his safety and the hostility he might face in places that
26 are less exposed to immigrants and Muslims. Jack Doe is aware of recent press reports of

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 9

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 13 of 98

1 evidence targeted at Muslims and fears for his safety as a result. In particular, the widespread
2 press coverage of the shooting of two Indian men in a Kansas bar who were asked what type of
3 visa they held before being yelled at to “get out of my country”6 and shot, on the mistaken belief 4 that they were from Iran, cause Jack Doe substantial concern for his own safety and well-being.7 5
41. Jack Doe is pursuing his claims anonymously because he is afraid of retaliation 6
from the United States government or others for asserting his rights. 7

8

3. Plaintiff Jason Doe

9 42. Plaintiff Jason Doe is a resident of Seattle.
10 43. Jason Doe is Muslim.
11 44. Jason Doe is an Iranian national. He first came to the United States in 2013 with
12 F-2 status (for spouses of F-1 students), as his wife had F-1 status as a graduate student.
13 45. In 2014, Jason Doe was accepted into a 5-year doctorate program at the Business
14 School of the University of Washington to study Information Systems. He is halfway through his
15 program and anticipates graduating in 2019. Jason Doe would like to stay in academia, as a
16 researcher, writer, and professor in his field.
17 46. After he was admitted to the University of Washington, Jason Doe changed his
18 status to F-1 and obtained a multiple-entry visa. Currently, Jason Doe’s wife is also enrolled in a
19 doctorate program at the University of Washington, and they both have F-1 status.
20 47. Jason Doe’s multiple-entry visa expired in August 2016, but he is in the United
21 States lawfully because his F-1 status is valid until 2019 pursuant to his Form I-20. His F-1 status
22 may also be extended if it takes him longer to finish his degree.
23

24

25 6 Alyssa Ayres, The Kansas City Shooting Is Quickly Changing How Indians View the U.S., Forbes (Mar. 3, 2017),
http://bit.ly/2hqQvt5 (last visited Nov. 2, 2017).
26 7 Eric Levenson, 911 Calls Reveal the Kansas Suspect Thought He’d Shot ‘Two Iranians,’ CNN (Feb. 28, 2017),
http://cnn.it/2A4Yhkb (last visited Nov. 2, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 10

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 14 of 98

1 48. Given Jason Doe’s time horizon on graduation and the fact that he is halfway
2 through his program, he should be starting to attend conferences to present papers, expand his
3 contacts, and develop his expertise. Most of the conferences that would be appropriate for him to
4 attend are international conferences, which would require travel outside of the United States in
5 the coming months. In particular, there is an upcoming conference in December 2017 held in
6 Seoul, Korea. This is the major conference in Jason Doe’s field, and students often have their job
7 interviews at that conference. Jason Doe has a paper accepted for presentation at the conference.
8 49. However, as a result of the EO-3, Jason Doe cannot leave the country for fear he
9 will not be permitted to return. He is particularly reluctant to leave without his wife for fear that
10 they will be separated. As a result, he will miss this important conference, not present his paper,
11 and will have to forego the opportunity to interview with potential employers there. His research
12 and career will suffer as long as the Orders are in place.
13 50. The majority of his family and his wife’s family are in Iran.
14 51. Jason Doe’s in-laws have applied for visas to visit him and his wife, and they
15 were scheduled for interviews at the time EO-3 was issued. The visit is particularly important to
16 Jason Doe and his wife because his mother-in-law is battling cancer. Jason Doe’s parents had
17 also planned on applying for a visa to visit him. While Jason Doe and his wife have F-1 status,
18 they would need to apply for a visa to reenter the United States if they were to travel outside of
19 the country to see their family. He is now uncertain whether he and his wife will be able to see
20 their parents any time in the near future.
21 52. Since the issuance of the Executive Orders, Jason Doe has felt marginalized,
22 stigmatized, and less than a full member of the community. Jason Doe has felt subjected to
23 increased suspicion, scrutiny, and social and political isolation on the basis of his religion (or
24 perceived religion) and national origin. He read reports of an Iranian man in Oregon who was not
25 Muslim but who returned home from a trip to find his house vandalized, sprayed with hate-filled
26 racist graffiti (“F*** YOU TERRORIST”) and a note weighted down by bullets in the shape of a

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 11

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 15 of 98

1 cross that said “if I see you here next month, I will shoot you and burn your house.”8 When 2
someone asks him where he is from or what his religion is, he is no longer comfortable 3
answering that he is from Iran or that he is a Muslim because he is worried about the 4
consequences. Jason Doe no longer feels safe walking in the streets at night because he worries 5 someone might shoot him because of how he looks and because of hatred toward Muslims.9 6
53. Jason Doe is pursuing his claims anonymously because he is afraid of retaliation 7
from the United States government or others for asserting his rights. 8
4. Plaintiff Joseph Doe 9

10

54. Plaintiff Joseph Doe is a Somali national who currently resides in Des Moines,

11 Washington.

12

55. Joseph Doe is a practicing Muslim.

13

56. Joseph Doe is married with three children.

14

57. Prior to arriving in the United States, Joseph Doe had lived in refugee camps in

15 Kenya since 1992—for nearly twenty-two years. Joseph Doe’s family fled Somalia during that

16 country’s violent civil war to escape persecution and the risk of being killed because of their clan

17 membership. While trying to reach safety on foot, Joseph Doe’s family spent weeks hiding in the

18 forest without food. Fighters from one of the warring factions found them in the forest and raped

19 Joseph Doe’s older sister in front of him and his family. His mother tried to stop the rape of her

20 daughter, but the men clubbed her in the head with the butt of their guns. His sister, who was

21 pregnant, bled to death following the rape. Joseph Doe was approximately ten years old at the

22 time and witnessed all of these events. He struggles with these memories to this day.

23

24

25 8 Lizzy Acker, Portland-Area Man’s Home Vandalized with Death Threats and Racist Graffiti, Oregonian (Mar. 31, 26 2017), http://bit.ly/2hrxA1A (last visited Nov. 2, 2017).
9 See supra notes 6-7.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 12

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 16 of 98

1 58. Joseph Doe’s family eventually reached Kenya and began living in a refugee
2 camp. Joseph Doe had his initial interview with the United Nations High Commissioner for
3 Refugees (“UNHCR”) in 2000 with his mother, two brothers, and three surviving sisters.
4 59. In 2004, Joseph Doe left the camp one morning as he often did to try to earn some
5 money for his family. But when he returned, he found out that the local Turkana people had
6 raided the camp, and in the subsequent fighting and upheaval, his family was nowhere to be
7 found. Until a few months ago, Joseph Doe did not know where his mother or siblings were or
8 what happened to them. It was only a few months ago that they managed to track him down and
9 call him. The surviving members of his family are still living in Kenya.
10 60. When he was finally called for an interview with the Department of Homeland
11 Security/U.S. Citizenship and Immigration Services in 2011, Joseph Doe had just gotten married.
12 He went through the screening process starting in 2011 and completed it in December 2013.
13 61. Joseph Doe finally arrived in the United States on January 28, 2014, as a refugee.
14 He only had refugee status for himself, and not his wife and children, as the refugee application
15 process was begun for him with his mother and siblings when he was still a child.
16 62. As a result, when he came to the United States, Joseph Doe had to leave behind in
17 Kenya his wife and children, the youngest of whom was just about six months old at the time.
18 His children are now four, five, and nine years old. While his children are considered Somali
19 nationals, they have never been to Somalia.
20 63. Joseph Doe became a legal permanent resident in 2016. Joseph Doe is currently
21 working a full-time job at a warehouse, sending money to his family in Kenya, and preparing for
22 their arrival.
23 64. Once he realized he had a right to ask for his family to join him in the United
24 States, Joseph Doe filed a Refugee/Asylee Relative Petition, Form I-730, for his wife and three
25 children in June 2015. His wife and children had their final interviews in November 2016, which
26 they successfully passed; they have completed the security clearance; they completed their

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 13

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 17 of 98

1 medical clearance on January 31, 2017; and they received their final required immunizations on
2 March 1, 2017. His family was assured by a Refugee Resettlement Office (“RRO”) on June 5,
3 2017. They were only waiting to be scheduled for travel to the United States at the time EO-2
4 was issued.
5 65. Joseph Doe was told that the only thing left before his family would travel to the
6 United States was for their travel arrangements to be finalized. However, because of the delays
7 caused by the Orders, Joseph Doe’s fears that his family’s medical clearances would expire has
8 come true (their medical clearances expired on August 1, 2017), and his family has had to go
9 through the medical examinations process all over again, further delaying the process. While two
10 members of his family have received their new medical clearances, he now has to await the new
11 medical clearance for two of his children, which he hopes will be issued in the very near future.
12 66. Joseph Doe fears that between the indefinite suspension of admissions for I-730
13 follow-to-join derivative refugees mandated by the October 2017 Agency Memo and the
14 possibility of the drastically decreased refugee cap for fiscal year 2018 being met soon, his
15 family’s travel to the United States will be delayed indefinitely, and his suffering—and that of
16 his family—will be prolonged indefinitely.
17 67. Joseph Doe speaks to his family regularly on the telephone. His wife often brings
18 up the hardship of the long separation, which is approaching four years. Joseph Doe’s youngest
19 son is not old enough to understand that it is not by choice that his father is far away from his
20 family, and he often cries for his dad, asks his mother where his dad is, and asks to talk to his
21 dad. When Joseph Doe speaks with his son, his son constantly asks, “Where are you?” and “Why
22 can’t you come for us?”
23 68. There isn’t a day that goes by when Joseph Doe does not think of his wife and
24 children, wish that he could just hold and hug them, and dream of being able to be a family
25 again, all together in one place. Joseph Doe often cannot fall asleep at night because he is
26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 14

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 18 of 98

1 thinking about his family and wondering if the next day will be the day that he will get the news
2 that his family’s travel has been scheduled so that he can be reunited with them.
3 69. Given the hardship of the extended separation, Joseph Doe has applied for an
4 I-131 travel document to visit his wife and children in Kenya. However, he is afraid to leave the
5 United States even with a travel document because he fears he will not be allowed to return.
6 70. The Orders have interfered with and delayed the arrival to the United States of
7 Joseph Doe’s family. Joseph Doe is injured each day by that interference and delay.
8 71. Joseph Doe is pursuing his claims anonymously because he is afraid of retaliation
9 from the United States government or others for asserting his rights.
10 5. Plaintiff James Doe
11

12

72. James Doe is an Eritrean national who resides in Seattle, Washington.

13

73. James Doe fled Eritrea in 2009 after being imprisoned because of his political

14 beliefs. In 2009, he was working at Sawa Military Training Camp (“Sawa”) as part of his

15 mandatory national service, which is required of every Eritrean for eighteen months by law, but

16 in practice is a system of indefinite conscription. The Eritrean government requires all Eritrean

17 students to spend their last year of high school at Sawa, and James Doe was working as an

18 instructor there, teaching accounting, which was his focus of study at university. While he was

19 forced to work at Sawa, he was only able to go home to see his wife and children every three or

20 four months. At that time, his oldest child was about a year old, and his wife was expecting their

21 second child.

22

74. In or around March 2009, the Eritrean government called a meeting to ask people

23 at Sawa what changes they would like to see implemented, and James Doe participated in this

24 meeting and voiced his opinions. Two or three days later, government officers came to his room

25 at Sawa and arrested him.

26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 15

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 19 of 98

1 75. They took him to an underground prison and kept him there for approximately
2 five months. The prisoners were not given enough food to eat, and they had no water for
3 washing. Many prisoners were tortured with beatings and by being tied up for long periods of
4 time, including one technique well known in Eritrean prisons called the “helicopter,” in which
5 the hands and feet of a prisoner are tied behind his back and he is made to lie on the ground, face
6 down, or suspended in the air. Sometimes the guards would remove prisoners and not bring them
7 back, and the other prisoners did not know what became of them. James Doe knew not to speak
8 out to the prison guards and was able to avoid being tortured, and eventually, he escaped the
9 prison.
10 76. He fled first to Sudan, then through Egypt, and made it to Israel. Once he had
11 made it to Israel, he was finally able to contact his wife and let her know what had happened to
12 him.
13 77. James Doe stayed in Israel for a significant time, but he could not get permanent
14 status in Israel as a refugee. He was able to get a visa for travel to Sri Lanka as a refugee, but
15 after he arrived there, the Sri Lankan government began detaining Eritrean refugees. He was
16 detained and kept in prison again for almost two years.
17 78. The United Nations, investigating the Sri Lankan detention centers, became aware
18 of him and worked with James Doe to help him obtain refugee status in the United States. In
19 April 2015, nearly six years after he escaped prison in Eritrea, he made it to the United States.
20 79. In July 2015, James Doe filed a Refugee/Asylee Relative Petition, Form I-730, for
21 his wife and children, including a daughter whom he had never met as he was arrested and taken
22 away while his wife was pregnant.
23 80. James Doe became a lawful permanent resident of the United States in 2016. He
24 currently works two jobs, one full-time and one part-time, to support his family. He provided
25 financial support for his wife and children while they were waiting for the I-730 refugee relative
26 screening process to be completed.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 16

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 20 of 98

1 81. On June 13, 2017, James Doe was at last able to meet his eight-year-old daughter
2 for the first time when his wife, son, and daughter finally arrived in the United States.
3 82. Since the issuance of the Orders, James Doe has felt subjected to increased
4 suspicion, scrutiny, and social and political questioning on the basis of his religion (or perceived
5 religion) and national origin. Because of his features, coloring, and accent, James Doe is
6 frequently asked by customers at his workplace where he is from and if he is Muslim. He has
7 also had Muslim customers confide in him that they do not feel comfortable speaking in Arabic
8 in public because they are afraid of being discriminated against and that, as a result, they
9 consciously try to speak English in public to avoid being targeted as Muslim. A Somali Muslim
10 taxi driver also confided in him that when he arrived to pick up a customer, the passengers
11 refused his service when they realized he was Muslim. The number and frequency of questions
12 about his national origin and religion that James Doe has received have increased since the
13 issuance of the Executive Orders. When he responds that he is Christian, some customers have
14 confided in him that they “don’t like Muslims,” that they “think all Muslims are bad,” or that
15 they “think that Muslims are terrorists.”
16 83. James Doe is pursuing his claims anonymously because he is afraid of retaliation
17 from the United States government or others for asserting his rights.
18 6. Plaintiff Jeffrey Doe
19

20

84. Plaintiff Jeffrey Doe is a Somali national who resides in Federal Way,

21 Washington. He and his family are members of a minority tribe in Somalia. They are practicing

22 Muslims.

23

85. Jeffrey Doe, his mother, father, and siblings fled Somalia in 1993 when he was

24 four years old. One day, men dressed in military uniforms forced their way into their home to

25 demand money. His father ran for his life, knowing that the soldiers almost always kill the men.

26 The soldiers raped his aunt in the room next to where the family was being held, and he could

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 17

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 21 of 98

1 hear her screaming for help. The soldiers demanded money of his mother while holding his one-
2 and-a-half-year-old sister at gunpoint. His family had no money to give, and when his aunt went
3 to pick up his sister, the soldiers shot his sister. His aunt was holding his sister, and the bullet
4 passed through his sister, killing both her and his aunt.
5 86. The family ran from the house and were able to find their father before fleeing the
6 country that night. They traveled by sea for three days to arrive in Kenya.
7 87. Jeffrey Doe grew up in Kenyan refugee camps. He never had electricity in his
8 home until he came to the United States. The camp had a de facto curfew of 7:30 pm because it
9 was too dangerous to be out later. Jeffrey Doe’s parents and his siblings still live in a Kenyan
10 refugee camp.
11 88. Jeffrey Doe met his wife while living at the refugee camp, and they were married
12 in 2008. They had three daughters while they were in the refugee camp. They also have one son
13 who was born in the United States.
14 89. Jeffrey Doe’s family’s case was registered in July 2000, and they applied for
15 refugee status through the U.S. Refugee Admissions/UNHCR program in December 2005. They
16 started the paperwork with RSC (JVA) in March 2006. In June 2006, they had a USCIS
17 interview, and in July 2006, they received an initial approval letter from USCIS. They received
18 their first medical clearance shortly thereafter, and the family has since had numerous medical
19 examinations—including DNA testing. Their most recent medical examination in March 2017
20 has now, yet again, expired. His family has passed all the security and medical clearances
21 required of refugees so that they can be assigned to a resettlement agency to prepare for their
22 arrival in the United States. Jeffrey Doe’s family has been assured by the Episcopal Diocese of
23 Olympia since September 8, 2015. His family has been classified as Priority 1 refugees who are
24 survivors of violence and torture.
25 90. Jeffrey Doe filed his own case in 2013 with USCIS, hoping to improve his
26 chances of creating a better life for his wife and children. His case was separated from his

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 18

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 22 of 98

1 family’s and combined with his wife’s case, who had also received approval from the United
2 States. They received UN approval in 2013, and they received final approval from USCIS in
3 February 2015. They underwent medical examinations in June 2015. After 22 years of living in
4 refugee camps, Jeffrey Doe arrived in the United States with his wife and children in December
5 2015.
6 91. Jeffrey Doe has been continuously employed since he found his first job in
7 February 2016, including at jobs that have required him to take multiple buses as well as a train
8 to get to work.
9 92. Despite his joy in building his life in the United States with his wife and children,
10 Jeffrey Doe misses his parents and siblings deeply. He texts with his family regularly, and they
11 are able to speak on the phone several times a week. He speaks the most with his mother, his
12 elder brother, and his younger sister. Jeffrey Doe’s daughters ask him almost every day when
13 they are going to get to see their grandmother again and cry because they miss her. Jeffrey Doe
14 often wakes in the middle of the night thinking of his family and missing them.
15 93. Jeffrey Doe and his family are Muslim. There is a mosque not far from their home
16 and they go every week on Saturdays and Sundays. They always pray for their family members
17 still in the refugee camp, and that they will be reunited soon.
18 94. Jeffrey Doe, his wife, and his children applied for their green cards to become
19 legal permanent residents. While Jeffrey Doe’s wife and children have received their green
20 cards, his application remains pending.
21 95. Jeffrey Doe is pursuing his claims anonymously because he is afraid of retaliation
22 from the United States government or others for asserting his rights.
23
24
25
26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 19

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 23 of 98

1

7. Plaintiff the Episcopal Diocese of Olympia

2 96. The Episcopal Diocese of Olympia, also known as the Episcopal Church in
3 Western Washington, is a diocese of The Episcopal Church located in western Washington. It is
4 headquartered in Seattle’s Capitol Hill neighborhood.
5 97. The Episcopal Diocese is a local affiliate of the Episcopal Migration Ministries, a
6 voluntary agency that welcomes refugees through a Cooperative Agreement with the Department
7 of State. The Episcopal Diocese has operated a refugee resettlement program since 1978 and has
8 sponsored more than 15,000 refugees of all religions and nationalities to resettle in the Seattle
9 area. The Episcopal Diocese’s Refugee Resettlement Office (“RRO”) is located in South Seattle
10 and receives and assists refugees from all over the world, including from each of the countries
11 targeted by EO-1, without regard to race, religion, or country of origin. The RRO is one of
12 eleven ministries offered and provided for by the Episcopal Diocese. The Episcopal Diocese’s
13 refugee resettlement program stems from the moral obligation of the Episcopal faith to welcome
14 and assist strangers, especially those who are poor, sick, and most in need of help.
15 98. The RRO provides a multitude of services to refugees, including coordinating the
16 arrival of refugees to the United States, housing assistance, job training, providing for basic
17 household needs, advocacy, language tutoring, business training and microenterprise loans, and a
18 savings program to help refugees purchase homes, vehicles, education, or businesses. The RRO
19 has 9.5 full time employees, with four full-time equivalent staff working directly to support new
20 arrivals and their survival needs during their first 90 days in the United States. Approximately
21 two dozen volunteers assist the RRO in providing these services.
22 99. Before a refugee arrives in the United States, the RRO is notified by the
23 Department of State that a family has been approved for refugee status and that the RRO should
24 “assure” the case. The RRO is required to make contact with friends or relatives of the arriving
25 refugees living in the United States (known as the “U.S. tie”) who were listed on the refugee’s
26 application. The RRO expends significant time making phone calls, sending mail, and making

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 20

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 24 of 98

1 in-person visits to meet with the U.S. tie to evaluate his or her capacity to help the RRO during
2 the resettlement process. The evaluation process includes a home visit to view and evaluate the
3 living space. If there is no possibility that the arriving refugee can live with a U.S. tie, the RRO
4 further interviews the U.S. tie to determine if the relative or friend can assist with transportation,
5 job searching, enrollment of kids in school, or any of the other daily tasks with which newly
6 arriving refugees need assistance.
7 100. If the U.S. tie cannot perform these tasks, the RRO invests its own resources to
8 perform this pre-arrival legwork for the incoming refugees. These tasks include, among other
9 things, searching for and obtaining safe housing, furnishing the residence, and stocking it with
10 food and household items prior to the arrival of the refugees. If the refugee family or U.S. tie
11 rejects the apartment or house, RRO staff begin a process of evaluating alternative locations. The
12 RRO undertakes housing inspections that consume significant RRO staff time to ensure that the
13 neighborhood is safe, that there is no bare wiring visible in the living space, no peeling or flaking
14 interior paint or plaster, no visible mold or unsanitary odors, that all windows and doors have
15 working locks, that heat, ventilation, lighting, and running water are adequate, that kitchen
16 appliances and bathroom fixtures are in good repair, and that there are easily accessible storage
17 or disposal facilities for garbage.
18 101. The RRO’s pre-arrival services can also involve cultivation of community groups
19 or churches to help refugees during the first months of their adjustment to life in America. The
20 RRO staff spend time visiting churches and community groups to describe the refugee
21 resettlement process, ask for assistance with specific families that are still en route, and organize
22 committees to help refugee newcomers with specific tasks like searching for employment.
23 102. When EO-1 was issued on January 27, 2017, the RRO was expecting to welcome
24 over twenty refugee families—including families from Syria, Iraq, and Somalia—into the
25 community in the coming days, weeks, and months, and had been actively preparing for their
26 arrival and resettlement in the greater Seattle area by carrying out on their behalves the activities

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 21

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 25 of 98

1 described above. As a result of the RRO’s efforts, these refugee families already had domestic
2 arrangements supporting their arrival in the United States and were approved for travel. Yet,
3 these families had their dreams dashed when they had to abruptly cancel their travel plans as a
4 result of EO-1.
5 103. Since EO-1, the RRO’s work has been completely disrupted. The chaos
6 surrounding the implementation of the Orders has also required the RRO to expend additional,
7 unplanned-for resources. RRO staff are working around-the-clock to address the immediate
8 needs of these families in crisis and to respond to questions and concerns from their families and
9 loved ones already in the United States who had been planning for the arrival of these already-
10 approved refugees. In addition, many of the RRO’s resources devoted to these refugee families
11 over the past months have now been wasted.
12 104. The October 2017 Agency Memo exacerbates the harm to the Diocese and the
13 population it serves. A few of the refugees the Diocese was expecting have arrived between the
14 time EO-1 was halted by court orders and the effective date of EO-2. However, as of the filing of
15 this Third Amended Complaint, approximately thirty families from the SAO List Countries the
16 Diocese was expecting (including the family of Plaintiff Jeffrey Doe, see supra Section III.A.6)
17 have not arrived and will not be able to complete their trips because of the October 2017 Agency
18 Memo. The Diocese also assists its clients to file I-730 petitions for their spouses and children,
19 several of whom have already secured all required clearances; however, because of the October
20 2017 Agency Memo, those clients and their families who were already approved to come to the
21 United States through the I-730 process—and whom the Diocese had assured—are now stuck in
22 an indefinite limbo.
23 105. The Diocese serves refugees and displaced persons of all faiths, but many of its
24 clients are Muslim.
25 106. The Diocese and its RRO believe that the Orders convey an official message of
26 disapproval and hostility by the Defendants—and, more broadly, this country—toward the

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 22

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 26 of 98

1 Muslim refugees and their families with whom the RRO works, sending the message that the
2 government deems them to be outsiders who are not and should not become full members of the
3 political community. The Diocese and its RRO believe that the Orders thus serve to marginalize
4 these refugees and their families, subjecting them to suspicion, scrutiny, and social and political
5 isolation on the basis of their religion or national origin, and inflicting other stigmatic and
6 dignitary injuries on them.
7 107. The Orders have caused and continue to cause significant additional harm to the
8 most vulnerable population that the RRO and Episcopal Diocese are focused on serving. These
9 refugees are fleeing persecution in their country of origin, and are now facing persecution in the
10 safe haven they had been promised in the United States. The dramatic reduction in the overall
11 number of refugees allowed this year will not only rob families of hope and a future but may also
12 cost some of them their lives. The mission and efficacy of the RRO, and through it the Episcopal
13 Diocese, has been thwarted by Orders, and these injuries will continue.
14

15

8. Plaintiff the Council on American-Islamic Relations-Washington

16 108. The Council on American-Islamic Relations-Washington (CAIR-WA) is a
17 grassroots civil rights and advocacy group. CAIR-WA is a 501(c)(3) non-profit organization that
18 was incorporated in 2004 and operates from its offices in downtown Seattle.
19 109. The mission of CAIR-WA is to enhance the understanding of Islam in
20 Washington state and throughout the United States by encouraging dialogue, protecting civil
21 liberties, empowering American Muslims, and building coalitions that promote justice and
22 mutual understanding. CAIR-WA also provides direct service to its Muslim constituents in the
23 form of information, training, and access to a network of over fifty pro bono attorneys.
24 110. Since January 27, 2017, and the issuance of EO-1, CAIR-WA has received
25 several inquiries from American-Muslim travelers in Washington who have become the target of
26 unconstitutional and systematic ideological questioning by Transportation Security

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 23

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 27 of 98

1 Administration and Customs and Border Patrol agents about their religious values and political
2 views. The number of such inquiries has increased dramatically since January 27, 2016, and
3 CAIR-WA has devoted and continues to devote considerable, previously unplanned-for
4 resources to respond to these inquiries and to educate the community about its rights in the face
5 of the Executive Orders.
6 111. Since January 27, 2017, CAIR-WA has also been flooded with inquiries from
7 affected persons about the impact of the Executive Orders on their ability or the ability of their
8 families to travel, cross borders, or with respect to visa or immigration status. CAIR-WA has
9 received over 100 such requests for help from United States citizens and others between January
10 27, 2017, and October 31, 2017. In all of 2016, CAIR-WA opened a total of about 250 cases—
11 but in just the first four months of 2017, it had already received over 250 requests for assistance,
12 and opened as many cases in the first third of the year as it did in all of 2016.
13 112. In addition to its direct staff, CAIR-WA also works with a network of over 20 pro
14 bono attorneys in Washington who provide direct services to its constituents on civil rights,
15 immigration, and visa issues.
16 113. CAIR-WA has provided referrals and advice to many United States citizens
17 originally from the Affected Countries who are trying to reunite with their immediate families.
18 For example, a Somali national has contacted CAIR-WA regarding his petition to be reunited
19 with his wife and two children who remain in Djibouti. On January 23, 2017, the U.S. Embassy
20 in Djibouti scheduled screening interviews for his family. The Embassy canceled these
21 interviews on January 29, 2017. Despite the injunction preventing the implementation of EO-1,
22 the U.S. Embassy has refused to reschedule the interviews, and his family is now subject to the
23 restrictions and delays of subsequent Orders.
24 114. Another United States citizen originally from Sudan has contacted CAIR-WA
25 regarding her petition for her Sudanese father to receive an IR-5 visa. Her father was scheduled
26 for a screening interview at the U.S. Embassy in the United Arab Emirates on February 15, 2017.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 24

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 28 of 98

1 The Embassy canceled the interview when EO-1 issued. The interview was rescheduled after
2 EO-1 was enjoined, and her father received his visa on February 20, 2017. Unfortunately,
3 however, her father’s efforts to book travel to the United States have been thwarted, due to the
4 issuance of EO-2. The airlines have required him to return to the U.S. Embassy to ensure that his
5 recently issued visa is still valid. Her father is now afraid to book his airline travel only to be
6 detained or deported at the border when he tries to enter the United States.
7 115. CAIR-WA assists and advises American Muslims such as those described above
8 and provides education, advocacy, and referrals so they may navigate both the stated and implied
9 ramifications of the Defendants’ Orders.
10 116. CAIR-WA has also experienced a dramatic increase in the number of inquiries
11 from the Muslim community regarding the Orders since January 27, 2017, in addition to
12 inquiries about bullying, hate crimes, and other injuries suffered by those it serves as a direct
13 result of Defendants’ open antipathy for those observing the Muslim faith.
14 117. The Orders convey an official message of disapproval and hostility toward CAIR-
15 WA as well as its Muslim members and clients, making clear that the government deems them
16 outsiders, not full members of the political community. CAIR-WA’s Muslim clients in the
17 United States have been marginalized as a result of this anti-Muslim message, have been
18 subjected to baseless suspicion, scrutiny, and social and political isolation on the basis of religion
19 and national origin, and have suffered other dignitary and stigmatic injuries.
20 118. CAIR-WA has had to hire a part-time civil rights team member to handle the
21 extra work. This additional part-time position was not in CAIR’s 2017 budget, but was deemed a
22 necessary expenditure as part of CAIR-WA’s commitment to providing a rapid response to the
23 number of questions and reports of disruption in travel experienced by CAIR-WA constituents.
24 CAIR-WA has also taken on the task of printing and distributing 10,000 business cards, depicted
25 below, that have legal assistance contact information for immigrants and travelers stranded at
26 United States airports as a result of the Executive Orders. CAIR-WA had not budgeted for this

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 25

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 29 of 98

1 expense or forecasted its need prior to January 27, 2017, but CAIR-WA decided to do so in
2 direct response to the turmoil caused by the Executive Orders. The printing costs for these
3 business cards was yet another off-budget expenditure necessitated by Defendants’ conduct.
4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19 119. In direct response to the Orders, CAIR-WA has also organized several
20 informational presentations for the Washington Muslim community to address the confusion,
21 concern, and fear the Orders have stimulated.
22 120. In 2015 and prior years, at least 98% of CAIR-WA’s funding was from individual
23 donors, almost all of whom reside in the state of Washington, or from matching funds from
24 companies that employ its individual donors and volunteers. The remaining 2% of CAIR-WA’s
25 funding comes from sponsorship from locally-based non-profits, mosques, and businesses that
26 serve Washington communities.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 26

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 30 of 98

1 121. The mission and efficacy of CAIR-WA has been thwarted by Orders, and its

2 injuries will continue once the new Orders takes effect.

3 B.
4

Defendants

5

122. Defendant Donald J. Trump is the President of the United States. He is sued in his

6 official capacity.

7

123. Defendant U.S. Department of State (“DOS”) is a cabinet department of the

8 United States federal government that is responsible for issuing visas.

9

124. Defendant Rex W. Tillerson is the Secretary of State and has responsibility for

10 overseeing the enforcement and implementation of the Orders by all DOS staff. He is sued in his

11 official capacity.

12

125. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet

13 department of the United States federal government with the primary mission of securing the

14 United States. Its sub-agencies include U.S. Citizenship and Immigration Services (“USCIS”),

15 U.S. Customs and Border Protection, and Immigration and Customs Enforcement (“ICE”).

16

126. Defendant Elaine Duke is the Acting Secretary of DHS and has responsibility for

17 overseeing the enforcement and implementation of the Orders by all DHS staff. She is sued in

18 her official capacity.

19

127. Defendant U.S. Customs and Border Protection (“CBP”) is an agency within DHS

20 with the primary mission of detecting and preventing the unlawful entry of persons and goods

21 into the United States.

22

128. Defendant Kevin K. McAleenan is the Acting Commissioner of CBP has

23 responsibility for overseeing the enforcement and implementation of the Orders by all CBP staff.

24 He is sued in his official capacity.

25

26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 27

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 31 of 98

1 129. Defendant Michele James is the Field Director of the Seattle Field Office of CBP

2 and has responsibility for overseeing the enforcement and implementation of the Orders by all

3 DHS staff in her area, which covers Washington State. She is sued in her official capacity.

4 130. Defendant Office of the Director of National Intelligence is a cabinet department

5 of the United States federal government that serves as the head of the U.S. Intelligence

6 Community, overseeing and directing the implementation of the National Intelligence Program

7 and acting as the principal advisor to the President, the National Security Council, and the

8 Homeland Security Council for intelligence matters related to national security.

9 131. Defendant Daniel Coats is the Director of the Office of the Director of National

10 Intelligence and has responsibility for overseeing the enforcement and implementation of the

11 Orders. He is sued in his official capacity.

12
13 A.
14

IV. FACTUAL BACKGROUND President Trump’s January 27, 2017 Original Executive Order

15

132. On January 27, 2017, Defendant Trump signed EO-1 entitled, “Protecting the

16 Nation from Foreign Terrorist Entry into the United States.” A copy of EO-1 is attached to this

17 Complaint as Exhibit A.

18

133. EO-1 cited the threat of domestic terrorism committed by foreign nationals and

19 purported to direct a variety of changes to the manner and extent to which non-citizens may seek

20 and obtain admission to the United States.

21

134. Section 3(c) of EO-1 suspended immigrant and nonimmigrant entry into the

22 country for 90 days for all people from countries referred to in section 217(a)(12) of the INA, 8

23 U.S.C. § 1187(a)(12), with narrow exceptions not relevant here. EO-1 applied only to nationals

24 of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen (the “Original Targeted Countries”).10

25

26 10 Fact Sheet: Protecting the Nation from Foreign Terrorist Entry to the United States, U.S. Dep’t of Homeland Sec.
(Jan. 29, 2017), http://bit.ly/2kII8MQ (last visited Nov. 2, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 28

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 32 of 98

1 The ban applied regardless of whether such persons held valid visas and regardless of whether
2 their visas were immigration or non-immigration related.
3 135. Section 5(a) suspended the USRAP for 120 days.
4 136. Section 5(b) stated that “refugee claims made by individuals on the basis of
5 religious-based persecution, provided that the religion of the individual is a minority religion in
6 the individual’s country of nationality” will be prioritized.
7 137. Section 5(c) contained as its statement of government interest a proclamation that
8 “the entry of nationals of Syria as refugees is detrimental to the interests of the United States,”
9 and suspends the entry of Syrian refugees into the country.
10 138. Section 5(e) provided for nearly unfettered individual discretion by the Secretaries
11 of State and Homeland Security to “jointly determine to admit individuals . . . as refugees on a
12 case-by-case basis, in their discretion, but only so long as they determine that the admission of
13 such individuals as refugees is in the national interest—including when the person is a religious
14 minority in his country of nationality facing religious persecution.”
15 139. EO-1 stated that “the United States should not admit those who engage in acts of
16 bigotry or hatred (including . . . the persecution of those who practice religions different from
17 their own)” and yet it singled out practitioners of a single religion for exclusion.
18 1. Chaos, Confusion, and Whiplash in the Implementation of EO-1
19

20

140. The disastrous effects of EO-1 were immediately apparent. Countless news

21 reports document the chaotic scene at airports across the country as those who were legally

22 entitled to entry when they boarded airplanes heading to the United States—refugees,

23 immigrants, and those traveling on non-immigrant visas alike—were designated deportable by

24 the time they landed. For example, 109 travelers from the Original Targeted Countries on non-

25 immigrant visas were in transit to the country at the time EO-1 was signed.11 Up to thirteen

26 11 Jeremy Diamond & Steve Almasy, Trump’s Immigration Ban Sends Shockwaves, CNN (Jan. 30, 2017),
http://cnn.it/2kyKYRb (last visited Nov. 2, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 29

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 33 of 98

1 people were detained at the Seattle-Tacoma International Airport on January 28, 2017, pursuant
2 to EO-1.12 3
141. Application of EO-1 was inconsistent and confusing, with contradictory official 4
statements issued within days of one another—further heightening Plaintiffs’ reasonable and on5
going fear that if they left the country, they would not be permitted to return to their work and 6
studies. 7
142. For example, the Secretary of Homeland Security reportedly received his first full 8 briefing on EO-1 as the President signed it,13 resulting in DHS’s position on the application of 9
EO-1 to lawful permanent residents, or green card holders, changing three times over the course 10
of six days following the issuance of EO-1: 11

12

• On January 28, 2017, a spokesperson for DHS stated that lawful permanent

residents, or green card holders, would be barred from entry pursuant to EO-1.14

13

14

• Secretary Kelly reversed course the next day on January 29, 2017, issuing a statement that: “In applying the provisions of the president’s [EO-1], I hereby

15

deem the entry of lawful permanent residents to be in the national interest.

Accordingly, absent the receipt of significant derogatory information indicating a

16

serious threat to public safety and welfare, lawful permanent resident status will

be a dispositive factor in our case-by-case determinations.”15 17

18

• Two days later on January 31, 2017, CBP issued a statement that, while repeating Secretary Kelly’s January 29, 2017 statement, then stated in the “Questions and

19

20

21

22 12 Liz Jones & Isolde Raftery, Roller Coaster of Heartbreak and Fury at Sea-Tac in Wake of Trump Order, KUOW
23 (Jan. 28, 2017), http://bit.ly/2kH44It (last visited Nov. 2, 2017).
13 Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos,
24 N.Y. Times (Jan. 29, 2017), http://nyti.ms/2k7mNtx (last visited Nov. 2, 2017).

25 14 Doina Chiacu, Green Card Holders Will Need Additional Screening: White House, Reuters (Jan. 28, 2017),
http://reut.rs/2lQlWSC (last visited Nov. 3, 2017).
26 15 Statement by Secretary John Kelly on the Entry of Lawful Permanent Residents into the United States, U.S. Dep’t
of Homeland Sec. (Jan. 29, 2017), http://bit.ly/2khyiRz (last visited Nov. 3, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 30

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 34 of 98

1

Answers” section that the entry of lawful permanent residents would depend on

receipt of a “national interest waiver[] consistent with the provisions of [EO-1].”16

2

3

• DHS changed its position yet again two days later. This time, the February 2, 2017 version of the “Questions and Answers” stated that “[u]nder the recent

4

guidance from the White House . . . [EO-1] issued January 27, 2017, does not

apply to their [lawful permanent residents] entry to the United States.”17

5

6

143. CBP officers were caught unaware and were blindsided, with even managers not

7 seeming to have clear guidance.18 The chief of passenger operations for CBP at John F. Kennedy

8 International Airport admitted, “[w]e are as much in the dark as everybody else.”19

9

144. In addition, according to two State Department officials, most officials at the

10 department first heard of EO-1 through the media.20 On the day Defendant Trump issued EO-1,

11 Deputy Assistant Secretary for Visa Services at the DOS, Edward J. Ramotowski, issued a letter

12 (“Provisional Revocation Letter”) that “provisionally revoke[d] all valid nonimmigrant and

13 immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.” A copy of

14 the Provisional Revocation Letter is attached to this Complaint as Exhibit B.21 But then on

15 February 1, 2017, White House Counsel Donald F. McGahn II—who is not in the chain of

16 command for any of the Executive Departments—issued “Authoritative Guidance,” admitting

17

18

19

20
16 Protecting the Nation from Foreign Terrorist Entry into the United States, U.S. Dep’t of Homeland Sec. (Jan. 31,
21 2017), https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states (last visited
Feb. 1, 2017).
22
17 Q&A for Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States, U.S. Dep’t
23 of Homeland Sec. (Feb. 2, 2017), http://bit.ly/2fWBmBX (last visited Nov. 3, 2017).
24 18 See supra note 11.
19 Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports,
25 Agencies, Reuters (Jan. 28, 2017), http://reut.rs/2ykbmc7 (last visited Nov. 2, 2017).

26 20 See supra note 13.
21 The letter was filed in Louhghalam v. Trump, No. 17-10154 (D. Mass. Jan. 31, 2017), Dkt. # 23-1.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 31

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 35 of 98

1 there was “reasonable uncertainty” surrounding provisions of EO-1 such that he needed to clarify
2 that Sections 3(c) and 3(e) of the Executive Order did not apply to lawful permanent residents.22 3
145. Provisions of EO-1 relating to refugees also were inconsistently interpreted and 4
applied by Defendants, further heightening the need for judicial intervention. 5
146. For example, although Section 5(a) of EO-1 unequivocally stated that “[t]he 6
Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days,” 7
four business days later, on February 2, 2017, and in a reversal of the clear mandate in EO-1, Ms. 8
Lori L. Scialabba, Acting Director of the USCIS, issued a memorandum (“Scialabba Memo”) 9
regarding guidance concerning EO-1 to all USCIS employees that “USCIS will adjudicate 10
Refugee/Asylee Relative Petitions . . . for all beneficiaries, from any country of nationality, 11
currently in the United States . . . .” A copy of the Scialabba Memo is attached to this Complaint 12
as Exhibit C. 13
147. In further contradiction of the clear language of unequivocal suspension of 14
USRAP, DHS instructed that “[a]dditionally, USCIS will continue refugee interviews in 15
jurisdictions where there is a preexisting international agreement related to refugee processing.” 16
148. The Scialabba Memo to USCIS employees also stated that “USCIS will continue 17
refugee interviews when the person is a religious minority in his or her country of nationality 18
facing religious persecution.” 19
149. As summed up by ten former national security, foreign policy, and intelligence 20
officials at the highest levels of the United States government, including John F. Kerry (former 21
Secretary of State), Avril D. Haines (former Deputy National Security Advisor), Lisa O. Monaco 22
(former Assistant to the President for Homeland Security and Counterterrorism and Deputy 23
24
25 22 Memorandum from Donald F. McGahn II - Counsel to the President, to the Acting Secretary of State, the Acting
Attorney General, and the Secretary of Homeland Security (Feb. 1, 2017), http://politi.co/2ioohPF (last visited
26 Nov. 2, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 32

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 36 of 98

1 National Security Advisor), and Susan E. Rice (former National Security Advisor) (collectively
2 referred to as the “Ten National Security Experts”):
3

4

[T]he repeated need for the Administration to clarify confusion after the Order

issued suggest that that Order received little, if any advance scrutiny by the

5

Departments of State, Justice, Homeland Security or the Intelligence Community.

6

Nor have we seen any evidence that the Order resulted from experienced

intelligence and security professionals recommending changes in response to

7

identified threats.

8 Joint Declaration ¶ 7, State v. Trump, No. 17-35105 (9th Cir. Feb. 6, 2017), Dkt. # 28-2 (a copy
9 of the Joint Declaration is attached to this Complaint as Exhibit D).
10

11

2. The Discriminatory Intent Behind EO-1

12 150. EO-1 and the Provisional Revocation Letter applied only to nationals of seven
13 countries, all of which are majority-Muslim: Iraq, Iran, Libya, Somalia, Sudan, Syria, and
14 Yemen.
15 151. EO-1, by its express terms, suspended immigrant and nonimmigrant entry into the
16 United States based on nationality, place of birth, or place of residence.
17 152. The Provisional Revocation Letter similarly revoked “all valid nonimmigrant and
18 immigrant visas of nationals” based on nationality, place of birth, or place of residence.
19 153. EO-1 was Defendant Trump’s fulfillment of a clearly stated campaign promise to
20 ban Muslims from entering the United States. In a December 7, 2015 written statement, “Donald
21 J. Trump Statement on Preventing Muslim Immigration,” then-candidate Trump said that he was
22 “calling for a total and complete shutdown of Muslims entering the United States.” While the
23 statement was briefly removed due to a glitch post-election, the statement was returned to the
24

25

26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 33

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 37 of 98

1 website and displayed on the official Trump-Pence website through the morning of May 8,
2 2017.23 3
154. When questioned about the “shutdown,” and asked whether a customs agent 4
would ask a person his or her religion, then candidate Trump responded, “They would say, are 5
you Muslim?” The interviewer then asked, “And if they said yes, they would not be allowed in 6 the country?” “That’s correct,” Mr. Trump responded.24 7
155. Defendant Trump repeatedly referred to a ban on Muslim immigration on the 8 campaign trail.25 Defendant Trump stoked fears regarding Muslims to justify the ban, making 9
claims like, “I think Islam hates us. . . . There’s a tremendous hatred. . . . There’s an unbelievable 10
hatred of us” and “we can’t allow people coming into this country who have this hatred of the 11 United States, and of people that are not Muslim.”26 12
156. Defendant Trump also indicated that he knew that he would need to find an 13
alternative way to describe the Muslim ban. In response to a question on the July 17, 2016 14
episode of 60 Minutes about the evolution of his earlier rhetoric of an outright ban on Muslim 15
immigration to a ban on persons from territories that have a Muslim majority, the following 16
exchange took place: 17

18

Stahl: [I]n December, you [i.e., Pence] tweeted, and I quote you, “Calls to ban

Muslims from entering the U.S. are offensive and unconstitutional.” 19

20

21 23 See supra note 2; Emily Flitter, Glitch Briefly Removes ‘Muslim Ban’ Proposal from Trump Website, Reuters
(Nov. 10, 2016), http://reut.rs/2z4DQ77 (last visited Nov. 2, 2017); Ann E. Marimow & Robert Barnes, President
22 Trump’s Lawyers on Revised Travel Ban Repeatedly Asked About Campaign Promises, Wash. Post (May 8, 2017),
http://wapo.st/2z10rUr (last visited Nov. 2, 2017).
23 24 Nick Gass, Trump Not Bothered by Comparisons to Hitler, Politico (Dec. 8, 2015), http://politi.co/1XYTrc8 (last 24 visited Nov. 2, 2017).
25 Donald J. Trump (@realDonaldTrump), Twitter (Dec. 7, 2015, 2:32 PM), http://bit.ly/2zlS4n1 (last visited Nov.
25 2, 2017); Jenna Johnson, Trump Calls for ‘Total and Complete Shutdown of Muslims Entering the United States,’
Wash. Post (Dec. 7, 2015), http://wpo.st/O0uY2 (last visited Nov. 2, 2017).
26 26 David Sherfinski, Donald Trump: ‘I Think Islam Hates Us,’ Wash. Post (Mar. 10, 2016), http://bit.ly/1R99PJn
(last visited Nov. 2, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 34

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 38 of 98

1

Trump: So you call it territories. OK? We’re gonna do territories. We’re gonna

not let people come in from Syria that nobody knows who they are. 2

. . . 3

4

Stahl: [S]o you’re changing . . . your position.

5

Trump: —No, I—call it whatever you want. We’ll call it territories, OK?

6

Stahl: So not Muslims?

7

Trump: You know—the Constitution—there’s nothing like it. But it doesn’t

necessarily give us the right to commit suicide, as a country, OK? And I’ll tell

8

you this. Call it whatever you want, change territories [sic], but there are

9

territories and terror states and terror nations that we’re not gonna allow the people to come into our country.27

10

157. Seven days later in response to a question on NBC’s Meet the Press about 11

whether his acceptance speech at the Republican National Convention was a rollback on his 12

position, Defendant Trump reiterated the point when he replied: 13

14

I don't think so. I actually don’t think it’s a rollback. In fact, you could say it’s an

15

expansion. I’m looking now at territory. People were so upset when I used the

word Muslim. Oh, you can't use the word ‘Muslim.’ Remember this. And I’m

16

okay with that, because I’m talking territory instead of Muslim . . . .28

17 158. After the election, on December 22, 2016, a reporter asked Defendant Trump
18 whether his “plans to create a Muslim register or ban Muslim immigration to the United States”
19 had changed. Defendant Trump responded “[y]ou known my plans” and that he was “100%
20 correct” in his position.29
21

22

23
27 Lesley Stahl, The Republican Ticket: Trump and Pence, CBS News (July 17, 2016), http://cbsn.ws/29NrLqj (last
24 visited Nov. 3, 2017).

25 28 Rebecca Shabad, Donald Trump Says He’s Expanding His Muslim Ban, CBS News (July 25, 2016),
http://cbsn.ws/2zU3pXG (last visited Nov. 3, 2017).
26 29 Katie Reilly, Donald Trump on Proposed Muslim Ban: ‘You Know My Plans,’ Time (Dec. 21, 2016),
http://ti.me/2hsjgWD (last visited Nov. 3, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 35

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 39 of 98

1 159. After reading the title of EO-1 when signing it, Defendant Trump said, “[w]e all

2 know what that means.”30

3 160. On the day Defendant Trump issued EO-1, he gave an interview to the Christian

4 Broadcasting Network during which he confirmed his intent to prioritize non-Muslims nationals

5 over Muslim nationals of those countries:

6

They’ve been horribly treated. Do you know if you were a Christian in Syria it

7

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

8

and the reason that was so unfair, everybody was persecuted in all fairness, but

9

they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair.31

10
161. Consistent with Defendant Trump’s expressed intent to favor Christians, Section 11
5(e) of EO-1 authorized the Secretaries of the Departments of State and Homeland Security to 12
admit individuals who are members of “a religious minority in [their] count[ries] of nationality 13
facing religious persecution.” This provision directly grants Christians preference over Muslim 14
refugees. 15
162. During a signing ceremony for EO-1 on January 27, 2017, Defendant Trump 16
stated that the purpose of EO-1 was to “establish[] new vetting measures to keep radical Islamic 17
terrorists out of the United States of America.”32 18
163. Senior advisors to Defendant Trump have engaged in anti-Muslim rhetoric that 19
provide additional support for the notion that EO-1 was prompted by animus toward Islam and 20
Muslims. 21

22

23
30 Transcript of ceremonial swearing in of James Mattis as Secretary of Defense, CNN (Jan. 27, 2017),
24 http://cnn.it/2lAhK9l (last visited Nov. 3, 2017).

25 31 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 (last visited Nov. 3, 2017).
26 32 Dan Merica, Trump Signs Executive Order to Keep out ‘Radical Islamic Terrorists,’ CNN (Jan. 30, 2017),
http://cnn.it/2jeLXsW (last visited Nov. 3, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 36

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 40 of 98

1 164. In an interview on January 28, 2017, one of Defendant Trump’s senior advisors,
2 Rudolph Giuliani, left no doubt that the ban on entry from nationals of the Original Targeted
3 Countries was intended to carry out a ban on Muslims, and that EO-1 was crafted to create a
4 pretextual cover for a Muslim ban. Mr. Giuliani stated: “I’ll tell you the whole history of it . . . .
5 So, when [Defendant Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He
6 said, ‘Put a commission together. Show me the right way to do it legally.’”33 7
165. On January 29, 2017, an anonymous “senior administration official” briefed a 8
staffer of Breitbart on the intended purpose of EO-1: “The reality, though, is that the situation [of 9
large Islamic populations] that exists today in parts of France, in parts of Germany, in Belgium, 10 etcetera, is not a situation we want replicated inside the United States.”34 11
166. Defendant Trump subsequently tried to deny that EO-1 was “a Muslim ban, as the 12 media [was] falsely reporting.”35 However, his own prior conflicting, recorded statements as well 13
as those of his senior advisors make clear that EO-1 was, in fact, to ban Muslims from entering 14
the United States. 15

16 B. President Trump’s March 6, 2017 Executive Order

17 167. During a February 16, 2017 news conference, Donald Trump twice declared that
18 he would follow through on his campaign promise of a Muslim ban, albeit changing his
19 terminology to “radical Islamic terrorists”:
20

21

• “Some of the things I’m doing probably aren’t popular but they’re necessary for

security and for other reasons. . . . I’m here following through on what I pledged

22

to do.”

23
33 Amy B. Wang, Trump Asked for a ‘Muslim Ban,’ Giuliani Says – and Ordered a Commission to Do It ‘Legally,’
24 Wash. Post (Jan. 29, 2017), http://wpo.st/xzuY2 (last visited Nov. 3, 2017).
25 34 Neil Munro, Left Protests While Trump Junks Obama’s Global Immigration Plan, Breitbart (Jan. 30, 2017),
http://bit.ly/2jvJZEA (last visited Nov. 3, 2017).
26 35 Press Release, President Donald J. Trump Statement Regarding Recent Executive Order Concerning Extreme
Vetting (Jan. 29, 2017), http://bit.ly/2ku5mWI (last visited Nov. 3, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 37

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 41 of 98

1

• “We have taken decisive action to keep radical Islamic terrorists out of our

2

country. No parts are necessary and constitutional actions were blocked by

3

judges, in my opinion, incorrect, and unsafe ruling [sic]. . . . I got elected on

defense of our country. I keep my campaign promises, and our citizens will be

4

very happy when they see the result. They already are, I can tell you that. Extreme

vetting will be put in place and it already is in place in many places.36

5

6

168. Defendant Trump also announced during the news conference that he would be

7 “issuing a new executive action next week that will comprehensively protect our country. . . .

8 That will be done sometime next week, toward the beginning or middle at the latest part.”37

9 Defendant Trump did not issue a new order that following week.

10

169. On February 21, 2017, Stephen Miller, Senior Advisor to the President, described

11 the administration’s plans with regard to EO-2: “Fundamentally, you’re still going to have the

12 same basic policy outcome for the country, but you’re going to be responsive to a lot of very

13 technical issues that were brought up by the court and those will be addressed. But in terms of 14 protecting the country, those basic policies are still going to be in effect.”38

15

170. While the White House indicated that the new order would be signed on March 1,

16 2017—the day after Defendant Trump’s first address to Congress on February 28, 201739—the

17 signing of the new order was delayed yet again.

18

171. On February 28, 2017, an administration official told a news outlet that the delay

19 was due to the busy news cycle, that Defendant Trump wanted it to get plenty of attention, and 20 “[w]e need [the executive order] to have its own time to breathe.”40

21

22 36 Full Transcript: President Donald Trump’s News Conference, CNN (Feb. 17, 2017), http://cnn.it/2loVltG (last
visited Nov. 3, 2017).
23 37 Id.

24 38 See supra note 1.

25 39 Justin Fishel, New Trump Order on Travel and Immigration Expected Wednesday, ABC News (Feb. 28, 2017),
http://abcn.ws/2m5tpvy (last visited on Nov. 3, 2017).
26 40 Shane Goldmacher & Nahal Toosi, Trump Delays Signing New Travel Ban Order, Officials Say, Politico (Feb.
28, 2017), http://politi.co/2zdFZgR (last visited Nov. 3, 2017).

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 42 of 98

1 172. On March 1, 2017, another senior administration official told a different news
2 outlet that Defendant Trump delayed plans to sign a reworked travel ban in the wake of positive
3 reaction to his first address to Congress, explaining that “[w]e want the (executive order) to have
4 its own ‘moment.’”41 5
173. Five days later, on March 6, 2017, Defendant Trump signed EO-2 that has the 6
exact same title as EO-1, “Protecting the Nation from Foreign Terrorist Entry into the United 7
States.” A copy of EO-2 is attached to this Complaint as Exhibit E. 8
174. Although EO-2 was designed to appear facially neutral, Defendants cannot erase 9
the history or facts preceding its issuance, see supra Section IV.A.2., the taint of the 10
discriminatory motivation behind it, id., or the complete arbitrariness of its requirements. See 11
infra Section IV.E. 12
175. Indeed, Defendant Trump has openly promoted that EO-2 was his continued 13
fulfillment of his campaign promises. For example, on the day Defendant Trump signed EO-2, 14
he sent a fundraising email requesting support for EO-2 because he was “implement[ing] the 15 policies you—and millions of American like you—voted for.”42 And at a press conference the 16
next day on March 7, 2017, White House Press Secretary Sean Spicer confirmed that with the 17
issuance of EO-2, Defendant Trump was “deliver[ing]” on one of his “most significant campaign 18 promises: protecting the country against radical Islamic terrorism.”43 19
176. At a March 15, 2017 rally, Defendant Trump admitted that EO-2 is just a 20
“watered-down version” of his first travel ban that had been “tailor[ed]” by lawyers in response 21

22 41 Laura Jarrett, Ariane de Vogue & Jeremy Diamond, Trump Delays New Travel Ban After Well-Reviewed Speech,
CNN (Mar. 1, 2017), http://cnn.it/2xWv1ur (last visited Nov. 3, 2017); Marina Feng, Pence Says Trump’s Revised
23 Immigration and Travel Ban Coming ‘In a Few Days,’ Huffington Post (Mar. 1, 2017), http://bit.ly/2zi6jsb (last
visited Nov. 3, 2017).
24 42 Matt Zapotosky, David Nakamura, & Abigail Hauslohner, Revised Executive Order Bans Travelers from Six 25 Muslim-Majority Countries from Getting New Visas, Wash. Post (Mar. 6, 2017), http://wapo.st/2AhQqju (last
visited Nov. 3, 2017).
26 43 Press Briefing by Press Secretary Sean Spicer, 3/7/2017, #18, White House (Mar. 7, 2017),
http://bit.ly/2mW39oB (last visited Nov. 3, 2017).

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 43 of 98

1 to prior legal challenges but that he thought “we ought to go back to the first one and go all the
2 way, which is what I wanted to do in the first place.”44 3
177. And as recently as April 24, 2017, Defendant Trump once again revealed his true 4
motivation for EO-2. During a White House reception for conservative media guests, Defendant 5 Trump stated “I’m Christian,”45 noted that “he had done very well with Christian voters in the 6 election,”46 reiterated that “[n]obody’s been treated worse, it seems to me, than Christians in the 7 Middle East,”47 and once again argued that that it was easier for Muslims to come into the United 8 States as refugees than Christians while it was far more dangerous for Christians there.48 He then 9 declared, “[w]e’re going to be helping the Christians big league.”49 10
178. Section 13 of EO-2, revoked EO-1 as of the effective date of EO-2, which was set 11 to take effect on March 16, 2017.50 12
179. EO-2 shares two fundamental features with EO-1: (1) it continues to violate the 13
rights of non-immigrants who need to renew their visas, and (2) it continues to violate the rights 14
of refugees and asylees seeking to reunite with family members who have already cleared all 15
security hurdles. 16

17 44 Cathleen Decker, Trump Embraces the Blame Game, While Brushing Aside Some Inconvenient Realities, L.A.
Times (Mar. 16, 2017), http://lat.ms/2h25461 (last visited Nov. 3, 2017).

18 45 Scott Johnson, At the White House with Trump, Power Line (Apr. 25, 2017), http://bit.ly/2ziHMTJ (last visited

19 Nov. 3, 2017).
46 Id.
20 47 Charlie Spiering, Donald Trump Invites Conservative Media to White House for Exclusive Briefing, Breitbart

21 (Apr. 24, 2017), http://bit.ly/2pcB4Ys (last visited Nov. 3, 2017).

48 Id.
22
49 Id.

23 50 On March 15, 2017, the Honorable Derrick Watson of the United States District Court for the District of Hawai‘i

24

temporarily enjoined the implementation of Sections 2 and 6 of EO-2, Order Granting Motion for Temporary Restraining Order, Hawai‘i v. Trump, No. 17-50 (D. Haw. Mar. 15, 2017), Dkt. # 219, and converted the

25

temporary injunction into a preliminary injunction on March 29, 2017. Order Granting Motion to Convert Temporary Restraining Order to a Preliminary Injunction, Hawai‘i (Mar. 29, 2017), Dkt. # 270. Section 2(c) of

26

EO-2 was also enjoined by the Honorable Theodore D. Chuang of the United States District Court for the District of Maryland on March 15, 2017. Memorandum Opinion, IRAP v. Trump, No. 17-361 (D. Md. Mar. 16, 2017),

Dkt. # 149.

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 44 of 98

1 180. Six of the seven countries targeted in EO-1 are still targeted by EO-2. Sections
2 1(f) and 2(c) of EO-2 suspend entry into the United States by the nationals of Iran, Libya,
3 Somalia, Sudan, Syria, and Yemen for ninety days from the effective date of EO-2.
4 181. All six banned countries have overwhelmingly Muslim populations.
5 182. Section 2(c) of EO-2 suspends for ninety days the entry into the United States of
6 nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.
7 183. Pursuant to Section 2(e) of EO-2, at the end of the ninety-day ban, the Secretary
8 of Homeland Security shall submit to the President a list of countries recommended for inclusion
9 in a Presidential proclamation that would prohibit the entry of categories of foreign nationals of
10 countries that have not provided the requested information until they do so or until the Secretary
11 of Homeland Security certifies that the country has an adequate plan to do so, or has adequately
12 shared information through other means. The names of additional countries may also be
13 submitted to the President.
14 184. Section 3 of EO-2 explains the scope of the order and provides for certain
15 “exceptions” and potential “waivers” to the travel ban. This waiver provision is of little solace in
16 light of statements and actions taken by Defendants in support of a Muslim ban, such as
17 Defendant Trump’s prior statement that a person who admitted being a Muslim should be denied
18 entry into the country. See supra ¶ 154.
19 185. Defendant Trump’s message and intent of the travel ban has clearly been heard by
20 those with the discretion to admit people into this country and already used to harass Muslims or
21 those perceived to be Muslim at our borders. For example:
22

23

• On February 4, 2017, a woman from the Montreal suburb of Brossard was

“denied entry into the U.S. after being fingerprinted, photographed and

24

questioned in detail about her religion and her views on U.S. President Donald

25

Trump.”51

26 51 Steve Rukavina, Canadian Woman Turned Away from U.S. Border After Questions About Religion, Trump, CBC
News (Feb. 8, 2017), http://bit.ly/2kU80ES (last visited Nov. 3, 2017).

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 45 of 98

1

• On February 7, 2017, the CBP held Muhammad Ali Jr., the son of the late

2

legendary boxer, as well as his mother for questioning in a Florida airport

3

because of their Arabic-sounding names, repeatedly asking them, “[w]here did you get your name from?” and “[a]re you a Muslim?”52

4

• On or about February 27, 2017, a Canadian doctor originally from Afghanistan

5

was held for over five hours at the United States border and questioned about his

“tribal chief,” “his life in Afghanistan, the family he had left behind and whether

6

he had seen ‘a lot of gunmen’ while growing up there.”53

7 • On April 23, 2017, Dr. Osman “Ozzie” Ahmed, a former NASA shuttle mission

8

physician and a United States citizen since 1991, who is an approved "low-risk"

traveler, had his passport taken from him and was detained for about an hour by

9

CBP officers upon his arrival at Tampa International Airport due to his Muslim

10

name and birthplace (Egypt).54

11

• On April 24, 2017, American composer Mohammed Fairouz was detained for

nearly four hours at John F. Kennedy International Airport with the only reason

12

given to him for his detention being his Muslim name.55

13 These examples demonstrate that any waiver process is in grave danger of being
14 administered in a discriminatory fashion.
15 186. Neither EO-1 nor EO-2 single out any countries for disfavored treatment that are
16 not majority-Muslim.
17 187. Section 6(a) of EO-2 suspends all decisions on applications for refugee status as
18 well as travel of refugees into the United States for 120 days. The suspension required in Section
19 6 does not apply to refugee applicants who, before the effective date of EO-2, have been
20 formally scheduled for transit by the DOS.
21

22 52 Jennie Jarvie, Muhammed Ali’s Son May Sue After Being Detained at Florida Airport and Questioned About His
23 Religion, L.A. Times (Feb. 25, 2017), http://lat.ms/2lVV9Ts (last visited Nov. 3, 2017).
53 Ashifa Kassam, Afghan-Canadian Doctor Detained at US Border and Asked About ‘Tribal Chief,’ Guardian
24 (Mar. 1, 2017), http://bit.ly/2iYrnxK (last visited Nov. 3, 2017).

25 54 Christopher O’Donnell, Former NASA Doctor Says He Was Detained at TIA Because of His Muslim Name,
Tampa Bay Times (Apr. 29, 2017), http://bit.ly/2xYzs82 (last visited Nov. 3, 2017).
26 55 Kristine Phillips, American Composer Says He Was Detained at JFK Because of His ‘Super Common’ Muslim
Name, Wash. Post (May 2, 2017), http://wapo.st/2j0Fgvn (last visited Nov. 3, 2017).

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 46 of 98

1 188. Section 6(c) allows the Secretary of State and the Secretary of Homeland Security
2 to jointly determine to admit individuals to the United States as refugees on a case-by-case basis.
3 Like the waiver provision in Section 3 of the EO-2, the procedure set forth in section 6(e) is of
4 little comfort as Defendant Trump continues to make it clear that his intent is “‘to be helping the
5 Christians big league.’”56 6
189. Refugees or asylees who seek to have a family member(s) join them in the United 7
States must file Refugee/Asylee Relative Petitions (Form I-730). However, EO-2 will suspend all 8
decisions on these petitions as well as travel for these family members. 9
190. On March 6, 2017, the DHS issued a “Q&A: Protecting the Nation from Foreign 10
Terrorist Entry to The United States.” A copy of the Q&A is attached to this Complaint as 11
Exhibit F. The Q&A provides: 12

13

Q27. Can the exception for refugee admission be used for Refugee/Asylee

Relative Petitions (Form I-730) cases where a family member is requesting a

14

beneficiary follow to join?

15

No. Individuals who already have valid visas or travel documents that permit

16

them to travel to the United States are exempt from the Executive Order. To the

extent that an individual does not yet have such documents, please contact the

17

Department of State.

18

191. Defendant Tillerson issued a series of diplomatic cables implementing EO-2,57

19 including a March 10, 2017 State Department Cable, 17 STATE 23338, with the subject, “New

20 Executive Order 13780: Protecting the Nation from Foreign Terrorist Entry Into the United

21 States - Guidance to Visa-Issuing Posts” (“Cable 23338”). A copy of Cable 23338 is attached to

22 this Complaint as Exhibit G. The “guidance” in these cables include mandatory orders regarding

23 implementation of EO-2 and thus constitute final agency action.

24

25 56 See supra note 47.
57 Yeganeh Torbati, Mica Rosenberg & Arshad Mohammed, Exclusive: U.S. Embassies Ordered to Identify
26 Population Groups for Tougher Visa Screening, Reuters (Mar. 23, 2017), http://reut.rs/2j1wdtR (last visited Nov.
3, 2017).

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 47 of 98

1 192. For example, Section 16 of Cable 23338 orders agency employees to suspend the
2 processing of V93 cases:
3

4

16. (SBU) The U.S. Refugee Admissions Program (USRAP) is suspended for 120

days. This includes the processing of boarding foils for any V93 cases, regardless

5

of nationality, since those follow-to-join cases are admitted to the United States as

6

refugees. After receiving cable instructions to implement the new E.O., posts should halt the issuance of these cases immediately and cancel any scheduled V93

7

appointments. [The National Visa Center] will halt the processing of all V93

cases and will not forward these cases to posts. The Department will notify posts

8

when the suspension is lifted.

9 193. “V93 cases” refers to the follow-to-join I-730 petitions filed by refugees such as
10 Plaintiffs James Doe and Joseph Doe for their spouses and unmarried children.
11 194. While EO-1 suspended USRAP for 120 days, EO-2 contains slightly different
12 language, specifically suspending travel of refugees into the United States under USRAP as well
13 as decisions on applications for refugee status. However, the cable states that USRAP “is
14 suspended for 120 days.”
15 195. In ordering agency employees to halt the processing of V93 cases and cancel any
16 scheduled V93 appointments, Defendant Tillerson exceeded his authority under the law and
17 failed to fulfill the requirements of the APA.
18

19 C. President Trump’s September 27, 2017 Proclamation

20 196. On September 24, 2017, Defendant Trump issued EO-3 titled, “Enhancing
21 Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by
22 Terrorists or Other Public-Safety Threats.” A copy of EO-3 is attached to this Complaint as
23 Exhibit H.
24 197. EO-3 states that a worldwide review of what additional information would be
25 needed from each foreign country to assess adequately whether their nationals seeking to enter
26 the United States pose a security or safety threat resulted in a determination that “a small number

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 48 of 98

1 of countries…remain deficient at this time with respect to their identity-management and
2 information-sharing capabilities, protocols, and practices.” Unlike EO-1 and EO-2, EO-3
3 removes most of the prior emphasis on terrorism, instead focusing on identity management and
4 information sharing.
5 198. According to Section 1(e), the identity-management protocols, information
6 sharing practices, and risk factors of sixteen countries were identified as “inadequate” and thirty-
7 one additional countries were classified as “at risk” of becoming “inadequate” based upon these
8 same criteria. EO-3 does not identify the sixteen countries that were identified as “inadequate” or
9 the thirty-one countries that were classified as “at risk” of becoming “inadequate.”
10 199. However, according to Section 1(g), “Iraq did not meet the baseline” for the kinds
11 of information required from foreign governments to support the United States government’s
12 ability to confirm the identity of individuals seeking entry into the country (“Baseline
13 Requirements”). Yet, no blanket ban is being imposed upon nationals from Iraq seeking
14 immigrant or non-immigrant visas; rather, nationals of Iraq will “be subject to additional scrutiny
15 to determine if they pose risks to the national security or public safety of the United States.”
16 200. On the other hand, according to Section 2(h)(i), Somalia was determined to satisfy
17 the Baseline Requirements, yet nationals of Somalia seeking immigration visas continue to be
18 indefinitely and categorically banned, per Section 2(h)(ii).
19 201. As stated by 49 former national security, foreign policy, and intelligence officials
20 at the highest levels of the United States government, EO-3 does not impose any categorical
21 restrictions on nationals of non-Muslim majority countries such as Belgium, a country with
22 “widely-documented problems with information sharing, and whose nationals have carried out
23 terrorist attacks on Europe.” Joint Declaration of Former National Security Officials (“Statement
24 of 49 Former National Security Officials”) ¶ 12, State v. Trump, No. 17-141 (W.D. Wash. Oct.
25 11, 2017), Dkt. # 194-18 (a copy of the Statement of 49 Former National Security Officials is
26 attached to this Complaint as Exhibit I).

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1 202. Sections (2)(a)-(c), (e), and (g)-(h) of EO-3 indefinitely suspends the entry of
2 immigrants from Chad, Iran, Lybia, Syria, Yemen, and Somalia. All six of these countries have
3 Muslim-majority populations.58 4
203. Sections (2)(a)-(c), (e), and (g)-(h) of EO-3 impose restrictions on the issuance of 5
nonimmigrant visas to nationals of the Muslim-majority countries Chad, Iran, Lybia, Syria, 6
Yemen, and Somalia: It bans the issuance of all nonimmigrant visas to nationals of Syria; bans 7
the issuance of all nonimmigrant visas except student (F and M) and exchange (J) visas to 8
nationals of Iran; and bans the issuance of business (B-1), tourist (B-2), and business/tourist (B9
1/B-2) visas to nationals of Chad, Libya, and Yemen. While nationals of Somalia seeking non10
immigrant visas are not banned, they will be subject to additional scrutiny. The non-immigrant 11
visas that have been banned are the most frequently used non-immigrant visas from these 12
nations. Ex. I, Statement of 49 Former National Security Officials ¶ 12. 13
204. Section 2(d) of EO-3 restricts entry into the United States of nationals of North 14
Korea who are not permitted to emigrate outside of their country, particularly to the United 15
States. This provision will affect very few people. In 2016, the United States only issued one 16
hundred visas to North Koreans, forty-two of which were diplomatic visas that are exempt from 17 EO-4.59 18
205. Section 2(f)(ii) of EO-3 suspends the entry of a very small number of nationals of 19
Venezuela, only affecting “officials of government agencies of Venezuela involved in screening 20
and vetting procedures . . . and their immediate family members” as nonimmigrants on business 21
and tourist visas. 22

23

24 58 See Pew-Templeton Global Religious Futures Project, Religious Demography: Affiliation (2010), 25 http://bit.ly/2zcED5U (search country profiles for Chad, Iran, Libya, Syria, Yemen, and Somalia) (last visited Nov.
3, 2017).
26 59 Emily Rauhala, Almost No North Koreans Travel to the U.S., so Why Ban Them?, Wash. Post (Sept. 25, 2017),
http://wapo.st/2hbNvUO (last visited Nov. 3, 2017).

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 50 of 98

1 206. Section 7(b) mandates that the restrictions will apply to nationals of Iran, Libya,
2 Syria, Yemen, and Somalia including those who have a bona fide relationship with a person or
3 entity in the United States as of 12:01 a.m. eastern daylight time on October 18, 2017.
4 207. Section 3 of EO-3 explains the scope of the order and provides for certain
5 “exceptions” and potential “waivers” to the travel ban. For the reasons previously explained in
6 this Complaint, Plaintiffs have little reason to believe the waivers will be applied in a fair and
7 non-discriminatory manner to them. Further on October 23, 2017, USCIS of Defendant DHS
8 issued a Policy Memorandum rescinding a prior Policy Memorandum that had been in place
9 since August 17, 2015, that gave deference to prior determinations for extension of
10 nonimmigrant status except where there had been a prior material error, a substantial change in
11 circumstances, or there was new material information impacting the individual’s eligibility.60 12
208. The bans on the nationals of these Muslim-majority countries is categorical 13
without regard to the individual’s age, health, or connection with the designated country. For 14
example, EO-3 does not take into consideration if a national of a banned country has never 15
resided in or visited their country of origin. 16

17 D. 18

President Trump’s October 24, 2017 Executive Order and Agency Implementation of the Order

19

209. On October 23, 2017, Defendants Tillerson, Duke, and Coats issued a

20 Memorandum to the President titled “Resuming the United States Refugee Admissions Program

21 with Enhanced Vetting Capabilities” (“October 2017 Agency Memo”); the next day, Defendant

22 Trump signed EO-4, Executive Order 13815 titled “Resuming the United States Refugee

23 Admissions Program with Enhanced Vetting Capabilities.” A copy of the October 2017 Agency

24 Memo and EO-4 are attached to this Complaint as Exhibits J and K.

25

26 60 Policy Memorandum, U.S. Dep’t of Homeland Sec. (Oct. 23, 2017), http://bit.ly/2zicwnN (last visited Nov. 3,
2017).

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 51 of 98

1 210. Pursuant to Section 1(g) of EO-4, the restrictions and limitations of EO-3 “do not
2 apply to those who seek to enter the United States through the USRAP.”
3 211. Sections 2(a)-(b) explain that, after the Administration’s 120-day review of the
4 USRAP application and adjudication process, the heads of three administrative agencies advised
5 the President that the refugee screening process was “generally adequate to ensure the security
6 and welfare of the United States”:
7

8

The Secretary of State, the Secretary of Homeland Security, and the Director of

National Intelligence have advised that the improvements to the USRAP vetting

9

process are generally adequate to ensure the security and welfare of the United

10

States, that the Secretary of State and Secretary of Homeland Security may resume that program, and that they will apply special measures to certain

11

categories of refugees whose entry continues to pose potential threats to the

security and welfare of the United States.

12
. . . 13

With the improvements identified by the section 6(a) working group and

14

implemented by the participating agencies, the refugee screening and vetting

15

process generally meets the uniform baseline for immigration screening and vetting established by the section 5 working group. Accordingly, a general

16

resumption of the USRAP, subject to the conditions set forth in section 3 of this

order, is consistent with the security and welfare of the United States.

17

18

212. Accordingly, Section 2(c) declares that the suspension of USRAP and other

19 processes specified in EO-2 are no longer in effect. EO-4 authorized “the Secretary of State to

20 resume travel of qualified and appropriately vetted refugees into the United States, and the

21 Secretary of Homeland Security to resume adjudicating applications for refugee resettlement.”

22

213. Section 3(a) of EO-4 states that “Presidential action to suspend the entry of

23 refugees under the USRAP is not needed at this time to protect the security and interests of the

24 United States and its people.”

25

214. Despite the conclusion in EO-4 that the suspension of the USRAP program is not

26 needed at this time and already having had at least 120 days to conduct a review of the USRAP

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 52 of 98

1 process, the October 2017 Agency Memo asserts a need for up to an additional 90 days to
2 conduct a threat analysis and review for nationals and stateless persons who last habitually
3 resided in eleven countries on the Security Advisory Opinion (“SAO”) list. The SAO list was
4 established after the September 11th terrorist attacks, and the current list of countries was
5 established in 2015.
6 215. Upon information and belief, SAO List Countries are “Egypt, Iran, Iraq, Libya,
7 Mali, North Korea, Somalia, South Sudan, Sudan, Syria and Yemen, as well as Palestinians who
8 lived in those countries.”61 Most adult male refugees from these countries are already required to 9 undergo higher-level security screening known as SAO’s under previously existing protocols.62 10
All but two of these countries, i.e., North Korea and South Sudan, are Muslim-majority 11 countries.63 12
216. During this review, refugee applicants from other non-SAO countries will be 13
prioritized. Individuals from SAO List Countries may be considered during the review period but 14
only if the person’s “will admit on a case-by-case basis only refugees whose admission is 15
deemed to be in the national interest and poses no threat to the security of welfare of the United 16
States.” Ex. J, October 2017 Agency Memo at 2. In other words, there will be a continued de 17
facto Muslim refugee ban during this additional review period. 18
217. In addition, the October 2017 Agency Memo indefinitely suspends I-730 follow19
to-join admission for the spouse and unmarried children under twenty-one of former refugees 20
residing in the United States until additional security enhancements are in place. According to 21
the addendum to the October 2017 Agency Memo, the additional security enhancements are: 22

23

24
61 Yeganeh Torbati & Mica Rosenberg, Under Trump Plan, Refugees from 11 Countries Face Additional U.S.
25 Barriers, Reuters (Oct. 24, 2017), http://reut.rs/2zBqfmA (last visited Nov. 3, 2017).

26 62 Id.
63 Id.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 49

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 53 of 98

1

(1) ensuring that all following-to-join refugees receive the full baseline

interagency checks that principal refugees receive; (2) requesting submission of

2

the beneficiary's 1-590 application in support of the Form 1-730 petition earlier in

3

the process to provide for more thorough screening; (3) vetting certain nationals or stateless persons against classified databases; and (4) expanding SAO

4

requirements for this population in keeping with the agreed-to expansion for 1-

590 refugee applicants.

5

6

218. The October 2017 Agency Memo neither clarifies who “certain nationals” are nor

7 makes any distinction between processing follow-to-join applications for women and minor

8 children versus spouses who are adult males.

9

219. Defendant Trump lowered the refugee cap in Fiscal Year 2018, which began on

10 October 1, 2017, to 45,000 refugees,64 the lowest number since the program began in 1975.65

11

220. The October 2017 Agency Memo effectively eviscerates any chance refugees

12 from the eleven SAO List Countries—including those who already have fulfilled all the rigorous

13 eligibility requirements—have to get into the queue for the severely limited number of available

14 spots left for refugees.

15

221. The October 2017 Agency Memo also establishes an indefinite ban on derivative

16 refugees seeking non-discretionary admission pursuant to the Immigration & Nationality Act, 8

17 U.S.C. § 1157(c)(2)(A) and who have otherwise fulfilled all requirements, including their

18 medical and security clearances. Even if the ban is eventually lifted, there will necessarily be far

19 fewer spaces left for them as other refugees will be prioritized and using up the severely limited

20 allotment of spots in the interim, leaving Joseph Doe, his wife and children, and others like them

21 hoping for one of the few remaining spots there may be, if any, for before the refugee cap is met.

22

222. The October 2017 Agency Memo is a final agency action from which “legal

23 consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997) (citation omitted).

24

25 64 Statement, President Donald J. Trump is Taking a Responsible and Humanitarian Approach on Refugees, White
House (Sept. 29, 2017), http://bit.ly/2xEHB4x (last visited Nov. 3, 2017).
26 65 Geneva Sands & Conor Finnegan, Trump Administration to Announce Decision on Refugee Program After 120-
Day Ban, ABC News, http://abcn.ws/2i1ijnJ (last visited Nov. 3, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 50

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 54 of 98

1 223. The Agency Memo purports to deprive Plaintiffs of an entitlement, not a benefit.
2 224. The Orders and the manner in which they are being been implemented, in effect,
3 continue the unlawful Muslim Ban.
4 225. Further, the Orders cause individual Plaintiffs and members of the proposed
5 classes direct, ongoing, and immediate harm by causing them to suffer “[t]he indignity of being
6 singled out [by a government] for special burdens’” on the basis of religion or assumed religion.
7 Hassan v. City of New York, 804 F.3d 277, 289 (3d Cir. 2015), as amended Feb. 2, 2016 (quoting
8 Locke v. Davey, 540 U.S. 712, 731 (2004) (Scalia, J., dissenting)).
9 226. The Orders also cause Plaintiffs and members of the Refugee Class direct,
10 ongoing, and immediate harm by preventing them from being reunited with their family
11 members.
12

13 E. The Arbitrariness of the Orders

14 227. Despite repeated claims by Defendants regarding the immediate national security
15 need for the Orders, Defendant Trump took thirty-one days after the time this Court issued the
16 first injunction against EO-1 on February 3, 2017, to issue EO-2. At least five of those days were
17 due purely to timing of press coverage desired by Defendant Trump and had nothing to do with
18 national security.66 Having now had months to review its screening and vetting protocols as well 19
as the refugee admissions process while, in the interim, wreaking havoc on the lives of millions 20
of people, Defendants now attempt to indefinitely bar the issuance of immigrant and non21
immigrant visas to nationals of six Muslim-majority countries and continue the suspension of 22
admission to follow-to-join refugees with the closest of familial ties to residents of this 23
country—all without any genuine national security purpose, 24

25

26
66 See supra note 41.
THIRD AMENDED CLASS ACTION COMPLAINT PAGE 51

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 55 of 98

1

1. Arbitrariness of the Travel Ban

2

a. The Faulty Logic Behind Invoking the 9/11 Attacks to Justify the

Travel Ban 3

4

228. Section 1 of EO-1, entitled “Purpose,” stated that at the time of the September 11,

5 2001 (“9/11”) terrorist attacks, “State Department policy prevented consular officers from

6 properly scrutinizing the visa applications of several of the 19 foreign nationals” involved in

7 those attacks. Further, DHS’s Fact Sheet on EO-1 stated that “[t]he Executive Order protects the

8 United States from countries compromised by terrorism . . . .”67 EO-2 continues to justify the

9 actions of Defendants based on events from 2001. See Ex. E, EO-2 § 1(h).

10

229. Yet, none of the Orders impose any restrictions on nationals of Egypt, Lebanon,

11 Saudi Arabia, or the United Arab Emirates—the countries of which the 9/11 attackers were

12 citizens. A March 9, 2017 Breitbart article stated that ISIS boasted that Saudi Arabia is the top

13 provider of terrorists for its group, citing a high-ranking Iraqi intelligence officer as saying, “The

14 Saudi presence in ISIS is very large. What we have left are mainly Iraqis and Saudis.”68

15

230. According to an article published on CNN, “[i]n financial disclosure forms during

16 the presidential campaign, [Defendant Trump] listed two companies with dealings in Egypt and

17 eight with business in Saudi Arabia. And in the UAE, the Trump Organization is partnering with

18 a local billionaire to develop two golf courses in Dubai.”69

19

231. Ten National Security Experts—all of whom were serving in their official

20 capacities and four of whom “were current on active intelligence regarding all credible terrorist

21 threat streams directed against the U.S,” Ex. D, Joint Declaration ¶ 2, up until January 20, 2017,

22 just seven days prior to the issuance of EO-1 —stating that they were “unaware of any specific

23

24 67 See supra note 10.

25 68 Edwin Mora, Report: More Citizens of Saudi Arabia Have Joined Islamic State Than Any Other Country,
Breitbart (Mar. 9, 2017), http://bit.ly/2nmTHGQ (last visited Nov. 3, 2017).
26 69 Kyle Blaine & Julia Horowitz, How the Trump Administration Chose the 7 Countries in the Immigration
Executive Order, CNN (Jan. 30, 2017), http://cnn.it/2jkjiCC (last visited Nov. 3, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 52

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 56 of 98

1 threat that would justify the travel ban established by [EO-1]” and that “[t]here is no national
2 security purpose for a total bar on entry for aliens from the seven named countries. Id. ¶¶ 3-4.
3 232. These officials who were in office a mere seven days before EO-1 issued “kn[e]w
4 of no interagency process underway before January 20, 2017 to change current vetting
5 procedures, and the repeated need for the Administration to clarify confusion after the Order
6 issued suggest that that Order received little, if any advance scrutiny by the Departments of
7 State, Justice, Homeland Security or the Intelligence Community.” Id. ¶ 7. Nor had the officials
8 seen “any evidence that the Order resulted from experienced intelligence and security
9 professionals recommending changes in response to identified threats.” Id.
10 233. Therefore, in their opinion, EO-1 “c[ould] not be justified on national security or
11 foreign policy grounds.” Id. ¶ 3. They explained that:
12

13

Since September 11, 2001, not a single terrorist attack in the United States has

been perpetrated by aliens from the countries named in the Order. Very few

14

attacks on U.S. soil since September 11, 2001 have been traced to foreign

15

nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens. The Administration has identified no information or basis for

16

believing there is now a heightened or particularized future threat from the seven

named countries. Nor is there any rational basis for exempting from the ban

17

particular religious minorities (e.g., Christians), suggesting that the real target of

the ban remains one religious group (Muslims). In short, the Administration offers

18

no reason why it abruptly shifted to group-based bans when we have a tested

19

individualized vetting system developed and implemented by national security professionals across the government to guard the homeland, which is continually

20

re-evaluated to ensure that it is effective.

21 Id. ¶ 4 (emphasis added).

22 234. These respected civil servants, who have collectively “devoted decades to
23 combatting the various terrorist threats that the United States faces in a dynamic and dangerous
24 world” declared, in their professional opinions, that EO-1 “does not perform its declared task” of
25 “protecting the nation from foreign terrorist entry into the United States,” and instead actually
26 undermined the national security of the United States. Id. ¶¶ 2-3.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 53

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 57 of 98

1 235. Specifically, the Joint Declaration stated that EO-1: (1) will endanger U.S. troops
2 in the field; (2) will disrupt key counterterrorism, foreign policy, and national security
3 partnerships that are critical to addressing the threat posed by terrorist groups such as ISIL;
4 (3) will endanger intelligence sources in the field; (4) will likely feed the recruitment narrative of
5 ISIL and other extremists that portray the United States as at war with Islam; (5) will disrupt
6 ongoing law enforcement efforts; (6) will have a devastating humanitarian impact; and (7) will
7 cause economic damage to American citizens and residents. Id. ¶ 5.
8 236. The Joint Declaration also described pre-existing national security-based
9 immigration restrictions as “consistently [] tailored to respond to: (1) specific, credible threats
10 based on individualized information, (2) the best available intelligence and (3) thorough
11 interagency legal and policy review.” Id. ¶ 6. The document further described:
12

13

Since the 9/11 attacks, the United States has developed a rigorous system of

security vetting, leveraging the full capabilities of the law enforcement and

14

intelligence communities. This vetting is applied to travelers not once, but

15

multiple times. Refugees receive the most thorough vetting of any traveler to the

United States, taking on the average more than a year. Successive administrations

16

have continually worked to improve this vetting through robust information

sharing and data integration to identify potential terrorists without resorting to a

17

blanket ban on all aliens and refugees. Because various threat streams are

18

constantly mutating, as government officials, we sought continually to improve that vetting, as was done in response to particular threats identified by U.S.

19

intelligence in 2011 and 2015. Placing additional restrictions on individuals from

certain countries in the visa waiver program—as has been done on occasion in the

20

past—merely allows for more individualized vettings before individuals with

particular passports are permitted to travel to the United States. 21

22 Id.

23

237. While EO-1 allowed for the Secretaries of State and Homeland Security to agree

24 to admit travelers from these countries on a case-by-case basis, these experts concluded that “in

25 our experience it would be unrealistic for these overburdened agencies to apply such procedures

26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 54

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 58 of 98

1 to every one of the thousands of affected individuals with urgent and compelling needs to
2 travel.” Id. ¶ 5.f.
3 238. On the unprecedented scope of EO-1, these experts wrote:
4

5

We know of no case where a President has invoked his statutory authority to

suspend admission for such a broad class of people. Even after 9/11, the U.S.

6

Government did not invoke the provisions of law cited by the Administration to

7

broadly bar entrants based on nationality, national origin, or religious affiliation.

In past cases, suspensions were limited to particular individuals or subclasses of

8

nationals who posed a specific, articulable threat based on their known actions

and affiliations. In adopting this Order, the Administration alleges no specific

9

derogatory factual information about any particular recipient of a visa or green

10

card or any vetting step omitted by current procedures.

11 Id. ¶ 8.

12

239. Nearly 1,000 current State Department officials formally registered their dissent

13 to EO-1.70 These career diplomats explained:

14

15

A policy which closes our doors to over 200 million legitimate travelers in the

hopes of preventing a small number of travelers who intend to harm Americans

16

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

17

values of nondiscrimination, fair play, and extending a warm welcome to foreign

18

visitors and immigrants. Alternative solutions are available to address the risk of

terror attacks which are both more effective and in line with Department of State

19

and American values.

20

. . .

21

This ban, which can only be lifted under conditions which will be difficult or

impossible for countries to meet, will not achieve its stated aim of to protect the

22

American people from terrorist attacks by foreign nationals admitted to the United

23

States. Despite the Executive Order’s focus on them, a vanishingly small number

of terror attacks on U.S. soil have been committed by foreign nationals who

24

recently entered the United States on an immigrant or nonimmigrant visa. Rather,

the overwhelming majority of attacks have been committed by native-born or 25

26 70 Steve Herman & Nike Ching, Sources: Nearly 1,000 at State Department Officially Dissent on Immigration
Order, VOA News (Jan. 31, 2017), http://bit.ly/2kOEUHR (last visited Nov. 3, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 55

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 59 of 98

1

naturalized U.S. citizens--individuals who have been living in the United States

for decades, if not since birth. In the isolated incidents of foreign nationals

2

entering the U.S. on a visa to commit acts of terror, the nationals have come from

3

a range of countries, including many (such as Pakistan or Saudi Arabia) which are not covered by the Executive Order.

4 . . .

5 Given the near-absence of terror attacks committed in recent years by Syrian,

6

Iraqi, Irani, Libyan, Somalia, Sudanese, and Yemeni citizens who are in the U.S.

in after entering on a visa, this ban will have little practical effect in improving

7

public safety.

8

. . .

9

The end result of this ban will not be a drop in terror attacks in the United States;

10

rather, it will be a drop in international good will towards Americans and a threat

towards our economy.

11

Memorandum, Dissent Channel: Alternatives to Closing Doors in Order to Secure Our 12

13 Borders (Jan. 27, 2017) (a copy of the Dissent Channel is attached to this Complaint as

14 Exhibit L).

15

240. EO-1 failed to cite a scintilla of evidence supporting the need for the travel ban of

16 nationals from the seven originally banned countries. Nor did or could Defendants provide any

17 such support in any of their briefings in the numerous courts where EO-1 was challenged in the
18 weeks following its signing or the time leading up to the issuance of EO-2. This is because
19
Defendants simply do not have the facts to do so. 20

21

b. The Faulty Logic Behind Invoking 2015 Data to Justify the Travel Ban

22

23

241. The best Defendants could do to try and justify EO-2 was to cite to a June 2016

24 DOS Country Report on Terrorism 2015. Ex. E, EO-2 § 1(e). However, according to the report,

25 the majority (i.e., over 55%) of all terrorist attacks took place in five countries that are not

26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 56

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 60 of 98

1 subject to the travel ban—Iraq, Afghanistan, Pakistan, India, and Nigeria.71 In addition, 74% of 2
all deaths due to terrorist attacks took place in five countries—Iraq, Afghanistan, Nigeria, Syria, 3 and Pakistan.72 4
242. Section 1(e) of EO-2 cites facts purportedly demonstrating why the Targeted 5
Countries continue to present heightened risks to security. However, the facts are based on the 6
June 2015 data that is nearly two years old and which were specifically addressed by changes 7 made to the Visa Waiver Program at that time to respond to the specific information.73 8
243. Further, in relying on information for data from two years ago (or more), 9
Defendants ignore more recent data from not only respected research organizations sources but 10
also the United States government’s own national security experts. 11
244. According to a September 2016 report from the Cato Institute, “[i]ncluding those 12
murdered in the terrorist attacks of September 11, 2001 (9/11), the chance of an American 13
perishing in a terrorist attack on U.S. soil that was committed by a foreigner over the 41-year 14 period studied here is 1 in 3.6 million per year.”74 Similarly, the Boston Globe reported in 2016 15
that “a person living in the United States is more than over 100 times more likely to be killed by 16 falling objects than by a jihadi terrorist.”75 Indeed, it appears that in 2016, “Americans were less 17
likely to be killed by Muslim extremists (1 in six million) than for being Muslim (one in one 18 million).”76 19

20
71Country Reports on Terrorism 2015 at 3, Dep’t of Homeland Sec. (June 2016), http://bit.ly/2rtr2lW (last visited
21 Nov. 3, 2017).

22 72 Id.
23 73 8 U.S.C. § 1187; Visa Waiver Program, U.S. Dep’t of State, http://bit.ly/1V9XIeB (last visited Nov. 3, 2017).
74 Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, 798 Pol’y Analysis Cato Inst. 1 (Sept. 13, 2016),
24 http://bit.ly/2hKSGKh (last visited Nov. 3, 2017).

25 75 Graham Allison, Fear Death from Tree Limbs, Not Terrorists, Boston Globe (Feb. 19, 2016),
http://bit.ly/2h4u24A (last visited Nov. 3, 2017).
26 76 Charles Kurzman, Muslim-American Involvement with Violent Extremism, 2016 (Jan. 26, 2017),
http://unc.live/1irAzzi (last visited Nov. 3, 2017).

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 61 of 98

1 245. In the process of creating EO-2, the Office of Intelligence and Analysis within the

2 DHS that is charged with equipping the Homeland Security Enterprise with timely intelligence

3 and information,77 developed a report assessing the international terrorist threat to the United

4 States and worldwide posed by citizens of the seven Original Targeted Countries. Although the

5 report did not assess the risk of domestic terrorism, included in the key findings were:

6

• citizens of the seven Original Targeted Countries were rarely implicated in US-

7

based terrorism;

8 • “country of citizenship is unlikely to be a reliable indicator of potential terrorist

9

activity”; and

10

• Of the at least 82 primarily US-based individuals who died in the pursuit of or

11

were convicted of any terrorism-related federal offense inspired by a foreign terrorist organization since the beginning of the Syrian conflict in March 2011, of

12

the seven Original Targeted Countries, Iran, Sudan, and Yemen had 1 each, and

there were no individuals from Syria.

13

14 Report, Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States, U.S.

15 Dep’t of Homeland Sec. (Feb. 2017) (a copy of the Report is attached to this Complaint as

16 Exhibit M).

17

246. A second, March 1, 2017, Intelligence Assessment announced in its title that

18 “Most Foreign-born, US-based Violent Extremists Radicalized after Entering Homeland . . . ” 19 (“March 1 Intelligence Assessment”)78 also negates the necessity of EO-2’s travel ban. A copy of

20 the March 1 Intelligence Assessment, as it appeared in the MSNBC article, is attached to this

21 Complaint as Exhibit N.

22

247. The March 1 Intelligence Assessment was based on information available as of

23 December 31, 2016. One of the key judgments of the March 1 Intelligence Assessment was that:

24

25 77 Office of Intelligence and Analysis, U.S. Dep’t of Homeland Sec. (last published date June 22, 2017),
http://bit.ly/2iZVWCU (last visited Nov. 3, 2017).
26 78 Rachel Maddow, TRMS Exclusive: DHS Document Undermines Trump Case for Travel Ban, MSNBC (Mar. 2,
2017), http://on.msnbc.com/2mRo5ZF (last visited Nov. 3, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 58

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 62 of 98

1

2

[M]ost foreign-born, US-based violent extremists likely radicalized several years

after their entry to the United States, limiting the ability of screening and vetting

3

officials to prevent their entry because of national security concerns. We base this

4

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

5

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

6

study that found recent foreign-born US violent extremists began radicalizing, on

7

average, 13 years after their entry to the United States further supports our assessment.

8 Id. at 2.

9

10

248. The examples of terrorist activity cited in Section 1(h) of EO-2 only underscore

11 the points raised in all of these reports and statements by national security experts that the travel

12 ban is unnecessary and will be ineffective. The first example cited relates to two Iraqi nationals;

13 yet, EO-2 removed Iraq from the list of targeted countries. The second example was of a native

14 of Somali who had been brought to the United States as a child but then committed the act in

15 question after he had been naturalized as a United States citizen and when he was an adult.

16

249. On March 10, 2017, more than 130 foreign policy and national security experts

17 wrote an open letter to President Trump (“Open Letter”) concluding that EO-2 “suffers from the

18 same core substantive defects as the previous version.” The experts raise the concern that EO-2

19 will “weaken U.S. national security” because it “jeopardize[s] our relationships with allies and

20 partners on whom we rely for vital counterterrorism cooperation and information sharing. To

21 Muslims—including those victimized by or fighting against ISIS—it will send a message that

22 reinforces the propaganda of ISIS and other extremist groups, that falsely claim the United States

23 is at war with Islam.” Open Letter to the Honorable Donald J. Trump (Mar. 10, 2017) at 1 (a

24 copy of the Open Letter is attached to this Complaint as Exhibit O).

25

250. The experts explain in the Open Letter: “Following the 9/11 attacks, the United

26 States developed a rigorous system of security vetting for travelers to our homeland, leveraging

the full capabilities of the intelligence and law enforcement communities. Since then, the U.S.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 59

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 63 of 98

1 has added enhanced vetting procedures for travelers and has revised them continuously. Our
2 government applies this process to travelers not once, but multiple times.” Id.
3 251. In addition, EO-2 now allows automatic entry for nationals of the affected
4 countries with valid visas, an admission by Defendants that the current screening and vetting
5 process for the admission of non-immigrant visa holders is adequate and effective to protect this
6 country’s national security interests.
7 252. Adding to the evidence of the arbitrariness of the travel ban, on March 20, 2017,
8 the Transportation Security Administration—a component of Defendant DHS— issued what
9 was, at first, a confidential directive banning laptops, iPads and other electronics “larger than a
10 cellphone” on flights from 10 airports because “‘evaluated intelligence’ emerged that terrorists
11 favored ‘smuggling explosive devices in various consumer items’”.79 The countries covered by 12
the electronics ban are Jordan, Egypt, Turkey, Saudi Arabia, Morocco, Qatar, Kuwait and the 13 United Arab Emirates80—none of which are covered by any of the Orders. 14
253. The supposed national security justification for EO-3 fare no better than for EO-1 15
and EO-2. According to 49 Former Nationals Security Officials, EO-3 “preserves the basic 16
approach of the original two Orders, without providing any persuasive evidence that these 17
measures are necessary to enhance our national security or foreign policy interests.” Ex. I, 18
Statement of 49 Former National Security Officials ¶ 3. They further point out: 19

20

As a national security measure, this Ban is unnecessary. . . . [EO-3] rests not on []

tailored grounds, but rather, on (1) general bans (2) that are not responsive to an

21

actual national security threat informed by intelligence, and (3) that emerged from

22

a January Order that was not vetted through the kind of careful interagency legal

and policy review that we would expect from a serious national security process.

23 The Ban is of unprecedented scope. . . . Even after the 9/11 attacks, the U.S.

24

Government did not invoke the provisions of law cited by the Administration to

25 79 Sam Thielman & Sam Levin, Experts Criticize US Electronic Devices Ban on Some Flights from Middle East, 26 Guardian (Mar. 21, 2017), http://bit.ly/2mPTuMC (last visited Nov. 3, 2017).
80 Id.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 60

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 64 of 98

1

broadly bar entrants based on nationality, national origin, or religious affiliation.

Suspensions were limited to particular individuals or subclasses of nationals who

2

posed a specific, articulable threat based on their known actions and affiliations.

3

In adopting Travel Ban 3.0, the Administration alleges no derogatory factual information about any particular recipient of a visa or green card or any credible

4

threat from nationals of the countries banned.

5

. . .

6

The current individualized vetting system places the burden of proof on the

traveler to prove her identity and eligibility for travel. If the traveler is unable to

7

make this showing, the U.S. Government can deny her a visa based on an

8

individualized review. This has been the policy of the U.S. Government across multiple administrations.

9 . . .

10 Removing most of the emphasis on terrorism, the new Ban is purportedly

11

necessary “to elicit improved identity-management and information-sharing

protocols and practices from foreign governments.” We have seen no evidence,

12

however, that such a sweeping, country-based ban on travel is necessary for this

13

objective.

14

In fact, the only concrete evidence to emerge from this administration on this

point to date has shown just the opposite, that country-based bans are ineffective.

15

. . .

16

[EO-3] does not further—but instead harms—sound U.S. national security and

17

foreign policy.

18 Id. ¶¶ 5-6, 8-10, 14.
19 254. Rather than wasting the resources of our security agencies banning millions of
20 individuals who are already being thoroughly analyzed through current procedures put in place
21 by national security experts, Defendants should be focusing on the small but very dangerous
22 individuals for whom they have specific information that will lead to actually stopping attacks in
23 this country.
24

25

26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 61

AMERICAN CIVIL LIBERTIES UNION
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KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 65 of 98

1

2. Arbitrariness of the Suspension of the USRAP

2 255. In priming the country for suspending the USRAP, Defendant Trump relies upon
3 arbitrary and irrational animus towards refugees with no factual basis. For example, in discussing
4 refugees at a February 18, 2017 rally in Melbourne, Florida, he claimed: “We've allowed
5 thousands and thousands of people into our country and there was no way to vet those people.
6 There was no documentation. There was no nothing. . . . So we’re going to keep our country
7 safe.”81 8
256. However, according to the State Department’s January 20, 2017 Bureau of 9
Population, Refugees, and Migration Fact Sheet: 10

11

All refugees undergo the most intensive security screening of any traveler to the

United States. This screening includes multiple federal intelligence, security, and

12

law enforcement agencies, including the National Counterterrorism Center, the

13

FBI Terrorist Screening Center, and the Departments of Homeland Security,

State, and Defense. Syrian refugees go through yet additional forms of security

14

screening. A refugee applicant cannot be approved for travel until all required

security checks have been completed and cleared.82

15

16

257. The United States government has a great deal of experience screening and

17 admitting large numbers of refugees from chaotic environments, including where intelligence

18 holdings are limited.

19

258. According to the USCIS, the government agency that oversees lawful

20 immigration to the United States:83

21

22

23
81 Jacob Gardenswartz, Transcript: President Donald Trump’s Rally in Melborne, Florida, Vox (Feb. 18, 2017),
24 http://bit.ly/2y1Tnmy (last visited Nov. 4, 2017).

25 82 Fact Sheet: U.S. Refugee Admissions Program FAQ’s, U.S. Dep’t of State (Jan. 20, 2017), http://bit.ly/2jCcsqP
(last visited Nov. 4, 2017).
26 83 Refugee Processing and Security Screening, Dep’t of Homeland Sec. (last reviewed/updated: Dec. 3, 2015),
http://bit.ly/1YodRyW (last visited Nov. 4, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 62

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 66 of 98

1

2

3

4

5

6

7

8

9

10

11

12

13

259. The general refugee process encompasses the following: 84

14

15

16

17

18

19

20

21

22

23

24

25

26
84 Id.
THIRD AMENDED CLASS ACTION COMPLAINT PAGE 63

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 67 of 98

1 260. The non-existent vetting process claimed by Defendant Trump actually consists of
2 the following numerous steps:85 3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26
85 Id.
THIRD AMENDED CLASS ACTION COMPLAINT PAGE 64

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 68 of 98

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
THIRD AMENDED CLASS ACTION COMPLAINT PAGE 65

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 69 of 98

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
THIRD AMENDED CLASS ACTION COMPLAINT PAGE 66

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 70 of 98

1

2

3

4

5

6

7

8

9

10

11

12

13

14

261. Defendant Trump has misrepresented that “there was no way to vet those

15 people”86 in an attempt to justify his arbitrary and unjustified suspension of the USRAP.

16 However, USCIS Director León Rodriguez’s explained in his September 28, 2016 written

17 testimony for a Senate Committee on the Judiciary, Subcommittee on Immigration and the

18 National Interest hearing that “[a]ll refugees entering our country are subject to the highest level

19 of security check of any category of any traveler to the United States and admitted only after

20 successfully completing a stringent security screening process.”87 He further detailed:

21

22

Recognizing that a well-trained cadre of officers is critical to protecting the

integrity of the refugee process, we have focused our efforts on providing the

23

highest quality training to our officers. In addition to the basic training required of

24 86 See supra note 81.

25 87 Written Testimony of USCIS Director León Rodriguez for a Senate Committee on the Judiciary, Subcommittee

26

on Immigration and the National Interest Hearing titled “Oversight of the Administration’s FY 2017 Refugee Resettlement Program,” Dep’t of Homeland Sec. (Sep. 28, 2016), http://bit.ly/2h5A7Oo (last visited Nov. 4,

2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 67

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OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 71 of 98

1

all USCIS officers, refugee officers receive nine weeks of specialized training that

includes comprehensive instruction on all aspects of the job, including refugee

2

law, grounds of inadmissibility, fraud detection and prevention, security

3

protocols, interviewing techniques, credibility analysis, and country conditions research. Before deploying overseas, officers also receive pre-departure training,

4

which focuses on the specific population that they will be interviewing. This

includes information on the types of refugee claims that they are likely to

5

encounter, detailed country of origin information, and updates on any fraud trends

or security issues that have been identified. With the advent of large-scale

6

processing of Iraqi applicants in 2007, USCIS officers who adjudicate Iraqi

7

refugee applications began receiving an additional two-day training on countryspecific issues, including briefings from outside experts from the law

8

enforcement, intelligence, policy, and academic communities. This training has

since expanded to a one-week training in order to include Syria-specific topics in

9

addition to Iraqi ones.

10

In order to fully explore refugee claims and to identify any possible grounds of

11

ineligibility, specially-trained USCIS officers conduct an in-person, in-depth interview of every principal refugee applicant. The officer assesses the credibility

12

of the applicant and evaluates whether the applicant’s testimony is consistent with

known country conditions. These officers also interview each accompanying

13

family member age 14 and older. All applicants must establish admissibility to the

United States before the case (i.e., the collection of applicants) is approved. In

14

addition, refugee applicants are subject to robust security screening protocols to

15

identify potential fraud, criminal or national security issues. All refugee status determinations made by interviewing officers undergo supervisory review before

16

a final decision is made. Refugee Affairs Division policy requires officers to

submit certain categories of sensitive cases – including certain national security-

17

related cases – to Refugee Affairs Division Headquarters to obtain concurrence

prior to the issuance of a decision. This allows for Headquarters staff to conduct

18

additional research, liaise with law enforcement or intelligence agencies, or

19

consult with an outside expert before finalizing the decision.88

20

262. In addition, as recently as January 20, 2017, the DOS issued a Fact Sheet that

21 makes clear that the reality of the refugee screening process was, is, and continues to be the

22 complete opposite of what Defendant Trump has claimed:

23

24

No traveler to the United States is subject to more rigorous security screening

than the refugees the U.S. Government considers for admission. Only after the

25

U.S. Government’s rigorous and lengthy security screening process has been

26
88 Id.
THIRD AMENDED CLASS ACTION COMPLAINT PAGE 68

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 72 of 98

1

completed and an applicant is not found to pose a threat does the U.S.

Government grant that individual refugee admission to the U.S. Security

2

screening of all refugees involves multiple U.S. agencies, including the

3

Departments of State, Homeland Security (DHS), and Defense, the Federal Bureau of Investigation, The National Counterterrorism Center, the Terrorist

4

Screening Center, and two federal intelligence agencies.89

5

263. Finally, the Open Letter from the more than 130 foreign policy and national

6 security experts affirms:

7

Refugees are vetted more intensively than any other category of traveler. They are

8

screened by national intelligence agencies and INTERPOL, their fingerprints and

other biometric data are checked against terrorist and criminal databases, and they

9

are interviewed several times. These processes undergo review on an ongoing

basis to ensure that the most updated and rigorous measures are applied, and any

10

additional enhancements can be added without halting refugee resettlement or

11

banning people from certain countries.90

12

264. A person who is granted refugee status in the United States can petition to have

13 their spouse and children join them. However, the family members are subject to a lengthy

14 screening process that includes, inter alia,91 confirming the beneficiary’s identity and

15 relationship to the petitioner in the United States, the collection of fingerprint scans, medical

16 examinations, and interviews. See infra ¶ 274. The required medical clearances have a limited

17 shelf life and expire after six months, so if travel is not scheduled within six months of receiving

18 medical clearance, medical clearance must be obtained again.92

19

265. The existing refugee admissions process is stringent, robust, lengthy, and

20 rigorous. Extreme vetting is already in place.

21

266. Flailing for additional support for the misguided suspension of refugee travel into

22 the United States, Section 1(h) of EO-2 includes two curious anecdotes from 2013 and 2014. The

23 24 89 See supra note 82 (emphasis added).
90 Ex. O, Open Letter at 1.
25 91 Follow-to-Join Refugees and Asylees, U.S. Dep’t of State, http://bit.ly/2ivGXwP (last visited Nov. 4, 2017).
26 92 9 FAM 302.2-3(C) (U) Validity Period of an Applicant’s Medical Examination for Immigrant Visa Applicants,
U.S. Dep’t of State (Aug. 4, 2017), http://bit.ly/2A75hfA (last visited Nov. 4, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 69

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 73 of 98

1 first situation was one that was specifically addressed by the previous administration.93 The 2
second situation involved a refugee brought to this country as a child refugee and radicalized 3
years after he had arrived, only amplifying the finding in the March 1, 2017 Intelligence 4
Assessment that most foreign-born, US-based violent extremists are radicalized years after 5
entering the United States, calling into question the effectiveness of the refugee travel ban in EO6 2.94 7
267. Section 1(h) of EO-2 also claims that more than 300 persons who entered the 8
United States as refugees are currently the subjects of counterterrorism investigations by the 9
Federal Bureau of Investigation. But according to a Washington Post article: 10

11

[O]fficials familiar with the list say that at least 70 percent of the people under

review are from countries not targeted by the new travel ban. More than half are

12

or were at one time Iraqi nationals. Officials familiar with the data said roughly

13

two-thirds of the people on the administration’s tally also arrived seven or more years ago, before the government significantly tightened its vetting procedures for

14

Iraqis entering the United States.

15

Roughly 20 percent of the individuals came to the United States from Somalia,

which is covered by the ban. Others hail from a range of countries, including

16

several that the Trump administration has never indicated as a national security

17

threat. For example, there are more nationals from Ethiopia, Uzbekistan and Bosnia that are subjects in counterterrorism investigation than there are from

18

some of the banned countries, such as Yemen, Iran and Libya.

19

The list refers to people who are under some form of investigation, but officials

familiar with the data cautioned that the classification of those people varies

20

widely from individuals who have aroused serious suspicion to those who might

have a relative who is a convicted or suspected terrorist. None of the individuals

21

on the list have been charged with a -terrorism-related crime, and the number of

22

people under investigation by the FBI at any given time fluctuates regularly as investigations are started and concluded.95

23

24
93 See supra note 73.
25 94 See supra note 78.
26 95 Devlin Barrett, Abigail Hauslohner & David Nakamura, Internal Trump Administration Data Undercuts Travel
Ban, Wash. Post (Mar. 16, 2017), http://wapo.st/2zeYAvm (last visited Nov. 4, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 70

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 74 of 98

1

268. Defendant Trump repeatedly demonized Syrian refugees,96 and made clear his

2 intention to ban them from the country. For example, while on the campaign trail in the fall of

3 2015, Defendant Trump told a crowd in New Hampshire that Syrian refugees could be a terrorist

4 army in disguise. “Did you ever see a migration like that?” he asked the crowd. “They’re all

5 men, and they’re all strong-looking guys . . . There are so many men; there aren’t that many

6 women.”97 In fact, of the Syrian refugees admitted to the United States since the beginning of

7 that country’s conflict, 72% are women and children under age fourteen.98 Not one to be deterred

8 by facts, Defendant Trump told the crowd that a proposal to accept 200,000 refugees could

9 amount to accepting a “‘200,000-man army,’” which “‘could be one of the great tactical ploys of

10 all time.’”99 Of all refugees resettled in the United States in fiscal year 2016, over 72 percent of

11 were women and children.100

12 269. At another campaign event in November 2015, Defendant Trump again brought

13 up Syrian refugees, saying “[w]e don’t even know who they are. There’s no paperwork. There’s

14 no anything. . . . We have no documentation on these people. . . . [Y]ou look at this migration . . .

15 they seem like so many men. They’re so strong. They’re strong-looking guys. . . . Is this a Trojan

16 Horse?”101

17

18

19

96 Jesselyn Cook, 7 Lies Donald Trump Has Spread About Syrian Refugees Entering the U.S., Huffington Post (Oct.
20 20, 2016), http://bit.ly/2lP8FcG (last visited Nov. 4, 2017); Donald J. Trump (@realDonaldTrump), Twitter (Apr.
7, 2016, 7:48 PM), http://bit.ly/29176lp (last visited Nov. 4, 2017).
21
97 Jenna Johnson, Donald Trump: Syrian Refugees Might be a Terrorist Army in Disguise, Wash. Post (Sept. 30,

22 2015), http://wapo.st/2yZY0RZ (last visited Nov. 4, 2017).

23

98 Jie Zong & Jeanne Batalova, Syrian Refugees in the United States, MPI (Jan. 12, 2017), http://bit.ly/2zwm7Zh (last visited Nov. 4, 2017).

24 99 See supra note 97.

25 100Fact Sheet: Fiscal Year 2016 Refugee Admissions, U.S. Dep’t of State (Jan. 20, 2017), http://bit.ly/2j5ZQdy (last
visited Nov. 6, 2017).
26 101 Michael Patrick Leahy, Donald Trump Again Vows to ‘Bomb the S*** out of ISIS’; Ridicules Weakness of
Obama and Clinton, Breitbart (Nov. 17, 2015), http://bit.ly/2j1zvNI (last visited Nov. 4, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 71

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 75 of 98

1 270. On April 7, 2016, Defendant Trump re-tweeted a graphic from a supporter
2 showing him stopping and turning away Syrian refugees, telling them “Saudi Arabia has plenty
3 of room for you.”102 4

5

6

7

8

9

10

11

12

13

14

15

16

17

271. In line with his rhetoric and on the list of goals of his then-chief strategist,103

18 Section 5(c) of EO-1 indefinitely suspended the admission of Syrian refugees because the “entry

19 of nationals of Syria as refugees is detrimental to the interests of the United States.”

20 272. EO-2 removed the provision suspending the admission of Syrian refugees

21 indefinitely, further demonstrating the farce behind the assertion in EO-1 that their entry was

22 detrimental to the national interests of the country and highlighting the arbitrary nature in which

23 Defendants have gone about developing and implementing the Orders.

24

25 102 See supra note 96.
103 Z. Byron Wolf, Steve Bannon’s White House Whiteboard Revealed, CNN (May 3, 2017), http://cnn.it/2pZcUnB
26 (listed and checked off on the whiteboard of Steve Bannon, Trump’s chief strategist, is “[s]uspend the Syrian
refugee program”) (last visited Nov. 4, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 72

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 76 of 98

1 273. The October 2017 Agency Memo asserts that additional security measures must

2 be implemented for I-730 follow-to-join spouses and children with no explanation of why the

3 current security measures these family members are already subjected to are inadequate and even

4 though Section 3(a) of EO-4 concluded that “Presidential action to suspend the entry of refugees

5 under the USRAP is not needed at this time to protect the security and interests of the United

6 States and its people.”

7

274. Admission through the I-730 process requires numerous steps. For example,104

8

9

1. Petition Filing: An individual (petitioner) who was granted asylum in the United

States as a principal asylee or who was resettled to the United States as a principal

10

refugee can file an I-730, Refugee/Asylee Relative Petition, within the first two

11

years of arrival, with the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), on behalf of his or her spouse and

12

unmarried child(ren) (beneficiary).

13

2. National Visa Center (NVC) Pre-Processing Case Assignment: If the

beneficiary of an approved petition is located overseas, USCIS sends the

14

approved Form I-730 petition to the National Visa Center (NVC).

15

3. Beneficiary Interview: The beneficiary will be interviewed by either a

16

Department of State consular officer or USCIS officer at a U.S. Embassy or Consulate overseas. This interview will confirm the beneficiary’s identity,

17

claimed relationship to the petitioner, and eligibility to travel to the United States.

During the interview process, the beneficiary must provide ink-free, digital

18

fingerprint scans. The beneficiary interview requires careful preparation,

including having all required original documents available for the interview (e.g.,

19

marriage certificate; birth certificate; certified adoption decree; documentation of

20

any legal name change; six photographs of the beneficiary; one or more travel

document(s), such as a passport, with a validity date at least six months beyond

21

the beneficiary’s intended date of entry into the United States and/or picture

identity card; other evidence of relationship between the beneficiary and

22

petitioner such as photographs, available school records, family correspondence,

phone bills, documentation demonstrating financial support; other proof that the

23

relationship is genuine).

24

25

26
104 See supra note 91.
THIRD AMENDED CLASS ACTION COMPLAINT PAGE 73

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
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KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 77 of 98

1

4. Approval to Travel as a Follow-to-Join Refugee or Follow-to-Join Asylee:

The interviewing officer will tell the beneficiary if he or she has been found

2

eligible to travel to the United States.

3

5. After Interview Processing: Some cases require further administrative

4

processing, which takes additional time after the beneficiary’s interview. Follow-

to-join refugee beneficiaries, for example, undergo post-approval processing to

5

arrange for sponsorship by a voluntary resettlement agency in the United States

upon arrival. (NOTE: All follow-to-join refugee beneficiaries are required to have

6

a sponsorship assurance from a resettlement agency before travel to the United

7

States in order to receive refugee benefits.)

8

6. Medical Clearance: Before the issuance of a follow-to-join refugee or asylee boarding foil, every beneficiary, regardless of age, must undergo a medical

9

examination, which must be performed by an authorized panel physician.

10

7. Issuance of Boarding Foil and Travel Packet: An officer will place a boarding

foil in the approved beneficiary’s passport or other travel document. The

11

beneficiary also will receive a sealed envelope – called a "travel packet" –

12

containing the documents for review by a DHS immigration official when the beneficiary enters the United States.

13

14

275. Finally, Congress enacted section 207 of the INA to require that “[a] spouse or

15 child . . . of any refugee who qualifies for admission under paragraph (1) shall . . . be entitled to

16 the same admission status as such refugee if accompanying, or following to join, such refugee

17 and if the spouse or child is admissible . . . as an immigrant under this chapter.” 8 U.S.C. §

18 1157(c)(2)(A) (emphasis added). The October 2017 Agency Memo is contrary to law.

19 F. 20

President Trump’s Continuing Defiance of Court Orders Regarding the Executive Orders and Insistence on His Muslim Travel Ban

21

276. Both this Court and other courts around the country have granted writs of habeas,

22 multiple temporary restraining orders and preliminary injunctions (some nationwide) regarding

23 EO-1 and EO-2. EO-1 has now been rescinded, and EO-2 has expired. But EO-3 and the October

24 2017 Agency Memo accompanying EO-4 perpetuate the violations: Washington residents who

25 are former refugees still await the arrival of their families who have completed the rigorous

26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 74

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 78 of 98

1 refugee security clearance process and Washington residents who entered the country on single-

2 entry or now expired multiple-entry non-immigrant visas are now stuck inside the country.

3 277. In addition, Defendants’ repeated actions and statements make it far from clear

4 that Defendant Trump will not revert to his original position.

5 278. Immediately after the first nationwide stay was granted, see Darweesh v. Trump,

6 No. 17-480, 2017 WL 388504, at *1 (E.D.N.Y. Jan. 28, 2017), Defendant DHS issued a

7 statement that “President Trump’s Executive Orders remain in place—prohibited travel will

8 remain prohibited, and the U.S. government retains its right to revoke visas at any time if

9 required for national security or public safety.”105 And Defendant Trump claimed, “[i]f the ban

10 were announced with a one week notice, the ‘bad’ would rush into our country during that week.

11 A lot of bad ‘dudes’ out there!”106

12 279. On January 30, 2017, acting United States Attorney General Sally Yates issued a

13 statement to top lawyers at the U.S. Department of Justice instructing them to not act to enforce

14 EO-1 because she was “not convinced . . . that [EO-1] is lawful.”107 Ms. Yates wrote:

15 My responsibility is to ensure that the position of the Department of Justice is not

16

only legally defensible, but is informed by our best view of what the law is after

consideration of all the facts. In addition, I am responsible for ensuring that the

17

positions we take 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

18

convinced that the defense of [EO-1] is consistent with these responsibilities nor

am I convinced that [EO-1] is lawful.108

19

20

21

22

23

105 Department of Homeland Security Response to Recent Litigation, Dep’t of Homeland Sec. (Jan. 29, 2017), http://bit.ly/2kGuv0R (last visited Nov. 4, 2017).

24 106 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 30, 2017, 5:31 AM), http://bit.ly/2iYOW9r (last visited
Nov. 4, 2017).
25 107 Statement from Sally Yates to the U.S. Department of Justice, N.Y. Times (Jan. 30, 2017), 26 http://nyti.ms/2ivS5d2 (last visited Nov. 4, 2017).
108 Id.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 75

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KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 79 of 98

1 280. Within hours of her issuance of this statement, and its hand-delivery to Defendant

2 Trump, Defendant Trump fired Ms. Yates, calling her statement a “betray[al].”109

3 281. After this Court issued a Temporary Restraining Order (“TRO”) on February 3,

4 2017, and the Ninth Circuit issued a unanimous decision upholding the TRO on February 9,

5 2017, Defendants vowed to keep fighting the court orders.

6 282. Even more unusual were Defendant Trump’s statements on Twitter, which should

7 be “‘considered official statements by the President of the United States,’”110 that followed the

8 District Court and Ninth Circuit’s Orders:

9

• “The opinion of this so-called judge, which essentially takes law-enforcement

10

away from our country, is ridiculous and will be overturned!”111

11

• “What is our country coming to when a judge can halt a Homeland Security travel

12

ban and anyone, even with bad intentions, can come into U.S.?”112

13

•

“Because the ban was lifted by a judge, many very bad and dangerous people

may be pouring into our country. A terrible decision”113

14

• “Why aren’t the lawyers looking at and using the Federal Court decision in

15

Boston, which is at conflict with ridiculous lift ban decision?”114

16

17

18

19
109 Statement on the Appointment of Dana Boente as Acting Attorney General, White House (Jan. 30, 2017),
20 http://bit.ly/2khR7Rp (last visited Nov. 4, 2017).

21 110 Aric Jenkins, Sean Spicer Says President Trump Considers His Tweets ‘Official’ White House Statements, Time
(June 6, 2017), http://ti.me/2rT57aO (last visited Nov. 4, 2017).
22 111 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 5:12 AM), http://bit.ly/2j07iqN (last visited Nov.
23 4, 2017).
112 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 12:44 PM), http://bit.ly/2eGVHYb (last visited
24 Nov. 4, 2017).

25 113 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 1:44 PM), http://bit.ly/2f3F9tQ (last visited Nov.
4, 2017).
26 114 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 3:37 PM), http://bit.ly/2zi9a4m (last visited Nov.
4, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 76

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 80 of 98

1

• “The judge opens up our country to potential terrorists and others that do not have

our best interests at heart. Bad people are very happy!”115

2

3

• “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”116

4

• “I have instructed Homeland Security to check people coming into our country

5

VERY CAREFULLY. The courts are making the job very difficult!”117

6

• “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT

STAKE!”118 7

8

• “Our legal system is broken! ‘77% of refugees allowed into U.S. since travel reprieve hail from seven suspect countries.’ (WT) [sic] SO DANGEROUS!”119

9

10

283. The day before the Ninth Circuit issued its ruling, Defendant Trump declared that

11 EO-1 was “‘so simple and so beautifully written and so perfectly written’” and cast further

12 aspersions this country’s judicial system, stating, “‘I don't ever want to call a court biased, so I

13 won't call it biased. And we haven't had a decision yet. But courts seem to be so political and it

14 would be so great for our justice system if they would be able to read a statement and do what's

15 right.’”120

16

284. On February 16, 2017, Defendants filed a supplemental brief regarding review of

17 the Ninth Circuit’s decision to deny Defendant’s request for a stay of the TRO by the entire

18 panel. Defendants represented that “[r]ather than continuing this litigation, the President intends

19
115 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 4:48 PM), http://bit.ly/2ziNpBo (last visited Nov.
20 4, 2017).

21 116 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 5, 2017, 12:39 PM), http://bit.ly/2kGCibm (last visited
Nov. 4, 2017).
22 117 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 5, 2017, 12:42 PM), http://bit.ly/2iuW49S (last visited
23 Nov. 4, 2017).
118 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 9, 2017, 3:35 PM), http://bit.ly/2ks6vKR (last visited Nov.
24 4, 2017).

25 119 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 11, 2017, 4:12 AM), http://bit.ly/2h3Xnfs (last visited
Nov. 4, 2017).
26 120 Matt Zapotosky & Robert Barnes, As Judges Weigh Travel Ban, Trump Asserts That Courts Are ‘so Political,’
Chi. Trib. (Feb. 8, 2017), http://trib.in/2ivLbEx (last visited Nov. 4, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 77

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 81 of 98

1 in the near future to rescind the Order and replace it with a new, substantially revised Executive
2 Order . . . .”121 3
285. Yet on that very same day, Defendant Trump directly contradicted the 4
representations made to the Ninth Circuit in the supplemental briefing filed by the United States 5
government on his behalf. During a news conference, Defendant Trump stated: “We’re issuing a 6
new executive action next week that will comprehensively protect our country. So we’ll be going 7
along the one path and hopefully winning that, at the same time we will be issuing a new and 8 very comprehensive order to protect our people.”122 9
286. Further, on February 21, 2017, senior policy adviser Stephen Miller not only 10
claimed “nothing was wrong with the first executive order” but also revealed that the revised 11
travel ban will have “mostly minor technical differences” from EO-1 and “fundamentally” would 12 be “the same basic policy outcome for the country.”123 13
287. In addition, during White House press briefings on February 21, 22, and 23, 2017, 14
press secretary Sean Spicer stated that Defendant Trump will continue to pursue the case in the 15
Ninth Circuit. In particular, Mr. Spicer stated: 16

17

• On February 21, 2017: The President has “made very clear” that there will be

18

a “dual-track system” and is “confident that we’re still going to prevail on the case—the merits of the case.”124

19

• On February 22, 2017: The President is “fighting this on both fronts, making

20

sure that we keep evolving through the court system on the existing EO,”

while drafting an additional executive order.125 21

22 121 Supplemental Brief on En Banc Consideration at 4, State (9th Cir. Feb. 16, 2017), Dkt. # 154.

23

122 Full Transcript: President Donald Trump’s News Conference, CNN (Feb. 17, 2017), http://cnn.it/2lY8uHh (last visited Nov. 4, 2017).

24 123 See supra note 1.

25 124 Press Briefing by Press Secretary Sean Spicer, 2/21/17, #13, White House (Feb. 21, 2017),
http://bit.ly/2iuhCmM (last visited Nov. 4, 2017).
26 125 Press Briefing by Press Secretary Sean Spicer, 2/22/17, #14, White House (Feb. 22, 2017), http://bit.ly/2l0RrDI
(last visited Nov. 4, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 78

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 82 of 98

1

• On February 23, 2017: “So with respect to the executive order, there are

2

several courts that this is being fought in—10 or so—and we continue to deal

3

with that in all of those venues. And then again, I guess, the only way to say

this is, then obviously on the dual-track side we have the additional executive

4

order that we’ve talked about earlier that will come out and further address the

problems. We continue to believe that the issues that we face specifically in

5

the 9th district—9th Circuit, rather, that we will prevail on, on the merits of

that. But on the other challenges that have come and the other venues and the

6

others—that we feel equally confident, as we did in Massachusetts and other

7

venues. So it’s not a single-track system.”126

8

288. On February 27, 2017, press secretary Spicer reiterated that as to EO-2, “the goal

9 is obviously to maintain the way that we did it the first time.”127

10

289. On March 1, 2017, Vice President Pence stated during an interview on CBS This

11 Morning that “[t]he president is just determined to not only defend the first executive order in the

12 courts, which we continue to believe is fully within his purview and in his presidential authority,

13 but also to take that authority that is undisputed in the law within the executive order.”128

14

290. On June 3, 2017, Defendant Trump repeated his message of the “need to be smart

15 vigilant and tough” and that “[w]e need the Travel Ban as an extra level of safety!”129

16

291. Two days later, in referencing court decisions regarding EO-1 and EO-2,

17 Defendant Trump again openly and repeatedly emphasized that his orders were, in fact, his travel

18 ban: “the lawyers and the courts can call it whatever they want, but I am calling it what we need

19 and what it is, a TRAVEL BAN!”130 He also stated, “[t]he Justice Dept. should have stayed with

20

21
126 Press Briefing by Press Secretary Sean Spicer, 2/23/17, #15, White House (Feb. 23, 2017), http://bit.ly/2nzNfN4

22 (last visited Nov. 4, 2017).

23

127 Press Briefing by Press Secretary Sean Spicer, 2/27/17, #17, White House (Feb. 27, 2017), http://bit.ly/2ziSd9U (last visited Nov. 4, 2017).

24 128 See supra note 41.

25 129 Donald J. Trump (@realDonaldTrump), Twitter (June 3, 2017, 4:17 PM), http://bit.ly/2lRgyhU (last visited Nov.
4, 2017).
26 130 Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:25 AM), http://bit.ly/2Ak8f1e (last visited Nov.
4, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 79

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 83 of 98

1 the original Travel Ban, not the watered down, politically correct version they submitted to
2 S.C.”131 He then tweeted, “[t]he Justice Dept. should ask for an expedited hearing of the watered 3 down Travel Ban before the Supreme Court - & seek much tougher version!”132 Defendant 4
Trump concluded with another attack on any court that might dare to disagree with him, claiming 5
“[i]n any event we are EXTREME VETTING people coming into the U.S. in order to help keep 6 our country safe. The courts are slow and political!”133 7
292. Defendant Trump continued to give life to his campaign of hostility towards 8
Muslims as recently as August 17, 2017. Hours after a deadly terrorist attack in Barcelona, 9
President Trump tweeted, “[s]tudy what General Pershing of the United States did to terrorists 10 when caught. There was no more Radical Islamic Terror for 35 years!”134 This statement refers 11
to the widely debunked story of General Pershing executing forty-nine out of fifty terrorists with 12
bullets dipped in pigs’ blood, leaving the fiftieth person alive to tell the tale. 13
293. On September 15, 2017, less than two weeks before issuing EO-3, Defendant 14
Trump tweeted, “[t]he travel ban into the United States should be far larger, tougher and more 15 specific-but stupidly, that would not be politically correct!”135 16

17

18

19

20

21 131 Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:29 AM), http://bit.ly/2y2nbiW (last visited
Nov. 4, 2017).
22 132 Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:37 AM), http://bit.ly/2hGHz2Z (last visited
23 Nov. 4, 2017).
133 Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:44 AM), http://bit.ly/2yvGGVG (last visited
24 Nov. 4, 2017).

25 134 Donald J. Trump (@realDonaldTrump), Twitter (Aug. 17, 2017, 11:45 AM), http://bit.ly/2fO75Fi (last visited
Nov. 4, 2017).
26 135 Donald J. Trump (@realDonaldTrump), Twitter (Sept. 15, 2017, 3:54 AM), http://bit.ly/2zjLHzQ (last visited
Nov. 4, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 80

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 84 of 98

1 294. On the day EO-3 was issued, Defendant Trump stated, “[t]he travel ban: The
2 tougher, the better.”136 He repeated this theme a few days later on September 27, 2017: “I want 3 the toughest travel ban you can have.”137 4
295. Defendants’ statements appear to be designed to inflame and incite further animus 5
against persons affected by the ban, and grossly distort and misrepresent the actual process 6
through which Plaintiffs were screened and reviewed before their admittance to the United States 7
was allowed. 8
296. Defendants’ statements underscore the continued discriminatory motive behind 9
the Orders. And Defendants’ statements make it abundantly clear that there is no guarantee that 10
Defendants will not revert to EO-1 at some point in time. 11
297. Given the numerous, inconsistent positions Defendants have taken with regard to 12
the Orders over time, individual Plaintiffs and members of the Non-Immigrant Visa Class 13
reasonably fear that, if they attempt to enter or re-enter the United States, they will be denied 14
permission to do so, notwithstanding their previously established lawful presence in the United 15
States and the fact that they have otherwise been deemed appropriate by the United States 16
government for admission. 17
298. Because the October 2017 Agency Memo continues the suspension of the USRAP 18
for I-730 follow-to-join derivative refugees and essentially continues to ban refuges from the 19
SAO List Countries, Joseph Doe, Jeffrey Doe, and others similarly situated are left in the exact 20
same purgatory they were in with EO-1 and EO-2. 21
299. EO-3 and the October 2017 Agency Memo effectively trap individual plaintiffs 22
and members of the Non-Immigrant Visa Class in the United States, interfere with the 23
relationships of the Non-Immigrant Visa Class as well as the Refugee Class and their family 24

25 136 Jeremy Redmon & Kelly Yamanouchi, Trump Administration Announces New Travel Ban: “The Tougher, the
Better,” AJC, http://on-ajc.com/2zgIZJ9 (last visited Nov. 4, 2017).
26 137 Press Briefing: Press Gaggle by President Trump, White House (Sept. 27, 2017), http://bit.ly/2fsswbB (last
visited Nov. 4, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 81

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 85 of 98

1 members, and impose arbitrary and irrational burdens on them that do not serve any valid
2 governmental interest.
3 V. CLASS ACTION ALLEGATIONS
4

5

300. Plaintiffs John Doe and Jason Doe bring this action as a class action pursuant to

6 Fed. R. Civ. P. 23(b)(1) and (b)(2), on their own behalf and on behalf of all other Washington

7 residents who are nationals of the Designated Countries with non-immigrant visas and who do

8 not have unexpired multiple-entry visas (“the Non-Immigrant Visa Class”).

9

301. Plaintiffs Joseph Doe and James Doe bring this action as a class action pursuant to

10 Fed. R. Civ. P. 23(b)(1) and (b)(2), on their own behalf and on behalf of all other refugees,

11 including those who have since adjusted their status to Lawful Permanent Resident, who now

12 reside in Washington, and who have filed I-730 applications for their family members (“the I-

13 730 Follow-To-Join Refugee Class”).

14

302. Plaintiff Jeffrey Doe brings this action as a class action pursuant to Fed. R. Civ. P.

15 23(b)(1) and (b)(2), on his own behalf and on behalf of all other refugees from the Muslim-

16 majority countries on the SAO List, including those who have since adjusted their status, who

17 now reside in Washington, and who await the arrival of their family members who have

18 completed and cleared their final security screenings (“the SAO List Refugee Class”)

19 (collectively with the I-730 Follow-to-Join Refugee Class, “the Refugee Classes”).

20

303. Upon information and belief, all three Plaintiff Classes are so numerous that

21 joinder is impracticable. According to the Annual Report of the Visa Office of the DOS, in 2016,

22 the last year for which data is available, the United States issued over 47,816 non-immigrant

23 visas to nationals from the Designated Countries.138 In FY 2016, 84,994 individuals arrived in

24 the United States as refugees, with 35,237 of those refugees coming from just five of Muslim-

25

26 138 Table XVII: Nonimmigrant Visas Issued Fiscal Year 2016, U.S. Dep’t of State, http://bit.ly/2h4bAco (last
visited Nov. 4, 2017).

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 82

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 86 of 98

1 majority countries on the SAO List (i.e., Iran, Iraq, Somalia, and Syria).139 In fiscal year 2015, 2 2,035 follow-to-join refugees arrived in the United States.140 On information and belief, a large 3 number of such persons reside in Washington.141 4
304. The claims of the Non-Immigrant Visa Class members address common issues of 5
law, including but not limited to whether EO-3 violates their associational, religious exercise, 6
and due process rights under the First and Fifth Amendments; the RFRA; the INA, and the APA. 7
Likewise, the claims of the I-730 Refugee Class as well as the SAO List Refugee Class members 8
address common issues of law, including but not limited to whether the October 2017 Agency 9
Memo violates their associational, religious exercise, and due process rights under the First and 10
Fifth Amendments; the RFRA; the INA, and the APA. 11
305. The claims of the Plaintiff Class members concern common issues of fact, 12
including but not limited to the Defendants’ alleged animus and whether EO-3 or the October 13
2017 Agency Memo is being or will be enforced so as to prevent them or their family members 14
from entering the United States from abroad or from re-entering the United States should they 15
choose to leave the United States briefly, even though they would otherwise be admissible. 16
306. The claims or defenses of the named Plaintiffs are typical of the claims or 17
defenses of members of each of the Plaintiff Classes. 18
307. John Doe and Jason Doe will fairly and adequately protect the interests of the 19
Non-Immigrant Visa Class, Joseph Doe and James Doe will fairly and adequately protect the 20
interests of the I-730 Refugee Class, and Jeffrey Doe will fairly and adequately protect the 21
interests of the SAO List Refugee Class. None of the named Plaintiffs have any interest that is 22
now or may be potentially antagonistic to the interests of the Plaintiff Class they seek to 23

24
139 See supra note 98.
25 140 Annual Flow Report, Refugees and Asylees: 2015 at 3, U.S. Dep’t of Homeland Sec. (Nov. 2016), 26 http://bit.ly/2k9eX2u (last visited Nov. 4, 2017).
141 Id. at 4. See also supra note 98.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 83

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OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 87 of 98

1 represent. The attorneys representing the named Plaintiffs include experienced civil rights

2 attorneys and are considered able practitioners in the federal courts and in federal constitutional

3 litigation. These attorneys should be appointed as class counsel.

4 308. Defendants have acted, have threatened to act, and will act on grounds generally

5 applicable to all three Plaintiff Classes, thereby making final injunctive and declaratory relief

6 appropriate to the class as a whole. All three Plaintiff Classes may therefore be properly certified

7 under Fed. R. Civ. P. 23(b)(2).

8 309. Prosecution of separate actions by individual members of any of the Plaintiff

9 Classes would create the risk of inconsistent or varying adjudications and would establish

10 incompatible standards of conduct for individual members of each Plaintiff Class. All three

11 Plaintiff Classes may therefore be properly certified under Fed. R. Civ. P. 23(b)(1).

12

VI. CAUSES OF ACTION

13

COUNT ONE

14

FIRST AMENDMENT – ESTABLISHMENT, FREE EXERCISE, SPEECH AND

ASSEMBLY CLAUSES

15

(Against All Defendants, Asserted by All Plaintiffs)

16

310. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

18

311. The First Amendment prohibits the establishment of a religion or the prohibition

19 of the free exercise of religion.

20

312. EO-3 and the October 2017 Agency Memo violate the Establishment Clause by

21 singling out Muslims for disfavored treatment. They have the purpose and effect of inhibiting

22 religion, and are neither justified by, nor closely fitted to, any compelling governmental interest.

23

313. EO-3 and the October 2017 Agency Memo discriminate on the basis of religion

24 and national origin, each a suspect classification, and are not narrowly tailored to serve a

25 compelling governmental interest, and thereby violate the equal protection component of the Due

26 Process Clause.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 84

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
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Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 88 of 98

1 314. EO-3 and the October 2017 Agency Memo constitute an unlawful attempt to

2 discriminate against Muslims and to establish a preference for one religion over another.

3 References in EO-3 and the October 2017 Agency Memo to the Designated and SAO List

4 Countries are transparently a pretext to establish this preference. And the removal of the

5 language prioritizing the admission of refugees of the minority religion of their countries that

6 was in Section 5 of EO-1 from subsequent Orders can erase neither the taint nor the true

7 motivation behind any of the Orders. Singling out Muslims for disfavored treatment and granting

8 special preferences to non-Muslims is neither justified by, nor closely fitted to, any compelling

9 governmental interest.

10 315. EO-3 and the October 2017 Agency Memo also violate the rights of Plaintiffs the

11 Episcopal Diocese and CAIR-WA to receive information and speech from, and to associate

12 freely with, refugees who are Muslim or who are from the majority-Muslim Designated and

13 SAO List Countries.

14

COUNT TWO

15

RELIGIOUS FREEDOM RESTORATION ACT

(Against All Defendants, Asserted by All Plaintiffs except James Doe)

16 316. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

18 317. Pursuant to the RFRA, 42 U.S.C. § 2000bb-1 et seq., the government “shall not

19 substantially burden a person’s exercise of religion” unless it “(1) is in furtherance of a

20 compelling government interest; and (2) is the least restrictive means of furthering that

21 compelling governmental interest.” Id. (emphasis added).

22 318. EO-3 and the October 2017 Agency Memo have the effect of imposing a special

23 disability on the basis of religious views or religious status, by withdrawing important

24 immigration benefits principally from Muslims on account of their religion. In doing so, EO-3

25 and the October 2017 Agency Memo place a substantial burden on Muslims’ exercise of religion

26 in a way that is not the least restrictive means of furthering a compelling governmental interest.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 85

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 89 of 98

1 319. Defendants’ actions therefore constitute a violation of the RFRA, 42 U.S.C. §

2 2000bb-1 et seq.

3

COUNT THREE

4

FIFTH AMENDMENT – EQUAL PROTECTION

(Against All Defendants, Asserted by John Doe, Jack Doe, Jason Doe, the

5

Non-Immigrant Visa Class, Jeffrey Doe, and the SAO List Refugee Class)

6

320. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

8

321. EO-3 and the October 2017 Agency Memo discriminate against Plaintiffs John

9 Doe, Jack Doe, Jason Doe, Jeffrey Doe, and the members of the Non-Immigrant Visa and SAO

10 List Refugee Classes on the basis of their country of origin without sufficient justification and

11 therefore violate the equal protection component of the Due Process Clause of the Fifth

12 Amendment.

13

322. EO-3 bars John Doe, Jack Doe, Jason Doe, Jeffrey Doe, and the members of the

14 Non-Immigrant Visa Class from traveling and imposes additional burdens such as requiring them

15 to seek a waiver.

16

323. The October 2017 Agency Memo imposes, in effect, yet another ban and

17 additional conditions on refugees like the relatives of Jeffrey Doe and the members of the SAO

18 List Refugee Class.

19

324. Additionally, EO-3 and the October 2017 Agency Memo were substantially

20 motivated by animus towards—and have a disparate effect on—Muslims, which also violates the

21 equal protection component of the Due Process Clause of the Fifth Amendment.

22

COUNT FOUR

FIFTH AMENDMENT – PROCEDURAL DUE PROCESS

23

(Against All Defendants, Asserted by All Plaintiffs)

24

325. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 86

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 90 of 98

1 326. The Due Process Clause of the Fifth Amendment provides that “[n]o person shall

2 . . . be deprived of life, liberty, or property, without due process of law.”

3 327. Procedural due process requires that the government be constrained before it acts

4 in a way that deprives individuals of liberty or property interests protected under the Due Process

5 Clause of the Fifth Amendment.

6 328. Defendants’ actions, as described above, have deprived Plaintiffs of their liberty

7 and/or property interests without notice or opportunity to be heard.

8

COUNT FIVE

9

FIFTH AMENDMENT – SUBSTANTIVE DUE PROCESS

(Against All Defendants, Asserted by John Doe, Jack Doe, Jason Doe, and the

10

Non-Immigrant Visa Class)

11 329. Plaintiffs repeat and incorporate by reference each and every allegation contained
12 in the preceding paragraphs as if fully set forth herein.
13 330. Plaintiffs John Doe, Jack Doe, Jason Doe, and members of the Non-Immigrant
14 Visa Class have a constitutionally protected, fundamental liberty interest in freedom of
15 movement that encompasses their right to travel abroad.
16 331. Plaintiffs John Doe, Jack Doe, Jason Doe, and members of the Non-Immigrant
17 Visa Class have a constitutionally protected, fundamental liberty interest in their family lives.
18 332. Defendants’ actions, as described above, have denied Plaintiffs John Doe, Jack
19 Doe, Jason Doe, and members of the Non-Immigrant Visa Class the opportunity to travel outside
20 the United States for fear that they will be denied re-entry. Nor can their parents or other close
21 family members visit them here. Such actions, taken pursuant to EO-3 are not justified by a
22 compelling government interest and therefore violate the substantive due process rights
23 guaranteed by the Fifth Amendment to Plaintiffs Jack Doe, Jason Doe, and members of the Non-
24 Immigrant Visa Class.
25

26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 87

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 91 of 98

1

COUNT SIX

FIFTH AMENDMENT – SUBSTANTIVE DUE PROCESS 2 (Against All Defendants, Asserted by Joseph Doe, James Doe, Jeffrey Doe, the Refugee

Classes) 3

4

333. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

6

334. Plaintiff Joseph Doe, Jeffrey Doe and members of the I-730 and SAO List

7 Refugee Classes have a constitutionally protected, fundamental liberty interest in their marriage

8 and their family lives.

9

335. Defendants’ arbitrary suspension of the travel of I-730 follow-to-join and SAO

10 List Countries refugees into the United States violates the substantive due process rights

11 guaranteed by the Fifth Amendment. Defendants’ arbitrary suspension of the admissions of I-730

12 follow-to-join and SAO List Countries refugees has deprived Plaintiffs Joseph Doe, Jeffrey Doe

13 and members of the I-730 and SAO List Refugee Classes of their fundamental right to be with

14 their families and is not justified by a compelling government interest.

15

COUNT SEVEN

VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT

16

(Against all Defendants, Asserted by John Doe, Jack Doe, Jason Doe, and the

17

Non-Immigrant Visa Class)

336. Plaintiffs repeat and incorporate by reference each and every allegation contained 18

in the preceding paragraphs as if fully set forth herein. 19

337. The formulation of policies pertaining to the entry of aliens is entrusted 20

exclusively to Congress. Galvan v. Press, 347 U.S. 522, 531 (1954). Through the enactment of 21

and amendments to the INA, 8 U.S.C. § 1101 et seq., Congress has established an extensive 22

statutory scheme governing the admission and exclusion of aliens. Where Congress has 23

delegated authority to the Executive, that authority remains constrained by the parameters of the 24

INA. Defendants have exceeded the scope of their delegated authority because their actions are 25

contrary to the INA. 26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 88

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 92 of 98

1 338. Specifically, INA section 212(a) establishes, in detail, the classes of aliens who

2 are ineligible for visas or admission into the United States, including under “[s]ecurity and

3 related grounds,” 8 U.S.C. § 1182(a)(3). INA section 212(a)(3)(C)(iii) prohibits ideological

4 exclusions like those embodied in Defendants’ Orders. Namely, an alien may not be excludable

5 or subject to restrictions or conditions on entry “because of the alien’s past, current, or expected

6 beliefs, statements, or associations.” 8 U.S.C. § 1182(a)(3)(C)(iii).

7 339. In enacting this provision of the INA, Congress specifically sought to end a

8 practice of excluding or denying entry to aliens based on their beliefs.

9 340. Defendants, in issuing EO-3 have directly contradicted the expressed will of

10 Congress and violated the INA. To the extent that the delegation of authority in INA section

11 212(f) is viewed as encompassing the authority to violate the expressed will of Congress, it is an

12 unconstitutional delegation of authority.

13

COUNT EIGHT

14

VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT

(Against all Defendants, except Defendant Trump, Asserted by Joseph Doe, James Doe,

15

and the I-730 Refugee Class)

16 341. Plaintiffs repeat and incorporate by reference each and every allegation contained
17 in the preceding paragraphs as if fully set forth herein.
18 342. Congress established a statutory entitlement to the admission of spouses and
19 unmarried children under twenty-one years old of refugees in INA section 207(c)(2)(A). 8
20 U.S.C. § 1157(c)(2)(A).
21 343. That statutory provision requires that “[a] spouse or child . . . of any refugee who
22 qualifies for admission under paragraph (1) shall . . . be entitled to the same admission status as
23 such refugee if accompanying, or following to join, such refugee and if the spouse or child is
24 admissible . . . as an immigrant under this chapter.” Id. (emphasis added).
25

26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 89

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 93 of 98

1 344. Plaintiff Joseph Doe’s wife and children, as well as the spouses and children of

2 members of the Refugee Class, have met every requirement to be admitted as immigrants under

3 the INA.

4 345. In implementing the October 2017 Agency Memo, which changes the rules after

5 Plaintiffs had met all the requirements of the INA and continues the indefinite suspension of the

6 admissions process for this group of I-730 refugees, Defendants violated the INA.

7

COUNT NINE

8

ADMINISTRATIVE PROCEDURE ACT—SUBSTANTIVE VIOLATION

(Against all Defendants, except Defendant Trump, Asserted by all Plaintiffs)

9 346. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

11 347. Defendants U.S. Department of State, U.S. Department of Homeland Security,

12 U.S. Customs and Border Protection, and Office of the Director of National Intelligence are

13 “agencies” under the APA. See 5 U.S.C. § 551(1).

14 348. The APA prohibits federal agency action that is “contrary to constitutional right,

15 power, privilege, or immunity,” id. § 706(2)(B), or “in excess of statutory jurisdiction, authority,

16 or limitations, or short of statutory right,” id. § 706(2)(C), or “arbitrary, capricious, an abuse of

17 discretion or otherwise not in accordance with law.” Id. § 706(2)(A).

18 349. The creation of the administrative rules contained in Sections 1(g) and 2 of EO-3

19 and the October 2017 Agency Memo was a final agency action subject to the APA.

20 350. Additionally, in implementing the aforementioned sections of EO-3 and the

21 October 2017 Agency Memo, Defendants federal agencies and Defendant secretaries and/or

22 directors of those agencies have taken unconstitutional and unlawful action, as alleged in this

23 Complaint, in violation of the APA.

24 351. In implementing the aforementioned sections of EO-3 and issuing the October

25 2017 Agency Memo, Defendants federal agencies and Defendant secretaries and/or directors of

26 those agencies have arbitrarily and capriciously exercised their discretion.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 90

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 94 of 98

1 352. In implementing the aforementioned sections of EO-3 and issuing the October

2 2017 Agency Memo, Defendants federal agencies and Defendant secretaries and/or directors of

3 those agencies exceeded their statutory authority.

4 353. In implementing the aforementioned sections of EO-3, Defendants federal

5 agencies and Defendant secretaries and/or directors of those agencies engaged in nationality and

6 religion-based discrimination in violation of RFRA.

7 354. In addition, the issuance of the October 2017 Agency Memo, an agency action

8 under the APA, is arbitrary and capricious and violated the INA. See supra Count Eight.

9 355. Finally, in implementing the aforementioned sections of EO-3 and the October

10 2017 Agency Memo, Defendants’ actions as set forth above were arbitrary, capricious, or

11 discriminatory. Defendants have offered no satisfactory explanation for the countries that are or

12 are not included within the scope of EO-3, Nor have Defendants offered any satisfactory

13 explanation for the need for yet another 90-day ban for the SAO List Countries or the suspension

14 of the I-730 admissions process. Meanwhile Defendants are banning millions of people with no

15 connection whatsoever to terrorism and causing harm to Plaintiffs. Accordingly, Defendants

16 have violated the substantive requirements of the APA.

17

COUNT TEN

18

ADMINISTRATIVE PROCEDURE ACT— PROCEDURAL VIOLATION

(Against all Defendants, except Defendant Trump, Asserted by All Plaintiffs) 19

20

356. Plaintiffs repeat and incorporate by reference each and every allegation contained

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

22

357. Defendants U.S. Department of State, U.S. Department of Homeland Security,

23 U.S. Customs and Border Protection, and Office of the Director of National Intelligence are

24 “agencies” under the APA. See 5 U.S.C. § 551(1).

25

358. Section 553 of the APA, 5 U.S.C. § 553, requires that federal agencies provide

26 notice and comment before issuing substantive rules.

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 91

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 95 of 98

1 359. The APA further requires courts to hold unlawful and set aside any agency action
2 taken “without observance of procedure required by law.” Id. § 706(2)(D).
3 360. In implementing the aforementioned sections of EO-3 and the October 2017
4 Agency Memo, Defendants federal agencies and Defendant secretaries and/or directors of those
5 agencies have altered a substantive rule because they have changed the criteria by which
6 individuals from the Designated Countries and SAO List Countries may enter the United States
7 and entirely banned some refugees altogether, both of which impact substantive rights.
8 Defendants did so without fulfilling the procedural requirements of the APA.
9 361. By failing to follow the rulemaking procedures required of them prior to changing
10 the substantive criteria by which individuals from the Designated Countries, SAO List Countries,
11 and I-730 follow-to-join refugees may enter the United States, Defendants federal agencies and
12 Defendant secretaries and/or directors of those agencies violated the APA.
13 362. These violations continue to cause ongoing harm to Plaintiffs.
14 PRAYER FOR RELIEF
15 WHEREFORE, Petitioners pray that this Court grant the following relief:
16 1. A determination that the Individual Plaintiffs’ claims may properly be maintained
17 as a class action pursuant to Fed. R. Civ. P. 23(b)(1) and (b)(2);
18 2. A declaration that Sections 3(c), 5(a)-(c), and 5(e) of EO-1, Sections 1(f), 2(c),
19 and 6(a) of EO-2, Sections 2(a)-(c), (e), and (g)-(h) of EO-3, and the October 2017 Agency
20 Memo implementing EO-4 violate the rights of all Plaintiffs as well as members of the Non-
21 Immigrant Visa Class and the Refugee Classes for the reasons set forth above.
22 3. A declaration that Sections 2(a)-(c), (e), and (g)-(h) of EO-3 and the manner in
23 which they as well as EO-4 will be implemented are in violation of the rights of all Plaintiffs as
24 well as members of the Non-Immigrant Visa Class and the Refugee Classes for the reasons set
25 forth above.
26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 92

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 96 of 98

1 4. An injunction that the Orders may not be enforced as against Plaintiffs or
2 members of the Non-Immigrant Visa Class or the Refugee Classes in connection with their entry
3 or re-entry into the United States;
4 5. A permanent injunction of the Orders as contrary to the Constitution;
5 6. An award to the Plaintiffs as well as members of the Non-Immigrant Visa Class
6 and the Refugee Classes of reasonable costs and attorneys’ fees; and,
7 7. Such other and further relief that this Court may deem fit and proper.
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 93

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 97 of 98

1 DATED this 6th day of November, 2017.

2 AMERICAN CIVIL LIBERTIES UNION

OF WASHINGTON FOUNDATION 3

By: /s/ Emily Chiang

g

4

/s/ Lisa Nowlin

EMILY CHIANG, WSBA # 50517

5

Lisa Nowlin, WSBA # 51512

901 Fifth Avenue, Suite 630

6

Seattle, WA 98164

7

Telephone: (206) 624-2184 Email: echiang@aclu-wa.org

8

lnowlin@aclu-wa.org

9

Attorney for Plaintiffs

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

KELLER ROHRBACK L.L.P.

By: /s/ Lynn Lincoln Sarko

n

By: /s/ Tana Lin

n

By: /s/ Amy Williams-Derry

y o

By: /s/ Derek W. Loeser______________

By: /s/ Alison S. Gaffney

Lynn Lincoln Sarko, WSBA # 16569 Tana Lin, WSBA # 35271 Amy Williams-Derry, WSBA # 28711 Derek W. Loeser, WSBA # 24274 Alison S. Gaffney, WSBA # 45565 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 Email: lsarko@kellerrohrback.com
tlin@kellerrohrback.com awilliams-derry@kellerrohrback.com dloeser@kellerrohrback.com agaffney@kellerrohrback.com

By: /s/ Laurie B. Ashton

N

Laurie B. Ashton (admitted pro hac vice) 3101 North Central Avenue, Suite 1400 Phoenix, AZ 85012-2600 Telephone: (602) 248-0088 Facsimile: (602) 248-2822 Email: lashton@kellerrohrback.com

By: /s/ Alison Chase

e

Alison Chase (admitted pro hac vice) 1129 State Street, Suite 8 Santa Barbara, CA 93101 Telephone: (805) 456-1496 Facsimile: (805) 456-1497 Email: achase@kellerrohrback.com

Attorneys for Plaintiffs/Cooperating Attorneys for the American Civil Liberties Union Of Washington Foundation

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 94

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 42 Filed 11/06/17 Page 98 of 98

1

CERTIFICATE OF SERVICE

2 I hereby certify that on November 6, 2017, I electronically filed the foregoing Third
3
4 Amended Class Action Complaint for Declaratory and Injunctive Relief with the Clerk of the

5 Court using the CM/ECF system, which will send notification of such filing to the email

6 addresses on the Court’s Electronic Mail Notice List.

7 DATED this 6th day of November, 2017. 8
9

KELLER ROHRBACK L.L.P.

10

By: /s/ Tana Lin

n

11

Tana Lin, WSBA # 35271

12

1201 Third Avenue, Suite 3200

Seattle, WA 98101

13

Telephone: (206) 623-1900

Facsimile: (206) 623-3384

14

Email: tlin@kellerrohrback.com

15

Attorney for Plaintiffs/Cooperating

Attorney for the American Civil

16

Liberties Union Of Washington

17

Foundation

18

19

20

21

22

23

24

25

26

THIRD AMENDED CLASS ACTION COMPLAINT PAGE 95

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

 
 Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 1 of 25

1

The Honorable James L. Robart

2

3

4

5

6

7 UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 John Doe, Jack Doe, Jason Doe, Joseph Doe,

10

James Doe, Jeffrey Doe, individually, and on behalf of all others similarly situated; the

11 Episcopal Diocese of Olympia, and the Council on American-Islamic Relations-Washington,

12

Plaintiffs,

13

v. 14

Donald Trump, President of The United States; 15 U.S. Department of State; Rex Tillerson,

16 Secretary of State; U.S. Department of Homeland Security; Elaine Duke, Acting

17 Secretary of Homeland Security; U.S. Customs

and Border Protection; Kevin McAleenan, 18 Acting Commissioner of U.S. Customs and

19

Border Protection; Michele James, Field Director of the Seattle Field Office of U.S.

20 Customs and Border Protection; Office of the Director of National Intelligence; and Daniel

21 Coats, Director of the Office of the Director of

National Intelligence 22

Defendants. 23

No. 2:17-cv-00178-JLR
MOTION FOR PRELIMINARY INJUNCTION
NOTED FOR CONSIDERATION: NOVEMBER 22, 2017
ORAL ARGUMENT SET FOR: DECEMBER 11, 2017

24

25

26

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178-JLR)

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 2 of 25

1 2 3 I. 4 II. 5 6 7 8
III. 9 10 IV. 11 12 13 14 15 16 17 18 19 20
V. 21 22 23 24 25 26

TABLE OF CONTENTS
Page
INTRODUCTION ........................................................................................................... 1
FACTUAL BACKGROUND ..........................................................................................1
A. Defendants’ Executive Orders and Targeting of Refugees ....................................1
B. The Latest Executive Order and Accompanying Agency Memo ...........................5
C. Plaintiff Joseph Doe .............................................................................................7
LEGAL STANDARD .....................................................................................................8
ARGUMENT ..................................................................................................................9
A. Plaintiff Is Likely to Prevail on His Claims. .........................................................9
1. Plaintiff is likely to succeed on his claim that Defendants’ ban of follow-to-join refugees is contrary to law. ......................................9
2. Plaintiff is likely to succeed on his procedural due process claim. .....................................................................................................12
3. Even if Defendants had not exceeded their statutory authority, their indefinite ban on refugees’ family members must be set aside under the APA.............................................................14
B. Plaintiff Will Suffer Irreparable Harm Absent This Court’s Intervention. ....................................................................................................... 18
C. The Public Interest and Balance of Equities Weigh Heavily in Favor of Granting Injunctive Relief....................................................................19
CONCLUSION .............................................................................................................21

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - i

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 3 of 25

1

I. INTRODUCTION

2

On October 24, 2017, President Trump issued an executive order purporting to “resume”

3 refugee admissions with “enhanced vetting capabilities.” But an October 23, 2017 memorandum
4 from the heads of three administrative agencies to the President (“Agency Memo” or
5 “Memorandum”) makes clear that the administration has in fact done precisely the opposite for
6 7 some refugees by imposing an indefinite ban on the children and spouses of refugees who have
8 already been admitted.

9

The ban irreparably harms Plaintiff Joseph Doe by indefinitely delaying his reunion with

10 his wife and three children, who have already completed the extensive screening process for
11 admission. Under the plain language of the Immigration and Nationality Act (“INA”), 12
Defendants do not have discretion to deny admission to Plaintiff’s wife and children or other 13
“following-to-join” derivative refugees. The ban exceeds the agencies’ statutory authority, 14 15 violates Plaintiff’s procedural due process rights, and violates the Administrative Procedure Act
16 (“APA”). Plaintiff, on behalf of himself and those similarly situated in Washington state, asks

17 this Court to issue a preliminary injunction enjoining the implementation of the Agency Memo

18 with respect to follow-to-join derivative refugees who have completed and cleared their final

19 screenings.

20 The Administration cannot do via surreptitious internal memo what courts have already
21
held it cannot do via openly promulgated executive order. 22

23

II. FACTUAL BACKGROUND

24 A. Defendants’ Executive Orders and Targeting of Refugees

25

Executive Order 13815, “Resuming the United States Refugee Admissions Program with

26 Enhanced Vetting Capabilities,” 82 Fed. Reg. 50,055 (Oct. 24, 2017) (“EO-4”), and the

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 1

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 4 of 25

1 accompanying Agency Memo1 (see Ex. 1, Decl. of Tana Lin in Supp. of Mot. for Prelim. Inj.

2 (“Lin Decl.”), attachments A and B) are the latest installment in a series of executive actions
3 targeting Muslim immigrants and refugees. This Court is familiar with Defendant Trump’s prior 4
orders, Executive Order 13769, 82 Fed Reg. 8977 (Jan. 27, 2017) (“EO-1”); Executive Order 5
13780, 82 Fed. Reg. 13209 (Mar. 6, 2017) (“EO-2”); and Presidential Proclamation 9645, 82 6
7 Fed. Reg. 45,161 (Sept. 24, 2017) (“EO-3”). See Temporary Restraining Order, State v. Trump,
8 No. 17-141-JLR (W.D. Wash. Feb. 3, 2017), Dkt. # 52; State v. Trump, No. 17-141-JLR, 2017

9 WL 4857088, at *2-4 (W.D. Wash. Oct. 27, 2017).2 Plaintiff will not recount that history, but

10 EO-4 and the Agency Memo must still be viewed in context.
11 The President has long demonstrated an irrational prejudice against refugees in general,
12 and a particular concern that the previous refugee admission system favored Muslims over
13 Christians. On the campaign trail, for example, Defendant Trump speculated that Syrian refugees
14
15 could be a terrorist army in disguise: “Did you ever see a migration like that? . . . They’re all

16 men, and they’re all strong-looking guys . . . There are so many men; there aren’t that many

17 women.”3 He also asserted that a proposal to accept 200,000 refugees could amount to accepting
18 a “200,000-man army,” which “could be one of the great tactical ploys of all time.”4 But these 19
numbers are incorrect; of the Syrian refugees admitted to the United States since 2011, 72% are 20

21

22 1 Memorandum from Rex W. Tillerson, Elaine Duke, and Daniel Coats to the President (Oct. 23, 2017), 23 http://bit.ly/2z36fdw (last visited Nov. 2, 2017).
2 Although Plaintiffs challenge EO-3 in their Third Amended Class Action Complaint, this Motion does not request
24 relief related to EO-3. See State v. Trump, No. 17-141-JLR, 2017 WL 4857088, at *7 (W.D. Wash. Oct. 27, 2017)
(staying motion for a TRO in light of the preliminary injunction in Hawai‘i v. Trump, 233 F. Supp. 3d 850, 856
25 (D. Haw. 2017)).
3 Jenna Johnson, Donald Trump: Syrian Refugees Might be a Terrorist Army in Disguise, Wash. Post (Sept. 30,
26 2015), http://wapo.st/2yZY0RZ (last visited Nov. 4, 2017).
4 Id.

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Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 5 of 25

1 women and children under age 14.5 And according to the U.S. Department of State, those

2 percentages are consistent for refugees admitted overall.6

3

At another campaign event, Defendant Trump again brought up Syrian refugees: “[w]e

4 don’t even know who they are. There’s no paperwork. There’s no anything. . . . They’re strong
5
looking guys. . . . Is this a Trojan Horse?”7 In April 2016, Defendant Trump retweeted a graphic 6

7 showing him denying Syrian refugees entry.8

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22
23 5 Jie Zong & Jeanne Batalova, Syrian Refugees in the United States, MPI (Jan. 12, 2017), http://bit.ly/2zwm7Zh
(last visited Nov. 4, 2017).
24 6 Fact Sheet: Fiscal Year 2016 Refugee Admissions, U.S. Dep’t of State (Jan. 20, 2017), http://bit.ly/2j5ZQdy (last
visited Nov. 6, 2017).
25 7 Michael Patrick Leahy, Donald Trump Again Vows to ‘Bomb the S*** out of ISIS’; Ridicules Weakness of Obama
and Clinton, Breitbart (Nov. 17, 2015), http://bit.ly/2j1zvNI (last visited Nov. 4, 2017).
26 8 Donald J. Trump (@realDonaldTrump), Twitter (Apr. 7, 2016, 7:48 PM), http://bit.ly/29176lp (last visited Nov. 4,
2017).

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Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 6 of 25

1

Following his inauguration, Defendant Trump issued EO-1 just one week after taking

2 office, suspending the United States Refugee Admissions Program (“USRAP”), and specifically

3 barring Syrian refugees from entering the United States indefinitely. After multiple courts found

4 EO-1 unlawful, Defendant Trump issued EO-2, suspending the travel and application decisions
5
for all refugees. 6

7

Although EO-2’s refugee suspension was facially neutral, Defendant Trump believed that

8 blocking all refugees had the effect of a nationality-based refugee ban: “‘77% of refugees

9 allowed into U.S. since travel reprieve hail from seven suspect countries.’ (WT) [sic] SO

10 DANGEROUS!”9 Similarly, Defendant Trump revealed his belief that EO-2’s refugee ban

11 favored Christians over Muslims. He declared, “I’m Christian,”10 and argued that it was easier
12 for Muslims than Christians to be admitted as refugees, adding, “[w]e’re going to be helping the
13
Christians big league.”11 14

15

Defendant Trump also cut the total number of refugee admissions by more than half,

16 from FY 2016’s cap of 110,000 to 50,000 in FY 2017 and 45,000 in FY 2018.12 This cap is the

17 lowest ever in the history of the United States’ refugee program.13 Defendants achieved this 18

19

20

21
22 9 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 11, 2017, 4:12 AM), http://bit.ly/2h3Xnfs (last visited Nov.
4, 2017).
23 10 Scott Johnson, At the White House with Trump, Power Line (Apr. 25, 2017), http://bit.ly/2ziHMTJ (last visited
Nov. 3, 2017).
24 11 Charlie Spiering, Donald Trump Invites Conservative Media to White House for Exclusive Briefing, Breitbart
(Apr. 24, 2017), http://bit.ly/2pcB4Ys (last visited Nov. 3, 2017).
25 12 Matt Zapatosky & Carol Morello, U.S Plans to Cap Refugees at 45,000 in Coming Fiscal Year, According to
State Department Report, Wash. Post (Sept. 27, 2017), http://wapo.st/2iAXsYG (last visited Nov. 6, 2017).
26 13 Geneva Sands & Conor Finnegan, Trump Administration to Announce Decision on Refugee Program After 120-
Day Ban, ABC News, http://abcn.ws/2i1ijnJ (last visited Nov. 3, 2017).

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Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 7 of 25

1 historic low in part by suppressing a government study on the overall economic benefit of

2 refugees14 and revising policy papers with spurious statistics about refugees and terrorism.15

3

The Supreme Court’s June 26, 2017 Order allowed Defendants to implement their

4 suspension of USRAP, but only for those refugees without a “bona fide relationship” with
5
United States residents. Trump v. IRAP, 137 S. Ct. 2080, 2089 (2017).16 On October 24, 2017, 6

7 the 120-day suspension of refugee admissions under EO-2 expired. Lin Decl. Ex. A, § 2(a). On

8 the same day, Defendant Trump issued EO-4.

9 B. The Latest Executive Order and Accompanying Agency Memo

10

Section 1(d) of EO-4 states that a working group had been convened pursuant to Section

11 6(a) of EO-2, and that the group “identified several ways to enhance the process for screening
12 and vetting refugees and began implementing those improvements.” Lin Decl. Attach. A, § 1(d).
13 Section 2 of EO-4 claims to lift the USRAP suspension and resume refugee resettlement, id. § 2,
14
15 and Section 3 of EO-4 reiterates the lift of the suspension and directs the Secretaries of State and

16 Homeland Security to assess security risks posed by USRAP admissions, to determine whether

17 any actions should be taken to address such risks, and to determine within 90 days whether any

18 such actions should be modified or terminated. Id. § 3.

19

But the day prior to the issuance of EO-4, Defendants Secretary of State Rex Tillerson,

20 Acting Secretary of Homeland Security Elaine Duke, and Director of National Intelligence
21

22

23

24 14 Julie Hirschfeld Davis & Somini Sengupta, Trump Administration Rejects Study Showing Positive Impact of
Refugees, N.Y. Times (Sept. 18, 2017), http://nyti.ms/2hdTkAN (last visited Nov. 6, 2017).
25 15 Jonathan Blitzer, How Stephen Miller Single-Handedly Got the U.S. to Accept Fewer Refugees, New Yorker (Oct.
13, 2017), http://bit.ly/2xCePCx (last visited Nov. 6, 2017).
26 16 The Supreme Court stayed the Ninth Circuit’s mandate with respect to refugees with a formal assurance from a
resettlement agency. Trump v. Hawai‘i, --- S. Ct. ----, No. 17A275, 2017 WL 3975174 (Sept. 11, 2017).

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Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 8 of 25

1 Daniel Coats sent the President a Memorandum that makes clear all following-to-join derivative

2 refugees are indefinitely banned. According to the Agency Memo, these derivative refugees
3 cannot be allowed to join their families here in the US unless “additional security measures” are 4
implemented. Lin Decl. Attach. B, at 2. 5
“Derivative refugees” are the spouses and unmarried minor children of an admitted 6
7 refugee. They are entitled to the same admission status as the principal refugee under the INA. 8

8 U.S.C. § 1157(c)(2)(A). When derivative refugees travel to join the principal refugee more than

9 four months after the admission of the principal refugee, they are “following-to-join” derivative

10 refugees, rather than “accompanying” derivative refugees. 8 C.F.R. § 207.7(a). Critically, they
11 must complete a comprehensive screening process that includes, inter alia, proving the family
12 members’ identities and relationship to the petitioner, confirmation of the eligibility of each
13 family member to travel, interviews with either a Department of State consular officer or USCIS
14
15 officer, digital fingerprint scans, and rigorous medical examinations.17 The petitioner has the

16 burden of proof to establish the evidence that any person on whose behalf s/he is making a

17 request is an eligible family member. 8 C.F.R. 207.7(e). And each family member must have a
18 sponsorship assurance from a resettlement agency before travel to the United States.18 19
The Agency Memo does not explain the need for “additional security measures.” It does 20
not explain why derivative refugees must be barred in order for those measures to be 21 22 implemented. And it does not provide any timeframe for their implementation, making the ban
23 indefinite: “These additional security measures must be implemented before admission of

24

25 26 17 Follow-to-Join Refugees and Asylees, U.S. Dep’t of State, http://bit.ly/2ivGXwP (last visited Nov. 4, 2017).
18 Id.

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Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 9 of 25

1 following-to-join refugees—regardless of nationality—can resume. Once the security

2 enhancements are in place, admission of following-to-join refugees can resume.” Lin Decl.

3 Attach. B, Addendum at 4.

4 C.
5
6

Plaintiff Joseph Doe Originally from Somalia, Plaintiff Joseph Doe was admitted to the United States as a

7 refugee in late 2014. Ex. 2, Decl. of Joseph Doe in Supp. of Mot. for Prelim. Inj. (“Doe Decl.”)

8 ¶¶ 2, 9. Prior to that, he spent over twenty years living in a refugee camp in Kenya. Id. ¶ 5. He

9 was a child when civil war broke out in Somalia and his family fled the violent conflict,

10 attempting to stay hidden in the forest while making their way to Kenya on foot, going for weeks
11 without food. Id. ¶¶ 3-4. Armed fighters found them in the forest and, in front of Plaintiff Joseph 12
Doe and his family, raped his older sister, who was pregnant at that time and bled to death from 13
the assault. Id. ¶ 4. When Plaintiff Joseph Doe’s family made it to a Kenya refugee camp and 14 15 started the process of applying for refugee status, it was 1992, and he was 10 years old. Id. ¶ 5. In
16 2000, Plaintiff Joseph Doe had his initial interview with the United Nations High Commissioner

17 for Refugees (“UNHCR”), along with his mother, two brothers, and three surviving sisters. Id. ¶

18 6. In 2004, his family disappeared during a raid on the camp by the local Turkana people—he
19 escaped only because he was outside of the camp at the time of the raid. Id. ¶ 7. In 2011, Plaintiff 20
Joseph Doe was called for an interview with DHS/USCIS. Id. ¶ 8. He had just gotten married, 21
but because his refugee application was begun when he was a child, his wife was not part of his 22
23 application. Id. ¶¶ 8-9. Plaintiff Joseph Doe completed the extensive DHS/USCIS screening

24 process in December 2013, and arrived in the United States as a refugee in January 2014. Id. ¶ 9.

25 But he had to leave his wife and three children behind in Kenya; his youngest child was only six

26 months old at the time. Id.

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Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 10 of 25

1

When Plaintiff Joseph Doe first arrived in the United States, he did not know he had the

2 right to petition for his family’s arrival. Id. ¶ 10. As soon as he discovered he could do so, he
3 filed I-730 petitions for his family. Id. In November 2016, his wife and children had their final 4
interviews. Id. ¶ 12. They completed their security clearances, and received their medical 5
clearances just days after Defendant Trump issued EO-1. Id. ¶ 12. They were only waiting for 6
7 their travel to the United States to be scheduled (and for the cultural orientation, which takes

8 place a few days prior to departure) as of March 1, 2017. Id. But that travel was never scheduled

9 because of Defendants’ executive orders. In June 2017, they received formal assurance through a

10 resettlement agency. Id. But still Plaintiff Joseph Doe’s family waited for travel arrangements
11 and, because the medical clearances expire after six months, they had to redo the medical
12 examination process. Id. ¶ 13. His wife and one child have passed their medical exams, but
13 Plaintiff Joseph Doe is still awaiting results for two of his children. Id. Plaintiff supports his
14
15 family through his job here in Washington, id. ¶ 14, and he regularly talks to them on the phone.

16 Id. ¶ 15. His youngest son, now four years old, often cries for him and asks, “[w]here are you?

17 Why can’t you come for us?” Id. Every day, Plaintiff has only two wishes—to hug his family
18 and to be a family again, all together in one place. Id. ¶ 18.
19 III. LEGAL STANDARD
20 To obtain a preliminary injunction, the moving party must show that: (1) she “is likely to
21 succeed on the merits,” (2) she “is likely to suffer irreparable harm in the absence of preliminary
22
23 relief,” (3) “the balance of equities tips in [her] favor,” and (4) “an injunction is in the public

24 interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary injunction

25 is also appropriate if “serious questions going to the merits were raised and the balance of the

26 hardships tips sharply in the plaintiff's favor,” thereby allowing preservation of the status quo

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 8

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Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 11 of 25

1 when complex legal questions require further inspection or deliberation. State v. Trump, No. 17-

2 141-JLR, 2017 WL 462040, at *2 (W.D. Wash. Feb. 3, 2017) (quoting All. for the Wild Rockies
3 v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011)). Thus, even where a “a plaintiff can only 4
show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of 5
success on the merits—then a preliminary injunction may still issue if the ‘balance of the 6
7 hardships tips sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.”

8 Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance,

9 632 F.3d at 1135).

10

IV. ARGUMENT

11 A. Plaintiff Is Likely to Prevail on His Claims.
12 Plaintiff is likely to succeed on his claims because he unquestionably has a statutory
13 entitlement under the INA to be reunited with his family, and Defendants have deprived him of
14
that entitlement. Defendants did so by announcing an indefinite ban via a memo, without 15

16 providing Plaintiff or others like him with any process at all, and without the necessary statutory

17 authority. Even if Defendants had statutory authority to ban follow-to-join refugees, which they

18 do not, their action was both procedurally improper and arbitrary and capricious under the APA.

19

1. Plaintiff is likely to succeed on his claim that Defendants’ ban of follow-to-

20

join refugees is contrary to law.

21

“It is central to the real meaning of ‘the rule of law,’ and not particularly controversial

22 that a federal agency does not have the power to act unless Congress, by statute, has empowered

23 it to do so.” Succar v. Ashcroft, 394 F.3d 8, 20 (1st Cir. 2005) (citation omitted). Administrative
24 agencies “literally ha[ve] no power to act . . . unless and until Congress confers power” to do so.
25 La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). The APA provides that a reviewing
26

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Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 12 of 25

1 court shall “hold unlawful and set aside agency action … in excess of statutory jurisdiction,
2 authority, or limitations, or short of statutory right[.]” 5 U.S.C. § 706(2)(c); see also Nw. Envtl.
3 Advocates v. U.S. E.P.A., 537 F.3d 1006, 1014 (9th Cir. 2008); U.S. ex rel. O’Keefe v. 4
McDonnell Douglas Corp., 132 F.3d 1252, 1257 (8th Cir. 1998) (“An agency’s promulgation of 5
rules without valid statutory authority implicates core notions of the separation of powers, and 6 7 we are required by Congress to set these regulations aside.”). Even if the APA does not apply,
8 the Court has the authority to review and set aside ultra vires agency action. See Trudeau v. Fed.

9 Trade Comm’n, 456 F.3d 178, 185 (D.C. Cir. 2006) (holding that “[s]ection 1331 is an
10 appropriate source of jurisdiction for” APA, nonstatutory, and constitutional claims). 11
Here, not only did Defendants act without Congress’s direction, they vastly exceeded 12
their statutory authority by unilaterally suspending a provision of a federal statute properly 13
enacted by Congress. Congress created an entitlement allowing refugees to bring their immediate 14
15 families—spouses and unmarried children under the age of twenty-one—to join them in the
16 United States. And it did so using plain language that nowhere gives Defendants the authority to

17 rescind that entitlement.

18

The Court must “begin [its analysis] with the plain language of the statute.” Negusie v.

19 Holder, 555 U.S. 511, 542 (2009). If the “statutory text is plain and unambiguous[,]” it “must
20 apply the statute according to its terms.” Carcieri v. Salazar, 555 U.S. 379, 387 (2009). Here, the
21

22 statutory language is unambiguous. Although the grant of refugee status to the principal refugee

23 is within the agency’s discretion, the grant of derivative refugee status is not. Compare INA §

24 207(c)(1) (which governs principal refugees), with § 207(c)(2)(A) (which governs derivatives):

25

(1) [T]he Attorney General may, in the Attorney General’s discretion and

26

pursuant to such regulations as the Attorney General may prescribe, admit any refugee who is not firmly resettled in any foreign country, is determined to be of

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Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 13 of 25

1

special humanitarian concern to the United States, and is admissible . . . as an

immigrant under this chapter. 2

(2)(A) A spouse or child . . . of any refugee who qualifies for admission under

3

paragraph (1) shall, if not otherwise entitled to admission under paragraph (1) and

4

if not a person described in the second sentence of section 1101(a)(42) of this

title, be entitled to the same admission status as such refugee if accompanying,

5

or following to join, such refugee and if the spouse or child is admissible . . . as an

immigrant under this chapter. 6

8 U.S.C. § 1157(c) (emphasis added).19 7

8

As the first subparagraph above illustrates, Congress knew how to commit a decision to

9 the agency’s discretion; the use of the word “may” in subsection (c)(1) contrasts with the use of

10 the word “shall” in the next paragraph. See Lopez v. Davis, 531 U.S. 230, 241 (2001)

11 (“Congress’ use of the permissive ‘may’ in § 3621(e)(2)(B) contrasts with the legislators’ use of
12 a mandatory ‘shall’ in the very same section.”). Here, as in Lopez, “Congress used ‘shall’ to
13 impose discretionless obligations.” Id. And the remaining language it chose only emphasizes the
14 lack of agency discretion in this context: follow-to-join refugees are “entitled” to join the
15
16 refugee.

17

That the agency may be tasked with determining a derivative refugee’s admissibility

18 under the INA makes no difference. In an analogous case involving investor visas available
19 under INA § 203(b)(5), 8 U.S.C. § 1153(b)(5), the Ninth Circuit held that the word “shall” 20
indicates a nondiscretionary statutory duty and, moreover, that the application of statutory 21
eligibility requirements does not make the determination a discretionary one. Spencer Enters., 22 23 Inc. v. United States, 345 F.3d 683, 691 (9th Cir. 2003). The court explained that although the

24

25

26 19 The statute refers to the Attorney General’s discretion, but the relevant agency is now Defendant Department of
Homeland Security. See 6 U.S.C. § 101 et seq.; see also Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005).

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Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 14 of 25

1 INA subsection at issue, 8 U.S.C. § 1154(b), “does allow the Attorney General to ‘determine’ the

2 petitioner’s eligibility, the determination here is clearly guided by the eligibility requirements set
3 out in § 1153(b)(5),” and “[m]oreover, as noted above, § 1154(b) directs that the Attorney 4
General ‘shall . . . approve the petition’ of any visa petitioner who is determined to be eligible.” 5
Id. In drafting the INA, Congress was “explicit about where the Attorney General has been 6
7 granted discretion and where he has not.” Succar, 394 F.3d at 10 (finding that Congress did not

8 place decision in agency’s discretion when it “created mandatory criteria”).

9

Congress purposefully enacted a mandatory statutory entitlement—in likely recognition

10 of the powerful bonds between spouses and their minor children20—and set forth the criteria for
11 admissibility “as an immigrant under this chapter.” See 8 U.S.C. § 1157(c)(2)(A); id. § 1182(a).
12 Plaintiff has a legitimate entitlement because the government has no discretion to deny derivative
13 refugee status to admissible family members, and the government has already determined that his
14
15 family members are admissible. Defendants have exceeded their statutory authority.

16

2. Plaintiff is likely to succeed on his procedural due process claim.

17

No person shall “be deprived of life, liberty, or property, without due process of law.”21

18 U.S. Const. amend. V. “A threshold requirement to a substantive or procedural due process claim
19 is the plaintiff's showing of a liberty or property interest protected by the Constitution.”
20 Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). To have a
21 property interest in a statutorily created benefit, an individual must “have a legitimate claim of
22

23

24

25 20 As legislators observed prior to the passage of the Refugee Act of 1980, “admitt[ing] refugees to promote family
reunion” was of “special concern.” S. Rep. No. 96-265, at 2-3 (1979), reprinted in 1980 U.S.C.C.A.N. 146-147.
26 21 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).

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Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 15 of 25

1 entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). The INA

2 creates just such an entitlement in § 207(c)(2)(A), where it explicitly states that follow-to-join
3 refugees are “entitled” to admission. 8 U.S.C. § 1157(c)(2)(A). 4
Plaintiff’s entitlement has already vested.22 His petitions for his family’s derivative status 5
were approved and his family members received their security and medical clearances. Doe 6 7 Decl. ¶ 12. Because USCIS and DHS have deemed his family admissible, and because of the
8 mandatory language in the statute, he has a “legitimate claim of entitlement” to his family’s

9 admission that Defendants cannot take away without due process. Roth, 408 U.S. at 577.

10

In an analogous case involving an I-130 petition for immediate relative status,23 the Ninth

11 Circuit held that the grant of an I-130 petition was nondiscretionary because the statute provided:
12 “After an investigation of the facts in each case, . . . the [Secretary of Homeland Security] shall,
13
if he determines that the facts stated in the petition are true and that the alien in behalf of whom 14

15 the petition is made is an immediate relative[,] . . . approve the petition. . . .” Ching v. Mayorkas,

16 725 F.3d 1149, 1155 (9th Cir. 2013) (footnote omitted) (citation omitted). Therefore,

17 “[i]mmediate relative status for an alien spouse is a right to which citizen applicants are entitled
18 as long as the petitioner and spouse beneficiary meet the statutory and regulatory requirements 19
for eligibility.” Id. at 1156. The Ninth Circuit concluded that “[t]his protected interest is entitled 20

21

22
22 Even if the government had not yet undertaken the determination of his family’s status, Plaintiff would still have
23 an entitlement under the mandatory language of INA § 207(c)(2)(A), to having the government determine his
family’s derivative refugee status. See Roth, 408 U.S. at 577 (explaining that in Goldberg v. Kelly, 397 U.S. 254
24 (1970), the welfare recipients “had a claim of entitlement to welfare payments that was grounded in the statute
defining eligibility for them,” and even though they had not yet demonstrated eligibility, they had a right to the
25 opportunity to do so).
23 The I-130 is a petition by a citizen or lawful permanent resident of the United States to establish the relationship
26 to certain alien relatives (spouses, unmarried children, siblings, and parents) who wish to immigrate to the United
States.

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 13

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 16 of 25

1 to the protections of due process.” Id. at 1156. Similarly, in a case involving citizenship

2 applications, which are also nondiscretionary, Judge Jones in this District noted that “[w]hen an
3 applicant has met all the requirements of the law, the privilege accorded him ripens into a right, 4
[and] he is entitled to citizenship.” Wagafe v. Trump, No. 17-94-RAJ, 2017 WL 2671254, at *8 5
(W.D. Wash. June 21, 2017) (citation omitted). The reasoning in Ching and Wagafe applies with 6
7 equal force here.

8

In carrying out Congress’s immigration directives, “the Executive Branch of the

9 Government must respect the procedural safeguards of due process.” Galvan v. Press, 347 U.S.

10 522, 531 (1954). Defendants may not deprive Plaintiff Joseph Doe of his protected statutory
11 interest without providing, “at a minimum, notice and an opportunity to respond.” United States
12 v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014). Here, Defendants’ Memorandum provided
13 no process at all. Cf. State v. Trump, 847 F.3d 1151, 1164 (9th Cir.), denying recons. en banc,
14
15 853 F.3d 933 (9th Cir. 2017), denying recons. en banc, 858 F.3d 1168 (9th Cir. 2017) (holding

16 plaintiffs were likely to succeed on Due Process claim under EO-1, noting that “the Government

17 does not contend that the Executive Order provides for such process”).

18

3. Even if Defendants had not exceeded their statutory authority, their

19

indefinite ban on follow-to-join refugees must be set aside under the APA.

20

a. Defendants violated the procedural requirements of the APA.

21

Even if Defendants had the authority to suspend the admission of follow-to-join refugees,

22 which they do not, Defendants failed to do so in “observance of procedure required by law.” 5
23 U.S.C. § 706(2)(D). There can be no question but that the Memorandum is final agency action 24
subject to APA review. There is nothing “tentative or interlocutory” about its suspension of 25
follow-to-join refugee admissions, which is already being enforced. Bennett v. Spear, 520 U.S. 26

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 14

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 17 of 25

1 154, 177-78 (1997). And its suspension of follow-to-join refugee admissions imposes real and

2 severe “legal consequences” on refugees like Plaintiff and his family. Id. at 178 (citation
3 omitted). Such policies must be promulgated using notice-and-comment rulemaking because 4
they have “‘binding effect’—‘binding’ in the sense that the rule does not ‘genuinely leave[] the 5
agency . . . free to exercise discretion.’” Am. Mining Cong. v. Mine Safety & Health Admin., 995 6
7 F.2d 1106, 1111 (D.C. Cir. 1993) (citation omitted); see also Nat’l Mining Ass’n v. McCarthy,

8 758 F.3d 243, 252-53 (D.C. Cir. 2014) (describing what makes a legislative rule).

9

The Agency Memo is a legislative rule for which notice and comment was required. It

10 bans the admission of follow-to-join refugees with a categorical revocation of a legal entitlement
11 granted by the plain language of the INA. And it provides agency personnel no discretion
12 whatsoever, see McCarthy, 758 F.3d at 252 (looking to “the agency’s characterization” of
13 whether its action binds agency personnel). Far from a mere policy statement with “‘no legal
14
15 impact,’” id. at 253 (citation omitted), the Memorandum clearly falls on the legislative side of

16 the line. The APA requires notice and comment is required for precisely this type of agency

17 action so that the public can weigh in before people are deprived of substantive rights. Not only

18 have Defendants eviscerated a statutory entitlement, they have done so in relative secrecy via an
19 internal agency memo accompanied by none of the processes required by law. The Court should
20 therefore set aside the Memorandum for failing to conform to the APA’s procedural
21
22 requirements.

23

b. Defendants’ indefinite ban of follow-to-join refugees is arbitrary and

capricious.

24

Even if notice-and-comment rulemaking were not required, the Memorandum’s indefinite

25

suspension is still doomed under the APA, which prohibits agency action that is “arbitrary, 26

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 15

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 18 of 25

1 capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A). As the Supreme Court has

2 reiterated specifically in the immigration context, “courts retain a role, and an important one, in
3 ensuring that agencies have engaged in reasoned decisionmaking.” Judulang v. Holder, 565 U.S. 4
42, 53 (2011). In reviewing agency action under the arbitrary-and-capricious standard, courts 5
examine “whether the decision was based on a consideration of the relevant factors and whether 6
7 there has been a clear error of judgment.” Id.; Motor Vehicle Mfrs. Ass’n of United States, Inc. v.

8 State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“[T]he agency must . . . articulate a

9 satisfactory explanation for its action including a rational connection between the facts found and

10 the choice made.”). An agency’s decision is arbitrary and capricious when it fails to sufficiently
11 explain the reason for its decision, or when it changes a policy or deviates from existing practice
12 without acknowledging and explaining the reason for the change. See FCC v. Fox Tel. Stations,
13 Inc., 556 U.S. 502, 515 (2009) (agency must “display awareness that it is changing position” and
14
15 must “show that there are good reasons for the new policy”); Judulang, 565 U.S. at 64 (holding

16 Board of Immigration Appeals policy arbitrary and capricious when Court could not “discern a

17 reason for it”).

18

Regardless of whether the proposed security “enhancements” are justified (the Agency

19 Memo does not explain why they are necessary), the Memorandum provides no explanation at
20 all for why Defendants must suspend follow-to-join admissions in order to implement these
21

22 enhancements. It simply states that the program is suspended indefinitely without even trying to

23 provide the “reasoned explanation” that the APA requires. Ctr. for Biological Diversity v. Nat’l

24 Highway Traffic Safety Admin., 538 F.3d 1172, 1207 (9th Cir. 2008). And it fails to even

25 mention—much less justify—the indefinite separation its policy will impose on follow-to-join 26

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 16

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 19 of 25

1 refugees and their families. See Fox, 556 U.S. at 516 (explaining that it is “arbitrary and

2 capricious to ignore” the “serious reliance interests” that a “prior policy has engendered”).
3 Nothing in the Memo explains why Defendants cannot continue to screen and admit the spouses 4
and children of refugees while implementing these measures. But there is ample evidence of 5
irrational animus, from the refugee bans imposed by EO-1 and EO-2; the Memo’s reference to 6
7 “certain nationals” and SAO countries; and the President’s public displays of intense vitriol

8 toward refugees—and Muslim refugees in particular. See supra § II.A.

9

As the Ninth Circuit explained with respect to Defendants’ prior attempt to suspend

10 refugee admissions, “EO2 does not reveal any threat or harm to warrant suspension of USRAP
11 for 120 days and does not support the conclusion that the entry of refugees in the interim time
12 period would be harmful. Nor does it provide any indication that present vetting and screening
13 procedures are inadequate.” Hawai‘i v. Trump, 859 F.3d 741, 775 (9th Cir.), vacated, No. 16-
14
15 1540, 2017 WL 4782860 (U.S. Oct. 24, 2017).24 See also State, 847 F.3d at 1168 (dismissing

16 the government’s claim of irreparable injury and noting that “the Government has done little

17 more than reiterate” its general interest in combatting terrorism) (internal citations omitted); See

18 IRAP, 2017 WL 1018235, at *17 (“Defendants, however, have not shown, or even asserted, that

19 national security cannot be maintained without an unprecedented six-country travel ban, a
20 measure that has not been deemed necessary at any other time in recent history.”).
21

22

Defendants’ insufficient explanation is reminiscent of then-Governor Pence’s attempt to

23 keep Syrian refugees out of his state of Indiana based on empty assertions of security risks. The

24 Seventh Circuit rejected the effort, stating that the government “provides no evidence that Syrian

25

26
24 (Add citation that while vacated opinion is not binding, it is still persuasive authority)

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 17

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 20 of 25

1 terrorists are posing as refugees or that Syrian refugees have ever committed acts of terrorism in

2 the United States. Indeed, as far as can be determined from public sources, no Syrian refugees
3 have been arrested or prosecuted for terrorist acts or attempts in the United States.” Exodus 4
Refugee Immigration, Inc. v. Pence, 838 F.3d 902, 904 (7th Cir. 2016). Similarly, the district 5
court found it “beyond reasonable argument to contend that a policy that purportedly deters 6
7 [Syrian] four year olds from resettling” somehow served an “asserted interest in public safety.”

8 Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 737 (S.D. Ind.). Defendants’

9 rationale here, to the extent one is even articulated, is equally empty.

10 B. Plaintiff Will Suffer Irreparable Harm Absent This Court’s Intervention.

11

Defendants’ decision to halt admission of follow-to-join derivative refugees from all

12 nations inflicts severe harm on Plaintiff and others like him. Plaintiff, who has surely endured
13 enough, is alone in the United States and desperately longs to be reunited with his family. Doe
14

15 Decl. ¶ 18. Defendants’ Memorandum closes the door on family reunification indefinitely.

16

“‘Public policy supports recognition and maintenance of a family unit.’” Hawai‘i v.

17 Trump, 859 F.3d 741, 784 (9th Cir.), cert. granted sub nom. Trump v. IRAP, 137 S. Ct. 2080, 198

18 L. Ed. 2d 643 (2017), and cert. granted, judgment vacated, No. 16-1540, 2017 WL 4782860
19 (U.S. Oct. 24, 2017), and vacated sub nom (quoting Solis-Espinoza v. Gonzales, 401 F.3d 1090, 20
1094 (9th Cir. 2005)). Indeed, “‘[t]he [INA] was intended to keep families together. It should be 21
construed in favor of family units and the acceptance of responsibility by family members.’” Id. 22
23 (quoting Kaliski v. Dist. Dir. of INS, 620 F.2d 214, 217 (9th Cir. 1980) (explaining that “the

24 humane purpose” of the INA is to reunite families).

25

Separation from one’s family is well recognized as irreparable harm: “important

26 [irreparable harm] factors include separation from family members.” Andreiu v. Ashcroft, 253

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 18

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 21 of 25

1 F.3d 477, 484 (9th Cir.2001) (en banc); see also Leiva-Perez v. Holder, 640 F.3d 962, 969–70

2 (9th Cir. 2011). The Ninth Circuit recently reiterated that EO-1’s having “separated families”

3 was “substantial injur[y] and even irreparable harm[ ].” State v. Trump, 847 F.3d 1151, 1169 (9th
4 Cir.), denying recons. en banc, 853 F.3d 933 (9th Cir. 2017), and denying recons. en banc, 858
5
F.3d 1168 (9th Cir. 2017). 6

7

In this case, Defendants’ decision to indefinitely halt the admission of follow-to-join

8 derivative refugees inflicts severe harm on Plaintiff and others like him, who stand on the verge

9 of being reunited with their very closest of family members—their children and spouses—after

10 years of separation. Because Defendants have also lowered the refugee cap to the lowest number
11 in the history of USRAP, the Agency Memo effectively eviscerates any chance Plaintiff’s
12 children and spouse, and those of others like him, have to get into the queue for the severely
13 limited number of available spots left for refugees. The problem is compounded by the
14
15 potentially endless cycle of medical clearances as those clearances expire, creating additional

16 delay each time and the risk that the few available refugee slots will all already be filled each

17 year before they can make it through.

18

The additional separation resulting from Defendants’ actions is irreparable injury—lost

19 time with his wife and young children that Plaintiff can never recover. Accordingly, this factor
20 weighs in Plaintiff’s favor.
21

22 C.

The Public Interest and Balance of Equities Weigh Heavily in Favor of Granting Injunctive Relief.

23 The balance of the equities and public interest factors tip sharply in favor of Plaintiffs.
24 See Winter, 555 U.S. at 24. The harms the Memorandum inflicts are immediate and severe, and
25

26

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 19

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 22 of 25

1 “it is always in the public interest to prevent the violation of a party’s constitutional rights.”

2 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012).

3

The Supreme Court recently balanced nearly identical equities when it held that EO-2’s

4 travel ban “may not be enforced against foreign nationals who have a credible claim of a bona
5

fide relationship with a person or entity in the United States.” Trump v. IRAP, 137 S. Ct. at 2088. 6

7 Likewise for EO-2’s suspension of refugee admissions: “An American individual or entity that

8 has a bona fide relationship with a particular person seeking to enter the country as a refugee can

9 legitimately claim concrete hardship if that person is excluded. As to these individuals and

10 entities, we do not disturb the injunction.” Id. at 2089. The Court explained that with respect to

11 individuals, “the sort of relationship that qualifies” as a “bona fide relationship” is “a close
12 familial relationship.” Id. at 2088. Follow-to-join refugees by definition have a “close family
13
relationship” with a U.S. resident because only spouses and children are eligible. 14

15

The effect of the Memorandum on Plaintiff is particularly cruel because he has already

16 waited years while his family members went through the exhaustive screening required by

17 USRAP and because the ban on his family is indefinite. Defendants, in contrast, have offered no

18 exigency that demands such an indefinite ban, much less that the ban will actually prevent
19 terrorism. The federal government’s interest in enforcing laws related to national security,
20 absent any evidence of a threat, cannot outweigh the real harms that Plaintiffs face at
21
22 Defendants’ hands.

23

Accordingly, this Court should find that the balance of interests presented in this case tips

24 in the favor of Plaintiff.

25

26

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 20

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 23 of 25

1

V. CONCLUSION

2

The latest installment in the saga of Defendants’ proclaimed “Muslim Ban” targets some

3 of the world’s most vulnerable: refugees and their families. Because Plaintiff will be irreparably
4 harmed by the implementation of the Memorandum, because he is likely to succeed on his
5 claims, and because the balance of equities tips in his favor, Plaintiff respectfully requests that
6 7 this Court grant his motion and issue a preliminary injunction preventing Defendants from
8 suspending admission of follow-to-join derivative refugees.
9 DATED this 6TH day of November, 2017

10 AMERICAN CIVIL LIBERTIES UNION KELLER ROHRBACK L.L.P.

OF WASHINGTON FOUNDATION

11

By: /s/ Lynn Lincoln Sarko

By: /s/ Emily Chiang

By: /s/ Tana Lin

12 By: /s/ Lisa Nowlin

g

By: /s/ Amy Williams-Derry

13

Emily Chiang, WSBA # 50517

By: /s/ Derek W. Loeser By: /s/ Alison S. Gaffney

Lisa Nowlin, WSBA # 51512

14

901 Fifth Avenue, Suite 630

Lynn Lincoln Sarko, WSBA # 16569

Seattle, Washington 98164

15

Telephone: (206) 624-2184

Tana Lin, WSBA # 35271 Amy Williams-Derry, WSBA # 28711

16

Email: echiang@aclu-wa.org lnowlin@aclu-wa.org

Derek W. Loeser, WSBA # 24274 Alison S. Gaffney, WSBA # 45565

17

Attorneys for Plaintiffs

1201 Third Avenue, Suite 3200 Seattle, WA 98101

18

Telephone: (206) 623-1900 Facsimile: (206) 623-3384

19

Email: lsarko@kellerrohrback.com

tlin@kellerrohrback.com

20

awilliams-derry@kellerrohrback.com

dloeser@kellerrohrback.com

21

agaffney@kellerrohrback.com

22

By: /s/ Laurie B. Ashton

23

Laurie B. Ashton (admitted pro hac vice)

3101 North Central Avenue, Suite 1400

24

Phoenix, AZ 85012-2600

Telephone: (602) 248-0088

25

Facsimile: (602) 248-2822

Email: lashton@kellerrohrback.com 26

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 21

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 24 of 25

1

By: /s/ Alison Chase

2

Alison Chase (admitted pro hac vice)

1129 State Street, Suite 8

3

Santa Barbara, CA 93101

Telephone: (805) 456-1496

4

Facsimile: (805) 456-1497

Email: achase@kellerrohrback.com 5

Attorneys for Plaintiffs/Cooperating

6

Attorneys for the American Civil Liberties

7

Union Of Washington Foundation

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 22

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 45 Filed 11/06/17 Page 25 of 25

1

CERTIFICATE OF SERVICE

2

I hereby certify that on November 6, 2017, I electronically filed the foregoing Motion for

3 Preliminary Injunction with the Clerk of the Court using the CM/ECF system, which will send
4 notification of such filing to the email addresses on the Court’s Electronic Mail Notice List.
5 DATED this 6th day of November, 2017.
6 KELLER ROHRBACK L.L.P.
7

8

9

By: /s/ Tana Lin

10

Tana Lin, WSBA # 35271 1201 Third Avenue, Suite 3200

11

Seattle, WA 98101 Telephone: (206) 623-1900

12

Facsimile: (206) 623-3384

Email: tlin@kellerrohrback.com

13 Attorney for Plaintiffs/Cooperating

14

Attorney for the American Civil

Liberties Union Of Washington

15

Foundation

16
Succar 17

18

19

20

21

22

23

24

25

26

MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178JLR) - 23

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

 
 Case 2:17-cv-00178-JLR Document 51 Filed 11/16/17 Page 1 of 26

The Honorable James L. Robart 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

8 John Doe, Jack Doe, Jason Doe, Joseph Doe,
9 James Doe, Jeffrey Doe, individually, and on behalf of all others similarly situated; the
10 Episcopal Diocese of Olympia; and the Council on American-Islamic Relations-
11 Washington,

12

Plaintiffs,

No. 2:17-cv-00178 (JLR)
DEFENDANTS’ OPPOSITION TO PLAINTIFF JOSEPH DOE’S MOTION FOR PRELIMINARY INJUNCTION

13

v.

Noted For Consideration:

14 Donald Trump, in his official capacity as President of the United States; U.S.

November 22, 2017

15 Department of State; Rex Tillerson, in his official capacity as Secretary of State; U.S.

16 Department of Homeland Security; Elaine Duke, in her official capacity as Acting

17 Secretary of Homeland Security; U.S. Customs and Border Protection; Kevin McAleenan, in

18 his official capacity as Acting Commissioner of U.S. Customs and Border Protection;

19 Michele James, in her official capacity as Field Director of the Seattle Field Office of U.S.

20 Customs and Border Protection; Office of the Director of National Intelligence; and Daniel

21 Coats, in his official capacity as Director of National Intelligence,

22 Defendants.

23

24

25

26

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION John Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00178-JLR Document 51 Filed 11/16/17 Page 2 of 26

1

TABLE OF CONTENTS

2 INTRODUCTION ....................................................................................................................... 1

3 BACKGROUND ......................................................................................................................... 2

4 I. LEGAL FRAMEWORK ................................................................................................. 2

5 II. THE JOINT MEMORANDUM ...................................................................................... 3

6 III. PLAINTIFF’S MOTION ................................................................................................. 6

7 STANDARD OF REVIEW ......................................................................................................... 6

8 ARGUMENT............................................................................................................................... 6

9 I. PLAINTIFF’S CHALLENGES ARE NOT JUSTICIABLE........................................... 6

10

A. Plaintiff Lacks Standing....................................................................................... 7

11

B. Plaintiff’s Claims Are Barred By Principles Of Nonreviewability ..................... 8

12

1. Plaintiff’s Statutory Claims Are Not Reviewable.................................... 8

13

2. Plaintiff’s Constitutional Claim Is Not Reviewable .............................. 10

14

C. Plaintiff Has Not Identified Any Final Agency Action ..................................... 11

15 II. PLAINTIFF’S CLAIMS ARE NOT LIKELY TO SUCCEED ON THE MERITS ..... 12

16

A. Plaintiff’s Section 1157(c)(2)(A) Claim Lacks Merit........................................ 12

17

B. The Joint Memorandum’s Implementation Period Does Not Violate The

Due Process Clause............................................................................................ 14

18

C. The Joint Memorandum’s Implementation Period Does Not Violate the

19

APA.................................................................................................................... 16

20

1. Notice-And-Comment Rulemaking Was Not Required Because

21

The Implementation Period Is A Procedural Rule ................................. 16

22

2. The Implementation Period Is Neither Arbitrary Nor Capricious ......... 18

23 III.
24 IV.
25

THE REMAINING PRELIMINARY INJUNCTION FACTORS WEIGH AGAINST RELIEF ....................................................................................................... 21
ANY INJUNCTION SHOULD BE NARROWLY TAILORED TO ADDRESS ONLY PLAINTIFF JOSEPH DOE’S ALLEGED INJURY......................................... 22

26 CONCLUSION.......................................................................................................................... 23

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION - i John Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00178-JLR Document 51 Filed 11/16/17 Page 3 of 26

1

INTRODUCTION

2

Plaintiff Joseph Doe asks the Court to preliminarily enjoin a provision of a Joint

3 Memorandum issued by multiple Cabinet Secretaries regarding the operation of the U.S. Refugee 4 Admissions Program.1 The Joint Memorandum explains that most following-to-join refugee

5 applicants are not currently subject to the same screening and vetting procedures as other refugees.

6 The Secretaries of State and Homeland Security and the Director of National Intelligence

7 determined that this disparity must be remedied to ensure the security and welfare of the United

8 States. The Joint Memorandum thus directs the relevant agencies to implement screening

9 mechanisms for following-to-join refugees that are similar to those already employed for principal

10 refugees. During this “implementation period,” following-to-join refugees processed at most

11 locations will not be admitted to the United States. But the relevant agencies are working as

12 expeditiously as possible to implement the additional screening procedures. Once those

13 procedures are in place, admissions will resume, as the Joint Memorandum explains.

14

Plaintiff previously was admitted to the United States as a refugee and seeks to bring his

15 wife and three children here as following-to-join refugees. He asserts that the Joint

16 Memorandum’s implementation period is unlawful and should be enjoined. His claims, however,

17 are all premised on his erroneous belief that the Joint Memorandum indefinitely bars the

18 admission of all following-to-join refugees, thereby depriving him (and his family) of what he

19 asserts are vested statutory rights. But the Joint Memorandum merely provides for a pause in

20 admissions while the agencies align their screening and vetting procedures for following-to-join

21 refugee applicants with those applied to other refugees; it is a pause to allow for updated

22 procedures to be implemented, not an indefinite suspension of the program. Therefore, the Joint

23 Memorandum does not affect any substantive rights. Even assuming Plaintiff had any

24 “entitlement” to the admission of family members (and he does not), the Joint Memorandum

25 would not deprive him of it. At most, the Joint Memorandum will result in some delay in the

26

1 See Joint Memorandum to the President from the Secretary of State, Acting Secretary of Homeland

Security, and Director of National Intelligence (Oct. 23, 2017) (ECF No. 46-2) [hereafter “Joint Mem.”].

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1 processing of following-to-join refugees, but no refugee applicant is entitled to have his or her

2 application processed at any particular pace or within a specified timeframe. And Plaintiff

3 certainly has no right to have his family members screened under diminished procedures. For this

4 reason, and others explained below, Plaintiff’s claims under 8 U.S.C. § 1157(c)(2)(A) and the

5 Fifth Amendment’s Due Process Clause fail.

6

Similarly, because the Joint Memorandum’s implementation period does not change the

7 substantive criteria for determining whether Plaintiff’s family members qualify for following-to-

8 join status and are otherwise admissible as immigrants, the implementation period is a procedural

9 rule that is exempt from the Administrative Procedure Act’s (APA) notice-and-comment

10 requirements. Moreover, the Cabinet Secretaries’ decision to implement additional screening

11 procedures for following-to-join refugees, in order to protect national security and so that

12 similarly situated refugees are treated alike, is neither arbitrary nor capricious.

13

The Court need not even reach the merits, though, because Plaintiff’s claims are not

14 justiciable at all. Plaintiff lacks standing because he has not shown that his family is even affected

15 by the provision of the Joint Memorandum that he challenges: it appears that Plaintiff’s family

16 members are located in Kenya, which is one location where enhanced vetting procedures for

17 following-to-join refugees are already in place, and so the Government is admitting following-to-

18 join refugees who have been processed in Kenya (subject to other applicable restrictions on

19 refugee admissions). Congress, moreover, has not authorized review of Plaintiff’s statutory

20 claims, and Plaintiff has not shown that he himself has been deprived of any entitlement without

21 adequate process. Finally, even if Plaintiff could overcome these jurisdictional hurdles, the Joint

22 Memorandum’s implementation period is not final agency action subject to judicial review.

23

BACKGROUND

24 I. LEGAL FRAMEWORK

25

Subject to numerical limits set annually by the President, the Secretary of Homeland

26 Security has discretion to admit “any refugee who is not firmly resettled in any foreign country,

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1 is determined to be of special humanitarian concern to the United States, and is admissible (except

2 as otherwise provided under [8 U.S.C. § 1157(c)(3)]) as an immigrant” under the Immigration

3 and Nationality Act (INA). 8 U.S.C. § 1157(c)(1); see also 8 U.S.C. § 1182(a) (setting forth

4 general inadmissibility grounds). Refugees admitted in accordance with this provision are

5 sometimes referred to as “principal” refugees.

6

In addition, certain individuals who are not otherwise admissible as a refugee under

7 Section 1157(c)(1) may nonetheless be entitled to refugee status if they are accompanying or

8 following to join a principal refugee. See 8 U.S.C. § 1157(c)(2)(A); 8 C.F.R. § 207.7(a). To

9 obtain this so-called derivative refugee status, an applicant must be the spouse or unmarried child

10 under the age of 21 of a principal refugee and also must be admissible (except as otherwise

11 provided under 8 U.S.C. § 1157(c)(3)) as an immigrant under the INA. 8 U.S.C. § 1157(c)(2)(A).

12 Derivative refugees who are either in the physical company of the principal refugee when he or

13 she is admitted to the United States or admitted within four months after the principal refugee are

14 called “accompanying” refugees. 8 C.F.R. § 207.7(a). Derivative refugees who seek admission

15 more than four months after the principal refugee are called “following-to-join” refugees. Id.

16 II. THE JOINT MEMORANDUM

17

Section 6(a) of Executive Order No. 13,780 (EO-2) directed the Secretaries of State and

18 Homeland Security to suspend travel of refugees and decisions on refugee applications under the

19 U.S. Refugee Admissions Program (USRAP), pending a review of existing refugee procedures.

20 See 82 Fed. Reg. 13,209 (Mar. 6, 2017). This suspension was necessary to allow the Secretaries,

21 in consultation with the Director of National Intelligence, to “determine what additional

22 procedures should be used to ensure that individuals seeking admission as refugees do not pose a

23 threat to the security and welfare of the United States.” EO-2 § 6(a). During this period, the

24 relevant agencies identified multiple ways to enhance the refugee vetting process, and began

25 implementing some of those improvements.

26

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1

Section 6(a) of EO-2 provided that, at the conclusion of this review period, refugee travel

2 and USRAP adjudications would resume for stateless persons and nationals of countries for which

3 the officials “determined that the additional procedures implemented . . . are adequate to ensure

4 the security and welfare of the United States.” On October 23, 2017, the officials advised the

5 President, through a Joint Memorandum, that the improvements to the USRAP vetting process

6 are sufficient to allow the general resumption of that program, subject to certain conditions.

7

One of those conditions (which Plaintiff challenges here) addresses the different screening

8 procedures that are currently applied to most following-to-join refugee applicants as compared to

9 other refugee applicants. See Joint Mem. at 2-3. As the Joint Memorandum explains, most

10 following-to-join refugee applicants do not currently undergo the same security and vetting

11 procedures as principal refugees or accompanying derivative refugees (who are typically

12 processed at the same time and location as the principal). See id. at 2 & n.1. For example,

13 information is typically solicited earlier in the application process for principal refugees and their

14 accompanying derivatives than for following-to-join refugee applicants, which allows for a more

15 comprehensive and thorough screening process. See id. at 2-3. And most following-to-join

16 refugee applicants are not currently vetted against classified databases under the same

17 circumstances that would trigger such vetting for principal and accompanying derivative refugee

18 applicants. See id.; see also Joint Mem. Addendum at 4 (“The majority of following-to-join

19 refugees do not receive the same, full baseline interagency checks that principal refugees

20 receive.”); Higgins Decl. ¶¶ 3, 12 (Nov. 16, 2017), attached hereto.

21

Given these differences, the Secretaries of State and Homeland Security and the Director

22 of National Intelligence determined that, in their judgment, it is necessary to “implement adequate

23 screening mechanisms for following-to-join refugees that are similar to the processes employed

24 for principal refugees, in order to ensure the security and welfare of the United States.” Joint

25 Mem. at 3; see also Joint Mem. Addendum at 4 (describing some of the additional security

26 measures to be implemented); Higgins Decl. ¶¶ 13-16 (same). These officials further determined

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1 that following-to-join refugees should not be admitted to the United States until these additional

2 screening procedures are in place. Joint Mem. at 3.

3

The screening procedures currently applied to following-to-join refugee applications

4 processed in two locations—Kenya and Thailand—already are aligned with the procedures

5 employed for principal refugees and accompanying derivative refugees. See Higgins Decl. ¶ 11.

6 Accordingly, the agencies have resumed admissions of following-to-join refugees processed at

7 those two locations, subject to other restrictions set forth in the Joint Memorandum. See id. The

8 agencies are working “as expeditiously as possible” to implement the additional screening

9 procedures for all other processing locations. Id. ¶ 16; see also Joint Mem. Addendum at 4

10 (explaining that the agencies are working “expeditiously”). Once the additional security measures

11 are in place, admissions of following-to-join refugees will resume worldwide. See Joint Mem. at 12 3.2

13

Following receipt of the Joint Memorandum, on October 24, 2017, the President issued

14 Executive Order No. 13,815 (Refugee Order). See 82 Fed. Reg. 50,055 (Oct. 24, 2017). The

15 President acknowledged the Cabinet Secretaries’ joint determination that the USRAP may resume

16 and that they will apply “special measures” to certain categories of refugee applicants, and

17 therefore the worldwide suspension directed by EO-2 is no longer needed. See Refugee Order

18 §§ 2(a), (c). Going forward, the President directed the Secretaries of State and Homeland Security

19 to exercise their statutory authority to “continue to assess and address any risks posed by particular

20 refugees,” id. § 3(a), including by modifying or terminating actions taken to address these risks

21 when appropriate, id. § 3(a)(ii).

22

23

24

2 The Joint Memorandum also describes a review the agencies are undertaking of eleven countries whose

refugee applicants are currently subject to Security Advisory Opinions (SAOs) because those countries were

25 determined, as of 2015, to pose a higher national-security risk to the United States. See Joint Mem. at 2; Joint Mem.
Addendum at 3-4. During this review period (scheduled to last 90 days), the agencies will “temporarily prioritize

26

refugee applications from other non-SAO countries,” for whom processing may not require as many resources. Joint Mem. at 2; Joint Mem. Addendum at 3-4. Plaintiff does not challenge these measures, which apply to both principal

and derivative refugee applicants.

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1 III. PLAINTIFFF’S MOTION

2

Plaintiff Joseph Doe has moved for a preliminary injunction against the Joint

3 Memorandum’s implementation period for following-to-join refugees. He claims the

4 implementation period violates 8 U.S.C. § 1157(c)(2)(A), the procedural component of the Due

5 Process Clause, and the APA.

6

STANDARD OF REVIEW

7

Plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer

8 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,

9 and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S.

10 7, 20 (2008).

11

ARGUMENT

12 I. 13

PLAINTIFF’S CHALLENGES ARE NOT JUSTICIABLE Plaintiff’s claims are nonjusticiable for at least three reasons. First, Plaintiff has not

14 satisfied the threshold standing requirements of Article III because he has not identified an injury

15 to himself that is fairly traceable to the Joint Memorandum’s following-to-join provisions.

16 Second, review of Plaintiff’s statutory claims is barred by the fundamental separation-of-powers

17 principle that the political branches’ decisions about admissibility and entry of aliens abroad are

18 not judicially reviewable absent express authorization by Congress, which does not exist here.

19 While Plaintiff also purports to bring a due process claim, he has not alleged, and certainly cannot

20 prove, that he himself has been deprived of any entitlement without adequate process; thus, that

21 claim is likewise not reviewable. Third, the Joint Memorandum’s following-to-join provisions

22 simply prescribe an implementation period to improve following-to-join refugee vetting and do

23 not constitute final agency action. Plaintiff, therefore, cannot satisfy this prerequisite for APA

24 review.

25

26

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1

A. PLAINTIFF LACKS STANDING

2

Plaintiff lacks standing to challenge the Joint Memorandum’s implementation period. To

3 satisfy Article III’s standing requirements, “a plaintiff must show (1) it has suffered an ‘injury in

4 fact’[;] . . . (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is

5 likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

6 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)

7 (citation omitted).

8

Here, even accepting that Plaintiff’s separation from his family could constitute a

9 cognizable injury in fact, Plaintiff has not shown that the following-to-join implementation period

10 caused or will exacerbate any such injury. Plaintiff’s wife and children apparently are in Kenya,

11 see Doe Decl. ¶ 9 (ECF No. 47), and Kenya is one of two countries in which screening procedures

12 are already in place to ensure that following-to-join and principal refugees receive comparable

13 scrutiny. See Higgins Decl. ¶ 11 (explaining that in Kenya and Thailand, “the security vetting

14 received for a Form I-730 beneficiary is the same as the screening received for principal refugee

15 applicants,” and thus the Government is continuing to issue travel authorization to approved

16 following-to-join refugees who have been processed in these locations, subject to other

17 restrictions on refugee admissions). Accordingly, following-to-join applicants located in Kenya

18 (such as Plaintiff’s family) are unaffected by the Joint Memorandum’s implementation period.

19

The Complaint further alleges that Plaintiff’s children “are considered Somali nationals”

20 and that Somalia is among those countries subject to an SAO requirement. Third Am. Compl.

21 ¶¶ 62, 215 (ECF No. 42). If Plaintiff’s family members are nationals of an SAO country, then

22 they are subject to another provision of the Joint Memorandum that temporarily prioritizes refugee

23 applicants from non-SAO countries while officials determine what additional safeguards, if any,

24 may be needed to ensure that applicants from SAO countries do not threaten domestic security.

25 See Joint Mem. at 2; note 2, supra. But Plaintiff does not challenge the SAO-related provision of

26 the Joint Memorandum. Because Plaintiff has not carried his burden of showing that his

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1 separation from his family is fairly traceable to the provision of the Joint Memorandum he

2 challenges, he lacks Article III standing.

3

B. PLAINTIFF’S CLAIMS ARE BARRED BY PRINCIPLES OF NONREVIEWABILITY

4

1. Plaintiff’s Statutory Claims Are Not Reviewable

5

The Supreme Court has long recognized that “the power to . . . exclude aliens” is a

6 “fundamental sovereign attribute exercised by the Government’s political departments largely

7 immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (citation omitted). “[I]t

8 is not within the province of any court, unless expressly authorized by law, to review the

9 determination of the political branch of the Government to exclude a given alien.” United States

10 ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (emphasis added)).

11

Courts have distilled from these longstanding principles that the denial or revocation of a

12 visa for an alien abroad “is not subject to judicial review . . . unless Congress says otherwise.”

13 Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999); see also Doan v. INS, 160

14 F.3d 508, 509 (8th Cir. 1998) (“Administrative decisions excluding aliens are not subject to

15 judicial review unless there is a clear grant of authority by statute.”). Courts refer to this rule as

16 the “doctrine of consular nonreviewability,” Saavedra Bruno, 197 F.3d at 1159, but the short-hand

17 label merely reflects the context in which the principle most often arises—challenges to decisions

18 by consular officials adjudicating visa applications. The principle underlying that doctrine applies

19 regardless of the manner in which the Executive Branch denies entry to an alien abroad, including

20 a refugee applicant. See Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1506 (11th Cir. 1992)

21 (per curiam). It would make no sense to bar review of a consular or immigration officer’s case-

22 specific determination while permitting review of determinations by Cabinet Secretaries that are

23 grounded in sensitive national-security judgments and that are applied by lower-level officials in

24 reviewing individual visa or refugee applications.

25

Plaintiff has identified no statute that authorizes judicial review. Plaintiff cites 8 U.S.C.

26 § 1157(c) and the APA, but neither statute overrides the default presumption of nonreviewability.

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1 First, Section 1157(c) says nothing about judicial review: it simply provides, in relevant part, that

2 a spouse or child of a principal refugee is entitled to the same admission status as the principal,

3 assuming that family member is otherwise admissible as an immigrant. See Haitian Refugee Ctr.,

4 953 F.2d at 1506 (“Contrary to the extensive procedures provided for with regard to aliens within

5 the United States, 8 U.S.C. § 1157, which applies to refugees seeking admission from outside the

6 United States, makes no provision for judicial review.”). Nor does any other provision of the INA

7 authorize judicial review under the circumstances Plaintiff alleges here.

8

Second, the APA does not apply “to the extent that . . . statutes preclude judicial review,”

9 5 U.S.C. § 701(a)(1), a determination that turns not only on the statute’s express language but also

10 on the “structure of the statutory scheme, its objectives, its legislative history, and the nature of

11 the administrative action involved,” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984).

12 Moreover, Section 702 of the APA includes a proviso that preserves “other limitations on judicial

13 review” that predated the APA. See Saavedra Bruno, 197 F.3d at 1158. Here, the conclusion is

14 “unmistakable” from history that “the immigration laws ‘preclude judicial review’ of [] consular

15 visa decisions,” id. at 1160 (citation omitted), and the same is true of refugee determinations, see

16 Haitian Refugee Ctr., 953 F.2d at 1506. At a minimum, the general rule of “nonreviewability . . .

17 represents one of the ‘limitations on judicial review’ unaffected by § 702’s opening clause.”

18 Saavedra Bruno, 197 F.3d at 1158.

19

Indeed, when the Supreme Court held that aliens physically present in the United States—

20 but not aliens abroad—could seek review of their exclusion orders under the APA, see Brownell

21 v. Tom We Shung, 352 U.S. 180, 184-86 (1956), Congress responded by abrogating that ruling.

22 See Act of Sept. 26, 1961, Pub. L. No. 87-301, § 5(a), 75 Stat. 650, 651-53; Saavedra Bruno, 197

23 F.3d at 1157-62 (recounting history). The House Report accompanying the abrogating statute

24 explained that APA suits would “give recognition to a fallacious doctrine that an alien has a ‘right’

25 to enter this country which he may litigate in the courts of the United States against the U.S.

26 Government as a defendant.” H.R. Rep. No. 87-1086, at 33 (1961), as reprinted in 1961

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1 U.S.C.C.A.N. 2950, 2976. Because an alien present in the United States cannot invoke the APA

2 to obtain review of an exclusion order, then a fortiori neither can aliens abroad or U.S. persons

3 acting on their behalf. And given that Congress has generally foreclosed judicial review of visa

4 revocations, see 8 U.S.C. § 1201(i), it is implausible that Congress would permit review of

5 Executive decisions to restrict entry in the first instance.

6

2. Plaintiff’s Constitutional Claim Is Not Reviewable

7

The Supreme Court has twice engaged in limited judicial review of constitutional claims,

8 but only when a U.S. citizen contended that the exclusion of an alien abroad violated the citizen’s

9 own constitutional rights. In Kleindienst v. Mandel, the Court reviewed a claim that the denial of

10 a discretionary waiver of visa-ineligibility to a Belgian national violated U.S. citizens’ own First

11 Amendment rights to receive information. 408 U.S. 753, 756-59, 762-70 (1972). As the Court

12 explained, the alien himself could not seek review because he “had no constitutional right of entry

13 to this country.” Id. at 762. The Court addressed (and rejected on the merits) only the claim of

14 U.S. citizens that the alien’s exclusion violated their own constitutional rights. Id. at 770.

15 Similarly, in Kerry v. Din, the Court rejected a claim by a U.S. citizen that the refusal of a visa to

16 her husband violated her own due process rights. 135 S. Ct. 2128, 2131 (2015) (opinion of Scalia,

17 J.); id. at 2139 (Kennedy, J., concurring in the judgment). Limited review was available in each

18 case only because the plaintiffs asserted violations of their own constitutional rights as U.S. 19 citizens.3

20

Here, Plaintiff cannot assert that the Joint Memorandum violates his own procedural due

21 process rights. Plaintiff relies solely on the alleged “entitlement” created by 8 U.S.C.

22 § 1157(c)(2)(A), but that statute extends no rights to a principal refugee like Plaintiff. Instead, it

23 provides that a derivative refugee (i.e., the principal refugee’s spouse or child) shall, subject to

24
3 In Washington v. Trump, the Ninth Circuit suggested in dicta, without any analysis, that states might have

25 standing to assert “potential claims regarding possible due process rights” of various groups, including refugees and
persons who “have a relationship with a U.S. resident.” 847 F.3d 1151, 1166 (9th Cir. 2017) (per curiam). This

26

passing observation, however, cannot be squared with Mandel’s demarcation between a constitutional claim by an alien abroad (unreviewable) and a constitutional claim by a U.S. person (potentially reviewable, provided the person

alleges a violation of his/her individual rights).

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1 certain conditions, “be entitled to the same admission status” as the principal. This conditional

2 entitlement to refugee status, in other words, belongs not to Plaintiff but to certain of his otherwise

3 admissible family members. Plaintiff therefore is not asserting his own due process rights, and

4 his family members, as aliens abroad, of course have no constitutional right of entry to this

5 country. See Knauff, 338 U.S. at 542.

6

C. PLAINTIFF HAS NOT IDENTIFIED ANY FINAL AGENCY ACTION

7

Finality is a prerequisite to judicial review of agency actions. See 5 U.S.C. § 704. Two

8 conditions must generally be satisfied before agency action will be deemed final: “First, the action

9 must mark the consummation of the agency’s decisionmaking process—it must not be of a merely

10 tentative or interlocutory nature. And second, the action must be one by which rights or

11 obligations have been determined, or from which legal consequences will flow.” Fairbanks N.

12 Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 (9th Cir. 2008) (quoting Bennett

13 v. Spear, 520 U.S. 154, 177-78 (1997)).

14

Even if Plaintiff could show that the Joint Memorandum’s implementation period satisfies

15 the first requirement for finality, he cannot establish the second requirement because the

16 implementation period does not determine any rights or obligations or prescribe any legal

17 consequences. The implementation period does not deprive Plaintiff’s family of the opportunity

18 to obtain refugee status. Assuming arguendo that the implementation period affects Plaintiff’s

19 family at all (and for the reasons set forth above, see Part I.A., supra, it apparently does not), at

20 most it delays their admission if they are otherwise eligible.

21

A processing delay by itself does not alter the family’s “legal situation,” and thus the

22 following-to-join implementation period is not final agency action subject to judicial review. See

23 Int’l Bhd. of Teamsters v. U.S. Dep’t of Transp., 861 F.3d 944, 952 (9th Cir. 2017) (issuance of

24 pilot program report was not final agency action; though it was the “final step in completing the

25 pilot program, clearing the way for the permitting of [certain] carriers,” it “did not change the

26 legal situation,” as the agency retained discretion over whether and when to issue permits). The

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1 delay in receipt of a potential future benefit is not, by itself, final agency action warranting review

2 under the APA.

3 II. PLAINTIFF’S CLAIMS ARE NOT LIKELY TO SUCCEED ON THE MERITS

4

A. PLAINTIFF’S SECTION 1157(c)(2)(A) CLAIM LACKS MERIT

5

Even if Plaintiff could surmount the jurisdictional and reviewability hurdles above (and

6 he cannot), his claims nevertheless fail on the merits. Plaintiff first argues that 8 U.S.C.

7 § 1157(c)(2)(A) “create[s] an entitlement allowing refugees to bring their immediate families” to

8 the United States, and that the Joint Memorandum’s implementation period for following-to-join

9 refugees “rescind[s] that entitlement.” Mot. for Prelim. Inj. at 10 (ECF No. 45) [hereafter “Pl.’s

10 Mem.”]. But this claim lacks merit both because the implementation period does not rescind any

11 substantive rights and because § 1157(c)(2)(A) does not guarantee admission to the United States.

12

First, contrary to Plaintiff’s assertion, the Joint Memorandum’s implementation period

13 does not “rescind” anything. It does not address any substantive rights of following-to-join

14 refugee applicants. Instead, it merely provides a period of time for the agencies to implement

15 additional screening procedures “for following-to-join refugees that are similar to the processes

16 employed for principal refugees.” Joint Mem. at 3. Once those procedures are in place,

17 admissions of following-to-join refugees will resume under the same substantive criteria as

18 before. Id. at 3. Thus, the agencies’ standardization of their screening procedures does not take

19 away any substantive, pre-existing right or benefit Plaintiff’s family members may have.

20 Whatever benefits Plaintiff’s family members could qualify for prior to the implementation period

21 will be available to them after admissions resume if they continue to qualify. Plaintiff has no right

22 in the statute or otherwise to diminished screening and vetting procedures for his family members.

23

Second, Plaintiff’s claim misinterprets Section 1157(c)(2)(A). That provision states, in

24 relevant part, that a principal refugee’s spouse or unmarried child under the age of 21 “shall . . . be

25 entitled to the same admission status” as that refugee “if the spouse or child is admissible . . . as

26 an immigrant under this chapter.” 8 U.S.C. § 1157(c)(2)(A). The statute provides for a “status,”

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1 not guaranteed admission to the United States, let alone admission on any specific timeframe.

2 Accord 8 C.F.R. § 207.7(a) (qualifying individuals “shall be granted refugee status if

3 accompanying or following-to-join the principal alien”); id. § 207.7(f) (explaining that, “[f]or a

4 derivative . . . arriving in the United States, USCIS will issue a document reflecting the

5 derivative’s current status as a refugee to demonstrate employment authorization”); Office of

6 Refugee Resettlement, Status and Documentation Requirements for the ORR Refugee

7 Resettlement Program (Oct. 2, 2015), https://www.acf.hhs.gov/orr/resource/status-and-

8 documentation-requirements-for-the-orr-refugee-resettlement-program (providing guidance as to

9 statuses that confer eligibility for Refugee Resettlement Program benefits). Plaintiff’s argument

10 that Section 1157(c)(2)(A) requires the Government to admit his family members now, without

11 further delay, finds no support in the plain text of the provision.

12

Moreover, Section 1157(c)(2)(A) conditions status on admissibility, a finding that requires

13 the Government to exercise its judgment in determining whether numerous inadmissibility

14 grounds apply. See, e.g., 8 U.S.C. § 1182(a)(3)(A)(ii) (stating that any alien is inadmissible who

15 “a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to

16 enter” to engage in unlawful activity); id. § 1182(a)(3)(B)(i)(II) (same, for alien who “a consular

17 officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable

18 ground to believe, is engaged in or is likely to engage after entry in any terrorist activity”); id.

19 § 1157(c)(3) (granting Attorney General discretion to waive certain inadmissibility

20 determinations “for humanitarian purposes, to assure family unity, or when it is otherwise in the

21 public interest”). Plaintiff suggests that his family is admissible such that Section 1157(c)(2)(A)

22 requires their admission now. See Pl.’s Mem. at 12-13. But the Government is entitled to time

23 to make that determination itself—using adequate procedures—and that is all that the

24 implementation period does here, thereby creating what is at most a slight delay in processing as

25 the Government improves its procedures.

26

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION - 13 John Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)

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1

In addition, admissibility is not ultimately adjudicated until an individual appears at a port

2 to seek entry into the United States. See 8 U.S.C. § 1201(h) (“Nothing in this chapter shall be

3 construed to entitle any alien, to whom a visa or other documentation has been issued, to be

4 admitted [to] the United States, if, upon arrival at a port of entry in the United States, he is found

5 to be inadmissible under this chapter, or any other provision of law.”); 8 C.F.R. § 207.7(d)

6 (explaining that approval of I-730 Petition can be “revoked” prior to entry); Higgins Decl. ¶ 10;

7 cf. Kanu v. Lynch, 652 F. App’x 390, 396-97 (6th Cir. 2016) (rejecting argument that Section

8 1157(c)(2)(A) “entitles [daughter] to the same refugee status as her mother” and terminating

9 derivative refugee status because daughter “was in fact inadmissible under the INA at the time of

10 her admission to the United States”). Thus, Plaintiff cannot demonstrate that his family members

11 are in fact currently eligible for refugee status, as he surely must before he could even bring a

12 claim seeking to compel their immediate admission.

13

For these reasons, Plaintiff is not likely to succeed on his Section 1157(c)(2)(A) claim.

14

B. THE JOINT MEMORANDUM’S IMPLEMENTATION PERIOD DOES NOT VIOLATE

15

THE DUE PROCESS CLAUSE

Plaintiff next claims that the Joint Memorandum violates his procedural due process rights 16

because it allegedly took away his “legitimate claim of entitlement to his family’s admission” 17

and, in doing so, “provided no process at all.” Pl.’s Mem. at 13-14 (internal quotation marks 18

omitted). Analysis under the Due Process Clause typically “proceeds in two steps: We first ask 19

whether there exists a liberty or property interest of which a person has been deprived, and if so 20

we ask whether the procedures followed by the State were constitutionally sufficient.” Swarthout 21

v. Cooke, 562 U.S. 216, 219 (2011) (per curiam). Plaintiff’s claim fails at both steps. 22

First, Section 1157(c)(2)(A) does not create a liberty or property interest in admission to 23

the United States. As explained above, the provision entitles certain individuals to refugee status 24

only if they are determined to be admissible and otherwise satisfy the relevant criteria. See Part 25

II.A, supra. Moreover, even if Section 1157(c)(2)(A) did confer some interest in admission, it 26

would do so only as to derivative refugee applicants, not principal refugees. See Part I.B.2, supra.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION - 14 John Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)

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1 Plaintiff, therefore, would at most be an incidental beneficiary of Section 1157(c)(2)(A). But

2 “[o]ver a century ago [the Supreme] Court recognized the principle that the due process provision

3 of the Fifth Amendment does not apply to the indirect adverse effects of governmental action.”

4 O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 789 (1980). Thus, Plaintiff cannot claim a

5 due process violation here. See id. (holding residents could not bring due process challenge

6 against the government’s decision to disqualify nursing home from Medicaid and Medicare

7 payments that covered patients’ bills); Castaneda v. U.S. Dep’t of Agric., 807 F.2d 1478, 1480

8 (9th Cir. 1987); cf. Fiallo, 430 U.S. at 795 n.6 (rejecting the premise that “the families of putative

9 immigrants . . . have an interest in their admission”).

10

Second, even if Plaintiff could somehow show that Section 1157(c)(2)(A) provides him

11 with a constitutionally protected interest, the Joint Memorandum’s implementation period does

12 not deprive him of that interest. The Joint Memorandum addresses only screening procedures

13 and timing for following-to-join refugee admissions; it does not change the substantive criteria

14 for determining whether an individual qualifies as a derivative refugee. Thus, whatever interests

15 Plaintiff’s family members had prior to the implementation period still exist.

16

Third, even if Plaintiff had been deprived of a liberty or property interest, his claim still

17 fails because the Government is not required to provide notice or individualized hearings where,

18 as here, it acts through categorical judgments rather than individual adjudications. See Bi-Metallic

19 Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 446 (1915); Yassini v. Crosland, 618 F.2d

20 1356, 1363 (9th Cir. 1980) (per curiam). And even if the Government were required to provide

21 some explanation justifying not admitting following-to-join refugees until after the additional

22 screening procedures are in place, the Joint Memorandum’s findings amply satisfy the Mandel

23 standard of “facially legitimate and bona fide.” See Din, 135 S. Ct. at 2140 (Kennedy, J,

24 concurring in the judgment) (applying the Mandel standard to reject a procedural due process

25 claim). In particular, the Secretaries of State and Homeland Security and the Director of National

26 Intelligence determined that implementation of “adequate screening mechanisms for following-

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION - 15 John Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)

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1 to-join refugees that are similar to the processes employed for principal refugees” is necessary “to

2 ensure the security and welfare of the United States.” Joint Mem. at 3. Plaintiff’s due process

3 claim thus lacks merit.

4

C. THE JOINT MEMORANDUM’S IMPLEMENTATION PERIOD DOES NOT VIOLATE

5

THE APA

6

Plaintiff also erroneously claims that the implementation period for aligning the screening

7 procedures for following-to-join refugees with those applied to other refugees violates the

8 procedural and substantive components of the APA. See Pl.’s Mem. at 14-18. The

9 implementation period is a procedural rule, and thus, it is exempt from the APA’s notice-and-

10 comment requirements. Moreover, the agencies’ decision to standardize their screening

11 procedures so that similar individuals are treated alike is neither arbitrary nor capricious. And the

12 judgment of the Cabinet Secretaries that following-to-join refugees should not be admitted until

13 the additional security measures are in place “to ensure the security and welfare of the United

14 States” is entitled to the utmost deference and is reasonable. Joint Mem. at 3.

15

1. Notice-And-Comment Rulemaking Was Not Required Because The

Implementation Period Is A Procedural Rule

16

The notice-and-comment procedures of the APA do not apply to every agency

17 pronouncement. As relevant here, the APA explicitly exempts “rules of agency organization,

18 procedure, or practice” from its procedural requirements. 5 U.S.C. § 553(b)(3)(A). Unlike

19 legislative (or substantive) rules, which “create law” by, for example, establishing or altering

20 substantive standards, procedural rules involve “technical regulation of the form of agency action

21 and proceedings.” S. Cal. Edison Co. v. FERC, 770 F.2d 779, 783 (9th Cir. 1985). The procedural

22 rule exemption “covers agency actions that do not themselves alter the rights or interests of

23 parties, although [they] may alter the manner in which the parties present themselves or their

24 viewpoints to the agency.” JEM Broad. Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994). In

25 addition, “[a] procedural rule does not become substantive merely because it has a substantive

26 impact,” such as “by denying parties the opportunity to appeal if they fail to comply with certain

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION - 16 John Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)

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1 procedures.” United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc., 728 F. Supp. 2d

2 1077, 1084 (N.D. Cal. 2010) (citing Sequoia Orange Co. v. Yeutter, 973 F.2d 752, 757 (9th Cir.

3 1992)). As long as a rule does not change substantive standards, it may qualify as procedural.

4 See, e.g., James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 317 (D.C. Cir. 2000)

5 (concluding rule was procedural where it “did not alter the substantive criteria by which [the

6 agency] would approve or deny proposed labels,” but rather, “simply changed the procedures [the

7 agency] would follow in applying those substantive standards”); Gonzales, 728 F. Supp. 2d at

8 1084 (“[C]hanges in the timing, requirements or manner in which an application or petition is

9 made are generally considered procedural changes.”).

10

The Joint Memorandum’s implementation period for following-to-join refugees is a

11 procedural rule. It does not change the substantive criteria for determining whether an applicant

12 can be admitted to the United States as a derivative refugee. Instead, it merely suspends the

13 admission of following-to-join refugees while the agencies align screening procedures for such

14 refugees with the procedures already applied to principal and accompanying derivative refugee

15 applicants. Once the additional procedures are in place, the agencies will resume admissions

16 under the same substantive criteria that applied before the suspension. See 8 U.S.C.

17 §§ 1157(c)(2)(A), 1182(a); 8 C.F.R. § 207.7.

18

Courts have held that similar decisions to suspend the processing of applications while an

19 agency considers or implements changes to its rules or processes are procedural in nature and thus

20 exempt from notice-and-comment rulemaking. For example, in Waste Management, Inc. v. EPA,

21 669 F. Supp. 536, 538-40 (D.D.C. 1987), the court held that the agency issued a procedural rule

22 when it decided to defer consideration of applications for ocean incineration permits until the

23 agency promulgated new rules on the topic. And in Neighborhood TV Co. v. FCC, 742 F.2d 629,

24 636-38 (D.C. Cir. 1984), the court determined that an agency’s decision to “freeze” processing of

25 certain applications for television translator licenses was a procedural rule. In both cases, the

26 court relied on the fact that the agency’s decision to suspend the processing of certain applications

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION - 17 John Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)

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1 did not change the substantive criteria by which those applications would ultimately be assessed

2 or alter the plaintiffs’ rights or interest in a permit or license. Rather, the agency had merely

3 “altered its method of operations; it ha[d] changed its procedures.” Waste Mgmt., 669 F. Supp. at

4 540; see also Buckeye Cablevision, Inc. v. United States, 438 F.2d 948, 953 (6th Cir. 1971)

5 (upholding processing freeze adopted without notice and comment as a procedural rule); Kessler

6 v. FCC, 326 F.2d 673, 681-82 (D.C. Cir. 1963) (same). The same reasoning applies here.

7

Because the implementation period is a procedural rule exempt from notice-and-comment

8 rulemaking, Plaintiff’s procedural APA claim fails.4

9

2. The Implementation Period Is Neither Arbitrary Nor Capricious

10

Review under the APA’s arbitrary and capricious standard is “narrow,” Arrington v.

11 Daniels, 516 F.3d 1106, 1112-13 (9th Cir. 2008), and “highly deferential,” Crickon v. Thomas,

12 579 F.3d 978, 982 (9th Cir. 2009). A court must “presum[e] the agency action to be valid and

13 affirm[] . . . if a reasonable basis exists for [the agency’s] decision.” Id. A reasonable basis exists

14 so long as “the agency considered the relevant factors and articulated a rational connection

15 between the facts found and the choices made.” Id. The agency’s decision “need only be

16 reasonable, not the best or most reasonable, decision.” River Runners for Wilderness v. Martin,

17 593 F.3d 1064, 1070 (9th Cir. 2010). A court, moreover, may not “substitute its judgment for that

18 of the agency.” Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins.

19 Co., 463 U.S. 29, 43 (1983).

20

The agencies’ decision to standardize their screening and vetting procedures for all

21 refugees and not to admit following-to-join refugees until the additional security measures are in

22 place readily satisfies the arbitrary-and-capricious standard. As the Joint Memorandum explains,

23

24

4 Plaintiff does not appear to challenge, on procedural APA grounds, the agencies’ decision to use similar screening procedures for following-to-join applicants and other refugee applicants. Even if he did, however, that

25

claim would also fail for the reasons explained above. The agencies are merely adjusting the procedures they use in processing applications, not the substantive criteria for obtaining derivative refugee status, which are set forth in

26

existing statutes and regulations. See, e.g., Erringer v. Thompson, 371 F.3d 625, 633 n.15 (9th Cir. 2004) (“‘[P]rocedural’ rules are those that are ‘legitimate means of structuring [the agency’s] enforcement authority.’”

(citation omitted)).

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION - 18 John Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)

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1 “[t]he majority of following-to-join refugees do not [currently] receive the same, full baseline

2 interagency checks that principal refugees receive.” Joint Mem. Addendum at 4. And

3 “implement[ing] adequate screening mechanisms for following-to-join refugees that are similar

4 to the process employed for principal refugees” is necessary, in the judgment of the Secretaries

5 of State and Homeland Security and the Director of National Intelligence, “to ensure the security

6 and welfare of the United States.” Joint Mem. at 3.

7

It is not arbitrary or capricious for agencies to treat similarly situated individuals alike.

8 Indeed, the typical rule is just the opposite. When an agency fails to “treat similar cases in a

9 similar manner,” a court may determine that the agency acted arbitrarily and capriciously “unless

10 [the agency] can provide a legitimate reason” for the different treatment. Indep. Petroleum Ass’n

11 of Am. v. Babbitt, 92 F.3d 1248, 1258 (D.C. Cir. 1996); see, e.g., Kort v. Burwell, 209 F. Supp.

12 3d 98, 111-12 (D.D.C. 2016); Hansen v. Salazar, No. C08-0717-JCC, 2013 WL 1192607, at *7

13 (W.D. Wash. Mar. 22, 2013) (“The APA requires an agency to treat similarly-situated parties

14 alike or provide an adequate explanation to justify treating them differently.”). It was certainly

15 rational for the Cabinet Secretaries to conclude that following-to-join refugees should be screened

16 in the same manner as principal refugees.

17

Plaintiff asserts that the agencies did not provide an adequate explanation for suspending

18 the admission of following-to-join refugees while the additional screening procedures are

19 implemented. See Pl.’s Mem. at 16-18. But the Joint Memorandum makes clear that the

20 Secretaries of State and Homeland Security and the Director of National Intelligence determined

21 that admitting following-to-join refugee applicants who had undergone only the current

22 procedures would not “ensure the security and welfare of the United States.” Joint Mem. at 3.

23 Instead, in those officials’ judgment, admissions should resume only after the necessary screening

24 and vetting procedures are implemented, so that those procedures can be applied to refugee

25 applicants before they are admitted. This national security judgment is entitled to extreme

26 deference. See Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 734 (D.C. Cir. 2007)

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION - 19 John Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)

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1 (judicial review “in an area at the intersection of national security, foreign policy, and

2 administrative law[] is extremely deferential”). Accordingly, the agencies’ decision not to admit

3 following-to-join refugees for a brief period while they “expeditiously” implement the additional

4 procedures is neither arbitrary nor capricious. Joint Mem. Addendum at 4; see Neighborhood TV

5 Co., 742 F.2d at 639 (concluding agency’s decision to “freeze” processing of certain applications

6 for licenses while it engaged in rulemaking was reasonable because it “ensure[d] that . . . interim

7 licensing did not frustrate the ends of the rules ultimately adopted”); Waste Mgmt., 669 F. Supp.

8 at 542-43 (“An agency in the process of writing new regulations on a topic as sensitive as ocean

9 incineration of hazardous waste cannot be faulted for maintaining the status quo [by not issuing

10 new operating permits] until it is satisfied that the incineration can proceed as safely as possible.”).

11

Plaintiff also argues that statements made by the President during his campaign and shortly

12 after he took office show that the Joint Memorandum was motivated by animus toward refugees

13 and/or Muslims. See Pl.’s Mem. at 1-5, 17. Such extra-record material, however, cannot be

14 considered in adjudicating Plaintiff’s APA claim. “When a party challenges agency action as

15 arbitrary and capricious[,] the reasonableness of the agency’s action is judged in accordance with

16 its stated reasons.” In re Subpoena Duces Tecum Served on Office of Comptroller of Currency,

17 156 F.3d 1279, 1279-80 (D.C. Cir. 1998) (emphasis added).

18

Although a court may consider extra-record material when a plaintiff makes a strong

19 “showing of agency bad faith,” Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1130

20 (9th Cir. 2012) (emphasis added), Plaintiff has not made that showing here. The Joint

21 Memorandum was issued by the Secretaries of State and Homeland Security and the Director of

22 National Intelligence, not the President. As the relevant decisionmakers, therefore, it is those

23 officials’ actions that should inform the Court’s determination of whether the administrative

24 record may be supplemented (and, if so, that should likewise inform the ultimate merits

25 assessment). See Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir.

26 2010) (a plaintiff must show “bad faith on the part of the agency” before a court can consider

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION - 20 John Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)

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1 extra-record material (emphasis added)); cf. Modrovich v. Allegheny Cty., 385 F.3d 397, 411-12

2 (3d Cir. 2004) (concluding that “statements made by other County officials” who were not “the

3 decision-maker for the County with respect to the Plaque” were not relevant to the Establishment

4 Clause purpose analysis). Plaintiff has never alleged, let alone made the necessary “strong

5 showing,” that these Cabinet Secretaries were motivated by animus toward refugees or Muslims.

6 United States v. Wash. Dep’t of Transp., 450 F. Supp. 2d 1207, 1213 (W.D. Wash. 2006). Plaintiff

7 thus cannot prevail on his APA claim.

8 III. THE REMAINING PRELIMINARY INJUNCTION FACTORS WEIGH

AGAINST RELIEF

9

Apart from Plaintiff’s inability to demonstrate a likelihood of success on the merits, he

10

has not shown that “irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S.

11

at 22 (emphasis omitted). He has not established that the implementation period has caused or

12

will cause him an injury at all, let alone an irreparable one. As previously discussed, Plaintiff has

13

not shown that the Joint Memorandum’s implementation period even applies to his family

14

members, because their applications apparently have been processed in Kenya. See Part I.A.,

15

supra. Moreover, the Joint Memorandum simply prescribes an implementation period to bring

16

screening procedures for following-to-join and principal refugees into parity that would at most

17

delay the entry of Plaintiff’s family members. Such delay alone does not amount to irreparable

18

harm, as processing times for refugees can vary widely and on average are quite lengthy. See

19

U.S.

Dep’t

of

State,

U.S.

Refugee

Admissions

Program,

20

https://www.state.gov/j/prm/ra/admissions/index.htm. Because Plaintiff has not shown that the

21

implementation period will irreparably harm him, he is not entitled to the “extraordinary remedy”

22

of preliminary injunctive relief. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131

23

(9th Cir. 2011) (citation omitted).

24

Conversely, an injunction would cause direct, irreparable harm to the Government and the

25

public interest. “[A]ny time a State is enjoined by a court from effectuating statutes enacted by

26

representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 133 S. Ct.

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1 1, 3 (2012) (Roberts, C.J., in chambers) (citation omitted). This principle applies with at least
2 equal force to the national-security judgments of the Secretaries of State and Homeland Security
3 and the Director of National Intelligence on behalf of the Nation as a whole. “It is ‘obvious and
4 unarguable’ that no governmental interest is more compelling than the security of the Nation.”
5 Haig v. Agee, 453 U.S. 280, 307 (1981) (citations omitted). These Cabinet Secretaries have
6 determined that admitting following-to-join refugee applicants who have not received the same
7 screening that principal refugees receive would not “ensure the security and welfare of the United
8 States,” and thus “additional security measures must be implemented before admission of
9 following-to-join refugees can resume.” Joint Mem. at 3. This Court should not second-guess
10 the Secretaries’ considered judgment.
11 IV. ANY INJUNCTION SHOULD BE NARROWLY TAILORED TO ADDRESS ONLY PLAINITFF JOSEPH DOE’S ALLEGED INJURY
12 Even if some injunctive relief were appropriate (and it is not), the Court should reject
13 Plaintiff’s request for injunctive relief “on behalf of himself and the I-730 Refugee Class,”
14 Proposed Order at 2 (ECF No. 45–1), and instead tailor any remedy to address only Plaintiff’s
15 alleged injury.
16 Constitutional and equitable principles require that any injunctive relief be limited to
17 redressing a plaintiff’s own cognizable injuries. Article III requires that “a plaintiff must
18 demonstrate standing . . . for each form of relief that is sought.” Town of Chester v. Laroe Estates,
19 Inc., 137 S. Ct. 1645, 1650 (2017). The remedy sought therefore must “be limited to the
20 inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518
21 U.S. 343, 357 (1996). Equitable principles also require that injunctions “be no more burdensome
22 to the defendant than necessary to provide compete relief to the plaintiffs.” Madsen v. Women’s
23 Health Ctr., Inc., 512 U.S. 753, 765 (1994) (citation omitted).
24 In addition, this Court has not certified a class, and binding precedent recognizes that
25 classwide preliminary injunctive relief absent class certification is improper. See, e.g., Nat’l Ctr.
26 for Immigrants Rights, Inc. v. INS, 743 F.2d 1365, 1371 (9th Cir. 1984) (holding that, in the

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1 absence of class certification, preliminary injunctive relief may cover only the named plaintiffs);

2 M.R. v. Dreyfus, 697 F.3d 706, 738-39 (9th Cir. 2012) (same); Zepeda v. INS, 753 F.2d 719, 727

3 (9th Cir. 1983) (same); cf. L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011)

4 (The rule that “‘injunctive relief should be no more burdensome to the defendant than necessary

5 to provide complete relief to the plaintiffs’ before the court . . . applies with special force where

6 there is no class certification.” (citations omitted)).

7

In light of these principles and this binding precedent, any injunction the Court enters

8 should be limited to relieving whatever irreparable injury the Court concludes Plaintiff has

9 suffered or imminently will suffer as a consequence of the following-to-join implementation

10 period. The injunction should not extend beyond Plaintiff and his family members. Nor should

11 it apply to provisions of the Joint Memorandum that Plaintiff does not challenge here.

12

CONCLUSION

13

The Court should deny Plaintiff’s motion for a preliminary injunction.

14 DATED: November 16, 2017 15

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General

16

JENNIFER D. RICKETTS

Director, Federal Programs Branch

17

JOHN R. TYLER

18

Assistant Director, Federal Programs Branch

19

/s/ Michelle R. Bennett

MICHELLE R. BENNETT

20

DANIEL SCHWEI

KEVIN SNELL

21

JOSEPH C. DUGAN

Senior Trial Counsel / Trial Attorneys

22

U.S. Department of Justice

Civil Division, Federal Programs Branch

23

20 Massachusetts Avenue, NW

Washington, DC 20530

24

Tel: (202) 305-8902

Fax: (202) 616-8470

25

Email: michelle.bennett@usdoj.gov

26

Attorneys for Defendants

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION - 23 John Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)

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1

CERTIFICATE OF SERVICE

2

I hereby certify that, on November 16, 2017, a copy of the foregoing document was

3 electronically filed with the Clerk of the Court using the CM/ECF system which will send

4 notification of such filing to all counsel of record.

5 DATED this 16th day of November, 2017.
6
7

/s/ Michelle R. Bennett MICHELLE R. BENNETT

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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION - 24 John Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1

The Honorable James L. Robart

2

3

4

5

6

7 UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 John Doe, Jack Doe, Jason Doe, Joseph Doe

10

James Doe, Jeffrey Doe, individually, and on behalf of all others similarly situated; the

11 Episcopal Diocese of Olympia, and the Council on American Islamic Relations-Washington,

12

Plaintiffs,

v. 13 Donald Trump, President of The United States;

14

U.S. Department of State; Rex Tillerson, Secretary of State; U.S. Department of

15 Homeland Security; Elaine Duke, Acting Secretary of Homeland Security; U.S. Customs

16 and Border Protection; Kevin McAleenan,

Acting Commissioner of U.S. Customs and 17 Border Protection; Michele James, Field

18 Director of the Seattle Field Office of U.S. Customs and Border Protection; Office of the

19 Director of National Intelligence; and Daniel

Coats, Director of the Office of the Director of

20 National Intelligence

Defendants. 21

No. 2:17-cv-00178-JLR PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
NOTED FOR CONSIDERATION: November 22, 2017
ORAL ARGUMENT SCHEDULED: December 11, 2017

22

23

24

25

26
PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178-JLR)

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1 I. INTRODUCTION
2 EO-4 is titled “Resuming the United States Refugee Admissions Program With Enhanced
3 Vetting Capabilities,” even though Defendant Trump knew the Agency Memo (“Memo”) he
4 received at least the day before would ban large swaths of refugees. Defs. Opp. Dkt #51 (“Opp.”)
5 at p. 5. Defendants’ defense of the Memo rests on two claims: (1) the Memo does not actually do
6 what the Memo says it does because the mandatory suspension does not apply to refugees in
7 Kenya and Thailand, Higgins Decl. ¶ 11, Dkt # 51-1 at p.5; and (2) the Memo is only a brief
8 “pause” to align the follow-to-join (“FTJ”) vetting processes with those already observed for
9 principal refugees. Opp. at 1.
10 But if Defendants are in fact admitting refugees to whom the Memo on its face applies,
11 the agencies are operating in precisely the sort of black box of unfettered discretion prohibited by
12 law.1 Defendants provide neither an end date nor any evidence of an actual national security need 13
for the “pause.” Opp. at 1. And Defendants’ Reply further makes clear that they seek to insulate 14
from judicial review an indefinite suspension on all FTJ admissions so they can implement 15
screening processes they have already implemented— both for principal refugees worldwide and 16 for FTJ refugees in Kenya and Thailand.2 Defendants' defense itself underscores the need for 17
judicial scrutiny. 18
Defendants’ actions have real-world impact on the rights of United States residents. 19
Joseph Doe is one such person. The petitions he filed on behalf of his wife and children are his 20
petitions, Higgins Decl. ¶ 6, and he seeks “a preliminary injunction enjoining the implementation 21
of the Memo with respect to FTJ derivative refugees.” Pl. Mot., Dkt # 45 at p. 1. His challenge 22
includes both the indefinite suspension of FTJ admissions and the implementation of additional 23
24 1 Refugees processed from Kenya and Thailand account for roughly 1 in 6 of the refugees admitted to the United
States, a not insignificant percentage. Nowlin Decl. ¶ 6.
25 2 Defendants also purportedly identified problems with the refugee screening process before issuing EO-1 in
January 2017, and they have been evaluating “vetting procedures for all nations across the board” since at least
26 May 2017. Int’l Refugee Assistance Project (“IRAP”) v. Trump, 4th Cir. Oral Arg., C-SPAN, at 00:17:22 (May 8,
2017), http://cs.pn/2mUWtrC.

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1 security enhancements, one of which is expanding SAO requirements, for FTJ refugees who
2 have completed and cleared their final screenings. Despite Defendants’ assurances, Joseph has
3 been unable to unite with his family. Either he and his wife will be forced to contemplate leaving
4 behind their 4- and 5-year-old sons (who have never even set foot in an SAO country but are
5 SAO citizens) or his entire immediate family will be denied entry even though his wife and older
6 child are entitled under Defendants’ reading of the Memo.
7 Defendants present this Court with agency action that deprives people like Joseph of their
8 rights and is ultra vires, arbitrary and capricious, and undertaken without any of the processes
9 specifically designed to ensure transparency and public accountability for such deprivations.
10 Judicial scrutiny of such action is appropriate and necessary. And that scrutiny cannot take place
11 in a vacuum. Opp. at 20 (the Memo “was issued by the Secretaries of State and Homeland
12 Security and the Director of National Intelligence, not the President.”). But as “the world is not
13 made brand new every morning,” McCreary Cty. v. ACLU, 545 U.S. 844, 866 (2005), the Memo
14 cannot be separated from the context in which it arose, and the Agency Defendants cannot be
15 separated from the administration—and President—for whom they work.3 It is with this context 16
and that referenced in Plaintiffs’ Third Amended Complaint (“TAC”) that his motion must be 17
reviewed: the Memo constitutes Defendants’ third attempt to ban Muslim refugees. 18
II. ARGUMENT 19
A. Plaintiff’s Challenges Are Justiciable. 20
1. Joseph Doe has standing. 21
Defendants’ assertion that Joseph Doe did not challenge the SAO provision of the Memo, 22
Opp. at 7, is false. Joseph’s motion seeks “a preliminary injunction enjoining the implementation 23
of the Memo with respect to FTJ derivative refugees,” Pl. Mot. at p. 1, which includes a 24
challenge to both the indefinite suspension of FTJ admissions and the implementation of 25
26 3 The evidence is to the contrary—Agency Defendants have done nothing but blindly rush to enforce and implement
every single one of the ill-fated Muslim bans. See, e.g., TAC § IV.A.1.

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1 additional security enhancements—one of which is expanding SAO requirements—for FTJ
2 refugees who have completed and cleared their final screenings. Id. at 6, 16-17. See also TAC §§
3 IV.D. and IV.E.2.
4 Defendants incorrectly claim that Joseph does not have standing because FTJ refugees in
5 Kenya, like his family, are unaffected by the Memo. Defendants’ Reply acknowledges that “[i]f
6 Plaintiff’s family members are nationals of an SAO country, then they are subject to another
7 provision of the [Memo]…” Opp. at 7. Joseph and his family have fulfilled the requirements for
8 admission under § 207(c)(2)(A) of the INA,4 and his family had received an assurance, Doe 9
Decl. ¶ 12, Dkt. #47 at p.3, meaning a final determination had been made to approve his Form I10
730 petitions. See Higgins Decl. ¶ 9. However, because Joseph’s 4- and 5-year-old sons are 11
nationals of an SAO country (Somalia), they are subject to the suspension imposed by the 12
Memo, which unlawfully delays their reunification. Doe Supp. Decl. ¶¶ 8-10. The harm caused 13
to Plaintiff exemplifies the arbitrary and capricious nature of the Memo: according to 14
Defendants, the Memo allows Joseph’s wife and older child into to the U.S., but not his 4- and 515
year-old children—an outcome divorced from reasoned decision-making or facts. 16
“An American individual…that has a bona fide relationship with a particular person 17
seeking to enter the country as a refugee can legitimately claim concrete hardship if that person 18
is excluded.” Trump v. IRAP, 137 S. Ct. 2080, 2089 (2017). Separation from one’s family is well 19
recognized as not only an injury but also irreparable harm. See also Pl. Mot. § IV.B. Joseph Doe 20
has Article III standing. 21
2. Joseph Doe’s Due Process claim is reviewable. 22
Defendants again claim—as they have throughout the litigation over their desired Muslim 23
ban—that their actions are not reviewable. Opp. at 8-10. Defendants wrongly assert that the 24

25 4 Since the filing of Plaintiff’s motion, his two sons that were waiting the results of new medical examinations have 26 received their clearances. Doe Supp. Decl. ¶ 5. Joseph’s family had to obtain new medical clearances since their
earlier ones expired while their arrival was delayed due to the prior executive order. Id. ¶ 3.

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1 Memo does not violate Joseph Doe’s own procedural due process rights. Opp. at 10, 14-15. But
2 Defendants’ own declaration makes clear that the Memo affects his rights directly: “[T]he U.S.-
3 based principal refugee (petitioner) files a Form I-730…” Higgins Decl. ¶ 6. See also Form I-
4 730, Ex. A to Lin Supp. Decl. In fact, in another immigration context, the U.S. government has
5 argued that it is only the petitioner, and not the beneficiary, who has standing to challenge
6 decisions on USCIS petitions. See Maramjaya v. U.S. Citizenship & Immigration Servs., No.
7 CIV.A. 06-2158 RCL, 2008 WL 9398947, at *4 (D.D.C. Mar. 26, 2008). USCIS regulations
8 define the “affected party” as the one who filed the petition. 8 C.F.R. 103.3(a)(1)(iii)(B)). But as
9 the Maramjaya court recognized, “USCIS ‘regulations and [agency] case law addressing the
10 issue of standing to appeal a denial or revocation of a visa petition within the INS’ do not
11 necessarily determine standing in federal court.” Maramjaya, 2008 WL 9398947 at *4 (quoting
12 Ghaly v. INS, 48 F.3d 1426, 1434 n. 6 (7th Cir.1995)). Instead, a noncitizen “‘within the zone of
13 interest regulated or protected’ by an immigration statute and who is ‘adversely affected’ within
14 the meaning of the relevant statute for the purposes of the APA has standing.” Id. Defendants do
15 not contend that Plaintiff is outside of the zone of interests regulated or protected by the INA,
16 and their only argument that he is not adversely affected by their action is the claim that
17 derivative refugees in Kenya are in fact being processed, which is addressed above.
18 Defendants’ argument that Plaintiff’s constitutional claim is not reviewable is the same as
19 their argument against the merits of his due process claim. There is no doubt that this Court may
20 review Plaintiff’s claim that Defendants have violated the Constitution. Washington v. Trump,
21 847 F.3d 1151, 1162-63 (9th Cir. 2017). Both the Ninth Circuit and this Court have already
22 rejected Defendants’ attempt to place the Executive Branch above the law: “the Supreme Court
23 has repeatedly and explicitly rejected the notion that the political branches have unreviewable
24 authority over immigration or are not subject to the Constitution when policymaking in that
25 context.” Id. at 1162; Washington v. Trump, No. C17-0141JLR, 2017 WL 462040, at *3 (W.D.
26

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1 Wash. Feb. 3, 2017) (“The work of the Judiciary, and this court, is limited to ensuring that the
2 actions taken by the other two branches comport with our country’s laws, and more importantly,
3 our Constitution.”). The Constitution gives Congress “exclusive[]” authority to set immigration
4 policy, Ariz. v. U.S, 567 U.S. 387, 409 (2012), and requires the executive branch to act within the
5 confines of the authority delegated to it. The notion that the judiciary cannot review executive
6 action alleged to have transgressed its lawful authority “runs contrary to the fundamental
7 structure of our constitutional democracy.” Washington, 847 F.3d at 1161.
8 3. Joseph Doe’s statutory claims are reviewable under the INA and the APA.
9 Defendants argue that the doctrine of consular nonreviewability is a “short-hand label”
10 for a principle that “applies regardless of the manner in which the Executive Branch denies entry
11 to an alien abroad[.]” Id. at 8. And Defendants argue that review under the APA is unavailable
12 under 5 U.S.C. § 701(a)(1) because the INA precludes judicial review. Opp. at 9-10. Both of
13 these arguments are wrong.
14 The Ninth Circuit has already rejected Defendants’ attempt to redefine the doctrine of
15 consular nonreviewability, reiterating that the doctrine limits review of “an individual consular
16 officer’s decision to grant or to deny a visa pursuant to valid regulations[.]” Hawai‘i v. Trump,
17 859 F.3d 741, 768 (9th Cir. 2017) (emphases added), vacated sub nom. Trump v. Hawai‘i, No.
18 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017). The doctrine in no way prevents courts from
19 reviewing whether a “sweeping immigration policy” violates statutory limits, id. (quoting
20 Washington, 847 F.3d at 1162), especially where that policy flies in the face of USCIS and DHS
21 determinations that Joseph’s wife and children are admissible under the INA. See also Patel v.
22 Reno, 134 F.3d 929, 931-32 (9th Cir. 1997) (doctrine applies only to a particular decision in a
23 particular case and not a general policy). Likewise, the District of Maryland recently held that
24 where the plaintiff asserts “statutory and constitutional claims challenging a broader policy as
25 opposed to individual consular determinations, the doctrine of consular nonreviewability is not
26

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1 applicable.” IRAP v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *17 (D. Md. Oct. 17,
2 2017) (rejecting nearly identical arguments with respect to EO-3). Defendants do not address
3 these cases and instead rely on Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999), see
4 Opp. at 8-9, which was about a routine application of the consular nonreviewability doctrine to a
5 single noncitizen’s visa denial. Id.
6 Defendants’ argument that the INA precludes review is equally unfounded. First, the
7 issue before the Court is whether Defendants’ actions are in excess of their statutory authority, a
8 question indisputably subject to judicial review. As the First Circuit explained in an immigration
9 case, a challenge to an agency action as being contrary to the statute is “a classic issue for the
10 court to decide.” Succar v. Ashcroft, 394 F.3d 8, 19 (1st Cir. 2005); Bona v. Gonzales, 425 F.3d
11 663, 669 (9th Cir. 2005) (explicitly adopting Succar’s reasoning). Second, the INA only
12 precludes review in specific instances—where the authority for the agency decision or action “is
13 specified under this subchapter to be in the discretion of the [agency.]” 8 U.S.C. §
14 1252(a)(2)(B)(ii). The grant of discretion must be specific; “‘the language of the statute in
15 question must provide the discretionary authority’ before the bar can have any effect.” Soltane v.
16 Dep’t of Justice, 381 F.3d 143, 146 (3d Cir. 2004) (Alito, J.) (quoting Spencer Enters., Inc. v.
17 United States, 345 F.3d 683, 689 (9th Cir. 2003)). “By defining the various jurisdictional bars by
18 reference to other provisions in the INA itself, Congress ensured that it, and only it, would limit
19 the federal courts’ jurisdiction.” Kucana v. Holder, 558 U.S. 233, 252 (2010) (emphasis added)
20 (holding agency could not grant itself discretion by regulation).
21 In a case that is illustrative here, the D.C. Circuit held that review of the agency’s
22 determination of eligibility for an L-1B visa was not subject to the INA’s jurisdictional bar,
23 “because the relevant provision of the Immigration and Nationality Act does not commit the
24 decision whether to grant an L–1B petition to the independent discretion of the [agency], and
25 because Congress legislated statutory criteria to be applied in deciding such petitions[.]” Fogo
26

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1 De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1138-39 (D.C. Cir.
2 2014). The D.C. Circuit explained that “Congress nowhere textually assigned such judgments to
3 the [agency’s] sole discretion. Instead, the statute mandates that visa determinations ‘shall be
4 determined by the [agency],’ and the criteria for such decisions are laid out in the statute[.]” Id.
5 at 1138 (emphasis in original). The same reasoning applies here: Congress did not assign
6 discretion to the agency with respect to derivative refugees, it legislated statutory criteria to be
7 applied in deciding such petitions. The INA therefore does not preclude review by this Court.
8 4. The Memo is final agency action.
9 Defendants claim the Memo was not final agency action because it is only a “processing
10 delay.” Opp. at 11. But whether it is a “suspension” or a “delay” without end, it affects Plaintiff’s
11 rights. His family has completed all screening, including two rounds of medical examinations
12 after the first round expired, and only awaits travel booking. Doe Supp. Decl. ¶¶ 3-7. The Memo
13 has already prevented Plaintiff and others like him from reuniting with their families. The
14 District of Maryland rejected similar arguments with respect to EO-3: “[a]s for Defendants’
15 claim that the agency action to date is not ‘final,’ the Proclamation is already in effect as to
16 certain individuals and is being enforced by federal agencies, and, as discussed above in relation
17 to ripeness, a formal denial of a visa or waiver is not necessary for the case to be subject to
18 review.” IRAP v. Trump, No. 17-361, 2017 WL 4674314, at *18 (D. Md. Oct. 17, 2017).
19 B. Plaintiff Is Likely to Succeed on the Merits.
20 1. The Memo violates Joseph Doe’s right to due process.
21 Defendants argue that Plaintiff does not have a protected interest based on the entitlement
22 created by INA § 207(c)(2)(A), and that even if he did, the Memo provided all the process
23 necessary. Opp. at 10-11, 14-15. They are wrong on both counts.
24 Defendants fail to address Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013), in which
25 the plaintiff husband filed an I-130 petition for immediate relative status for his wife. The Ninth
26

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1 Circuit found that “[w]here a petitioner of an immediate relative petition proves that his marriage
2 meets the requirements for the approval of an I-130, he is entitled, as a matter of right, to the
3 approval of his petition.” Id. at 1155 (emphasis added). See also Pl. Mot. at 13-14. The court also
4 found the grant of the petition nondiscretionary: “[i]mmediate relative status for an alien spouse
5 is a right to which citizen applicants are entitled as long as the petitioner and spouse beneficiary
6 meet the statutory and regulatory requirements for eligibility. This protected interest is entitled to
7 the protections of due process.” Ching, 725 F.3d at 1156. The I-730 process is precisely the same
8 type of process with the same use of the nondiscretionary term “shall” in the INA.
9 Defendants misleadingly characterize the FTJ provision of the Memo as an
10 “implementation period” without any consequences. Opp. § II.B. But the Memo indisputably
11 imposes a categorical suspension on the admission of FTJ derivative refugees—including those
12 like Joseph Doe’s family, who have already been finally determined to be admissible, subjecting
13 them post-hoc to a new set of rules without any notice or process. The Ninth Circuit has already
14 ruled that categorical judgments, such as the ones Defendants have repeatedly attempted to
15 impose via executive order, are subject to procedural due process requirements. Washington, 847
16 F.3d at 1165. Those requirements are especially important in cases just like this one: “Policies
17 pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the
18 political conduct of government. In the enforcement of these policies, the Executive Branch of
19 the Government must respect the procedural safeguards of due process.” Galvan v. Press, 347
20 U.S. 522, 531 (1954). Joseph and other Washington residents like him who have had their Form
21 I-730 petitions approved, see Higgins Decl, ¶ 9, are entitled under Section 207of the INA to have
22 their families proceed with the admissions process and to challenge Defendants’ suspension of
23 that right without due process of the law. And, as argued in his opening brief, Plaintiff is likely to
24 succeed on all these points. See Pl. Mot. § IV.A.2.
25
26

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1

2. The Memo violates the INA and the APA because it exceeds Defendants’

statutory authority. 2

Rather than dispute Plaintiff’s plain statutory entitlement, Defendants mischaracterize his

3

argument under INA § 207(c)(2)(A) as seeking a guarantee of immediate admission for his

4

family members. But Plaintiff’s claim is that the agency does not have statutory authority to

5

suspend derivative refugee processing at will. Based on the clear language of the statute, he is

6

likely to succeed on that claim. See Pl. Mot. § IV.A.1.

7

The statute is clear: under INA § 207(c)(2)(A), the Agency Defendants are limited to

8

determining admissibility of derivative refugees based on non-discretionary, statutorily defined

9

criteria. When Congress created an entitlement for the spouses and children of refugees, it did

10

not give the agencies any discretion to stop, terminate, or suspend this entitlement (“shall…be

11

entitled”). Defendants’ argument that “admission” occurs at the port of entry, Opp. at 14, is

12

beside the point. Plaintiff seeks an order enjoining Defendants’ indefinite suspension, not an

13

order guaranteeing immediate admission for his family. The relief he requests is only that the

14

process he started in June 2015 be allowed to move forward so that he may reunite with his

15

family, who have already passed security clearances, medical clearances, and been determined

16

admissible. Doe Supp. Decl. ¶¶ 3-5; Doe Decl. ¶ 12, Dkt. #47 at p.3, Higgins Decl. ¶ 9.

17

3. The Memo is arbitrary and capricious.

18

Even if Defendants had the statutory authority to suspend admissions, their action is still

19

arbitrary and capricious because it lacks any reasoned decision-making or factual support. An

20

agency must examine the relevant data and articulate a satisfactory explanation for its action

21

including a ‘rational connection between the facts found and the choice made.’” Ctr. for

22

Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1193 (9th Cir. 2008)

23

(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

24

Defendants’ Reply only confirms the irrationality of the Memo, which apparently implemented

25

an indefinite ban on all FTJ refugee admissions despite the fact that (1) the screening procedures

26

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1 in Kenya and Thailand are sufficient, see Higgins Decl. ¶ 11, and (2) they seek only to “align”
2 the screening procedures for FTJ refugees with those they already implement for principal
3 refugees. Higgins Decl. ¶ 3. Further, the contemplated SAO requirements will apply to derivative
4 refugees even where potential risk is entirely absent, as with Joseph Doe’s 4- and 5-year-old sons
5 who have never stepped foot in a SAO country.
6 In lieu of evidence, Defendants offer only the assertion that the suspension will “ensure
7 the security and welfare of the United States.” See Memo 3; Opp. at 19-20. Although issues of
8 national security are indeed owed a degree of deference, deference “is not equivalent to
9 acquiescence.” Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998). “Incantation of
10 the magic words ‘national security’ without further substantiation is simply not enough to justify
11 [an agency’s actions].” R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 190 (D.D.C. 2015). There is
12 simply no evidence to support an indefinite ban on all FTJ refugees—the vast majority of whom
13 are women and children. Of dependent refugee arrivals in fiscal years 2014-2015, almost 80%
14 were children under sixteen or female spouses. Of the dependent refugee children, 78% were
15 children under sixteen. Nowlin Decl. ¶¶ 3, 5.
16 In marked contrast to Defendants’ lack of national security related evidence is ample (and
17 to-date uncontested) evidence that blanket suspensions of any groups of refugee admissions are
18 not necessary for national security. See e.g., TAC ¶¶ 233, 239, 245, 247, 263 (dissent of nearly
19 1,000 current State Department officials to, inter alia, a broad group-based refugee ban,5 DHS 20 reports finding country of citizenship to be an unreliable indicator of potential terrorist activity,6 21
and declarations and letter from numerous former national security experts regarding the ability 22

23
24 5 Steve Herman & Nike Ching, Sources: Nearly 1,000 at State Department Officially Dissent on Immigration Order,
VOA News (Jan. 31, 2017), http://bit.ly/2kOEUHR (last visited Nov. 3, 2017) (Ex. B Lin Suppl. Decl.).
25 6 Report, Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States, U.S. Dep’t of
Homeland Sec. (Feb. 2017), Ex. C to Lin Supp. Decl.; Rachel Maddow, TRMS Exclusive: DHS Document
26 Undermines Trump Case for Travel Ban, MSNBC (Mar. 2, 2017), http://on.msnbc.com/2mRo5ZF (last visited
Nov. 3, 2017) (Ex. D to Lin Supp. Decl.).

PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 10

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 54 Filed 11/22/17 Page 12 of 15

1 to add enhancements without resorting to blanket bans);7 TAC §IV.E. See also November 9,

2 2017 Joint Declaration of Former National Security Officials filed in JFS, Dkt. #46.8 The ban on

3 FTJ refugees is overly broad, unfounded, and unlimited, and is therefore arbitrary and capricious.

4

4. The suspension of FTJ admission is a substantive rule subject to notice-and-

5

comment rulemaking.

6

Defendants’ attempt to characterize the suspension as a procedural rule exempt from the

7 protections of notice and comment rulemaking is also unavailing. The “APA’s exception for

8 procedural rules usually is interpreted narrowly.” Sequoia Orange Co. v. Yeutter, 973 F.2d 752,

9 757 (9th Cir. 1992). A rule is “procedural” if it does not “alter the rights or interests of parties.”

10 United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc., 728 F. Supp. 2d 1077, 1084

11 (N.D. Cal. 2010) (quoting Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 349 (4th Cir.2001)).

12 A rule that simply prescribes “the manner in which the parties present themselves or their

13 viewpoints to the agency” [and] does not alter the underlying rights or interests of the parties”

14 and is a procedural rule. Inova Alexandria Hosp., 244 F.3d at 349. By contrast, substantive rules

15 are rules that create law or implement existing law. S. Cal. Edison Co. v. FERC, 770 F.2d 779,

16 783 (9th Cir.1985). The Memo creates new law: it bans the entry of all FTJ refugees. It is hard to

17 conceive of a rule that could have more substantial impact.

18

When an agency rule “jeopardizes the rights and interests of parties . . . , it must be

19 subject to public comment,” even if the rule can in some sense be called “procedural.” Batterton

20 v. Marshall, 648 F.2d 694, 708 (D.C. Cir. 1980). The changes adopted in the Memo “were of a

21 kind calculated to have a substantial effect on ultimate [agency] decisions.” Pickus v. U.S. Bd. of

22 Parole, 507 F.2d 1107, 1112-13 (D.C. Cir. 1974) (holding rules not procedural because they

23 went “beyond formality and substantially affect[ed]” rights). In Elec. Privacy Info. Ctr. v. U.S.

24 Dep’t of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011), the court rejected the agency’s argument

25

26

7 Declarations and letters attached to Lin Supp. Decl. as Exhibits E, F, and G. 8 Ex. H to Lin Supp. Decl.

PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 11

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 54 Filed 11/22/17 Page 13 of 15

1 that its new procedure imposed no new substantive obligations on passengers (as they always
2 had to undergo screening because the agency’s action was “cast in ‘mandatory language’ so ‘the
3 affected private parties are reasonably led to believe that failure to conform will bring adverse
4 consequences.’” Id. at 7 (citation omitted). Similarly, compliance with the Memo is not optional.
5 The cases on which Defendants rely miss the point—they all deal with rules that
6 addressed the manner in which the public interacted with the agency. See, e.g., James v. Hurson
7 Assocs., Inc. v. Glickman, 229 F.3d 277, 279 (D.C. Cir. 2000) (changing manner in which USDA
8 accepted applications for approval of food labels).
9 C. The Court Should Broadly Enjoin the FTJ Provision of the Memo.
10 Defendants’ request to limit any relief to Plaintiff Joseph Doe alone because a class has
11 not yet been certified ignores the history of court orders enjoining Defendants’ previous unlawful
12 actions. See Trump v. IRAP, 137 S. Ct. at 2089 (leaving nationwide injunctions in place even in
13 absence of class certification); Washington, 847 F.3d at 1166-67 (enjoining previous iterations of
14 Defendants’ travel bans because “a fragmented immigration policy would run afoul of the
15 constitutional and statutory requirement for uniform immigration law and policy”); Hawaii, 859
16 F.3d at 788 (“[n]arrowing the injunction to apply only to Plaintiffs would not cure the statutory
17 violations identified, which in all applications would violate provisions of the INA”).9 The Court 18
should enjoin the Defendant Agencies’ suspension of admissions of the FTJ program not just for 19 Joseph Doe but in its entirety and broadly.10 20

21

22
9 Two of Defendants’ cases—M.R. v. Dreyfus, 697 F.3d 706 (9th Cir. 2012) and L.A. Haven Hospice, Inc. v.
23 Sebelius, 638 F.3d 644 (9th Cir. 2011)— involved inapposite Medicare/Medicaid claims. Zepeda v. INS, 753 F.2d
719, 727 (9th Cir. 1983) fares no better as it concerns whether an injunction can issue “against an entity that is not
24 a party to the suit.” In Nat’l Ctr. for Immigrants’ Rights, Inc. v. INS, 743 F.2d 1365 (9th Cir. 1984 the plaintiff had
not yet moved for class certification. Plaintiff Doe moved for class certification on April 11, 2017. Mot. for Class
25 Certification, Dkt. #19. If the Court is inclined to grant relief limited to Joseph Doe, Plaintiff requests the Court
allow him to proceed with his class certification motion and revisit this issue once a ruling is issued, if appropriate.
26 10 In Jewish Family Service of Seattle v. Trump, 2:17-cv-01707 (W.D. Wash.), plaintiffs include an affected I-730
petitioner and preserved their right to seek relief regarding the FTJ provision of the Memo. See Dkt. # 42 at p. 22.

PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 12

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 54 Filed 11/22/17 Page 14 of 15

1 DATED this 22nd day of November, 2017. KELLER ROHRBACK L.L.P.
2

3 AMERICAN CIVIL LIBERTIES UNION 4 OF WASHINGTON FOUNDATION

5 By: /s/ Emily Chiang

g

/s/ Lisa Nowlin

6

EMILY CHIANG, WSBA # 50517

7

Lisa Nowlin, WSBA # 51512 901 Fifth Avenue, Suite 630

8

Seattle, WA 98164

Telephone: (206) 624-2184

9

Email: echiang@aclu-wa.org

lnowlin@aclu-wa.org 10

11

Attorneys for Plaintiff

12

13

14

15

16

17

18

19

20

21

22

23

By: /s/ Lynn Lincoln Sarko

n

By: /s/ Tana Lin

n

By: /s/ Amy Williams-Derry

y o

By: /s/ Derek W. Loeser______________

By: /s/ Alison S. Gaffney

Lynn Lincoln Sarko, WSBA # 16569

Tana Lin, WSBA # 35271

Amy Williams-Derry, WSBA # 28711

Derek W. Loeser, WSBA # 24274

Alison S. Gaffney, WSBA # 45565

1201 Third Avenue, Suite 3200

Seattle, WA 98101

Telephone: (206) 623-1900

Facsimile: (206) 623-3384

Email: lsarko@kellerrohrback.com

tlin@kellerrohrback.com

awilliams-derry@kellerrohrback.com

dloeser@kellerrohrback.com

agaffney@kellerrohrback.com

By: /s/ Laurie B. Ashton

N

Laurie B. Ashton (admitted pro hac vice)

3101 North Central Avenue, Suite 1400

Phoenix, AZ 85012-2600

Telephone: (602) 248-0088

Facsimile: (602) 248-2822

Email: lashton@kellerrohrback.com

By: /s/ Alison Chase

e

Alison Chase (admitted pro hac vice)

1129 State Street, Suite 8

Santa Barbara, CA 93101

Telephone: (805) 456-1496

Facsimile: (805) 456-1497

Email: achase@kellerrohrback.com

24

Attorneys for Plaintiff/Cooperating

Attorneys for the American Civil Liberties

25

Union Of Washington Foundation

26

PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 13

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 54 Filed 11/22/17 Page 15 of 15

1 CERTIFICATE OF SERVICE
2

3

I hereby certify that on November 22, 2017, I electronically filed the attached document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing

4 to the email addresses on the Court’s Electronic Mail Notice List.

5 DATED this 22nd day of November, 2017.

6

KELLER ROHRBACK L.L.P.

7

8

By: /s/ Tana Lin

n

9

Tana Lin, WSBA # 35271

10

1201 Third Avenue, Suite 3200

11

Seattle, WA 98101

Telephone: (206) 623-1900

12

Facsimile: (206) 623-3384

Email: tlin@kellerrohrback.com

13

Attorney for Plaintiff/Cooperating

14

Attorney for the American Civil

15

Liberties Union Of Washington

Foundation

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 14

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

 
 Case 2:17-cv-00178-JLR Document 55 Filed 11/22/17 Page 1 of 3

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 John Doe, Jack Doe, Jason Doe, Joseph Doe

10

James Doe, Jeffrey Doe, individually, and on behalf of all others similarly situated; the

11 Episcopal Diocese of Olympia, and the Council on American Islamic Relations-Washington,
12

Plaintiffs, 13

v. 14

15

Donald Trump, President of The United States; U.S. Department of State; Rex Tillerson,

16 Secretary of State; U.S. Department of Homeland Security; Elaine Duke, Acting

17 Secretary of Homeland Security; U.S. Customs

and Border Protection; Kevin McAleenan, 18 Acting Commissioner of U.S. Customs and

19

Border Protection; and Michele James, Field Director of the Seattle Field Office of U.S.

20 Customs and Border Protection; Office of the Director of National Intelligence; and Daniel

21 Coats, Director of the Office of the Director of

National Intelligence, 22

23

Defendants.

No. 2:17-cv-00178-JLR
SUPPLEMENTAL DECLARATION OF TANA LIN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

24

25

26

SUPPLEMENTAL DECLARATION OF TANA LIN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178-JLR) - 1

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 55 Filed 11/22/17 Page 2 of 3

1 Pursuant to 28 U.S.C. § 1746, I, Tana Lin, hereby declare and state:
2

3

1. I am a partner at the law firm of Keller Rohrback L.L.P. (“Keller Rohrback”).

4

2. Attached hereto as Exhibit A is a true and correct copy of Form I-730 obtained

5 from https://www.uscis.gov/sites/default/files/files/form/i-730.pdf on November 21, 2017;

6

3. Attached hereto as Exhibit B is a true and correct copy of the article by Steve

7 Herman & Nike Ching: Sources: Nearly 1,000 at State Department Officially Dissent on
8 Immigration Order, VOA News (Jan 31, 2017), available at http://bit.ly/2kOEUHR (last visited
9
Nov. 3, 2017); 10

11

4. Attached hereto as Exhibit C is a true and correct copy of Report, Citizenship

12 Likely an Unreliable Indicator of Terrorist Threat to the United States, U.S. Dep’t of Homeland

13 Sec. (Feb. 2017);

14

5. Attached hereto as Exhibit D is a true and correct copy of article by Rachel

15 Maddow TRMS Exclusive: DHS Document Undermines Trump Case for Travel Ban, MSNBC

16
(Mar. 2, 2017), http://on.msnbc.com/2mRo5ZF (last visited Nov. 3, 2017); 17

18

6. Attached hereto as Exhibit E is a true and correct copy of Joint Declaration from

19 10 National Security Experts filed in State of Washington v. Trump, No. 17-35105 (9th Cir. Feb.

20 6, 2017), Dkt. #28-2;

21

7. Attached hereto as Exhibit F is a true and correct copy of Open Letter to the

22 Honorable Donald J. Trump (Mar. 10, 2017);

23 8. Attached hereto as Exhibit G is a true and correct copy of the Statement of 49
24 Former National Security Officials filed in State of Washington v. Trump, 2:17-cv-00141, Dkt.
25

26 194-18;

SUPPLEMENTAL DECLARATION OF TANA LIN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178-JLR) - 2

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 55 Filed 11/22/17 Page 3 of 3

1

9. Attached hereto as Exhibit H is a true and correct copy of Joint Declaration of

2 Former National Security Officials filed in Jewish Family Service of Seattle v. Trump, 2:17-cv-

3 01707 (W.D. Wash.), Dkt. #46;
4 I declare under penalty of perjury that the foregoing is true and correct to the best of my
5
knowledge. 6

7

EXECUTED this 6th day of November, 2017, at Seattle, Washington.

8

9

s/Tana Lin

Tana Lin 10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

SUPPLEMENTAL DECLARATION OF TANA LIN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178-JLR) - 3

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 1 of 92
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Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 5 of 92

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Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 6 of 92

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Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 7 of 92

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Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 8 of 92

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Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 9 of 92

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EXHIBIT B

Sources: Nearly 1,000 at State Department Officially Dissent on Immigration Order

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Sources: Nearly 1,000 at State Department Officially Dissent on Immigration Order
Last Updated: January 31, 2017 3:57 PM Steve Herman Nike Ching
STATE DEPARTMENT — A large number of foreign service officers and civil service personnel of the U.S. State Department signed a dissent document that was formally submitted Tuesday.
The State Department confirms to VOA that the memo in opposition to the president's executive order on immigration was received. But officials will not reveal the total number nor the ranks of those signing. Sources tell VOA the number is nearly 1,000.
The number of signatures, if it does total about 1,000, is “unprecedented” and about 20 times the number of dissenters for last year's memo from diplomats sharply criticizing the Obama administration's Syria policy, said former U.S. Ambassador to Syria, Robert Ford.
The huge numbers for the immigration memo and its early leaking “are clear indicators of the widespread concern within the department over this specific policy step and unease over the broad direction of foreign policy,” said Laura Kennedy, former deputy assistant secretary for European and Eurasian Affairs.
“These are extraordinary times,” she added.
Spicer rejects criticism

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Sources: Nearly 1,000 at State Department Officially Dissent on Immigration Order

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The Trump administration argues that the new measures are necessary to “ensure the safety and security of the American people.” In a statement last weekend, it said the executive order “affects a minor portion of international travelers, and is the first step towards reestablishing control over America's borders and national security.”

But the Dissent Channel memo, a draft of which has been seen by VOA, says the order “will not achieve its aims and will likely be counterproductive.”

White House spokesman Sean Spicer rejected the criticism on Monday, telling reporters that those at the State Department who oppose President Donald Trump's immigration order “should either get with the program or they can go.”
Former diplomats comment
Former diplomats bristled at what is being perceived as a implicit threat against the foreign service community.
“The Dissent Channel is an entirely appropriate means of expressing opposition to the top leadership of the Department of State,” Ford told VOA. “The Trump people shouldn't take it so personally.”
“I was appalled by (Spicer's) comment,” said Kennedy, also a former ambassador to Turkmenistan, told VOA. “It either implied a complete misunderstanding of the dissent channel or the legal protections there are, or it's intended to send a signal that dissent, whether private or public, will not be tolerated.”

“The time-honored tradition of respectful dissent at State is supported by the very American and constitutional values that this cable honors and that the executive order tramples,” Yale University Law School professor Harold Hongju Koh, a former assistant secretary of state and State Department legal adviser, told VOA.

'The safety of Americans' https://www.voanews.com/a/over-a-thousand-state-dept-personnel-officially-dissent-to-im... 11/3/2017

Sources: Nearly 1,000 at State Department Officially Dissent on Immigration Order

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President Trump last Friday signed an executive order prohibiting entry to refugees and people from seven Muslim majority countries. The order includes a 120-day suspension of refugee admissions and a 90-day entry ban for people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

Spicer added from the podium Monday the order is “about the safety of Americans” and the steps the president ordered are “common sense."

The draft of the dissent memo that was leaked expresses grave concerns that the travel ban will not achieve its goal "to protect the American people from terrorist attacks by foreign nationals admitted to the United States." It also warns that the action will "immediately sour relations" with key allies in the fight against terrorism, given many of the nations whose citizens are now restricted from traveling to U.S. soil.
The memo suggests alternatives, including improving visa and immigration screening.
Channel started in 1971
The Dissent Channel was established in 1971, amid disputes about Vietnam War policies, to allow U.S. diplomats to speak freely about foreign policy matters.

Typically four to five Dissent Channel messages are received each year, according to the State Department. Last year's Syria Dissent Channel memo had 51 signatures, according to diplomats.

When State Department or U.S. Agency for International Development employees believe their voices are not heard by supervisors, they may use the Dissent Channel. At the State Department, the policy planning staff is supposed to review it, circulate it to authorized people and reply in substance to the dissenters within 60 days.

Channel users protected

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Those utilizing the Dissent Channel are protected from reprisals, disciplinary action or unauthorized disclosure of its use, according to the government's Foreign Affairs Manual.

Ford, who was a career member of the U.S. Foreign Service, predicted that if the White House tries to retaliate “they'll end up with lawsuits.” But Ford added that after expressing their opinion through the proper channels, foreign service officers are obligated to implement administration policy.

“It is their job to implement what the president and his team decide," explained Ford. " If they can't implement it then, frankly, they should think whether they should be in a government job."
Ford, currently a Senior Fellow at the Middle East Institute in Washington, acknowledged the challenge of U.S. diplomats in Baghdad having to explain “why this policy is a good policy” to their counterparts who fought alongside U.S. forces against terrorist elements.
“I can't imagine anything more difficult,” Ford said. Without proper guidance from Washington “they have to wing it which is even harder.”
Embassies sound off

Officials on Monday also revealed that the State Department is receiving multiple cables from its embassies about foreign anger concerning the restrictions on travel to the U.S. from the predominately Muslim countries in the executive order.

“As is standard, the State Department remains in contact with its embassies around the world on foreign policy issues,” a department official, speaking on condition of not being named, told VOA when asked about the cable. “We will not comment on internal communications.”

The president's nominee to be secretary of state, Rex Tillerson, has yet to be confirmed by the Senate. A vote on Tillerson, a recently retired oil and gas company executive, is expected this week.

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EXHIBIT C

Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 17 of 92
Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States
Scope Note: This paper was prepared at the request of the DHS Acting I nder Secretary for Intelligence and Analysis. It assesses the international terrorist threat to the United States and worldwide by citizens of Iran. Iraq. Libya, Somalia. Sudan. Syria, and Yemen. Citizens of these seven countries were impacted by Section 3 of Executive Order (E.O.) 13769 ""Protecting the Nation from Foreign Terrorist Entry into the United States.*" The assessment relies on unclassified information from Department of Justice press releases on terrorismrelated convictions and terrorist attack perpetrators killed in the act. Department of State visa statistics, the 2016 Worldwide Threat Assessment of the US Intelligence Community, and the Department of State Country Reports on Terrorism 201 5. This paper does not assess the threat of domestic terrorism.
Key Findings
» PUS I&A assesses that country of citizenship is unlikely to he a reliable indicator ol potential terrorist activity. Since the beginning ol the Syrian conflict in March 201 1 . the foreign-bom primarily US -based individuals who were inspired by a foreign terrorist organization to participate in terrorism-related activity were citizens of 26 different countries, with no one country representing more than 13.5 percent of the foreign-born
total.
« Relatively few citizens of the seven countries impacted by E.O. 1 3769. compared to neighboring countries, maintain access to the United States.
• Terrorist groups in Iraq. Syria, and Yemen pose a threat of attacks in the United States while groups in Iran. Libya, Somalia, and Sudan remain regionally focused.
Cittern* #f Countries Affected by E.G. 13769 Rarely implicated in US-Based Terrorism
DHS l& A assesses that country of citizenship is unlikely to be a reliable indicator of potential terrorist activity. Since the beginning of the Syrian conflict in March 201 1, at least 82 primarily US-based individuals, who died in the pursuit of or were convicted of any terrorism-related federal offense inspired by a foreign terrorist organization, according to a DHS study of Department of Justice press releases on convictions and terrorist attack perpetrators killed in the
act-5* Of the 82 individuals we identified, slightly more than Italf were native-born United States
citizens. Of the foreign-bom individuals, they came from 26 different countries, with no one country representing more than 13.5 percent of the foreign-born total.
• The top seven origin countries of the foreign-born individuals are; Pakistan (5). Somalia (3). and Bangladesh. Cuba, Ethiopia, Iraq, and Uzbekistan (2).
' For the purposes of this paper, we limited our data to individuals prosecuted under S8 U.S.C. Chapter I33R in support of or inspired by a Foreign Terrorist Organization <FTO). We excluded traveling or attempting to travel overseas to join a FTO and activities unrelated to FTOs, to include purely domestic terrorism.
i

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__

• Of the seven countries impacted by Hi), 1 3769 that are not listed above, Iran. Sudan, and Yemen had 1 each, and there were no individuals tram Syria
Limited Access to the United States by Citizens of Impacted Countries
Relatively tew citizens of the seven countries impacted by E.O. 13769, compared to neighboring countries, maintain access to the United States None of the seven countries account for more than 7 percent of the US visas granted in their region- the Middle Hast and North Africa or SubSaharan Africa —in Fiscal Year 2015, according to publicly available Fiscal Year 2015 visa issuance data from the Department of State.11*

FY1S US Visas Granted as Percentage of Regional
Total

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Few of the Impacted Countries Have Terrorist Croups that Threaten the West
Terrorist groups in Iraq. Syria, and Yemen pose a threat of attacks in the United States, while groups in Iran, Libya. Somalia, and Sudan are regionally focused, according to the 2016 Worldwide Threat Assessment of the US Intelligence Community and the IXqxirtment of State Country Reports on Terrorism 201 5.
Iran - Designated as a State Sponsor of Terrorism in 1984. Iran continued its terrorist-related activity in 2015, including support for Hizballah. Palestinian terrorist groups in Gaza, and various groups in Iraq and throughout the Middle Hast, according to the Country Reports on Terrorism 2015 4 Iran used the Islamic Revolutionary Guard Corps-Qods Force (IROC-QF) to implement foreign policy goals, provide cover for intelligence operations, arid create instability
* Fiscal Year 2015 is the most recent year we have visa issuance data for both immigrant and non-immigrant visas. A-l. A-2, A-3, C-2, NATO, G-l. G-2, G-3, and G-3 non-immigrant visas were excluded horn these calculations to be consistent with section 3<c) i« E.O. 13769.
2

A-l, A-2, A-3, C-2, NATO, G-t» 0-2, G-3, and G-3 non-immigrant visas were excluded from these calculations to
be coCnsaissteent 2w:it1h7s-ecctvio-n030(c1) 7in8E-.JGL. 1R3769Document 55-1 Filed 11/22/17 Page 19 of 92
2
in the Middle East. The IRGC-QF is Iran's primary mechanism tor cultivating and supporting terrorists abroad. Iraq and Syria - The Islamic Stale of Iraq and the Levant (18IL) has become the preeminent terrorist threat because of its sell -described caliphate in Syria and Iraq, its branches and emerging branches in other countries, and its increasing ability to direct and inspire attacks against a wide range uf targets around the world, according u» the 2016 Worldwide Threat Assessment.* ISIL's narrative supports jthadist recruiting, attracts others to travel to Iraq and Syria, draws individuals and groups to declare allegiance to ISIL, and justifies attacks across the globe. Libya - Libya has been locked in civil war between two rival governments and affiliated armed groups, according to the 2016 Worldwide Threat Assessment.' The 1? December 2015 signing of a UN-brokered agreement to form a Government of National Accord resulted from a year long political dialogue that sought to end the ongoing civil war and reconcile Libya's rival governments. Extremists and terrorists have exploited the security vacuum to plan and launch attacks in Libya and throughout the region. Somalia - In 2015. al-Shabaab continued to commit deadly attacks in Somalia, seeking to reverse progress made by the Federal Government of Somalia and weaken the political will of the African Union Mission in Somalia troop contributing countries, according to the Country
Reports on Terrorism 201 5. 7
Sudan - Sudan was designated as a State Sponsor of Terrorism in 109? due to concerns about
support to international terrorist groups, according to the Country Reports on Terrorism 2015." In
2014, members of Hamas were allowed to raise funds, travel, and live in Sudan However, in 2015 the use of Sudan by Palestinian designated terrorist groups appeared to have declined. The last known shipment was interdicted by Israel in 2014 Yemen - Al-Qa'ida in the Arabian Peninsula remained a significant threat to Yemen, the region, and to the United States in 201 5, as efforts to counter the group were hampered by the ongoing
conflict in that country, according to the Country Reports on Terrorism 2015° The Islamic State of Iraq and the Levant in Yemen also exploited the political and security vacuum to strengthen its foothold inside the country .
1 dhs t&A; PHS i&A Terrorism-Related Activities Study; 16 FEB 17; DOi 01 MAR it - 31 IAN 17; OHS i&A TerrorismRelated Activities Study 2 https;//travefst8tegov/content/dam/viS3s/Statistics/AnriualReports/FV2016Annuamepoft/FYi6AnriualReportTatjieXIV.pdf 1 https://traveLstate.gov/content/dam/vfsas/Statlstics/Non-immigraiitStatistiC5/NtVOetailTabIes/FY15%20NIV%20Detal!%20Table.xls * http$://wwwstategov/j/ct/rls/crt/2015/257520.htm
3

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EXHIBIT D

TRMS Exclusive: DHS document undermines Trump case for travel ban | MSNBC

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The Rachel Maddow Show / The MaddowBlog

Exclusive: DHS intel doc contradicts case for Trump's travel ban, 3/2/17, 9:02 PM ET
TRMS Exclusive: DHS document undermines Trump case for travel ban
03/02/17 09:15 PM—UPDATED 03/03/17 12:14 AM
Share
The Rachel Maddow TSwheoewt has obtained, exclusively, a Department of Homeland Security intelligence assessment document. The document, from the Office of Intelligence and Analysis, makes the cEamsaeilthat most foreign-born, U.S.-based violent extremists are likely not radicalized when they come to the U.S., but rather become radicalized after living in the U.S. for a number of yearsS. ave The document follows another piece of research (pdf) from Homeland Security that undercut President Trump’s rationale for a travel ban as a means of keeping violent extremists out. On Friday, the Associated Press published an analysis from Homeland
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Security that said citizenship in any given country – including the seven countries listed in the executive order – is likely an unreliable indicator of whether someone poses a terrorist threat.
The new assessment, obtained by the Rachel Maddow Show and dated March 1, tracks 88 violent, foreign-born extremists in the United States. More than half of them had been in the U.S. more than 10 years before they were indicted or killed.
Homeland Security tonight has confirmed the authenticity of the document. The department says production of it began in August 2016, and that it likely would have reached the White House. We have asked the White House for comment tonight. They have not responded.
Read the document below:
(Scribd pdf link here)

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Explore: The MaddowBlog
Thursday's Mini-Report, 3.2.17

Team Trump's Russian communications come...

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EXHIBIT E

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t35052-8192F, iDlekdtE1n1t/r2y2:/2187-2,PPaaggee32 of 1972

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 17-35105

STATE OF WASHINGTON, et al.

)

)

Plaintiffs-Appellees, )

) JOINT DECLARATION OF

vs.

) MADELEINE K. ALBRIGHT,

) AVRIL D. HAINES

) MICHAEL V. HAYDEN

) JOHN F. KERRY

) JOHN E. McLAUGHLIN

DONALD J. TRUMP, President of the

) LISA O. MONACO

United States, et al.,

) MICHAEL J. MORELL

) JANET A. NAPOLITANO

Defendants-Appellants. ) LEON E. PANETTA

) SUSAN E. RICE

)

)

)

We, 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, and Susan E. Rice declare as follows:
1. We are former national security, foreign policy, and intelligence officials in the United States Government:
a. 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 and has been a member of the Central Intelligence Agency External Advisory Board since 2009 and the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States.
b. Avril D. Haines served as Deputy Director of the Central Intelligence Agency from 2013 to 2015, and as Deputy National Security Advisor from 2015 to January 20, 2017.
c. Michael V. Hayden served as Director of the National Security Agency from 1999 to 2005, and Director of the Central Intelligence Agency from 2006 to 2009.
d. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t35052-8192F, iDlekdtE1n1t/r2y2:/2187-2,PPaaggee33 of 1972
e. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000-2004 and Acting Director of CIA in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.
f. 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.
g. Michael J. Morell served as Acting Director of the Central Intelligence Agency in 2011 and from 2012 to 2013, Deputy Director from 2010 to 2013, and as a career official of the CIA from 1980. His duties included briefing President George W. Bush on September 11, 2001, and briefing President Barack Obama regarding the May 2011 raid on Osama bin Laden.
h. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.
i. Leon E. Panetta served as Director of the Central Intelligence Agency from 2009-11 and as Secretary of Defense from 2011-13.
j. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009-13 and as National Security Advisor from 2013 to January 20, 2017.
2. We have collectively devoted decades to combatting the various terrorist threats that the United States faces in a dynamic and dangerous world. We have all held the highest security clearances. A number of us have worked at senior levels in administrations of both political parties. Four of us (Haines, Kerry, Monaco and Rice) were current on active intelligence regarding all credible terrorist threat streams directed against the U.S. as recently as one week before the issuance of the Jan. 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Order”).
3. 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. It does not perform its declared task of “protecting the nation from foreign terrorist entry into the United States.” To the contrary, the Order disrupts thousands of lives, including those of refugees and visa holders all previously vetted by standing procedures that the Administration has not shown to be inadequate. It could do long-term damage to our national security and foreign policy interests, endangering U.S. troops in the field and disrupting counterterrorism and national security partnerships. It will aid ISIL’s propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam. It will hinder relationships with the very communities that law enforcement professionals need to address the threat. It will have a damaging humanitarian and economic impact on the lives and jobs of American citizens and residents. And apart from all of these concerns, the Order offends our nation’s laws and values.
2

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t35052-8192F, iDlekdtE1n1t/r2y2:/2187-2,PPaaggee34 of 1972
4. There is no national security purpose for a total bar on entry for aliens from the seven named countries. Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order. Very few attacks on U.S. soil since September 11, 2001 have been traced to foreign nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens. The Administration has identified no information or basis for believing there is now a heightened or particularized future threat from the seven named countries. Nor is there any rational basis for exempting from the ban particular religious minorities (e.g., Christians), suggesting that the real target of the ban remains one religious group (Muslims). In short, the Administration offers no reason why it abruptly shifted to group-based bans when we have a tested individualized vetting system developed and implemented by national security professionals across the government to guard the homeland, which is continually re-evaluated to ensure that it is effective.
5. In our professional opinion, the Order will harm the interests of the United States in many respects:
a. The Order will endanger U.S. troops in the field. Every day, American soldiers work and fight alongside allies in some of the named countries who put their lives on the line to protect Americans. For example, allies who would be barred by the Order work alongside our men and women in Iraq fighting against ISIL. To the extent that the Order bans travel by individuals cooperating against ISIL, we risk placing our military efforts at risk by sending an insulting message to those citizens and all Muslims.
b. The Order will disrupt key counterterrorism, foreign policy, and national security partnerships that are critical to our obtaining the necessary information sharing and collaboration in intelligence, law enforcement, military, and diplomatic channels to address the threat posed by terrorist groups such as ISIL. The international criticism of the Order has been intense, and it has alienated U.S. allies. It will strain our relationships with partner countries in Europe and the Middle East, on whom we rely for vital counterterrorism cooperation, undermining years of effort to bring them closer. By alienating these partners, we could lose access to the intelligence and resources necessary to fight the root causes of terror or disrupt attacks launched from abroad, before an attack occurs within our borders.
c. The Order will endanger intelligence sources in the field. For current information, our intelligence officers may 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 Americans safe – and whom our officers had promised always to protect with the full might of our government and our people.
d. Left in place, the Executive Order will likely feed the recruitment narrative of ISIL and other extremists that portray the United States as at war with Islam. As government officials, we took every step we could to counter violent extremism. Because of the Order’s disparate impact against Muslim travelers and immigrants, it feeds ISIL’s narrative and sends the wrong message to the Muslim community here at home and all over the world: that
3

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the U.S. government is at war with them based on their religion. The Order may even endanger Christian communities, by handing ISIL a recruiting tool and propaganda victory that spreads their message that the United States is engaged in a religious war. e. The Order will disrupt ongoing law enforcement efforts. By alienating Muslim-American communities in the United States, it 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. f. The Order will have a devastating humanitarian impact. When the Order issued, those disrupted included women and children who had been victimized by actual terrorists. Tens of thousands of travelers today face deep uncertainty about whether they may travel to or from the United States: for medical treatment, study or scholarly exchange, funerals or other pressing family reasons. While the Order allows for the Secretaries of State and Homeland Security to agree to admit travelers from these 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. g. The Order will cause economic damage to American citizens and residents. The Order will affect many foreign travelers, particularly students, who annually inject hundreds of billions into the U.S. economy, supporting well over a million U.S. jobs. Since the Order issued, affected companies have noted its adverse impacts on many strategic economic sectors, including defense, technology, medicine, culture and others.
6. As a national security measure, the Order is unnecessary. National security-based immigration restrictions have consistently been tailored to respond to: (1) specific, credible threats based on individualized information, (2) the best available intelligence and (3) thorough interagency legal and policy review. This Order rests not on such tailored grounds, but rather, on (1) general bans (2) not supported by any new intelligence that the Administration has claimed, or of which we are aware, and (3) not vetted through careful interagency legal and policy review. Since the 9/11 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 is applied to travelers not once, but multiple times. Refugees receive the most thorough vetting of any traveler to the United States, taking on the average more than a year. Successive administrations have continually worked to improve this vetting through robust informationsharing and data integration to identify potential terrorists without resorting to a blanket ban on all aliens and refugees. Because various threat streams are constantly mutating, as government officials, we sought continually to improve that vetting, as was done in response to particular threats identified by U.S. intelligence in 2011 and 2015. Placing additional restrictions on individuals from certain countries in the visa waiver program –as has been done on occasion in the past – merely allows for more individualized vettings before individuals with particular passports are permitted to travel to the United States.
7. In our professional opinion, the Order was ill-conceived, poorly implemented and ill-explained. The “considered judgment” of the President in the prior cases where courts have
4

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t35052-8192F, iDlekdtE1n1t/r2y2:/2187-2,PPaaggee36 of 1972
deferred was based upon administrative records showing that the President’s decision rested on cleared views from expert agencies with broad experience on the matters presented to him. Here, there is little evidence that the Order underwent a thorough interagency legal and policy processes designed to address current terrorist threats, which would ordinarily include a review by the career professionals charged with implementing and carrying out the Order, an interagency legal review, and a careful policy analysis by Deputies and Principals (at the cabinet level) before policy recommendations are submitted to the President. We know of no interagency process underway before January 20, 2017 to change current vetting procedures, and the repeated need for the Administration to clarify confusion after the Order issued suggest that that Order received little, if any advance scrutiny by the Departments of State, Justice, Homeland Security or the Intelligence Community. Nor have we seen any evidence that the Order resulted from experienced intelligence and security professionals recommending changes in response to identified threats.
8. The Order is of unprecedented scope. We know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people. Even after 9/11, 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. In past cases, suspensions were limited to particular individuals or subclasses of nationals who posed a specific, articulable threat based on their known actions and affiliations. In adopting this Order, the Administration alleges no specific derogatory factual information about any particular recipient of a visa or green card or any vetting step omitted by current procedures.
9. Maintaining the district court’s temporary restraining order while the underlying legal issues are being adjudicated would not jeopardize national security. It would simply preserve the status quo ante, still requiring that individuals be subjected to all the rigorous legal vetting processes that are currently in place. Reinstating the Executive Order would wreak havoc on innocent lives and deeply held American values. Ours is a nation of immigrants, committed to the faith that we are all equal under the law and abhor discrimination, whether based on race, religion, sex, or national origin. As government officials, we sought diligently to protect our country, even while maintaining an immigration system free from intentional discrimination, that applies no religious tests, and that measures individuals by their merits, not stereotypes of their countries or groups. Blanket bans of certain countries or classes of people are beneath the dignity of the nation and Constitution that we each took oaths to protect. Rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the United States” does not disguise the Order’s discriminatory intent, or make it necessary, effective, or faithful to America’s Constitution, laws, or values.
5

CCasaese2::17-c3v5-100051,7082-J/0L6R/20D1o7c, uIDm:e1n0t35052-8192F, iDlekdtE1n1t/r2y2:/2187-2,PPaaggee37 of 1972
10. For all of the foregoing reasons, in our professional opinion, the January 27 Executive Order does not further – but instead harms – sound U.S. national security and foreign policy.
Respectfully submitted, s/MADELEINE K. ALBRIGHT* s/AVRIL D. HAINES s/MICHAEL V. HAYDEN s/JOHN F. KERRY s/JOHN E. McLAUGHLIN s/LISA O. MONACO s/MICHAEL J. MORELL s/JANET A. NAPOLITANO s/LEON E. PANETTA s/SUSAN E. RICE
*All original signatures are on file with Harold Hongju Koh, Rule of Law Clinic, Yale Law School, New Haven, CT. 06520-8215 203-432-4932 We declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. [Individual signature pages follow]
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EXECUTED this 5th day of February, 2017 __________/s/_________________ JANET A. NAPOLITANO

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EXECUTED this 5th day of February, 2017 ________/s/___________________ SUSAN E. RICE

Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 48 of 92
EXHIBIT F

Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 49 of 92
March 10, 2017
The Honorable Donald J. Trump The White House 1600 Pennsylvania Avenue NW Washington, D.C. 20050
Dear Mr. President,
We have worked for years, under both Democratic and Republican administrations, to protect America’s national security. We are deeply concerned that the March 6, 2017 executive order halting refugee resettlement and suspending visa issuance and travel from six Muslim-majority countries will, like the prior version, weaken U.S. national security and undermine U.S. global leadership. The United States faces serious 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. But the recent order suffers from the same core substantive defects as the previous version.
The revised executive order will jeopardize our relationships with allies and partners on whom 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.
We must remain vigilant to keep our nation safe from terrorists, whether foreign or homegrown. At the same time, we must remain true to our ideals. These are not mutually exclusive goals. In fact, resettlement initiatives advance U.S. national security interests by protecting the stability of U.S. allies and partners struggling to host large numbers of refugees.
Following the 9/11 attacks, the United States developed a rigorous system of security vetting for travelers to our homeland, leveraging the full capabilities of the intelligence and law enforcement communities. Since then, the U.S. has added enhanced vetting procedures for travelers and has revised them continuously. Our government applies this process to travelers not once, but multiple times. Refugees are vetted more intensively than any other category of traveler. They are screened by national intelligence agencies and INTERPOL, their fingerprints and other biometric data are checked against terrorist and criminal databases, and they are interviewed several times. These processes undergo review on an ongoing basis to ensure that the most updated and rigorous measures are applied, and any additional enhancements can be added without halting refugee resettlement or banning people from certain countries.
We welcome the removal of Iraq from the 90-day travel ban, but we remain concerned that the Iraqis who risked their lives to work with the U.S. military, U.S. government and other U.S. organizations will be left in harm’s way for even longer due to the order’s 120-day suspension of the U.S. Refugee Admissions Program and overall reduction in refugee admissions. These individuals were given priority access to U.S. resettlement under the Refugee Crisis in Iraq Act, but their resettlement, like that of many
Page 1 of 8

Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 50 of 92

other vetted refugees, will now likely be delayed as security clearances and other approvals expire, adding many more months onto their processing. The United States has a moral obligation to protect these allies.

Bans like those included in this order are harmful to U.S. national security and beneath the dignity of our great nation. Further, the order’s drastic reduction in the number of refugees to be resettled in this fiscal year after the 120-day moratorium weakens this country’s ability to provide global leadership and jeopardizes our national security interests by failing to support the stability of our allies that are struggling to host large numbers of refugees. America’s much-admired compassion and openness are sources not of weakness but strength. These qualities accord with the ideals on which our nation was founded, and on which our greatness rests.

The revised executive order is damaging to the strategic and national security interests of the United States. We urge that, in moving forward, the United States: ensure any vetting enhancements are necessary, non-discriminatory and otherwise consistent with the U.S. Constitution; implement any necessary enhancements without a counterproductive ban or suspension on entry of nationals of particular countries or religions; and immediately restart a strong non-discriminatory refugee resettlement initiative, which will in turn advance U.S. global leadership and national security interests.

We firmly believe that these steps will strengthen U.S. national security and appreciate your attention to the concerns we raise in this letter.

Sincerely, (names in alphabetical order)

Wally Adeyemo Former Deputy Assistant to the President and Deputy National Security Advisor for International Economics

Christopher Le Mon Former Special Assistant to the President for National Security Affairs

Dr. Madeleine K. Albright Former Secretary of State

Marcel Lettre Former Under Secretary of Defense for Intelligence

Steven L. Arnold Lieutenant General U.S. Army (Ret.)

George Little Former Assistant Secretary of Defense for Public Affairs

Alyssa Ayres Former Deputy Assistant Secretary of State for South Asia

Albert J. Madora Major General U.S. Army (Ret.)

Jeremy Bash Former Chief of Staff, Department of Defense

Kelly Magsamen Former Principal Deputy Assistant Secretary of Defense for Asian and Pacific Security Affairs
Page 2 of 8

Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 51 of 92

Rand Beers Former Acting Secretary of the Department of Homeland Security

Thomas Malinowski Former Assistant Secretary of State for Democracy, Human Rights, and Labor

Daniel Benjamin Former Coordinator for Counterterrorism, Department of State

Robert Malley Former Special Assistant to the President and White House Coordinator for the Middle East, North Africa, and the Persian Gulf Region

Rob Berschinski Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor

Brian McKeon Former Acting Under Secretary of Defense for Policy

Nisha Biswal Former Assistant Secretary of State for South and Central Asian Affairs

Pete McCloskey, Jr. U.S. Congressman, 1967-1983 11th, 17th, and 12th Congressional Districts of CA

Jarrett Blanc Former Deputy Special Representative to Afghanistan and Pakistan

John McLaughlin Former Deputy Director and Acting Director of Central Intelligence Agency

Charles Blanchard Former General Counsel U.S. Air Force

Philip McNamara Former Assistant Secretary for Partnerships and Engagement, Department of Homeland Security

Antony Blinken Former Deputy Secretary of State

Bernadette Meehan Former Special Assistant to the President for National Security Affairs

Max Boot Jeane J. Kirkpatrick Senior Fellow in National Security Studies Council on Foreign Relations

Sarah Mendelson Former Ambassador to the Economic and Social Council, United Nations

David M. Brahms Brigadier General U.S. Marine Corps (Ret.)

James Miller Former Undersecretary of Defense for Policy

Michael Breen Retired United States Army Officer

Lisa Monaco Former Assistant to President for Homeland Security and Counterterrorism and Deputy National Security Advisor

Page 3 of 8

Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 52 of 92

Rosa Brooks Former Counselor to Under Secretary of Defense for Policy

Alberto Mora Former General Counsel, Department of the Navy

Ambassador (ret.) Nicholas Burns Former Under Secretary of State for Political Affairs, Ambassador to NATO and to Greece

Janet Napolitano Former Secretary of the Department of Homeland Security

Ambassador William J. Burns Former Deputy Secretary of State

William L. Nash Major General U.S. Army (Ret.)

Luis C.deBaca Former Ambassador at Large to Monitor and Combat Trafficking in Persons

Thomas Nides Former Deputy Secretary of State for Management and Resources

Michael Carpenter Former Deputy Assistant Secretary of Defense for Russia, Ukraine, Eurasia

Michael P. Noonan U.S. Army Veteran Director of Research, Foreign Policy Research Institute

Derek Chollet Former Assistant Secretary of Defense for International Security Affairs

Suzanne Nossel Former Deputy Assistant Secretary of State for International Organizations Affairs

Richard Clarke Former National Coordinator for Security, Infrastructure Protection and Counterterrorism for the U.S.

James C. O’Brien Former Special Envoy for Hostage Recovery

David Cohen Former Deputy Director, Central Intelligence Agency

Matthew Olsen Former Director of the National Counterterrorism Center

Bathsheba Crocker Former Assistant Secretary of State for International Organization Affairs

Rick Olson Former Special Representative for Afghanistan and Pakistan

Ryan C. Crocker Former U.S. Ambassador to Lebanon, Kuwait, Syria, Pakistan, Iraq, and Afghanistan

Charles Otstott Lieutenant General U.S. Army (Ret.)

James P. Cullen Brigadier General U.S. Army (Ret.)

Eric Pelofsky Former Special Assistant to the President and Senior Director for North Africa and Yemen

Page 4 of 8

Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 53 of 92

Mary DeRosa Former Deputy Counsel to the President for National Security Affairs

Gale Pollock Major General U.S. Army (Ret.)

Daniel Drezner Professor Fletcher School of Law and Diplomacy

Amy Pope Former Deputy Homeland Security Advisor and Deputy Assistant to the President for National Security Affairs

Paul D. Eaton Major General U.S. Army (Ret.)

Michael Posner Former Assistant Secretary of State for Democracy, Human Rights and Labor

Mari K. Eder Major General U.S. Army (Ret.)

Samantha Power Former United States Ambassador to the United Nations

Brian Egan Former Legal Adviser U.S. State Department

Jeffrey Prescott Former Senior Director for Iran, Iraq, Syria, and the Gulf States, National Security Council

Evelyn Farkas Former Executive Director, Commission on the Prevention of WMD Proliferation and Terrorism

Ned Price Former Special Assistant to the President and National Security Council Spokesperson

Daniel Feldman Former Special Representative for Afghanistan and Pakistan

Dafna Rand Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor

Steve Feldstein Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor

William D. Razz Waff Major General U.S. Army (Ret.)

Jose W. Fernandez Former Assistant Secretary of State for Economic, Energy, and Business Affairs

Susan Rice Former National Security Advisor to the President of the U.S.

Jonathan Finer

Bill Richardson

Former Director of Policy Planning, Department of Former Governor of New Mexico and United

State

States Ambassador to the United Nations

Michele Flournoy Former Under Secretary of Defense for Policy

Leon Rodriguez Former Director, U.S. Citizenship and Immigration Services

Page 5 of 8

Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 54 of 92

Eugene Fox Major General U.S. Army (Ret.)

Laura Rosenberger Former Chief of Staff to the Deputy Secretary of State

Danielle Garbe Former Director for Lebanon and Jordan, National Security Council

Tommy Ross Former Deputy Assistant Secretary of Defense for Security Cooperation

Dennis P. Geoghan Brigadier General U.S. Army (Ret.)

Murray G. Sagsveen Brigadier General U.S. Army (Ret.)

Suzy George Former Deputy Assistant to the President, Chief of Staff and Executive Secretary, National Security Council

Eric Schwartz Former Assistant Secretary of State for Population, Refugees, and Migration

F. Stephen Glass Rear Admiral, JAGC U.S. Navy (Ret.)

Norman R. Seip Lieutenant General U.S. Air Force (Ret.)

Rachel Goldbrenner Former Senior Policy Advisor to the U.S. Ambassador to the United Nations

Wendy Sherman Former Under Secretary of State for Political Affairs

Mary Beth Goodman Former Special Assistant to the President for Development and Democracy

Vikram Singh Former Deputy Assistant Secretary of Defense for South and Southeast Asia

Philip Gordon Former Special Assistant to the President and White House Coordinator for the Middle East, North Africa, and the Persian Gulf Region

Elissa Slotkin Former Acting Assistant Secretary of Defense for International Security Affairs

Wilton Scott Gorske Major General U.S. Army (Ret.)

Jeff Smith Former General Counsel, Central Intelligence Agency

Donald J. Guter Rear Admiral, JACG U.S. Navy (Ret.)

Julianne “Julie” Smith Former Deputy National Security Advisor to the Vice President of the United States

Ziad Haider Former Special Representative for Commercial and Business Affairs, U.S. Department of State

Tara Sonenshine Former Under Secretary of State for Public Diplomacy and Public Affairs

Page 6 of 8

Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 55 of 92

Irv Halter Major General U.S. Air Force (Ret.)

Matthew Spence Former Deputy Assistant Secretary of Defense for Middle East Policy

Lee H. Hamilton U.S. Congressman, 1965-1999 9th Congressional District of IN

James Steinberg Former Deputy Secretary of State

Keith Harper

Nik Steinberg

Former Ambassador to the United Nations Human Former Counselor to the U.S. Permanent

Rights Council

Representative to the United Nations

Luke Hartig Former Senior Director for Counterterrorism National Security Council

Seth M.M. Stodder Former Assistant Secretary of Homeland Security for Border, Immigration & Trade Policy

Caitlin Hayden Former National Security Council Spokesperson

Jake Sullivan Former National Security Advisor to the Vice President of the U.S.

Leif H. Hendrickson Brigadier General U.S. Marine Corps (Ret.)

Timothy S. Sullivan Rear Admiral U.S. Coast Guard (Ret.)

Heather Higginbottom Former Deputy Secretary of State for Management and Resources

Antonio M. Taguba Major General U.S. Army (Ret.)

John D. Hutson Rear Admiral, JACG U.S. Navy (Ret.)

Jim Townsend Former Deputy Assistant Secretary of Defense for European and NATO Policy

David. R. Irvine Brigadier General U.S. Army (Ret.)

Michael G. Vickers Former Under Secretary of Defense for Intelligence

John H. Johns Brigadier General U.S. Army (Ret.)

David Wade Former Chief of Staff, Department of State

Colin Kahl Former National Security Advisor to the Vice President of the United States

William Wechsler Former Deputy Assistant Secretary of Defense for Counterterrorism and Special Operations

Page 7 of 8

Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 56 of 92

Gil Kerlikowske

Moira Whelan

Former Commissioner, United States Customs and Former Deputy Assistant Secretary of State for

Border Protection

Public Affairs

John Kerry Former Secretary of State

Catherine Wiesner Former Deputy Assistant Secretary of State, Bureau of Population, Refugees, and Migration

Jeremy Konyndyk Former Director, Office of U.S. Foreign Disaster Assistance, USAID

Douglas Wilson Former Assistant Secretary of Defense for Public Affairs

Charles Kupchan Former Special Assistant to the President for National Security Affairs

Tamara Cofman Wittes Former Deputy Assistant Secretary of State for Near Eastern Affairs

Mark P. Lagon Former U.S. Ambassador-at-Large to Combat Trafficking in Persons

Jon Brook Wolfsthal Former Special Assistant to the President for National Security Affairs

Jonathan Lee Former Deputy Chief of Staff, Department of Homeland Security

Lee Wolosky Former Special Envoy for Guantanamo Closure

Michael R. Lehnert Major General U.S. Marine Corps (Ret.)

Tom Wyler Former Counselor to the Secretary of Commerce and Senior Advisor for International Economics

Paul N. Lekas

Stephen N. Xenakis

Former Deputy General Counsel for Legal Counsel, Brigadier General

Department of Defense

U.S. Army (Ret.)

CC: The Honorable Rex W. Tillerson, Secretary of State The Honorable James N. Mattis, Secretary of Defense The Honorable Jefferson B. Sessions, Attorney General of the United States The Honorable John F. Kelly, Secretary of Homeland Security The Honorable Michael P. Dempsey, Acting Director of National Intelligence

Page 8 of 8

Case 2:17-cv-00178-JLR Document 55-1 Filed 11/22/17 Page 57 of 92
EXHIBIT G

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DECLARATION OF JOINT FORMER NATIONAL SECURITY

CCaassee22:1:177--ccvv--0000114718--JJLLRR DDooccuummeenntt15954--118FilFeidle1d11/202/1/17/17PaPgaeg5e92ooff9128

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

STATE OF WASHINGTON, et al.,

Plaintiffs,

v. DONALD TRUMP, et al.,

CIVIL ACTION NO. 2:17-cv-00141-JLR

Defendants.

JOINT DECLARATION OF FORMER NATIONAL SECURITY OFFICIALS Pursuant to 28 U.S.C. § 1746(2), we, the below named former national security officials, hereby declare as follows: 1. We are former national security, foreign policy, and intelligence officials in the United States Government: a. 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

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and of the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States. b. Rand Beers served as Deputy Homeland Security Advisor to the President of the United States from 2014 to 2015. c. John B. Bellinger III served as the Legal Adviser for the U.S. Department of State from 2005 to 2009. He previously served as Senior Associate Counsel to the President and Legal Adviser to the National Security Council from 2001 to 2005. d. Daniel Benjamin served as Ambassador-at-Large for Counterterrorism at the U.S. Department of State from 2009 to 2012. e. Antony Blinken served as Deputy Secretary of State from 2015 to January 20, 2017. He previously served as Deputy National Security Advisor to the President of the United States from 2013 to 2015. f. John O. Brennan served as Director of the Central Intelligence Agency from 2013 to 2017. He previously served as Deputy National Security Advisor for Homeland Security and Counterterrorism and Assistant to the President from 2009 to 2013. g. 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. h. 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.
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i. James Clapper served as U.S. Director of National Intelligence from 2010 to January 20, 2017.
j. 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.
k. Eliot A. Cohen served as Counselor of the U.S. Department of State from 2007 to 2009.
l. Bathsheba N. Crocker served as Assistant Secretary of State for International Organization Affairs from 2014 to 2017.
m. Ryan Crocker served as U.S. Ambassador to Afghanistan from 2011 to 2012, as U.S. Ambassador to Iraq from 2007 to 2009, as U.S. Ambassador to Pakistan from 2004 to 2007, as U.S. Ambassador to Syria from 1998 to 2001, as U.S. Ambassador to Kuwait from 1994 to 1997, and U.S. Ambassador to Lebanon from 1990 to 1993.
n. Thomas Donilon served as U.S. National Security Advisor from 2010 to 2013. o. Jen Easterly served as Special Assistant to the President and Senior Director for
Counterterrorism from October 2013 to December 2016. p. 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. q. 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. Department of State from 2016 to January 20, 2017. r. Michèle Flournoy served as Under Secretary of Defense for Policy from 2009 to 2013.
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s. 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.
t. Josh Geltzer served as Senior Director for Counterterrorism at the National Security Council from 2015 to 2017. Previously, he served as Deputy Legal Advisor to the National Security Council and as Counsel to the Assistant Attorney General for National Security at the Department of Justice.
u. 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.
v. 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.
w. Chuck Hagel served as Secretary of Defense from 2013 to 2015, and previously served as Co-Chair of the President's Intelligence Advisory Board. From 1997 to 2009, he served as U.S. Senator for Nebraska, and as a senior member of the Senate Foreign Relations and Intelligence Committees.
x. 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.
y. Luke Hartig served as Senior Director for Counterterrorism at the National Security Council from 2014 to 2016.
z. 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.
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aa. Heather A. Higginbottom served as Deputy Secretary of State for Management and Resources from 2013 to 2017.
bb. 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.
cc. John F. Kerry served as Secretary of State from 2013 to January 20, 2017. dd. 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. ee. Richard Lugar served as U.S. Senator for Indiana from 1977 to 2013, and as
Chairman of the Senate Committee on Foreign Relations from 1985 to 1987 and 2003 to 2007, and as ranking member of the Senate Committee on Foreign Relations from 2007 to 2013. ff. 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. gg. 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. hh. Cameron P. Munter served as U.S. Ambassador to Pakistan from 2009 to 2012 and to Serbia from 2007 to 2009. ii. James C. O’Brien served as Special Presidential Envoy for Hostage Affairs from 2015 to January 20, 2017. He served in the U.S. Department of State from 1989 to 2001, including as Principal Deputy Director of Policy Planning and as Special Presidential Envoy for the Balkans. jj. Matthew G. Olsen served as Director of the National Counterterrorism Center from 2011 to 2014.
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kk. 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.
ll. Jeffrey Prescott served as Special Assistant to the President and Senior Director for Iran, Iraq, Syria and the Gulf States from 2015 to 2017.
mm. 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.
nn. 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.
oo. Anne C. Richard served as Assistant Secretary of State for Population, Refugees and Migration from 2012 to January 20, 2017.
pp. Kori Schake served as the Deputy Director for Policy Planning at the U.S. Department of State from December 2007 to May 2008. Previously, she was the director for Defense Strategy and Requirements on the National Security Council in President George W. Bush’s first term.
qq. 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.
rr. Wendy R. Sherman served as Under Secretary of State for Political Affairs from 2011 to 2015.
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ss. 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.
tt. Jeffrey H. Smith served as General Counsel of the Central Intelligence Agency from 1995 to 1996. Previously, he served as General Counsel of the Senate Armed Services Committee.
uu. James B. Steinberg served as Deputy National Security Adviser from 1996 to 2000 and as Deputy Secretary of State from 2009 to 2011.
vv. William Wechsler served as Deputy Assistant Secretary for Special Operations and Combating Terrorism at the U.S. Department of Defense from 2012 to 2015.
ww. Samuel M. Witten served as Principal Deputy Assistant Secretary of State for Population, Refugees, and Migration from 2007 to 2010. From 2001 to 2007, he served as Deputy Legal Adviser at the State Department.
We have collectively devoted decades to combatting the various terrorist threats that the United States faces in a dynamic and dangerous world. We have held the highest security clearances, and many of us were current on active intelligence regarding all credible terrorist threat streams directed against the United States as recently as one week before the issuance of the Jan. 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Travel Ban 1.0”). A number of us signed a declaration that was filed on February 6, 2017 with the Ninth Circuit in this case, as an exhibit to the plaintiffs’ response to the defendants’ motion for a stay of this court’s temporary restraining order blocking that initial Executive Order.1 Each of us also joined an amicus brief that was filed in the Supreme
1 Joint Decl. of Madeline Albright et al., No. 17-35105 (9th Cir. Feb. 6, 2017).
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Court in support of two separate groups of plaintiffs challenging the subsequent March 6, 2017 Executive Order (“Travel Ban 2.0”).2
2. The Administration has now replaced the Travel Ban 2.0 with a new Proclamation titled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” The Proclamation is dated September 24, 2017, and is scheduled to take effect fully on October 18, 2017 (“Travel Ban 3.0” or “Ban”).
3. The Ban preserves the basic approach of the original two Orders, without providing any persuasive evidence that these measures are necessary to enhance our national security or foreign policy interests. The Ban includes a few new exceptions to the prior Order, adds a couple of countries to the list (Chad, North Korea, and Venezuela) and removes a country (Sudan). But it still relies on unprecedented and sweeping nationalitybased bans, directed at a list of almost exclusively Muslim-majority countries that is substantially similar to the prior lists. (The North Korea and Venezuela additions will affect exceedingly few people, and Chad is a majority-Muslim country.) The Ban blocks well over 150 million people from entering the United States.3
4. We 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. Yet, we are unaware of any national security threat that would justify Travel Ban 3.0. To the contrary, its enforcement would cause serious harm to the national security and foreign policy of the United States.
2 Br. of Amici Curiae Former National Security Officials in Support of Respondents, Nos. 16-1436 and 16-1540 (U.S. Sup. Ct. Sept. 18, 2017).
3 This figure reflects the population of the listed countries in the Proclamation, excluding North Korea and Venezuela.
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I. Travel Ban 3.0 Serves No Genuine National Security Purpose 5. As a national security measure, this Ban is unnecessary. National security-
based immigration restrictions have consistently been tailored to respond to: (1) specific, credible threats based on individualized information, (2) the best available intelligence, and (3) thorough interagency legal and policy review. Travel Ban 3.0 rests not on such tailored grounds, but rather, on (1) general bans (2) that are not responsive to an actual national security threat informed by intelligence, and (3) that emerged from a January Order that was not vetted through the kind of careful interagency legal and policy review that we would expect from a serious national security process.
6. The Ban is of unprecedented scope. Apart from Travel Bans 1.0 and 2.0, we know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people. Even after the 9/11 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. Suspensions were limited to particular individuals or subclasses of nationals who posed a specific, articulable threat based on their known actions and affiliations. In adopting Travel Ban 3.0, the Administration alleges no derogatory factual information about any particular recipient of a visa or green card or any credible threat from nationals of the countries banned.
7. Since the 9/11 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 is applied to travelers not once, but multiple times. As government officials, we sought continually to improve that vetting, as was done in response to particular threats identified by U.S. intelligence in 2011 and 2015. Indeed, successive administrations have continually worked to improve this vetting through robust information-sharing and data integration, without resorting to multiple, sweeping bans on travel. We have seen no evidence from the Government for why the country suddenly needs to shift from this tested system of
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individualized vetting, developed and implemented by national security professionals across the government, to a national origin-based ban.
8. The current individualized vetting system places the burden of proof on the traveler to prove her identity and eligibility for travel. If the traveler is unable to make this showing, the U.S. Government can deny her a visa based on an individualized review. This has been the policy of the U.S. Government across multiple administrations.
9. Travel Ban 3.0’s generalized, country-based approach is substantially the same as its predecessors, although its bans on travel are now indefinite rather than temporary, and the stated rationale has shifted. Removing most of the emphasis on terrorism, the new Ban is purportedly necessary “to elicit improved identity-management and information-sharing protocols and practices from foreign governments.” We have seen no evidence, however, that such a sweeping, country-based ban on travel is necessary for this objective.
10. In fact, the only concrete evidence to emerge from this administration on this point to date has shown just the opposite, that country-based bans are ineffective. A leaked DHS Office of Intelligence and Analysis memorandum analyzing the ban in the January Order found that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.” The memorandum went on to note that a majority of the U.S.-based individuals who were inspired by a foreign terrorist organization to participate in terrorism-related activity were citizens of the United States; the minority of foreign-born individuals were scattered from among twenty-six different countries; and most of the top origin countries of those individuals are not the countries listed in the Order.4
11. Imposing a ban on all or most of the travelers for a series of countries due to the information sharing practices of their government is a massively overbroad and imprecise response, especially when the data does not show any particularized threat from those
4 Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States, https://assets.documentcloud.org/documents/3474730/DHS-intelligence-document-on-President-Donald.pdf.
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countries. Defendants have provided no evidence or specific information that nationals of the banned countries pose a credible threat to the safety of Americans if they are allowed to enter the United States after individualized screenings, or of the alleged harm that would occur in the absence of the ban. The Ban targets a list of countries whose nationals have committed no deadly terrorist attacks on U.S. soil in the last forty years.5 In fact, a recent analysis by the Cato Institute shows that each new version of the travel ban is “even further divorced from threats of terrorism to the United States than the prior order.”6
In particular: a. The Ban newly adds Chad to the list of countries subject to a ban. No citizen of
Chad has carried out a terrorist attack or been convicted of planning an attack on U.S. soil in the last forty years. Chad, a Muslim-majority country, has long been one of the United States’ most effective counterterrorism partners in the region. Chad has been used as a staging ground by the U.S. Air Force in its surveillance of Boko Haram, hosted about 2,000 U.S. troops for an annual military exercise in March 2017, and is the base of the Multinational Joint Task Force, the coordinated effort to fight Boko Haram in the region. The presence of Boko Haram in Chad is dwarfed by their activity in other countries in the region that were not included in the ban. Chad’s inclusion on the Travel Ban 3.0 list reportedly occurred over objections by officials in the State Department, the Pentagon, the U.S. Embassy in Chad, and U.S. Africa Command, a decision that left administration officials “befuddled and frustrated.”7
5 Alex Nowrasteh, President Trump’s New Travel Executive Order Has Little National Security Justification, Cato Institute: Cato at Liberty, September 25, 2017.
6 David Bier, New Travel Ban Would Not Have Prevented the Entry of Any Terrorists Since 9/11, Cato Institute: Cato at Liberty, September 25, 2017.
7 Helene Cooper et al., Chad’s Inclusion in Travel Ban Could Jeopardize American Interests, Officials Say, N.Y. Times, Sept. 26, 2017.
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b. The Ban newly adds North Korea (DPRK) to the list of countries subject to a ban. No citizen of North Korea has carried out a terrorist attack or been convicted of planning an attack on U.S. soil in the last forty years. Because of severe exit restrictions imposed by the North Korean government, very few North Koreans actually travel to the United States at all. North Korean defectors typically first receive South Korean passports in any event.8 In addition, such defectors would likely have a well-founded fear of political persecution if returned to North Korea, and thus deserve careful consideration for refugee status.
c. The Ban newly adds Venezuela to the list of countries subject to a ban. No citizen of Venezuela has carried out a terrorist attack or been convicted of planning an attack on U.S. soil in the last forty years. The Ban only applies to officials from government agencies involved in screening and vetting procedures. Such targeted sanctions are more appropriately done by the Treasury Department under the International Emergency Economic Powers Act and other legal authorities rather than through overbroad country bans.
12. Notably, the Ban does not include non-Muslim majority countries such as Belgium where there have been widely-documented problems with information sharing, and whose nationals have carried out terrorist attacks on Europe. And although for some of the countries, the Ban applies only to certain non-immigrant visas, together those visas are far and away the most frequently used non-immigrant visas from these nations.
8 Darla Cameron, Why Trump’s Latest Travel Ban Included These Eight Countries, Wash. Post (Sept. 26, 2017); Emily Rauhala, Almost No North Koreans Travel to the U.S., So Why Ban Them?, Wash. Post (Sept. 25, 2017).
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II. Travel Ban 3.0 Will Harm the National Security and Foreign Policy Interests of the United States 13. In our professional judgment, Travel Ban 3.0 would undermine the national
security of the United States, rather than making us safer. If given effect, Travel Ban 3.0 would do long-term damage to our national security and foreign policy interests, and disrupt counterterrorism and national security partnerships. It would aid the propaganda effort of the Islamic State (“IS”) and serve its recruitment message by feeding into the narrative that the United States is at war with Islam. It would hinder relationships with the very communities law enforcement professionals need to engage to address the threat. And apart from all of these concerns, the Ban offends our nation’s laws and values.
In particular: a. The Ban would disrupt critical counterterrorism, foreign policy, and national
security partnerships that are critical to our obtaining the necessary information sharing and collaboration in intelligence, law enforcement, military, and diplomatic channels to address the threat posed by terrorist groups such as IS. The Ban would further strain our relationships with partner countries in Europe and the Middle East, on whom we rely for vital counterterrorism cooperation, undermining years of effort to bring them closer. By alienating these partners, we would frustrate access to the intelligence and resources necessary to fight the root causes of terror or disrupt attacks launched from abroad, before an attack occurs within our borders. b. The Ban would endanger intelligence sources in the field. For current information, our intelligence officers may rely on human sources in some of the countries listed. The Ban breaches faith with those very sources, who have risked much or all to keep Americans safe—and whom our officers had
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promised always to protect with the full might of our government and our people. c. The Ban would feed the recruitment narrative of IS and other extremists that portray the United States as at war with Islam. As government officials, we took every step we could to counter violent extremism. Because of the Ban’s disparate impact on Muslim travelers and immigrants, it would fuel IS’s narrative and sends the wrong message to the Muslim community here at home and all over the world: that the U.S. Government is hostile to them and their religion. The Ban also might endanger Christian communities, by handing IS a recruiting tool and propaganda victory that spreads their message that the United States is engaged in a religious war. d. The Ban would disrupt ongoing law enforcement efforts. By alienating MuslimAmerican communities in the United States, it would 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. e. The Ban would have a devastating humanitarian impact. The current bans have already disrupted the movement of countless people, including women and children, who are fleeing danger and have been victimized by actual terrorists. Travelers face deep uncertainty about whether they may travel to or from the United States: for medical treatment, funerals or other pressing family reasons. f. The Ban would cause serious economic damage to American citizens and residents. The Ban would affect many foreign travelers who annually inject hundreds of billions into the U.S. economy, supporting well over a million U.S. jobs. Affected companies have noted the adverse impact of the bans to date on many strategic economic sectors, including defense, technology, medicine, culture and others.
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14. For all of the foregoing reasons, in our professional opinion, Travel Ban 3.0 does not further—but instead harms—sound U.S. national security and foreign policy. Issuing a new preliminary injunction against Travel Ban 3.0 would not jeopardize national security. It would simply preserve the status quo ante, still requiring individuals to be subjected to all the rigorous legal vetting processes that are currently in place. Allowing the Ban to take effect would wreak havoc on innocent lives and deeply held American values.
15. Ours is a nation of immigrants, committed to the faith that we are all equal under the law and abhor discrimination, whether based on race, religion, sex, or national origin. As government officials, we sought diligently to protect our country, even while maintaining an immigration system as free as possible from discrimination, that applies no religious tests, and that measures individuals by their merits, not stereotypes of their countries or groups. Blanket bans of certain countries or classes of people are beneath the dignity of the nation and Constitution that we each took oaths to protect. Rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry” or “Enhancing Vetting Capabilities and Processes” does not disguise the Ban’s discriminatory intent, or make it necessary, effective, or faithful to America’s Constitution, laws, or values.
Respectfully submitted, s/MADELINE K. ALBRIGHT s/RAND BEERS s/JOHN D. BELLINGER III s/DANIEL BENJAMIN s/ANTONY BLINKEN s/JOHN O. BRENNAN s/R. NICHOLAS BURNS s/WILLIAM J. BURNS s/JAMES CLAPPER s/DAVID S. COHEN s/ELIOT A. COHEN s/BATHSHEBA N. CROCKER s/RYAN CROCKER
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s/THOMAS DONILON s/JEN EASTERLY s/DANIEL FELDMAN s/JONATHAN FINER s/MICHÈLE FLOURNOY s/ROBERT S. FORD s/JOSH GELTZER s/SUZY GEORGE s/PHIL GORDON s/CHUCK HAGEL s/AVRIL D. HAINES s/LUKE HARTIG s/MICHAEL V. HAYDEN s/HEATHER A. HIGGINBOTTOM s/CHRISTOPHER R. HILL s/JOHN F. KERRY s/PREM KUMAR s/RICHARD LUGAR s/JOHN E. MCLAUGHLIN s/LISA O. MONACO s/CAMERON P. MUNTER s/JAMES C. O’BRIEN s/MATTHEW G. OLSEN s/LEON E. PANETTA s/JEFFREY PRESCOTT s/SAMANTHA J. POWER s/SUSAN E. RICE s/ANNE C. RICHARD s/KORI SCHAKE s/ERIC P. SCHWARTZ s/WENDY R. SHERMAN s/VIKRAM SINGH s/JEFFREY H. SMITH s/JAMES B. STEINBERG s/WILLIAM WECHSLER s/SAMUEL M. WITTEN
Executed on this 10th day of October, 2017.
*All original signatures are on file with Harold Hongju Koh, Rule of Law Clinic, Yale Law School, New Haven, CT. 06520-8215 203-432-4932.
We declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
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EXHIBIT H

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1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

9 JEWISH FAMILY SERVICE OF SEATTLE, et al.,
10
Plaintiffs, 11
v. 12
DONALD J. TRUMP, in his official 13 capacity as President of the United States,
et al., 14
Defendants. 15

No. 2:17-cv-01707-RSM
JOINT DECLARATION OF FORMER NATIONAL SECURITY OFFICIALS

16

JOINT DECLARATION OF FORMER NATIONAL SECURITY OFFICIALS

17 We, the below named individuals, declare as follows:
18 1. We are former national security, foreign policy, and intelligence officials in the
19 United States Government:
20 a. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee
21 and naturalized American citizen, she served as U.S. Permanent Representative to
22 the United Nations from 1993 to 1997. She has also been a member of the
23 Central Intelligence Agency External Advisory Board since 2009 and of the
24 Defense Policy Board since 2011, in which capacities she has received
25 assessments of threats facing the United States.
26

JOINT DECLARATION OF FORMER NATIONAL SECURITY OFFICIALS (No. 2:17-cv-01707-RSM)– 1
137627009.3

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

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b. Rand Beers served as Deputy Homeland Security Advisor to the President of the

2

United States from 2014 to 2015.

3

c. John B. Bellinger III served as the Legal Adviser for the U.S. Department of State

4

from 2005 to 2009. He previously served as Senior Associate Counsel to the

5

President and Legal Adviser to the National Security Council from 2001 to 2005.

6

d. Daniel Benjamin served as Ambassador-at-Large for Counterterrorism at the U.S.

7

Department of State from 2009 to 2012.

8

e. Antony Blinken served as Deputy Secretary of State from 2015 to January 20,

9

2017. He previously served as Deputy National Security Advisor to the President

10

of the United States from 2013 to 2015.

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f. John O. Brennan served as Director of the Central Intelligence Agency from 2013

12

to 2017. He previously served as Deputy National Security Advisor for Homeland

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Security and Counterterrorism and Assistant to the President from 2009 to 2013.

14

g. R. Nicholas Burns served as Under Secretary of State for Political Affairs from

15

2005 to 2008. He previously served as U.S. Ambassador to NATO and as U.S.

16

Ambassador to Greece.

17

h. William J. Burns served as Deputy Secretary of State from 2011 to 2014. He

18

previously served as Under Secretary of State for Political Affairs from 2008 to

19

2011, as U.S. Ambassador to Russia from 2005 to 2008, as Assistant Secretary of

20

State for Near Eastern Affairs from 2001 to 2005, and as U.S. Ambassador to

21

Jordan from 1998 to 2001.

22

i. James Clapper served as U.S. Director of National Intelligence from 2010 to

23

January 20, 2017.

24

j. David S. Cohen served as Under Secretary of the Treasury for Terrorism and

25

Financial Intelligence from 2011 to 2015 and as Deputy Director of the Central

26

Intelligence Agency from 2015 to January 20, 2017.

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k. Eliot A. Cohen served as Counselor of the U.S. Department of State from 2007 to

2

2009.

3

l. Bathsheba N. Crocker served as Assistant Secretary of State for International

4

Organization Affairs from 2014 to 2017.

5

m. Ryan Crocker served as U.S. Ambassador to Afghanistan from 2011 to 2012, as

6

U.S. Ambassador to Iraq from 2007 to 2009, as U.S. Ambassador to Pakistan

7

from 2004 to 2007, as U.S. Ambassador to Syria from 1998 to 2001, as U.S.

8

Ambassador to Kuwait from 1994 to 1997, and U.S. Ambassador to Lebanon

9

from 1990 to 1993.

10

n. Thomas Donilon served as U.S. National Security Advisor from 2010 to 2013.

11

o. Jen Easterly served as Special Assistant to the President and Senior Director for

12

Counterterrorism from October 2013 to December 2016.

13

p. Daniel Feldman served as U.S. Special Representative for Afghanistan and

14

Pakistan from 2014 to 2015, Deputy U.S. Special Representative for Afghanistan

15

and Pakistan from 2009 to 2014, and previously Director for Multilateral and

16

Humanitarian Affairs at the National Security Council.

17

q. Jonathan Finer served as Chief of Staff to the Secretary of State from 2015 until

18

January 20, 2017, and Director of the Policy Planning Staff at the U.S.

19

Department of State from 2016 to January 20, 2017.

20

r. Michèle Flournoy served as Under Secretary of Defense for Policy from 2009 to

21

2013.

22

s. Robert S. Ford served as U.S. Ambassador to Syria from 2011 to 2014, as Deputy

23

Ambassador to Iraq from 2009 to 2010, and as U.S. Ambassador to Algeria from

24

2006 to 2008.

25

t. Josh Geltzer served as Senior Director for Counterterrorism at the National

26

Security Council from 2015 to 2017. Previously, he served as Deputy Legal

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1

Advisor to the National Security Council and as Counsel to the Assistant Attorney

2

General for National Security at the Department of Justice.

3

u. Suzy George served as Deputy Assistant to the President and Chief of Staff and

4

Executive Secretary to the National Security Council from 2014 to 2017.

5

v. Phil Gordon served as Special Assistant to the President and White House

6

Coordinator for the Middle East, North Africa and the Gulf from 2013 to 2015,

7

and Assistant Secretary of State for European and Eurasian Affairs from 2009 to

8

2013.

9

w. Chuck Hagel served as Secretary of Defense from 2013 to 2015, and previously

10

served as Co-Chair of the President's Intelligence Advisory Board. From 1997 to

11

2009, he served as U.S. Senator for Nebraska, and as a senior member of the

12

Senate Foreign Relations and Intelligence Committees.

13

x. Avril D. Haines served as Deputy National Security Advisor to the President of

14

the United States from 2015 to January 20, 2017. From 2013 to 2015, she served

15

as Deputy Director of the Central Intelligence Agency.

16

y. Luke Hartig served as Senior Director for Counterterrorism at the National

17

Security Council from 2014 to 2016.

18

z. General (ret.) Michael V. Hayden, USAF, served as Director of the Central

19

Intelligence Agency from 2006 to 2009. From 1995 to 2005, he served as

20

Director of the National Security Agency.

21

aa. Heather A. Higginbottom served as Deputy Secretary of State for Management

22

and Resources from 2013 to 2017.

23

bb. Christopher R. Hill served as Assistant Secretary of State for East Asian and

24

Pacific Affairs from 2005 to 2009. He also served as U.S. Ambassador to

25

Macedonia, Poland, the Republic of Korea, and Iraq.

26

cc. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.

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dd. Prem Kumar served as Senior Director for the Middle East and North Africa on

2

the National Security Council staff of the White House from 2013 to 2015.

3

ee. Richard Lugar served as U.S. Senator for Indiana from 1977 to 2013, and as

4

Chairman of the Senate Committee on Foreign Relations from 1985 to 1987 and

5

2003 to 2007, and as ranking member of the Senate Committee on Foreign

6

Relations from 2007 to 2013.

7

ff. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency

8

from 2000 to 2004 and as Acting Director in 2004. His duties included briefing

9

President-elect Bill Clinton and President George W. Bush.

10

gg. Lisa O. Monaco served as Assistant to the President for Homeland Security and

11

Counterterrorism and Deputy National Security Advisor from 2013 to January 20,

12

2017.

13

hh. Cameron P. Munter served as U.S. Ambassador to Pakistan from 2009 to 2012

14

and to Serbia from 2007 to 2009.

15

ii. James C. O’Brien served as Special Presidential Envoy for Hostage Affairs from

16

2015 to January 20, 2017. He served in the U.S. Department of State from 1989

17

to 2001, including as Principal Deputy Director of Policy Planning and as Special

18

Presidential Envoy for the Balkans.

19

jj. Matthew G. Olsen served as Director of the National Counterterrorism Center

20

from 2011 to 2014.

21

kk. Leon E. Panetta served as Secretary of Defense from 2011 to 2013. From 2009 to

22

2011, he served as Director of the Central Intelligence Agency.

23

ll. Jeffrey Prescott served as Special Assistant to the President and Senior Director

24

for Iran, Iraq, Syria and the Gulf States from 2015 to 2017.

25

26

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mm. Samantha J. Power served as U.S. Permanent Representative to the United

2

Nations from 2013 to January 20, 2017. From 2009 to 2013, she served as Senior

3

Director for Multilateral and Human Rights on the National Security Council.

4

nn. Susan E. Rice served as U.S. Permanent Representative to the United Nations

5

from 2009 to 2013 and as National Security Advisor from 2013 to January 20,

6

2017.

7

oo. Anne C. Richard served as Assistant Secretary of State for Population, Refugees

8

and Migration from 2012 to January 20, 2017.

9

pp. Kori Schake served as the Deputy Director for Policy Planning at the U.S.

10

Department of State from December 2007 to May 2008. Previously, she was the

11

director for Defense Strategy and Requirements on the National Security Council

12

in President George W. Bush’s first term.

13

qq. Eric P. Schwartz served as Assistant Secretary of State for Population, Refugees

14

and Migration from 2009 to 2011. From 1993 to 2001, he was responsible for

15

refugee and humanitarian issues on the National Security Council, ultimately

16

serving as Special Assistant to the President for National Security Affairs and

17

Senior Director for Multilateral and Humanitarian Affairs.

18

rr. Wendy R. Sherman served as Under Secretary of State for Political Affairs from

19

2011 to 2015.

20

ss. Vikram Singh served as Deputy Special Representative for Afghanistan and

21

Pakistan from 2010 to 2011 and as Deputy Assistant Secretary of Defense for

22

Southeast Asia from 2012 to 2014.

23

tt. Jeffrey H. Smith served as General Counsel of the Central Intelligence Agency

24

from 1995 to 1996. Previously, he served as General Counsel of the Senate

25

Armed Services Committee.

26

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uu. James B. Steinberg served as Deputy National Security Adviser from 1996 to

2

2000 and as Deputy Secretary of State from 2009 to 2011.

3

vv. William Wechsler served as Deputy Assistant Secretary for Special Operations

4

and Combating Terrorism at the U.S. Department of Defense from 2012 to 2015.

5

ww. Samuel M. Witten served as Principal Deputy Assistant Secretary of State for

6

Population, Refugees, and Migration from 2007 to 2010. From 2001 to 2007, he

7

served as Deputy Legal Adviser at the State Department.

8

2. We have collectively devoted decades to combatting the various terrorist threats

9 that the United States faces in a dynamic and dangerous world. We have held the highest

10 security clearances, and many of us were current on active intelligence regarding all credible

11 terrorist threat streams directed against the United States as recently as one week before the

12 issuance of the Jan. 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist

13 Entry into the United States” (“Travel Ban 1.0”). A number of us joined a declaration that was 14 filed in support of a legal challenge to that first Executive Order.1 Each of us also joined an

15 amicus brief that was filed in the Supreme Court in support of the challenge of the plaintiffs in 16 this case to the subsequent March 6, 2017 Executive Order (“Travel Ban 2.0”),2 and a joint

17 declaration filed in the U.S. District Court for the District of Maryland in support of the

18 plaintiffs’ challenge to the September 24, 2017 Proclamation titled “Presidential Proclamation

19 Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United 20 States by Terrorists or Other Public-Safety Threats”(“Travel Ban 3.0”).3 Because Travel Ban 3.0

21 does not address the entry of those seeking refugee status in the United States, we file this

22 additional declaration with respect to that issue.

23

24

1 Joint Decl. of Madeline Albright et al., No. 17-35105 (9th Cir. Feb. 6, 2017),

https://apps.washingtonpost.com/g/documents/politics/declaration-of-national-security-officials/2324/.

25

2 Br. of Amici Curiae Former National Security Officials in Support of Respondents, Nos. 16-1436 and 16-

1540 (U.S. Sup. Ct. Sept. 18, 2017),

26 https://law.yale.edu/system/files/documents/pdf/Clinics/rolc_amicus_9.19.17_.pdf.
3 Joint Decl. of Madeline Albright et al., No. TDC-17-0361 (D.Md. Oct. 11, 2017).

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3. The Refugee Ban

2

a. Travel Ban 1.0 included an indefinite ban on Syrian refugees, a 120-day

3

suspension of the U.S. Refugee Admission Program (USRAP), and an explicit

4

preference for admission of refugees who are religious minorities. On February 3,

5

2017, the U.S. District Court for the Western District of Washington (Robart, J.)

6

issued a temporary restraining order against each of these aspects of Travel Ban

7

1.0 suspending refugee admissions.

8

b. Travel Ban 2.0 included a 120-day suspension of USRAP, subject to case by case

9

waivers. On March 29, 2017, the U.S. District Court for the District of Hawaii

10

(Watson, J.), preliminarily enjoined the U.S. Government’s suspension of

11

USRAP, but the Supreme Court later permitted it to go into effect pending appeal

12

for refugees lacking a “credible claim of a bona fide relationship with a person or

13

entity in the United States.”

14

c. Travel Ban 3.0 did not speak to the issue of refugees.

15

d. On October 24, 2017, when the 120-day suspension in Travel Ban 2.0 expired,

16

President Trump issued a new Executive Order that purported to resume USRAP

17

with the exception of “[c]ertain [c]ategories of [r]efugees.” A Memorandum

18

accompanying this Executive Order then proceeded to create a new effective ban

19

(“Refugee Ban 3.0” or “Ban”) for nearly half of the refugees in USRAP via: (1) a

20

90-day de facto suspension of entry for refugees who are nationals of (or stateless

21

persons who last habitually resided in) 11 countries that are subject to Security

22

Advisory Opinions (SAO), through the reallocation of resources away from

23

processing those applications, with admission permitted only through case-by-

24

case waivers, and (2) an indefinite suspension of the “follow-to-join” family

25

26

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reunification program.4 According to one analysis, 76 percent of all Muslim

2

refugees who entered the United States during the last 15 years came from the 11

3

countries described in the Memorandum.5

4

4. Refugee Ban 3.0 preserves the sweeping country-based approach of the original

5 Travel Bans, without providing any persuasive evidence that these measures are necessary to

6 enhance our national security or foreign policy interests. We agree that the United States faces

7 real threats from terrorist networks and must take all prudent and effective steps to combat them,

8 including the appropriate vetting of travelers to the United States. Yet, we are unaware of any

9 national security threat that would justify Refugee Ban 3.0. To the contrary, its enforcement

10 would cause serious harm to the national security and foreign policy of the United States.

11 II. Refugee Ban 3.0 Serves No Genuine National Security or Foreign Policy Purpose

12

5. As a national security measure, this Ban is of unprecedented scope. Yet in

13 adopting Refugee Ban 3.0, the Administration alleges no derogatory factual information or any

14 credible threat about any particular refugee applicant from the countries banned. The new

15 Executive Order does not even allude to any such information, while the Memorandum only

16 references unspecified “concerns” as a rationale for its restrictions.

17

6. Refugee Ban 3.0’s generalized, country-based approach with respect to countries

18 subject to SAO is substantially the same as its predecessors’. We have seen no evidence,

19 however, that such a sweeping, country-based ban on refugees is necessary for this objective.

20 In fact, the only concrete evidence to emerge from this administration on this point to date has

21 shown just the opposite—that country-based bans are ineffective. A leaked DHS Office of

22 Intelligence and Analysis memorandum analyzing the ban in the January Order found that

23 “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.” The

24

25

4 Memorandum to the President, Resuming the United States Refugee Admissions Program with Enhanced

Vetting Capabilities (Oct. 23, 2017), https://www.state.gov/documents/organization/275306.pdf.

26

5 See, e.g., Alex Nowrasteh, Make “Enhanced” Vetting Great Again, CATO Institute: CATO at Liberty

(Oct. 31, 2017).

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1 memorandum went on to note that a majority of the U.S.-based individuals who were inspired by

2 a foreign terrorist organization to participate in terrorism-related activity were citizens of the

3 United States; the minority of foreign-born individuals were scattered from among twenty-six

4 different countries; and most of the top origin countries of those individuals are not the countries 5 listed in the Order.6

6

7. A number of us held for extended periods of time the most senior responsibility

7 within the U.S. Government for overseeing the refugee resettlement process. We know of no

8 factual basis for the Government’s claim that the targeted refugees pose a particular security

9 threat to the United States that would justify the bans. To the contrary, the Government’s

10 position entirely misunderstands the realities of—and the national security protections provided

11 by—the existing vetting process.

12

8. Refugees already receive the most thorough vetting of any travelers to the United

13 States.7 Refugee candidates are vetted repeatedly throughout the resettlement process, as

14 “pending applications continue to be checked against terrorist databases, to ensure new, relevant 15 terrorism information has not come to light.”8 By the time refugees referred by the United

16 Nations High Commissioner for Refugees (“UNHCR”) are approved for resettlement in the

17 United States, they have been reviewed not only by UNHCR but also by the National

18 Counterterrorism Center, the Federal Bureau of Investigation, the Department of Homeland

19 Security, the Department of Defense, the Department of State, and the U.S. intelligence 20 community.9

21

22

23

6 U.S. Dep’t of Homeland Sec., Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United

States, https://assets.documentcloud.org/documents/3474730/DHS-intelligence-document-on-President-Donald.pdf.

24

7 U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs,

http://www.state.gov/j/prm/releases/factsheets/2017/266447.htm.

25

8 Amy Pope, The Screening Process for Refugee Entry into the United States (Nov. 20, 2015),

http://obamawhitehouse.archives.gov/blog/2015/11/20/infographic-screening-process-refugee-entry-united-states.

26

9 U.S. Dep’t of State, The Refugee Processing and Screening System,

http://www.state.gov/documents/organization/266671.pdf.

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9. The refugee vetting process is also reviewed and enhanced on an ongoing basis in

2 response to particular threats.10 For example, in 2015 the Department of Homeland Security

3 described a layer of enhanced review for Syrian applicants that involves collaboration between

4 the U.S. Citizenship and Immigration Services’ Refugee, Asylum, and International Operations

5 Directorate and the Fraud Detection and National Security Directorate. Among other measures,

6 this review provided additional, intelligence-driven support to refugee adjudicators that U.S. 7 officials could then use to more precisely question refugees during their security interviews.11

8

10. Under current vetting procedures, refugees often wait eighteen to twenty-four

9 months to be cleared for entry into the United States.12 Fewer than one percent of all refugees

10 determined by the UNHCR to be eligible for resettlement were settled in any single country in 11 2015.13 Because refugees do not decide where they will be resettled, the odds that any terrorist

12 posing as a refugee will be resettled in the United States are vanishingly small.

13

11. So-called “derivative refugees” who follow-to-join family members who have

14 already been resettled in the United States are also already subjected to their own thorough 15 vetting and security screening procedures.14

16

12. During the four decades from 1975 to the end of 2015, over three million refugees

17 have been admitted to the United States. Despite this number, only three refugees have killed

18 people in terrorist attacks on U.S. soil during this period. None of these refugees were from the 19 11 listed countries in the Memorandum.15 Between October 1, 2011 and December 31, 2016,

20

21
10 U.S. Citizenship and Immigration Services, Fact Sheet: Refugee Security Screening (Dec. 3, 2015),

22 http://www.uscis.gov/sites/default/files/USCIS/Refugee%2C%20.

Asylum%2C%20and%20Int%27l%20Ops/Refugee_Security_Screening_Fact_Sheet.pdf.

23

11 U.S. Dep’t of State, supra note 9; Andorra Bruno, Cong. Research Serv., R44277, Syrian Refugee

Admissions and Resettlement in the United States: In Brief 4-5 (Sept. 16, 2016).

24

12 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).

25

13 U.N. High Commissioner for Refugees, Resettlement, http://www.unhcr.org/en-us/resettlement.html.

14 U.S. Dep’t of State, Follow-to-Join Refugees and Asylees,

26 https://travel.state.gov/content/visas/en/immigrate/join-refugees-and-asylees.html#overseas.
15 Nowrasteh, supra note 5.

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1 more than 18,000 Syrian refugees were resettled in the United States; we know of none who has 2 been detained due to an alleged connection with terror.16

3

13. In imposing yet another country-based set of restrictions, the Executive Order and

4 the Memorandum address none of this overwhelming evidence. The Government alleges no

5 specific information about any vetting step omitted by these current procedures that would

6 demand a generalized suspension of the refugee program in the way that has been done here.

7 III. Refugee Ban 3.0 Will Harm the National Security and Foreign Policy Interests of the

8

United States

9

14. In our professional judgment, Refugee Ban 3.0 would undermine the national

10 security of the United States, rather than making us safer. In particular, based on public

11 reporting about the countries that are subject to the SAO:

12

a. The Refugee Ban harms interpreters and others who assisted our troops abroad at

13

great risk to their own lives. The reallocation of resources away from processing

14

the applications of nationals of countries subject to the SAO would affect

15

individuals, who because they assisted the United States overseas, are waiting for

16

admission as refugees under the already-backlogged refugee program.17 By

17

discouraging future assistance and cooperation from these and other affected

18

military allies and partners, the ban would jeopardize the safety and security of

19

our troops.

20

b. The Ban will disrupt critical counterterrorism, foreign policy, and national

21

security partnerships that are critical to our obtaining information sharing and

22

collaboration in intelligence, law enforcement, military, and diplomatic channels

23

necessary to address the threat posed by terrorist groups such as IS. The Ban will

24

further strain our relationships with partner countries in Europe and the Middle

25

26

16 Ibid.

17 Jill Colvin, Refugee Advocates Denounce Trump’s Latest Order, Wash. Post (Oct. 25, 2017).

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East, many of whom are shouldering the burden of taking in great numbers of

2

refugees, and on whom we rely for vital counterterrorism cooperation. By

3

alienating these partners, we frustrate access to the intelligence and resources

4

necessary to fight the root causes of terror or disrupt attacks launched from

5

abroad, before an attack occurs within our borders.18

6

c. For current information, our intelligence officers may rely on human sources in

7

some of the 11 countries in Refugee Ban 3.0. The Ban breaches faith with these

8

sources, who have risked much to keep Americans safe—and whom our officers

9

have promised to always protect with the full might of our government and our

10

people.

11

d. The Refugee Ban’s disparate impact on Muslim refugees would feed the

12

recruitment narrative of IS and other extremists that portray the United States as

13

at war with Islam. As government officials, we took every step we could to

14

counter violent extremism. Because of the Ban’s disparate impact on Muslim

15

travelers and immigrants, it would fuel IS’s narrative and send the wrong message

16

to the Muslim community here at home and all over the world: that the U.S.

17

Government is hostile to them and their religion. The Ban also might endanger

18

Christian communities, by handing IS a recruiting tool and propaganda victory that

19

spreads their message that the United States is engaged in a religious war.

20

e. The Refugee Ban disrupts ongoing law enforcement efforts. By alienating

21

Muslim-American communities in the United States, it would harm our efforts to

22

enlist their aid in identifying radicalized individuals who might launch attacks of

23

the kind recently seen in San Bernardino and Orlando.

24
18 As just one illustration, after Travel Ban 3.0 issued, Chad withdrew hundreds of troops from a regional
25 effort to fight against Boko Haram. Two weeks earlier, their communications minister said that Travel Ban 3.0
“seriously undermines Chad’s image and the good relations between the two countries, notably in the fight against
26 terrorism.” Conor Gaffey, After Trump Travel Ban, Chad Pulls Troops From Boko Haram Fight in Niger,
Newsweek (Oct. 13, 2017).

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f. The Refugee Ban has a devastating humanitarian impact. The refugee

2

suspensions in the prior two travel bans have already disrupted the movement of

3

countless people, including women and children, who are fleeing danger and have

4

been victimized by actual terrorists.

5

15. For all of the foregoing reasons, in our professional opinion, Refugee Ban 3.0

6 does not further—but instead harms—sound U.S. national security and foreign policy. Issuing

7 an order against Refugee Ban 3.0 would not jeopardize national security. It would simply

8 preserve the status quo ante, still requiring individuals to be subjected to all the rigorous legal

9 vetting processes that are currently in place. Allowing Refugee Ban 3.0 to take effect would

10 wreak havoc on innocent lives and deeply held American values.

11

16. The current administration of the USRAP ensures that all refugees in the program

12 will develop close bona fide relationships with U.S.-based entities by virtue of the refugee

13 process, in some cases well before a formal assurance of admittance is provided. The decision to

14 admit individual refugees, once screened, depends on the U.S. Government’s assessment that an

15 agency in the United States is prepared to handle the particularized and often unique cultural,

16 medical, and familial needs of individual refugees. By the time refugees have made their way

17 through this intensive vetting process of matching individuals to resources, and have been

18 formally admitted, all have necessarily acquired a formal and documented “bona fide 19 relationship” with the United States.19

20

17. At bottom, the U.S. refugee resettlement program is a humanitarian assistance

21 program that was not set up to benefit relatives of American citizens or residents, nor to serve the

22 employment or educational needs of American companies or institutions. It was instead

23 established to further the noble and historic American tradition of aiding people fleeing

24 persecution. Of course, this includes people with relatives and other prior connections to the

25

26

19 See generally Br. of Amici Curiae Former National Security Officials in Opposition to the Motion for

Clarification at 6-9, Trump v. Hawaii, No. 16-1540 (U.S. July 19, 2017), 2017 WL 3045234.

JOINT DECLARATION OF FORMER NATIONAL SECURITY OFFICIALS (No. 2:17-cv-01707-RSM) – 14
137627009.3

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee22::1177--ccvv--0001177087--JRLSRM DDocoucmumenetn5t 54-61 FFilieledd1111//1262//1177 PPaaggee1951ooff1962

1 United States. But it also includes people who, before having their case considered, had no

2 relationship at all with the United States, and after full vetting under rigorous, individualized,

3 and modern procedures, have been found to pose no national security threat.

4

18. Ours is a nation of immigrants and refugees, committed to the faith that we are all

5 equal under the law and abhor discrimination, whether based on race, religion, sex, or national

6 origin. As government officials, we sought diligently to protect our country, even while

7 maintaining an immigration system as free as possible from discrimination, that applies no

8 religious tests, and that measures individuals by their merits, not stereotypes of their countries or

9 groups. Blanket restrictions, without evidence, of refugees from certain countries are beneath the

10 dignity of the nation and Constitution that we each took oaths to protect.

11

Respectfully submitted,

12

s/MADELINE K. ALBRIGHT

s/RAND BEERS

13

s/JOHN D. BELLINGER III

s/DANIEL BENJAMIN

14

s/ANTONY BLINKEN

s/JOHN O. BRENNAN

15

s/R. NICHOLAS BURNS

s/WILLIAM J. BURNS

16

s/JAMES CLAPPER

s/DAVID S. COHEN

17

s/ELIOT A. COHEN

s/BATHSHEBA N. CROCKER

18

s/RYAN CROCKER

s/THOMAS DONILON

19

s/JEN EASTERLY

s/DANIEL FELDMAN

20

s/JONATHAN FINER

s/MICHÈLE FLOURNOY

21

s/ROBERT S. FORD

s/JOSH GELTZER

22

s/SUZY GEORGE

s/PHIL GORDON

23

s/CHUCK HAGEL

s/AVRIL D. HAINES

24

s/LUKE HARTIG

s/MICHAEL V. HAYDEN

25

s/HEATHER A. HIGGINBOTTOM

s/CHRISTOPHER R. HILL

26

s/JOHN F. KERRY

JOINT DECLARATION OF FORMER NATIONAL SECURITY OFFICIALS (No. 2:17-cv-01707-RSM) – 15
137627009.3

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee22::1177--ccvv--0001177087--JRLSRM DDocoucmumenetn5t 54-61 FFilieledd1111//1262//1177 PPaaggee1962ooff1962

1

s/PREM KUMAR

s/RICHARD LUGAR

2

s/JOHN E. MCLAUGHLIN

s/LISA O. MONACO

3

s/CAMERON P. MUNTER

s/JAMES C. O’BRIEN

4

s/MATTHEW G. OLSEN

s/LEON E. PANETTA

5

s/JEFFREY PRESCOTT

s/SAMANTHA J. POWER

6

s/SUSAN E. RICE

s/ANNE C. RICHARD

7

s/KORI SCHAKE

s/ERIC P. SCHWARTZ

8

s/WENDY R. SHERMAN

s/VIKRAM SINGH

9

s/JEFFREY H. SMITH

s/JAMES B. STEINBERG

10

s/WILLIAM WECHSLER

s/SAMUEL M. WITTEN 11
Executed this 9th day of November, 2017

12 *All original signatures are on file with Harold Hongju Koh, Rule of Law Clinic, Yale Law

13 School, New Haven, CT. 06520-8215 203-432-4932

14 We declare under penalty of perjury under the laws of the United States of America that the

15 foregoing is true and correct.

16

17

18

19

20

21

22

23

24

25

26

JOINT DECLARATION OF FORMER NATIONAL SECURITY OFFICIALS (No. 2:17-cv-01707-RSM) – 16
137627009.3

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 Case 2:17-cv-00178-JLR Document 56 Filed 11/22/17 Page 1 of 4

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

^ John Doe, Jack Doe, Jason Doe, Joseph Doe
10 James Doe, Jeffrey Doe, individually, and on behalf of all others similarly situated; the
1 1 Episcopal Diocese of Olympia, and the Council on American Islamic Relations-Washington,
12
Plaintiffs, 13
v.
14
Donald Trump, President of The United States; 15
U.S. Department of State; Rex Tillerson, 16 Secretary of State; U.S. Department of
Homeland Security; Elaine Duke, Acting 17 Secretary of Homeland Security; U.S. Customs
and Border Protection; Kevin McAleenan, 18 Acting Commissioner of U.S. Customs and
Border Protection; Michele James, Field 19
Director of the Seattle Field Office of U.S. 20 Customs and Border Protection; Office of the
Director of National Intelligence; and Daniel 21 Coats, Director of the Office of the Director of
National Intelligence, 22
Defendants. 23

No, 2: 1 7-cv-OOl 78-JLR
SUPPLEMENTAL DECLARATION OF JOSEPH DOE IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

24

25

26

SUPPLEMENTAL DECLARATION OF JOSEPH DOE (2: l7-cv-00178-JLR) - l

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: ( 206) 623-3384

Case 2:17-cv-00178-JLR Document 56 Filed 11/22/17 Page 2 of 4

I, "Joseph Doe," do hereby declare and state:

2

1.

I have personal knowledge of the matters contained herein and, where I do not

3

.

have direct knowledge, I believe them to be true and correct based upon the information

4 available to me.
5

2.

Over the past several months, I have called the immigration department at the

6

7 United States Embassy in Nairobi many times about the status of my 1-730 petitions for my wife

X and children.

9

3.

As of October 2017, we were still waiting for the results from the medical

10 examinations of two of my three children. The medical clearances are only good for 6 months, so
11 although my family had passed their medical examinations before, those clearances expired on
12 August 1, 2017. They all had to redo the medical examinations, and it can take a few months to
13
get the results. 14

15

4.

On November 5, 2017, 1 called the immigration department of the United States

16 Embassy in Nairobi for another update.

17

5.

The embassy staff member told me that the outstanding medical examinations for

18 my two children had been completed, and the results were perfect. He told me that my family's

19 medical exam results had been sent to RSC.

20

6,

"RSC" is Resettlement Support Center Africa. It provides refugee processing

21

services in support of the U.S. Refugee Admissions Program. Basically, RSC coordinates all the 22

23 parts of the screening process for refugees and follow-to-join family members like my family.

24

7.

Because all my family's clearances arc complete, the next step should be that my

25 family's case is transferred to IOM (International Organization for Migration), which sets up the 26
loans for refugees to pay for their travel and books the flights. As I understand the process, RSC

SUPPLEMENTAL DECLARATION OF JOSEPH DOE (2:17-cv-00178-JLR) -2

AMERICAN CIVI1 LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (206) 623-3384

Case 2:17-cv-00178-JLR Document 56 Filed 11/22/17 Page 3 of 4

1 is only waiting for word from DHS, DHS has to approve the travel in order for RSC to send the

2 case to IOM for travel booking. The person I spoke with at the Embassy did not know the reason

3

.

for this extra delay.

4

8.

On November 21 , 201 7, 1 contacted the Embassy again for another update. The

5

Embassy representative informed me that everything was okay except for that travel for Somalis 6

7 is on hold. They do not have authorization from the U.S. government to forward Somali cases

8 on for travel to the U.S.

9

9.

My two youngest children are considered Somali nationals. My wife is a native-

10 born Kenyan. Our oldest child is my stepson, and he is also Kenyan. Our two younger children
11 are considered Somali because of my nationality, even though they were born in Kenya and have
12 never been to Somalia.
13
10. The Embassy representative said that my wife and our oldest child could have 14

15 their cases forwarded to IOM for travel booking because they are Kenyan, but our 4-year-old and

16 5-ycar-old would not be able to travel because they arc Somali. But this is not really an option.

17 My children are already missing their father, and I can't imagine them not having their mother

18 either.

19

11.

Every day that I am separated from my family is hard for me, and this separation

20

is hard on my wife and kids too. I have been feeling a lot of stress every day waiting for news. 21

12.

I am Somali, and I have been living in the U.S. for nearly four years now. I am

22

23 only one year away from becoming a citizen of this country. I hope that the U.S. government

24 will allow my children to travel to this country to be with me.

25

26

SUPPLEMENTAL DECLARATION OF JOSEPH DOE (2:17-cv-00178-JLR) -3

AMERICAN CrVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: ( 206) 623-3384

Case 2:17-cv-00178-JLR Document 56 Filed 11/22/17 Page 4 of 4

1

2

EXECUTED tbis^\ day of November, 2017 at

3

4

5

Joseph Doe

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

DECLARATION OF JOSEPH DOE (2; 1 7-cv-00 1 78-JLR) - 4

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

f iJJQC^WocWt ,
KELLER ROHRBACK L.L.P,
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: ('206) 623-3384

 
 Case 2:17-cv-00178-JLR Document 57 Filed 11/22/17 Page 1 of 4

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 John Doe, Jack Doe, Jason Doe, Joseph Doe

10

James Doe, Jeffrey Doe, individually, and on behalf of all others similarly situated; the

11 Episcopal Diocese of Olympia, and the Council on American Islamic Relations-Washington,
12

Plaintiffs, 13

v. 14

15

Donald Trump, President of The United States; U.S. Department of State; Rex Tillerson,

16 Secretary of State; U.S. Department of Homeland Security; Elaine Duke, Acting

17 Secretary of Homeland Security; U.S. Customs

and Border Protection; Kevin McAleenan, 18 Acting Commissioner of U.S. Customs and

19

Border Protection; Michele James, Field Director of the Seattle Field Office of U.S.

20 Customs and Border Protection; Office of the Director of National Intelligence; and Daniel

21 Coats, Director of the Office of the Director of

National Intelligence, 22

23

Defendants.

No. 2:17-cv-00178-JLR
DECLARATION OF LISA NOWLIN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

24

25

26

DECLARATION OF LISA NOWLIN (2:17-cv-00178-JLR) - 1

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 57 Filed 11/22/17 Page 2 of 4

1 I, Lisa Nowlin, declare as follows:

2

1. I am a Staff Attorney with the American Civil Liberties Union of Washington

3 Foundation (“ACLU-WA”) and co-counsel for Plaintiffs in this case. I have knowledge of the
4 facts set forth herein and could testify competently to them if called upon to do so.
5
2. I have analyzed data on refugee arrivals via the Department of Homeland 6

7 Security’s Yearbooks of Immigration Statistics for fiscal years 2014 and 2015, the most recent

8 years with complete data. See Yearbook of Immigration Statistics,

9 https://www.dhs.gov/immigration-statistics/yearbook (last visited Nov. 22, 2017).

10

3. Table 15 of both Yearbooks contains data on “Refugee Arrivals by Relationship

11 to Principal Applicant and Sex.” Using this the table in Microsoft Excel, I calculated for both
12 fiscal years the percentage of dependent refugees that were children.
13
A. In fiscal year 2015, there were 41,520 dependent refugee arrivals. 30,728, 14

15

or 74%, were children. Of the children, 24,309, or 79%, were children

16

under sixteen.

17

B. In fiscal year 2014, there were 39,498 dependent refugee arrivals. 28,119,

18

or 71%, were children. Of the children, 21,370, or 76%, were children

19 under sixteen.
20 C. Combining the data, in fiscal years 2014 and 2015, there were 81,018
21

22

dependent refugee arrivals. 58,847, or 73%, were children. Of the

23

children, 45,679, or 78%, were children under sixteen.

24

4. Using the same table, I calculated for both fiscal years the percentage of

25 dependent refugee spouses who were female. 26

DECLARATION OF LISA NOWLIN (2:17-cv-00178-JLR) - 2

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 57 Filed 11/22/17 Page 3 of 4

1

A. In fiscal year 2015, there were 10,792 dependent spouse refugee arrivals.

2

8,688, or 81%, were female.

3

B. In fiscal year 2014, there were 11,379 dependent spouse refugee arrivals.

4 9,409, or 83%, were female.
5

C. Combining the data, in fiscal years 2014 and 2015, there were 22,171 6

7

dependent spouse refugee arrivals. 18,097, or 82%, were female.

8

5. Once again using the same table, I calculated the number of dependent refugees

9 that were children under the age of sixteen or female spouses.

10

A. In fiscal year 2015, 24,309 of dependent refugees were children under

11 sixteen and 8,688 were female spouses. Of the 41,520 total dependent
12 refugee arrivals that year, 80% were children under sixteen or female
13
spouses. 14

15

B. In fiscal year 2014, 21,370 of dependent refugees were children under

16

sixteen and 9,409 were female spouses. Of the 39,498 total dependent

17

refugee arrivals that year, 78% were children under sixteen or female

18

spouses.

19 C. Combining the data, in fiscal years 2014 and 2015, there were 45,679
20 dependent refugee children under sixteen and 18,097 dependent refugee
21

22

female spouses. Of the 81,018 total dependent refugee arrivals in fiscal

23

years 2014 and 2015, 79% were children under sixteen or female spouses.

24

6. I have also analyzed data on refugee arrivals processed in Kenya and Thailand via

25 the Department of State’s Bureau of Population, Refugees, and Migration data. See Refugee 26

DECLARATION OF LISA NOWLIN (2:17-cv-00178-JLR) - 3

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 57 Filed 11/22/17 Page 4 of 4

1 Arrivals by Processing Country, http://content.12news.com/document_dev/2016/04/15/3a-

2 mapglobal-refugee-destinations_1652923_ver1.0.pdf (last visited Nov. 22, 2017).

3

A. For the period of October 1, 2015 through March 31, 2016, the report

4 indicates that 29,055 individual refugees arrived in the United States.
5

B. Of that number, 2,822 were processed in Kenya and 1,858 were processed 6

7

in Thailand.

8

C. The two countries combined processed 4,680 individuals, or

9

approximately 16.1% of all refugee arrivals.

10

I declare under penalty of perjury under the laws of the state of Washington that the

11 foregoing is true and correct and that this declaration was executed on November 22, 2017, at
12 Seattle, Washington.
13

14

15 By: s/Lisa Nowlin

16

Lisa Nowlin, WSBA No. 51512

ACLU OF WASHINGTON FOUNDATION

17

900 Fifth Avenue, Suite 630

18

Seattle, Washington 98164 (206) 624-2184

19

lnowlin@aclu-wa.org

20

Attorney for Plaintiffs

21

22

23

24

25

26

DECLARATION OF LISA NOWLIN (2:17-cv-00178-JLR) - 4

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

 
 Case 2:17-cv-00178-JLR Document 60 Filed 11/29/17 Page 1 of 6
Cas.e 2:17-cv-00178-JLR Document 59 Filed 11/29/17 Page 1 of 6

1

THE HONORABLE JAMES L. ROBART

2

3

4

5

6 7 8 9 JOHN DOE, eta!.,

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
~ Civil Action No. 2:17-cv-00178 JLR

10

Plaintiffs,

11

v.

12 DONALD TRUMP, eta!.,

STIPULATION AND1'PRQPEJSJ!)~)'

ORDER REGARDING

·....

CONSOLIDATION AND SCHEQULING

FOR FURTHER PROCEEDINGS

13

Defendants.

14

15

On November 21, 2017, the Court directed the parties in Jewish Family Service ofSeattle

16 v. Trump, No. 2:17-cv-01707JLR (W.D. Wash.), and Doe v. Trump, No. 2:17-cv-00178 (W.D.

17 Wash.), to show cause why the actions should not be consolidated pursuant to Federal Rule of

18 Civil Procedure 42(a). The parties have met and conferred and now agree and stipulate to the

19 following:

20

1. The cases may be consolidated for further proceedings, provided that (1) the

21

actions retain their separate character, (2) parties to one action will not be

22

designated as parties to the other, (3) parties may continue to file separate

23

briefing so long as it is not duplicative, and (4) consolidation will not affect the

24

page limits to which parties are entitled under the Local Rules, except as

25

26

STIPULATION AND [PROPOSED] ORDER REGARDING CONSOLIDATION AND SCHEDULING FOR FURTHER PROCEEDINGS (No. 2:17-cv-00178JLR)-1

Case 2:17-cv-00178-JLR Document 60 Filed 11/29/17 Page 2 of 6 Case 2:17-cv-00178-JLR Document 59 Filed 11/29/17 Page 2 of 6

I

provided in this stipulation or by subsequent Court order.1 Because Doe was

2

filed first, it shall be the lead case for all future filings.

3

2. The preliminary injunction hearing in Doe presently scheduled for December

4

II, 2017, at I :30 p.m. PST should be vacated, and a new consolidated hearing

5

to address the issues raised in the preliminary injunction motions filed in both

6

Doe and Jewish Family Service should be set at a date and time convenient for

7

the Court following the completion of briefing in Jewish Family Service. The

8

parties respectfully propose a consolidated hearing during the week of

9

December 18, 2017, preferably during the early part of that week in view of the

10

approaching federal holidays.

11

3. Each set of Plaintiffs may file a short notice joining the motion of the other

12

Plaintiffs and addressing issues raised in the opening preliminary injunction

13

brieffiled by the other set ofPlaintiffs, provided that Plaintiffs will not use these

14

short notices to raise new claims or merits arguments not previously raised by

15

one set or the other. Thus, the parties agree that, on or before November 29,

16

2017, the Doe Plaintiffs and the Jewish Family Service Plaintiffs may each file

17

a notice no longer than three pages addressing relevant issues raised in the other

18

set of Plaintiffs' opening brief. The Goverment may respond to these

19

supplemental arguments in its response in opposition to the Jewish Family

20

Service Plaintiffs' motion for preliminary injunction, and may file an over-

21

length brief in order to do so. Specifically, the Goverment's response brief in

22

23

24 1 Plaintiffs believe that JFS and Doe should maintain their separate characters in light ofthe overlapping but differing legal claims and classes (e.g., the JFS Plaintiffs' complaint seeks nationwide relief for refugees whereas the Doe
25 Plaintiffs' complaint focuses on Washington State and challenges additional policies). See 9A Charles Alan Wright, et al., Federal Practice & Procedure Civ. § 2382 (3d ed. 2017) (describing consolidation that "does not merge the
26 suits into a single action"). As consolidated but not merged actions, parties in JFS and Doe would maintain separate pleadings, but Plaintiffs in each action would endeavor to avoid duplication wherever possible. STIPULATION AND [PROPOSED] ORDER REGARDING CONSOLIDATION AND SCHEDULING FOR FURTHER PROCEEDINGS (No.2: 17-cv-00178JLR)-2

Case 2:17-cv-00178-JLR Document 60 Filed 11/29/17 Page 3 of 6 Case 2:17-cv-00178-JLR Document 59 Filed 11/29/17 Page 3 of 6

1

Jewish Family Service may exceed the twenty-four pages allowable under tbe

2

Local Rules by five pages.

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

STIPULATION AND [PROPOSED] ORDER REGARDING CONSOLIDATION AND SCHEDULING FOR FURTHER PROCEEDINGS (No. 2:17-cv-00178JLR)-3

Case 2:17-cv-00178-JLR Case 2:17-cv-00178-JLR

Document 60 Document 59

Filed 11/29/17 Filed 11/29/17

Page Page 4

4ofo6f

6

1

ORDER

2

Upon consideration of the above stipulation and the record in this matter, the Court

3 approves the stipulation and all dates, page limits, and deadlines specified therein. The December

4 11, 2017, hearing in Doe is VACATED, and a hearing to address issues raised in both Jewi

5 Family Service and Doe is set for Ue.erro'o9r :J.\ 1.1.0 1"'1- a.\- q:ooo ·fYI.

6

IT IS SO ORDERED

7

DATEDthis1fdayof t\Jo\.1. ,2017.

8

9

JAMES . ROBART

10

UNITED STATES DISTRICT JUDGE

11

12

13

14

15

16

17 ~. ~~ - - - - - - - - - - - - - - 1
18

19

20

21

22

23

24

25

26

STIPULATION AND [PROPOSED] ORDER REGARDING CONSOLIDATION AND SCHEDULING FOR FURTHER PROCEEDINGS (No. 2:17-cv-00178JLR)~4

Case 2:17-cv-00178-JLR Document 60 Filed 11/29/17 Page 5 of 6 Case 2:17-cv-00178-JLR Document 59 Filed 11/29/17 Page 5 of 6

1

So stipulated and presented by:

DATED: November 29, 2017

2

KELLER ROHRBACK L.L.P.

CHAD A. READLER

Principal Deputy Assistant Attorney

3

By: Is/ Lynn Lincoln Sarko

General

By: Is/ Tana Lin

4

By: Is/ Amy Williams-DeiTY

5

By: Is/ Derek W. Loeser By: Is/ Alison S. Gaffney

JENNIFER D. RICKETTS Director, Federal Programs Branch
JOHN R. TYLER

6 7

Lynn Lincoln Sarko, WSBA # 16569 Tana Lin, WSBA # 35271

Assistant Director, Federal Programs Branch

8

Amy Williams-Derry, WSBA #28711 Derek W. Loeser, WSBA # 24274

Is/ Michelle R. Bennett
MICHELLE R. BENNETT

Alison S. Gaffney, WSBA #45565

DANIEL SCHWEI

9

1201 Third Avenue, Suite 3200

KEVIN SNELL

Seattle, WA 98101

JOSEPH C. DUGAN

10

Telephone: (206) 623-1900

Senior Trial Counsel I Trial Attorneys

Facsimile: (206) 623-3384

U.S. Department of Justice

11

Email: lsarko@kellerrohrback.com

Civil Division, Federal Programs Branch

tlin@kellerrohrback.com

20 Massachusetts Avenue, NW

12

awilliam-derry@kellerrohrback.com Washington, DC 20530

dloeser@kellerrohrback.com

Tel: (202) 305-8902

13

agaffney@kellerrohrback.com

Fax: (202) 616-8470

Email: michelle.bennett@usdoj .gov

14

By: Is/ Laurie B. Ashton

Attorneys for Defendants

15

Laurie B. Ashton (Pro Hac Vice)

3101 North Central Avenue, Suite 1400

16

Phoenix, Arizona 85012-2600

Telephone: (602) 248-0088

17

Facsimile: (602) 248-2822

18

Email: lashton@lkellerrohrback.com

19

By: Is/ Alison Chase

20

Alison Chase (Pro Hac Vice)

801 Garden Street, Suite 301

21

Santa Barbara, CA 93101

Telephone: (805) 456-1496

22

Facsimile: (805) 456-1497

Email: achase@kellerrohrback.com

23 Attorneys for Plaintiffs/Cooperating

24

Attorneys for the American Civil

Liberties Union Of Washington

25

Foundation

I

26

STIPULATION AND [PROPOSED] ORDER REGARDING CONSOLIDATION AND SCHEDULING FOR FURTHER PROCEEDINGS (No. 2:17-cv-00178JLR)-5

CaCsaese2:21:71-7c-vcv-0-000117788--JJLLRR DDooccuummeenntt 5690 FFilieledd1111/2/299/1/177 PPagaege6 6ofo6f 6

1 AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 2

By: lsi Emily Chiang

3

By: lsi Lisa Nowlin

Emily Chiang, WSBA # 50517

4

Lisa Nowlin, WSBA # 51512

5

901 Fifth Avenue, Suite 630 Seattle, Washington 98164

6

Telephone: (206) 624-2184 Email: echiang@aclu-wa.org

7

lbaker@aclu-wa.org

8

Attornev for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

STIPULATION AND [PROPOSED] ORDER REGARDING CONSOLIDATION AND SCHEDULING FOR FURTHER PROCEEDINGS (No.2: 17-cv-00178JLR)-6

 
 Case 2:17-cv-00178-JLR Document 62 Filed 11/29/17 Page 1 of 6

1

The Honorable James L. Robart

2

3

4

5

6

7 UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 DOE, et al.,

10

v.

Plaintiffs,

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

No. 2:17-cv-00178-JLR

13

Defendants.

14 _______________________________________

15 JEWISH FAMILY SERVICE OF SEATTLE, et al.,
16 Plaintiffs,
17
v. 18
19 DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
20 Defendants
21

No. 2:17-cv-01707-JLR
DOE PLAINTIFFS’ NOTICE JOINING THE MOTION FOR PRELIMINARY INJUNCTION IN JEWISH FAMILY SERVICE OF SEATTLE V. TRUMP

22

23

24

25

26
DOE PLAINTIFFS’ NOTICE JOINING MOTION FOR PI IN JFS V. DOE (2:17-cv-00178-JLR)

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 62 Filed 11/29/17 Page 2 of 6

1 JFS Plaintiffs and Doe Plaintiffs have each moved for a preliminary injunction in their
2 respective cases, challenging different aspects of the Agency Memo (“Memo”). See JFS Mot.
3 Prelim. Inj., Jewish Family Service of Seattle v. Trump, No. 17-cv-01707-JLR, Dkt. # 42 and
4 Doe’s Mot. Prelim. Inj., Dkt. # 45. Joseph Doe and Jeffrey Doe (collectively, “Doe Plaintiffs”)
5 file this notice joining in and adopting the arguments advanced in JFS Plaintiffs’ motion. Doe
6 Plaintiffs submit this notice to provide the Court with some additional context.
7 The Memo directs the agencies’ actions in two areas: suspension of admission of
8 principal refugees from countries designated for Security Advisory Opinion (“SAO”) review,
9 and suspension of follow-to-join derivative refugees (“FTJ refugees”) regardless of nationality.
10 JFS Plaintiffs address the SAO suspension, but Defendants are also using SAO-country
11 nationality as an additional barrier to admission of FTJ refugees. Memo, Addendum at 4. This is
12 apparently what has stalled Joseph Doe’s applications for his family (his wife, nine-year-old
13 stepson, five-year-old son, and four-year-old son): travel papers for his two younger children to
14 join him in the U.S. are being withheld because they are technically nationals of an SAO
15 country, Somalia. See Supplemental Decl. of Joseph Doe ¶ 10, Dkt. # 56.
16 Joseph Doe’s situation exemplifies the cruelty and pointlessness of Defendants’
17 indiscriminate suspension of admission of FTJ refugees from SAO countries. Joseph Doe, who
18 was admitted to the U.S. as a refugee and is now a Lawful Permanent Resident, is a practicing
19 Muslim and Somali who spent twenty-two years living in a refugee camp in Kenya after fleeing
20 his country’s violent civil war with his parents and siblings when he was just a boy. Joseph’s
21 wife and stepson are Kenyan nationals. His two younger sons, however, are considered Somalis.
22 The boys were born in Kenya, which is not an SAO country, and have never been to Somalia.
23 And, although Defendants have since declared that, in fact, vetting procedures for people
24 residing in Kenya and Thailand are adequate,1 travel documents for his younger sons are being 25

26 1 See Higgins Decl. ¶ 11, Dkt. # 51-1.

DOE PLAINTIFFS’ NOTICE JOINING MOTION FOR PI IN JFS V. DOE (2:17-cv-00178-JLR) Page - 1

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 62 Filed 11/29/17 Page 3 of 6

1 withheld solely because they are deemed nationals of an SAO country.
2 Joseph Doe’s family has been through extensive security screening and two rounds of
3 medical examinations (as medical clearances expire after six months) in a country that, by
4 Defendants’ own assertion, has adequate screening procedures in place. They are at the end of
5 the lengthy review process, which began in June 2015 when Joseph filed I-730 petitions—nearly
6 two and a half years ago. They are simply waiting for travel booking now. In fact, Joseph was
7 informed that his wife and stepson are cleared to travel, and their flights could be booked. His
8 four- and five-year-old sons, however, are blocked due to their nationality. Id.
9 The SAO system has been in place for many years but has never required a wholesale
10 suspension of admissions. Interagency procedures for alerting officials about foreign nationals
11 who may be suspected terrorists, referred to as Visa Viper, began after the 1993 World Trade
12 Center bombing and were institutionalized by enactment of the Enhanced Border Security and
13 Visa Entry Reform Act of 2002.2 Generally, SAOs are required for visa applicants more often 14
than refugees—as refugees were already the most heavily vetted category of foreign nationals. 15
The categories of SAOs have animal names, such as (1) Condor SAOs, based on national 16
security concerns and suspected terrorist activity; (2) Mantis SAOs, based on use or exportation 17
of sensitive technology with potential military application; (3) Donkey and National Crime 18
Information Center (NCIC) SAOs, based on name matches occurring in various databases; and 19 (4) Bear SAOs, for foreign government and diplomatic officials.3 Although SAOs delay visa 20
approval, they have never necessitated complete suspension of admission. Furthermore, national 21
security officials in prior administrations did not deem it necessary to require SAOs for young 22

23

24 2 Ruth Ellen Wasem, Visa Security Policy: Roles of the Departments of State and Homeland Security at 8, CRS

25

Report for Congress (June 30, 2011), http://bit.ly/2AkHbzn (last visited Nov. 29, 2017). 3 LawFlash: Some FAQs on the Current Visa Application Delay Problem, Morgan Lewis (Jan. 13, 2010),

26 http://bit.ly/2AlXWKG (last visited Nov. 29, 20174).

DOE PLAINTIFFS’ NOTICE JOINING MOTION FOR PI IN JFS V. DOE (2:17-cv-00178-JLR) Page - 2

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 62 Filed 11/29/17 Page 4 of 6

1 children, requiring SAOs only for adult males.4 2
That Joseph Doe’s reunion with his family is being indefinitely postponed because 3
Defendants ostensibly require SAOs for his four- and five-year-old sons is so arbitrary and 4 capricious as to be absurd.5 These children have been in the process of being screened by the 5
U.S. government for half of their young lives. The factors that trigger SAO review—such as 6
suspected ties to terrorism or organized crime, involvement with certain types of technology, or 7
positions in foreign governments—cannot reasonably be expected to be present in the case of 8
young children. The suspension of admission for Joseph Doe’s sons is even more arbitrary 9
because it is due to their Somali nationality, but they have never been to Somalia. It is unclear 10
what a SAO would even consist of in their case. In preventing Joseph Doe’s long-awaited 11
reunion with his young sons, who have passed all required clearance screenings, the Memo is 12
arbitrary, capricious, and, frankly, cruel. 13
In addition, Plaintiff Jeffrey Doe joins the JFS Plaintiffs’ motion, as his family members 14
are subject to the SAO portion of the Memo. Like Joseph Doe, Jeffrey Doe is a refugee, a Somali 15
national, and a practicing Muslim. He fled Somalia with his parents and siblings when he was a 16
boy, after men in military uniform raided his family’s home, raped his aunt, and then shot his 17
aunt and baby sister. Jeffrey Doe’s parents and siblings are classified as Priority 1 refugees who 18
are survivors of torture, and they have passed their security and medical clearances and received 19
assurances through a refugee resettlement organization in the U.S. However, they remain in 20
Kenya awaiting travel papers, and are now subject to the arbitrary SAO suspension that serves as 21
Defendants’ desired Muslim refugee ban. Third Amended Complaint § III.A.6, Dkt. # 42. 22
For the reasons stated herein and in JFS Plaintiffs’ motion, this Court should grant a 23
preliminary injunction against the SAO provisions of the Memo. 24

25 4 Mica Rosenberg & Yeganeh Torbati, Trump Administration to Add New Screening for Refugees: Document,
Reuters (Oct. 24, 2017), http://read.bi/2kbPqtn (last visited Nov. 29, 2017).
26 5 JFS Plaintiff Afkab Mohamed Hussein’s son, who is not yet two years old, is also subject to SAO suspension.

DOE PLAINTIFFS’ NOTICE JOINING MOTION FOR PI IN JFS V. DOE (2:17-cv-00178-JLR) Page - 3

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 62 Filed 11/29/17 Page 5 of 6

1 DATED this 29th day of November 2017.
2

KELLER ROHRBACK L.L.P.

3 AMERICAN CIVIL LIBERTIES UNION 4 OF WASHINGTON FOUNDATION

5 By: /s/ Emily Chiang

g

/s/ Lisa Nowlin

6

Emily Chiang, WSBA # 50517

7

Lisa Nowlin, WSBA # 51512 901 Fifth Avenue, Suite 630

8

Seattle, WA 98164

Telephone: (206) 624-2184

9

Email: echiang@aclu-wa.org

lnowlin@aclu-wa.org 10

11

Attorneys for Doe Plaintiffs

12

13

14

15

16

17

18

19

20

21

22

23

By: /s/ Lynn Lincoln Sarko

n

By: /s/ Tana Lin

n

By: /s/ Amy Williams-Derry

y o

By: /s/ Derek W. Loeser______________

By: /s/ Alison S. Gaffney

Lynn Lincoln Sarko, WSBA # 16569

Tana Lin, WSBA # 35271

Amy Williams-Derry, WSBA # 28711

Derek W. Loeser, WSBA # 24274

Alison S. Gaffney, WSBA # 45565

1201 Third Avenue, Suite 3200

Seattle, WA 98101

Telephone: (206) 623-1900

Facsimile: (206) 623-3384

Email: lsarko@kellerrohrback.com

tlin@kellerrohrback.com

awilliams-derry@kellerrohrback.com

dloeser@kellerrohrback.com

agaffney@kellerrohrback.com

By: /s/ Laurie B. Ashton

N

Laurie B. Ashton (admitted pro hac vice)

3101 North Central Avenue, Suite 1400

Phoenix, AZ 85012-2600

Telephone: (602) 248-0088

Facsimile: (602) 248-2822

Email: lashton@kellerrohrback.com

By: /s/ Alison Chase

e

Alison Chase (admitted pro hac vice)

1129 State Street, Suite 8

Santa Barbara, CA 93101

Telephone: (805) 456-1496

Facsimile: (805) 456-1497

Email: achase@kellerrohrback.com

24
25
26
DOE PLAINTIFFS’ NOTICE JOINING MOTION FOR PI IN JFS V. DOE (2:17-cv-00178-JLR) Page - 4

Attorneys for Doe Plaintiffs/Cooperating Attorneys for the American Civil Liberties Union Of Washington Foundation

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 62 Filed 11/29/17 Page 6 of 6

1

2

CERTIFICATE OF SERVICE

3

I hereby certify that on November 29, 2017, I electronically filed the attached document

4 with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the email addresses on the Court’s Electronic Mail Notice List.

5

DATED this 29th day of November 2017. 6

7

KELLER ROHRBACK L.L.P.

8

9

By: /s/ Tana Lin

n

10

Tana Lin, WSBA # 35271

11

1201 Third Avenue, Suite 3200

Seattle, WA 98101

12

Telephone: (206) 623-1900

Facsimile: (206) 623-3384

13

Email: tlin@kellerrohrback.com

14

Attorney for Doe Plaintiffs/Cooperating

15

Attorney for the American Civil

Liberties Union Of Washington

16

Foundation

17

18

19

20

21

22

23

24

25

26
DOE PLAINTIFFS’ NOTICE JOINING MOTION FOR PI IN JFS V. DOE (2:17-cv-00178-JLR) Page - 5

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

 
 Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 1 of 22

1
The Honorable James L. Robart
2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

11
JOHN DOES, et al.,
12
v.
13

Plaintiffs,

14

DONALD TRUMP, et al.,

CASE NO. C17-0178-JLR AMICI CURIAE BRIEF (RELATING TO BOTH CASES)

15

Defendants.

16

JEWISH FAMILY SERVICES, et al.,

17

18

v.

Plaintiffs,

19
DONALD TRUMP, et al.,
20
Defendants.
21

CASE NO. C17-1707-JLR
Note on Motion Calendar: December 4, 2017

22

23

24

25

26

27

28

AMICI CURIAE BRIEF (Case No. C-17-0178-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 2 of 22

TABLE OF CONTENTS
1

2

INTEREST OF AMICI CURIAE .

.

.

.

.

.

.

2

3

SUMMARY OF ARGUMENT .

.

.

.

.

.

.

2

4

ARGUMENT .

.

.

.

.

.

.

.

.

.

3

5

Social Categorization and Stereotyping Creates Dangerous Conditions for Members of

6

Minority Groups .

.

.

.

.

.

.

.

.

3

7

A. Stereotyping Minorities Creates a Climate for Discrimination .

.

3

8

B. The Executive Order Is the Product of Centuries of Discriminatory Stereotypes

9

About Muslims

.

.

.

.

.

.

.

.

5

10
C. The Executive Order Is Based on Stereotypes About Muslims as “Anti-American”

11

and “Terrorists” .

.

.

.

.

.

.

.

8

12

D. Government Legitimization of Muslim Stereotypes Has Encouraged Violence

13

Against Muslims, and Inhibited Millions of Muslims in the Practice of Their

Religion

.

.

.

.

.

.

.

.

.

14

14

1. Government Stereotyping Leads to Violence and Discrimination

.

14

15

16

2. The President’s Statements Have Encouraged Violence .

.

.

15

17

3. Stereotyping and Discrimination Harms All Americans, Not Just Those

Directly Affected by Specific Acts

.

.

.

.

.

18

18

19

CONCLUSION

.

.

.

.

.

.

.

.

.

19

20

21

22

23

24

25

26

27

28

AMICI CURIAE BRIEF - 1 (Case No. C-17-0178-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 3 of 22

1
INTERESTS OF AMICI CURIAE
2

3

Amici, National Association for the Advancement of Colored People, Advocates for

4

Youth, Chicago Lawyers’ Committee for Civil Rights Under Law, Judge David L. Bazelon

5

Center for Mental Health Law, Mississippi Center for Justice, National Center for Lesbian

6
Rights, People for the American Way Foundation, Southern Coalition for Social Justice, and
7

Washington Lawyers’ Committee for Civil Rights and Urban Affairs, are national and regional
8

9

civil rights groups interested in the promotion of civil liberties throughout the country, and the

10

elimination of discrimination in any form.

11
SUMMARY OF ARGUMENT

12
In promotion of their interests, amici respectfully submit this brief to advance a key
13

14

argument in support of granting the plaintiffs’ request for injunctive relief. Amici submit that the

15

balance of equities and public interest weigh heavily in favor of enjoining President Trump’s

16

September 24, 2017 Executive Order, “Enhancing Vetting Capabilities and Processes for

17
Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats”
18
(the “Executive Order”), as it improperly promotes social categorization and stereotyping that
19

20

endangers the lives and well-being of individuals of the Muslim faith. The Executive Order is

21

the product of several centuries of Muslim stereotyping in this country, and harms even those

22

who are not the direct victims of specific attacks on immigrants. Here, the evidence demonstrates

23
that, regardless of the Government’s post-hoc explanations, the Executive Order was motivated
24

by animus toward Muslims and singled out, as a proxy, those born in the targeted majority-
25

26

Muslim countries.

27

28

AMICI CURIAE BRIEF - 2 (Case No. C-17-0178-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 4 of 22

ARGUMENT
1

2

Social Categorization and Stereotyping Creates

Dangerous Conditions for Members of Minority Groups.

3

4

A. Stereotyping Minorities Creates a Climate for Discrimination.

5

The balance of equities and public interest in this case weigh in favor of enjoining the

6
Executive Order due to the discrimination it promotes. As the courts have long recognized, laws
7
such as the Executive Order improperly promote social categorization and stereotyping of
8

9

Muslims that lead to the endangerment of the lives of those who practice Islam, a minority

10

religion.

11

The Supreme Court has repeatedly stated that discriminatory stereotypes can improperly

12
affect decision making. Most recently, the Court recognized that disparate impact liability
13
prevents segregated housing patterns that might otherwise result from the role of “covert and
14

15

illicit stereotyping.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project,

16

Inc., 135 S. Ct. 2507, 2522 (2015); see also Miller-El v. Dretke, 545 U.S. 231, 268 (2005)

17

(Breyer, J., concurring) (recognizing that “subtle forms of bias are automatic, unconscious, and

18
unintentional and escape notice, even the notice of those enacting the bias”).
19

In Price Waterhouse, the Supreme Court recognized the role that sex stereotyping plays
20

21

in discrimination cases, explaining that “stereotyped remarks can certainly be evidence that

22

gender played a part” in an adverse employment decision. Price Waterhouse v. Hopkins, 490

23
U.S. 228, 251 (1989).

24
In Windsor, the Supreme Court emphasized that laws whose “purpose and effect” is
25

26

“disapproval of” a “class” of people “impose a disadvantage, a separate status, and so a stigma”

27

on the targeted group. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013). The law at issue

28

in that case, the federal Defense of Marriage Act, targeted same-sex couples for discrimination

AMICI CURIAE BRIEF - 3 (Case No. C-17-0178-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 5 of 22

and stigma, just as the challenged Executive Order today singles out Muslim individuals for ill-
1

2

treatment.

3

Similarly, in Cleburne, the Supreme Court explained that “race, alienage, and national

4

origin” are “so seldom relevant” to state interests, meaning that “such considerations are deemed

5
to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or
6

deserving as others.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). In
7

8

Griggs, the Supreme Court held that the “absence of discriminatory intent does not redeem

9

employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority

10
groups and are unrelated to measuring job capability.” Griggs v. Duke Power Co., 401 U.S. 424,

11
432 (1971).
12

13

The courts in other circuits also recognize that social categorization and stereotyping

14

create fertile grounds for discrimination, including in housing, employment decisions, and police

15

actions. See, e.g., Hassan v. City of New York, 804 F.3d 277, 306 (3d Cir. 2015) (rejecting

16
“appeals to ‘common sense’ which might be infected by stereotypes” as insufficient to justify
17
police surveillance of Muslim individuals, businesses, and institutions) (quoting Reynolds v.
18

19

Chicago, 296 F.3d 524, 526 (7th Cir. 2002)); Ahmed v. Johnson, 752 F.3d 490, 503 (1st Cir.

20

2014) (finding “lack of explicitly discriminatory behaviors” does not preclude a finding of

21

“unlawful animus” in employment discrimination because “unlawful discrimination can stem

22
from stereotypes and other types of cognitive biases, as well as from conscious animus”) (quoting
23

Thomas v. Eastman Kodak Co., 183 F.3d 38, 59 (1st Cir. 1999)); United States v. Stephens, 421
24

25

F.3d 503, 515 (7th Cir. 2005) (recognizing that racial stereotyping continues to play a role in jury

26

selection and the outcome of trials); Thomas, 183 F.3d at 42 (holding that Title VII’s ban on

27
“disparate treatment because of race” includes “acts based on conscious racial animus” and
28
“employer decisions that are based on stereotyped thinking”).

AMICI CURIAE BRIEF - 4 (Case No. C-17-0178-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 6 of 22

Relevant research shows that a psychological triggering phenomenon known as
1

2

“priming” exacerbates stereotyping and makes it more extreme. Priming occurs when “subtle

3

influences . . . increase the ease with which certain information comes to mind.” Richard H.

4

Thaler & Cass R. Sunstein, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND

5
HAPPINESS 69 (2008). In the case of racial stereotyping, which shares many attributes with
6

stereotyping of Muslims, priming an individual with race-based stereotypes can influence later
7

8

decisions by that individual. Sandra Graham & Brian S. Lowery, Priming Unconscious Racial

9

Stereotypes about Adolescent Offenders, 28 L. & HUM. BEHAV. 483, 489 (2004).

10
Social science research repeatedly demonstrates that individuals have a persistent
11
tendency to defer blindly to priming from authority figures. See Stanley Milgram, Behavioral
12

13

Study of Obedience, 67 J. ABNORMAL & SOC. PSYCHOL. 371, 375-76 (1963). Therefore, as the

14

Supreme Court’s decisions in Brown v. Board of Education of Topeka, 347 U.S. 483, 493-94

15

(1954) and Loving v. Virginia, 388 U.S. 1, 8-12 (1967), demonstrate, discrimination with the

16
sanction of law raises unique and particular dangers.
17
B. The Executive Order Is the Product of Centuries of Discriminatory
18
Stereotypes About Muslims.
19

20

This country has had a long history of official stereotyping of Muslims as un-American

21

and unworthy of becoming Americans. During the Colonial era, two of the most outspoken

22
public figures who disseminated stereotypes of Muslims (then known as “Mahometans”) were
23
Cotton Mather and Aaron Burr – they consistently referred to “Mahometans” in highly
24

25

derogatory terms, including denouncing “that false Prophet and great Imposter Mahomet.”1

26

27

1 Thomas S. Kidd, AMERICAN CHRISTIANS AND ISLAM: EVANGELICAL CULTURE AND MUSLIMS FROM THE COLONIAL

28

PERIOD TO THE AGE OF TERRORISM 12 (2009); Thomas S. Kidd, “Is It Worse to Follow Mahomet than the Devil?”

Early American Uses of Islam, 72 CHURCH HISTORY 766, 771-73, 779-80 (2003).

AMICI CURIAE BRIEF - 5 (Case No. C-17-0178-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 7 of 22

Even after this country became independent, prejudice against Muslims, as expressed
1

2

through consistent stereotyping, continued throughout the nineteenth century and into the

3

twentieth century.2 For example, in discussing immigration legislation in 1910, Representative

4

Burnett of Alabama repeatedly referred to “Syrians” – then a catch-all term for Middle Eastern

5
immigrants who were Muslims – in derogatory terms, and made clear that he and his colleagues
6

viewed those immigrants as “the dirty Syrian[s] of today,” and among “the least desirable” aliens,
7

8

because “the Syrians are the same way, mixed up with the Arabians and the people of African

9

and western Asiatic countries, until they are not our kind of people; and they are not the kind of

10

people from which those who settled this country sprang.”3 As set forth in Section C, infra, these

11
are the same kind of statements recently made about Muslims.
12

13

In this century, the stereotyping of Muslims has continued unabated, leading to increased

14

discrimination against Muslims, rising to the level of violence. Even prior to the Executive

15

Orders in 2017, commentators documented and denounced the ongoing stereotyping of Muslims

16
and the ensuing discrimination and violence.
17
Professor Perry recognized that “many commentators have suggested that Arabs
18

19

generally and Muslims specifically may represent the last ‘legitimate’ subjects of slanderous

20

imagery and stereotypes.” Barbara Perry, Anti-Muslim Violence in the Post-9/11 Era: Motive

21

Forces, 4 HATE CRIMES 172, 176 (Barbara Perry & Randy Blazak, eds. 2009). Political leaders

22
have an outsized impact in fostering this stereotyping and its ensuing discrimination and
23

violence: “Even more powerful in providing justifications for anti-Muslim violence is the
24

25

2 See, e.g., Erik Love, ISLAMOPHOBIA AND RACISM IN AMERICA 41, 86-89 (2017); Jeffrey L. Thomas,

26

SCAPEGOATING ISLAM: INTOLERANCE, SECURITY, AND THE AMERICAN MUSLIM 1-14 (2015); Peter Gottschalk &

Gabriel Greenberg, Common Heritage, Uncommon Fear: Islamophobia in the United States and British India, 1687-

27

1947, in ISLAMOPHOBIA IN AMERICA: THE ANATOMY OF INTOLERANCE (Carl W. Ernst ed. 2013); Robert J. Allison,

THE CRESCENT OBSCURED: THE UNITED STATES AND THE MUSLIM WORLD 1776-1815 (1995).

28

3 HEARINGS BEFORE COMMITTEE ON IMMIGRATION AND NATURALIZATION, HOUSE OF REPRESENTATIVES, 61st Cong.

383, 386, 393, 396 (1910) (statement of Rep. John L. Burnett, Alabama).

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explicit exploitation of public images and related fears by political leaders. To the extent that
1

2

this is so, there emerges a climate that bestows ‘permission to hate.’” Id. at 181. Thus, she

3

concluded that:

4

[S]tate practices provide a context and a framework for the broader demonization and

5

marginalization of minority groups. Through its rhetoric and policies, the state

absorbs and reflects back onto the public hostile and negative perceptions of the Other
6
– in this case, Muslims. Public expressions of racism by state actors are constituted

7

of and by public sentiments of intolerance, dislike, or suspicion of particular groups.

8

Thus, the state seems to reaffirm the legitimacy of such beliefs, while at the same

time giving them public voice.

9

10

Id. at 185 (emphasis added).

11

Professor Aziz, who testified to Congress on this issue, wrote, “In the United States,

12

numerous polls show a rise in anti-Muslim bias that is manifesting into tangible hate crimes,

13
mosque vandalism, employment discrimination, and bullying of Muslim kids in schools.” Sahar
14

F. Aziz, Losing the “War of Ideas:” A Critique of Countering Violent Extremism Programs, 52
15

16

TEXAS INT’L L.J. 255, 265 (2017).

17

Professor Cashin wrote that “Explicit, public anti-Muslim comments do not appear to

18
engender similar widespread outrage” as do racist remarks, and instead “appear to be on the rise,”

19
because of the lack of public rejection of such views. Sheryll Cashin, To Be Muslim or Muslim-
20

21

Looking in America: A Comparative Exploration of Racial and Religious Prejudice in the 21st

22

Century, 2 DUKE FORUM L. & SOC. CHANGE 125, 127-28 (2010). “In the wake of the 9/11 attacks,

23

it is more socially acceptable to express explicit bias against Arabs or Muslims than against

24
blacks or other racial/ethnic groups.” Id. at 132.
25
Muslim stereotyping has manifested in the form of violence against Muslims, or even
26

27

those who are erroneously perceived as being Muslims (such as Sikhs). Although the serious

28

under-reporting of such crimes causes the available statistics to understate the actual prevalence

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of anti-Muslim violence,4 it is well-documented throughout 2016,5 and continuing into 2017. See
1

2

Section D.2, infra.

3

Thus, from Colonial times to the present, this country has had a long and deliberate

4

political tradition of officially stereotyping Muslims – a history that created an atmosphere that

5
legitimizes and encourages discrimination and violence against Muslims.
6

C. The Executive Order Is Based on Stereotypes About Muslims as “Anti-
7
American” and “Terrorists.”
8

9

As in the cases cited above, the Muslim ban bears the imprimatur of the Executive Branch

10
and engenders precisely the type of discriminatory harms that the Supreme Court has held cannot

11
withstand constitutional muster. Since December 7, 2015, when then-candidate Donald Trump
12

13

issued a written statement calling for a “total and complete shutdown on Muslims entering the

14

United States” in the wake of the terror attack in San Bernardino, California, a “Muslim ban” has

15

been a major item on his policy agenda.6 At that time, his campaign characterized a bar on

16
Muslim entry into the United States as a way to stop this country from being the “victims of the
17
horrendous attacks by people that believe only in Jihad.”7 He did so with no evidence other than
18

19

extensive stereotyping.

20

Mr. Trump’s labeling of Muslims as “terrorists” has been relentless. On January 4, 2016,

21

22

4 Todd H. Green, THE FEAR OF ISLAM: AN INTRODUCTION TO ISLAMOPHOBIA IN THE WEST 282-84 (2015) (discussing

statistics on crimes against Muslims and problems with underreporting); see generally U.S. Dep’t of Justice, Bureau

23

of Justice Statistics, Special Report, HATE CRIME VICTIMIZATION, 2004-2015 (2017) (noting problems with

underreporting and different methodologies for categorizing these crimes); U.S. Dep’t of Justice, Bureau of Justice

24

Statistics, Special Report, HATE CRIMES REPORTED BY VICTIMS AND POLICE (2005) (same).

25

5 See, e.g., Aziz, 52 TEXAS INT’L L.J., supra, at 266-68 & nn. 65-80 (collecting examples from 2015 and 2016 of violence against Muslims).

26

6 Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 575-76 & n.5 (4th Cir. 2017) (en banc), vacated as moot,

2017 WL 4518553 (U.S. Oct. 10, 2017)); see also Christine Wang, “Trump Website Takes Down Muslim Ban

27

Statement After Reporter Grills Spicer in Briefing,” CNBC.COM (May 8, 2017),

https://www.cnbc.com/2017/05/08/trump-website-takes-down-muslim-ban-statement-after-reporter-grills-spicer-

28

in-briefing.html. 7 Int’l Refugee Assistance Project, 857 F.3d at 575 n.5.

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the Trump campaign premiered its first television advertisement, in which he “call[ed] for a total
1

2

and complete shutdown of Muslims entering the United States” until doubts about “radical

3

Islamic terrorism” can be “figure[d] out.”8 The link he drew between “radical Islamic terrorism”

4

and all individual Muslims entering the United States was stated with no supporting evidence.

5
Subsequently, candidate Trump, in a major foreign policy speech on April 27, 2016, stated that
6
“The struggle against radical Islam also takes place in our homeland. . . . We must stop importing
7

8

extremism through senseless immigration policies.”9 He made these statements, relying entirely

9

on stereotypes, and presenting no evidence or facts to support these claims.10

10
As a matter of law, this Court can rely on campaign statements as part of its analysis of

11
whether the Executive Orders reflect illegal stereotyping and bias against Muslims. For example,
12

13

the Second Circuit held that campaign statements by the successful candidate for Mayor of

14

Yonkers – in which he “promised … to impose a moratorium on all subsidized housing in

15

Yonkers” – was evidence of the “intent to preserve the existing racial imbalance” in that city.

16
United States v. Yonkers Board of Educ., 837 F.2d 1181, 1191, 1222 (2d Cir. 1987). Similarly,
17
the Eleventh Circuit held that campaign promises by Roy Moore, made while running for the
18

19

position of Chief Justice of the Alabama Supreme Court, i.e., that he would install the Ten

20

Commandments monument in the courthouse rotunda, could be used as evidence of his intent to

21

violate the Establishment Clause. Glassroth v. Moore, 335 F.3d 1282, 1285-87, 1292 (11th Cir.

22

23

8 Jeremy Diamond, Donald Trump: Ban all Muslim Travel to United States, CNN POLITICS (Dec. 8, 2015),

http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration; see also Jill Colvin and Steve

24

Peoples, “Trump’s First TV Ad Pushes Proposal to Ban Muslims from Entering U.S.,” The Globe and Mail

(Toronto), Jan. 5, 2016, at A-9.

25

9 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.

26

10 Although President Trump has publicly labeled Muslims as dangerous “terrorists,” he has failed to condemn the

hate crimes perpetuated against them over the past year. See, e.g., Jack Moore, Trump’s Failure to Condemn

27

Minnesota Mosque Attacks Stirs Social Media Anger, NEWSWEEK (Aug. 17, 2017),

http://www.newsweek.com/trump-failure-condemn-minnesota-mosque-attack-stirs-social-media-anger-647694

28

(President Trump’s silence following a January 2017 shooting at a Quebec mosque, June 2017 attacks in Virginia

and London, and an August 2017 bomb attack at a mosque in Minnesota).

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2003). More generally, “the historical background of the decision [to discriminate] is one
1

2

evidentiary source, particularly if it reveals a series of official actions taken for invidious

3

purposes.” Village of Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252,

4

267 (1977) (citations omitted). Here, as in Yonkers, Glassroth, and Village of Arlington Heights,

5
evidence of candidate-Trump’s campaign statements and campaign promises is probative
6

evidence of the intent to discriminate against Muslims – an intent that was implemented just one
7

8

week after the Inauguration, when he issued the first of a series of Executive Orders that all

9

shared the same goals: to fulfill his campaign pledge.

10
On January 27, 2017, President Trump signed Executive Order 13,769, entitled

11
“Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 FED. REG. 8977
12

13

(Feb. 1, 2017). Among other immigration restrictions, Executive Order 13,769 temporarily

14

banned all nationals from seven majority-Muslim countries from entering the United States: Iran,

15

Iraq, Syria, Sudan, Yemen, Libya, and Somalia.

16
While many surrogates of the current Administration pushed back at the characterization
17
of E.O. 13,769 as a “Muslim ban,” the President embraced it. He told the public via Twitter,
18

19

“[c]all it what you want, [E.O. 13,769] is about keeping bad people (with bad intentions) out of

20

country!”11 Throughout his campaign, and now in office, President Trump has consistently

21

labeled Muslims as “bad people” who must be kept out of America in the interest of national

22
security.
23

24

25

26

11 Jane Onyanga-Omara, British PM Criticizes Trump’s Travel Ban; Theresa May Calls Controversial Move

27

“Divisive and Wrong,” USA TODAY, Feb. 2, 2017, at 5A. The Department of Justice recently informed a district

court that Trump’s tweets (Twitter postings) are “official statements of the President of the United States,” since “a

28

tweet can be the equivalent of a public statement or speech.” James Madison Project v. Dep’t of Justice, No. 1:17-

cv-00144, Def. Supp. Mem., at 2, 5-6 & n.4 (ECF No. 29) (D.D.C. Nov. 13, 2017).

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After multiple lower courts enjoined enforcement of E.O. 13,769,12 the Trump
1

2

Administration announced plans to revise the order. On March 6, 2017, the Administration

3

issued Executive Order 13,780, “Protecting the Nation from Foreign Terrorist Entry into the

4

United States.” 82 FED. REG. 13,209 (Mar. 9, 2017). The revised Executive Order preserved

5
several core provisions of the prior Order: it suspended the United States Refugee Admissions
6

Program for 120 days, and it suspended the entry into the United States of nationals of six of the
7

8

seven majority-Muslim countries designated in E.O. 13,769 for 90 days. See E.O. 13,780, §§

9

6(a); 2(c). As did E.O. 13,769, the redrafted Order targeted only majority-Muslim countries, as

10
proxies for all Muslims. This Court upheld the district court’s decision enjoining the second

11
Executive Order. Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (en
12

13

banc). The Supreme Court vacated this Court’s decision as moot in light of the expiration of the

14

second Executive Order. Trump v. International Refugee Assistance Project, 138 S. Ct. __, 2017

15

WL 4518553 (U.S. Oct. 10, 2017).

16
President Trump then issued the third iteration of the Executive Order on September 24,
17
2017. See 82 Fed. Reg. 45,161 (Sept. 27, 2017). Although that order purported to expand its
18

19

scope into non-Muslim countries by including North Korea and Venezuela, this country has

20

hardly any visitors from North Korea, and the order as to Venezuela was limited to certain high-

21

level officials. Id.

22
The third version of the Executive Order continues to target Muslims. Judge Chuang of
23

the District of Maryland correctly found that “the inclusion of two non-majority Muslim nations,
24

25

North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the

26

12 Washington v. Trump, No. 2:17-cv-141, Temporary Restraining Order, 2017 WL 462040 (W.D. Wash. Feb. 3,

27

2017), motion for stay denied, 847 F.3d 1151 (9th Cir. 2017); Tootkaboni v. Trump, No. 1:17-cv-10154, Temporary

Restraining Order, 2017 WL 386550 (D. Mass. Jan. 29, 2017); Darweesh v. Trump, No. 1:17-cv-480, Temporary

28

Restraining Order, 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017); Aziz v. Trump, 234 F. Supp. 3d 724 (E.D. Va. 2017)

(preliminary injunction).

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Proclamation,” requiring the court to “assess whether, as has occurred in other Establishment
1

2

Clause cases, the insertion of these countries was ‘a litigating position’ rather than an earnest

3

effort to ‘cast off’ the prior ‘unmistakable’ objective.” See International Refugee Assistance

4

Project v. Trump, 2017 WL 4674314, at *33 (D. Md. Oct. 17, 2017) (quoting McCreary County

5
v. Amer. Civil Liberties Union of Kentucky, 545 U.S. 844, 871-72 (2005)). The district court thus
6

granted plaintiffs’ motion for a preliminary injunction as to this third iteration of the travel ban.
7

8

Id. at *41. The district court reviewed the record of Trump’s campaign statements, id. at *30,

9

and the statements that he made after taking office, id. at *30, *31, *33, *36, to conclude that the

10
“primary purpose” of the travel ban was “the desire to impose a Muslim ban.” Id. at *37.

11
Thus, “approximately 80 percent of all the Muslim refugees who resettled in the United
12

13

States over the past two years were from the [nine] targeted countries. Perhaps more tellingly,

14

of the refugees who came to the U.S. over the last two years from all of the other countries . . .

15

approximately 70 percent were Christian and just 16 percent were Muslim.”13

16
The government’s intent to ban Muslims will exacerbate widespread discrimination that
17
Muslims already face. The official action of marking a group, Muslims, as a dangerous “fifth
18

19

column,” drives societal biases against them and creates conditions where violence against them

20

is seen as more acceptable because they are perceived, in President Trump’s words, to be “bad

21

people.”

22
In 2011, the Pew Research Center surveyed Western cultures to determine which
23

characteristics Western populations associate with people in the Muslim world. That survey
24

25

found that about half of the respondents characterized Muslims as “violent,” and more than half

26

27

13 Dalia Lithwick & Jeremy Stahl, Sneak Attack: Trump Is Trying to Secretly Push Through Another Muslim Ban,

SLATE, JURISPRUDENCE (Nov. 10, 2017),

28

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/trump_is_trying_to_secretly_sneak_throu

gh_another_muslim_ban.html.

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characterized Muslims as “fanatical.”14
1

2

Thus, it is no surprise that the Pew Research Center’s 2017 survey of Muslims in this

3

country found that discrimination against them was increasing, and that they are even more

4

concerned in light of the President’s Executive Orders.15

5
In a recent news analysis discussing ongoing social science research relating to
6

stereotyping against the most recent Muslim immigrants in this country and Canada, Science
7

8

magazine recognized that “Prejudice of course can be directed against any group by any other.

9

But immigrants, and even more so refugees and asylum seekers, may be especially vulnerable

10
because of their tenuous place in a larger society.” Jennifer Couzin-Frankel, Battling Bias: How

11
Can We Blunt Prejudice Against Immigrants?, 350 SCIENCE 687, 688 (May 19, 2017). This
12

13

applies with even greater force to child immigrants and refugees, who are even more vulnerable

14

than their parents. (The recent escalation of deportation orders similarly harms child immigrants

15

and refugees.)

16
Recent social science research demonstrates both the already-existing climate of
17
prejudice against Muslims and Arabs and the unconscious nature of that bias. “Non-Arab and
18

19

non-Muslim test takers manifested strong implicit bias against Muslims. These results are in

20

sharp contrast to self-reported attitudes.” Carol Izumi, Implicit Bias and the Illusion of Mediator

21

Neutrality, 34 WASH. U. J. L. & POL. 71, 93 (2010). A “sample of U.S. citizens on average

22
viewed Muslims and Arabs as not sharing their interests and stereotyped them as not especially
23

sincere, honest, friendly, or warm.” Susan T. Fiske, et al., Policy Forum: Why Ordinary People
24

25

26

14 Pew Research Center, Global Attitudes Project, Muslim-Western Tensions Persist (July 21, 2011),

http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#.

27

15 Pew Research Center, U.S. Muslims Concerned About Their Place in Society, but Continue to Believe in the

American Dream (July 26, 2017) http://www.pewforum.org/2017/07/26/findings-from-pew-research-centers-2017-

28

survey-of-us-muslims/; see also Abigail Hauslohner, Anti-Muslim Discrimination on Rise in U.S., Study Finds,

WASHINGTON POST, July 26, 2017, at A-3.

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Torture Enemy Prisoners, 206 SCIENCE 1482-83 (Nov. 26, 2004).
1

2

D. Government Legitimization of Muslim Stereotypes Has Encouraged

Violence Against Muslims, and Inhibited Millions of Muslims in the Practice

3

of Their Religion.

4

5

There can be no doubt that, given its origin and history, the Executive Order is based on

6

the social categorization of Muslims as “anti-American,” “terrorists,” those with “hatred for

7
Americans,” and “bad people.” In this case, President Trump’s repeated, unsubstantiated claims
8
that Muslims are dangerous, and should be barred from entering the country, are just the “cue”
9

10

needed to release otherwise suppressed and legally prohibited violence against Muslims. The

11

President’s deliberate stereotyping of Muslims as “dangerous” and “terrorists” and his ban on the

12

immigration of Muslims, place an official “imprimatur” on those stereotypes, magnifying their

13
effect.
14
The Supreme Court, in Cleburne, held that a city council’s insistence that a group home
15

16

for individuals with intellectual disabilities obtain a special-use permit to operate was premised

17

on unsubstantiated “negative attitudes or fears” of nearby property owners, which were

18

impermissible bases for disparate treatment. City of Cleburne v. Cleburne Living Ctr., 473 U.S.

19
432, 448 (1985). Although “‘[p]rivate biases may be outside the reach of the law . . . the law
20

cannot, directly or indirectly, give them effect.’” Id. (quoting Palmore v. Sidoti, 466 U.S. 429,
21

22

433 (1984)). Here, too, the law cannot give effect to private biases against Muslims.

23

1. Government Stereotyping Leads to Violence and Discrimination.

24
When someone in a position of authority, as President Trump, categorizes Muslims as
25
dangerous and terrorists, he communicates that they are “outsiders” and not full members of the
26

27

political community. By way of comparison, the Supreme Court found unconstitutional a school-

28

sponsored religious message, delivered over the school’s public address system, by a speaker

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representing the student body, under the supervision of the faculty, and pursuant to a school
1

2

policy. Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290, 309-10 (2000). The Supreme Court’s

3

reasoning was based on its view that the school policy created two classes of people—those who

4

adhered to the favored religion, and those who did not. Id.

5
The President’s steadfast support of what he calls a “Muslim ban” similarly sends the
6

message that those who adhere to Islam are not part of American society, as opposed to Christians
7

8

and other non-Muslims, who are favored by the ban. In doing so, he “sends a message to non-

9

adherents [to the Christian faith] that they are outsiders, not full members of the political

10
community, and an accompanying message to adherents that they are insiders, favored members

11
of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J.
12

13

concurring); see also Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“When homosexual conduct

14

is made criminal by the law of the State, that declaration in and of itself is an invitation to subject

15

homosexual persons to discrimination in both the public and in the private spheres.”). The

16
Executive Order and the President’s statements characterize Muslims as homogenous and a
17
national threat and thereby engender a climate conducive to violence against Muslims.
18

19

2.

The President’s Statements Have Encouraged Violence.

20

This Administration tolerated, if not encouraged, crimes against Muslims, through its

21

determination to implement the travel ban affecting them – in effect telling all Muslims (whether

22
born here or abroad) – that they do not belong here.
23

Starting in February 2016, only two months after then-candidate Trump’s December 7,
24

25

2015 and January 4, 2016 statements (supra), three nationalists in Kansas (the “Crusaders,” a

26

militia group) engaged in a conspiracy to use weapons of mass destruction “to carry out a violent

27
attack against Muslims in their community” through “destroy[ing] an apartment complex in
28

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Garden City, Kansas, which contains a mosque and is home to many Muslims.”16 They openly
1

2

discussed going to apartment buildings known to house refugees to “start kicking in the doors of

3

the Somali apartments, and kill them one by one,” and then expanded their target to include

4

“city/county commission meetings, local public officials, landlords who rent property to Muslim

5
refugees, and organizations providing assistance to Muslim refugees,” since “the only good
6
Muslim is a dead Muslim.”17
7

8

The February 22, 2017 shooting of Srinivas Kuchibhotla, Alok Madasani, and Ian Grillot

9

in Olathe, Kansas is the most horrifying example of the social categorization of Muslims as

10

enemies of the American people.18 Kuchibhotla and Madasani, two engineers at a local

11
technology company, and both Indian immigrants, had gathered with co-workers at a bar near
12

13

their office to watch a local college basketball game. Also at that bar was Adam Purinton, who

14

mistook both Kuchibhotla and Madasani as Iranians (which is one of the nationalities targeted

15

by the Executive Order and its predecessor as barred from entry into the United States). Purinton

16
approached and shot at Kuchibhotla and Madasani, telling them to “get out of our country!”
17
Kuchibhotla was killed, and Madasani was wounded. Ian Grillot, a patrolman present at the
18

19

scene, was wounded while attempting to intervene. Purinton fled across the state border into

20

Missouri and told a bartender in a second bar that he needed to hide out because he had just shot

21

two “Iranians.” Putting aside Purinton’s stereotyped view that his victims were Iranians simply

22
because they were foreign-born immigrants, his actions demonstrate the danger that social
23

24

25

16 United States v. Allen, et al., No. 6:16-cr-10141, Criminal Complaint, at ¶¶ 2, 9 (ECF No. 1) (D. Kan. Oct. 14,

2016); see also Second Superseding Indictment (ECF No. 89) (D. Kan. Mar. 16, 2017).

26

17 United States v. Allen, et al., No. 6:16-cr-10141, Criminal Complaint, at ¶¶ 13, 19 (ECF No. 1) (D. Kan. Oct. 14,

2016).

27

18 Audra D. S. Burch, Facing a Void Left by Hate, N.Y. TIMES, July 9, 2017, at A1, A12-A13; Matt Stevens, Justice

Dept. Calls Killing in Kansas a Hate Crime, N.Y. TIMES, June 10, 2017, at A18; John Eligon, et al., Drinks at a

28

Bar, Ethnic Insults, then Gunshots, N.Y. TIMES, Feb. 25, 2017, A1, A17; see also United States v. Purinton, No.

2:17-cr-20028, Indictment (D. Kan. June 9, 2017).

AMICI CURIAE BRIEF - 16 (Case No. C-17-0178-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 18 of 22

categorization can cause by exaggerating both the distance between in-groups (“real Americans”)
1

2

and out-groups (“Iranians”), as well the homogeneity of the out-group. The Administration’s

3

travel ban against Muslims does just that.

4

In addition, a rash of arsons and vandalism at mosques has occurred following the

5
issuance of E.O. 13,769. On January 28, 2017, one day after the first Order, a fire destroyed the
6
Islamic Center of Victoria, Texas.19 On February 24, 2017, a blaze broke out at the Daarus
7

8

Salaam Mosque near Tampa, Florida.20 Combined with two arsons of mosques shortly before

9

President Trump’s inauguration, the United States has seen an unprecedented surge of hate

10

crimes against the Muslim community.21

11
Other recent attacks on mosques in the United States include an explosion at a mosque in
12

13

Bloomington, Minnesota in August 2017.22

14

On March 3, 2017, a Sikh man was shot in his Kent, Washington driveway when a man

15

approached him and said “go back to your own country.”23

16
It is undeniable that the public interest in this country is best served by tolerance of
17
different religions as the Constitution requires, and tolerance of both foreign-born and American-
18

19

born adherents of different religions. The public interest is not served by discriminatory

20

21

19 U.S. Attorney’s Office, Southern District of Texas, Victoria Man Charged with Hate Crime in Burning of Mosque

22

(June 22, 2017), https://www.justice.gov/usao-sdtx/pr/victoria-man-charged-hate-crime-burning-mosque;

Anonymous, Fire Destroys Texas Mosque in Early Hours, N.Y. TIMES, Jan. 29, 2017, at A4; see also United States

23

v. Perez, No. 6:17-cr-00035, Superseding Indictment (S.D. Tex. June 22, 2017).

20 Tony Marrero, Mosque Fire Deliberately Set, TAMPA BAY TIMES, Feb. 25, 2017, at 1; Anonymous, 2nd Florida

24

Mosque Hit by Arson in Past 6 Months, ST. LOUIS POST-DISPATCH, Feb. 25, 2017, at A6.

21 Albert Samaha & Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and

25

Advocates Stunned, BUZZFEEDNEWS (Feb. 28, 2017), https://www.buzzfeed.com/albertsamaha/four-mosques-burn-

as-2017-begins; Taylor Goldenstein, Blaze Completely Destroys Islamic Center’s Building, AUSTIN AMERICAN-

26

STATESMAN, Jan. 8, 2017, at B1.

22 Nick Corasaniti, Minnesota Mosque Shaken by an Early-Morning Blast, N.Y. TIMES, Aug. 6, 2017, at A-19; Kurtis

27

Lee, U.S. Muslims on Edge after Bombing; the FBI Is Leading the Investigation into an Attack that Damaged a

Minnesota Mosque, L.A. TIMES, Aug. 6, 2017, at A-10.

28

23 Ellen Barry, U.S. and Indian Officials Condemn Shooting of Sikh, N.Y. TIMES, Mar. 6, 2017, at A-9; Cleve R.

Wootson, Sikh Man, 39, Shot in Suspected Hate Crime, WASH. POST, Mar. 5, 2017, at A-3.

AMICI CURIAE BRIEF - 17 (Case No. C-17-0178-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 19 of 22

stereotyping against Muslims that legitimizes or encourages discrimination and violence in our
1

2

country, or by a law which gives effect to private biases.

3

The insidious effect of the Muslim ban does not impact only those persons seeking to

4

enter the United States from the seven designated countries. Instead, by promoting social

5
stereotypes and priming individuals to act on those stereotypes, the ban creates fertile grounds
6

for violence against all minorities. The Executive Order fundamentally threatens the American
7

8

ideal of a diverse society working across divisions for the greater societal good.

9

3. Stereotyping and Discrimination Harms All Americans, Not Just Those

10

Directly Affected by Specific Acts.

11

Social science research has consistently demonstrated that stereotyping of any group

12
harms all individuals in that group, even those who are not directly affected by specific acts of
13
violence or discrimination. For example, Professor McDevitt and several other researchers
14

15

recognized that:

16

Because bias crimes have the unique impact of reaching far beyond the primary

17

victim, due to the dimension of victim interchangeability, every member of the

minority group who is aware of the crime is affected by a solitary crime against

18

one individual minority member.

19
Jack McDevitt, et al., Consequences for Victims: A Comparison of Bias- and Non-Bias-Motivated
20

21

Assaults, 45 AM. BEHAVIORAL SCIENTIST 697, 712 (2001).

22

Similarly, violent crimes on the basis of religious stereotypes, i.e., against Muslims, have

23

the same broader impact as do terrorist crimes:

24
Nonetheless, terrorism and violent hate crimes . . . have at least one basic

25

characteristic in common: the violence inflicted on the victims is also aimed at a

26

larger community. . . . hate crimes directly target individual members of a social

group but indirectly send a message of intolerance to the entire group. The victims

27

of hate crimes are selected because of their symbolic value as representatives of

28

the entire social group.

AMICI CURIAE BRIEF - 18 (Case No. C-17-0178-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 20 of 22

Jeffrey Thomas, SCAPEGOATING ISLAM: INTOLERANCE, SECURITY, AND THE AMERICAN MUSLIM
1

2

137 (2015).

3

Senator John McCain recently recognized this fundamental principle when he criticized

4

several fellow members of Congress who had made ad hominem attacks on a former government

5
official due to that person’s Muslim heritage:
6

When anyone—not least a member of Congress—launches specious and degrading
7
attacks against fellow Americans on the basis of nothing more than fear of who they

8

are and ignorance of what they stand for, it defames the spirit of our Nation, and we

9

all grow poorer because of it.

10

158 CONG. REC. S5106 (daily ed. July 18, 2012) (statement of Sen. John McCain).

11
Here, too, the latest Executive Order and the underlying statements by the President have
12
only encouraged stereotyping of Muslims, which has adversely affected all Muslims, young and
13

14

old, natives and recent immigrants, and has harmed our society as a whole.

15

CONCLUSION

16

For the foregoing reasons, and those set forth in the briefs of the Plaintiffs, amici curiae

17
respectfully request that this Court enjoin the Executive Order.
18

DATED: December 4, 2017.
19

20

Respectfully submitted,

21

/s/ Michael C. Subit
22
_____________________________________

23

Michael C. Subit, Esquire (State Bar # 29189)

Frank Freed Subit & Thomas LLP

24

705 2nd Avenue, Suite 1200

25

Seattle WA 98104-1798

Phone: (206) 682-6711

26

Fax: (206) 682-0401

Email: msubit@frankfreed.com
27

28

AMICI CURIAE BRIEF - 19 (Case No. C-17-0178-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 21 of 22

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AMICI CURIAE BRIEF - 20 (Case No. C-17-0178-JLR)

/s/ Lynne Bernabei _____________________________________ Lynne Bernabei (D.C. Bar # 938936 Alan R. Kabat (D.C. Bar # 462458) Bernabei & Kabat, PLLC 1400 – 16th Street N.W., Suite 500 Washington, D.C. 20036-2223 Phone: (202) 745-1942 Fax: (202) 745-2627 email: Bernabei@bernabeipllc.com Kabat@bernabeipllc.com Counsel for Amici Curiae
FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 22 of 22

CERTIFICATE OF SERVICE
1

2

I hereby certify that on December 4, 2017, I electronically filed the foregoing document

3

with the Clerk of the Court using the CM/ECF system which will send notification of such filing

4

to all of the registered CM/ECF users for this case.

5
I hereby declare under the penalty of perjury of the laws of the State of Washington that
6
the foregoing is true and correct.
7

8

DATED this 4th day of December, 2017.

9

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/s/ Michael C. Subit

Michael C. Subit, WSBA No. 29189

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AMICI CURIAE BRIEF - 21 (Case No. C-17-0178-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

 
 Case 2:17-cv-00178-JLR Document 68 Filed 12/05/17 Page 1 of 2

1

2

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7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10

JOHN DOES, et al.,

11

Plaintiffs,

v.

12

DONAT,D TRTTMP ~t ~1
13

Defendants. 14

JEWISH FAMILY SERVICES, et

15

al.,

CASE NO. C17-0178JLR ORDER DIRECTING SUPPLEMENTAL BRIEFING (RELATING TO BOTH CASES)
CASE NO C17-1707JLR

16

Plaintiffs,

17

v.

18

DONALD TRUMP, et al.,

Defendants. 19

Presently pending before the court are Plaintiffs' motion for a preliminary 20

21 injunction in John Does, et al. v. Trump, et al., No. C17-0178 (Dkt. # 45) and Plaintiffs'

22 II

ORDER-I

Case 2:17-cv-00178-JLR Document 68 Filed 12/05/17 Page 2 of 2

1 motion for a preliminary injunction in Jewish Family Services v. Trump, eta!., No.

2 C17-1707JLR (Dkt. # 42).

3

On December 4, 2017, the Supreme Court issued two orders staying two district

4 court orders granting preliminary injunctions with respect to certain aspects of

5 Presidential Proclamation No. 9,645,83 Fed. Reg. 45,161 (Sept. 27, 2007) ("E0-3")

6 pending the Government's appeals in the Ninth and Fourth Circuit Courts of Appeal and

7 the Government's petition for a writ of certiorari. See Trump v. Int'l Refugee Assistance

8 Project, No. 17A560, 2017 WL 5987435, at *1 (U.S. Dec. 4, 2017); Trump v. Hawaii,

9 No. 17A550, 2017 WL 5987406, at *1 (U.S. Dec. 4, 2017). The court recognizes that,

10 although E0-3 addresses certain aspects of immigration, it does not address refugees.

11 Nevertheless, the court orders the parties to provide supplemental briefing concerning

12 what impact, if any, the Supreme Court's December 4, 2017, orders have concerning the

13 two pending motions for preliminary injunction. Plaintiffs in Doe, eta!. v. Trump, No.

14 C17-0178JLR, and Plaintiffs in Jewish Family Services, eta!. v. Trump, No.

15 C17-1707JLR, shall each file briefs no longer than three-pages and no later than

16 Thursday, December 7, 2017. Defendants shall file a combined response to Plaintiffs'

17 briefs no longer than five-pages and no later than Monday, December 11, 2017.

18

IT IS SO ORDERED.

~

19

Dated this .5_ day of December, 2017.

20

.ROBART

21

United St tes District Judge

22

ORDER-2

 
 Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 1 of 24

1 The Honorable James L. Robart
2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

8 JEWISH FAMILY SERVICE OF SEATTLE, et al.,
9 Plaintiffs,

10

v.

DONALD J. TRUMP, in his official capacity as 11 President of the United States, et al.,

12

Defendants.

No. 2:17-CV-01707-JLR
BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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22 BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND
THE MACARTHUR JUSTICE CENTER - Case No. 2:17-CV-01707-JLR
23 4825-5264-3672v.2 0050033-001543

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1

CORPORATE DISCLOSURE STATEMENT

2

Pursuant to Civil Local Rule 7.1, amici curiae Muslim Advocates and the Roderick and

3 Solange MacArthur Justice Center state that they are not-for-profit organizations with no parents,

4 subsidiaries, or affiliates, and that no publicly-held corporation owns 10 percent or more of their
stock. 5

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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 3 of 24

1

TABLE OF CONTENTS

2 CORPORATE DISCLOSURE STATEMENT ........................................................................... II

3 TABLE OF AUTHORITIES .....................................................................................................iIV

4 INTEREST OF AMICI CURIAE................................................................................................. 1

INTRODUCTION ........................................................................................................................ 1 5

ARGUMENT ................................................................................................................................ 3

6 I.

PREVENTING THE ENTRY OF MUSLIM REFUGEES IS AN INTEGRAL

7

PART OF THE PRESIDENT’S LONGSTANDING AND EXPRESS PLEDGE

TO BAN MUSLIMS......................................................................................................... 3

8

A. The President Pledged To Favor Christians And Made Affirmative Efforts

To Vilify Muslims................................................................................................. 3 9

B. The President Has Expressly Stated His Intent To Curtail The Rights Of

10

Muslims, Including By Restricting Their Entry To The United States. ............... 7

11 12
II. 13 14 15

C. The President Has Reaffirmed His Discriminatory Intent On Numerous Occasions Since Taking Office............................................................................. 9
THE PREDECESSOR ORDERS THAT PRECEDED AND GAVE RISE TO REFUGEE BAN 3.0 WERE MOTIVATED ON THEIR FACE BY ANTIMUSLIM ANIMUS........................................................................................................ 11
A. The Refugee Ban Provision Of EO-1 Included A Priority Designed To Benefit Christian Refugees In Muslim-Majority Nations At The Expense Of Muslim Refugees. .......................................................................................... 11

16
17 III.
18

B. Both EO-1 And EO-2 Refer To “Honor Killings”—A Term Used Commonly And Almost Exclusively To Denigrate Muslims............................. 12
REFUGEE BAN 3.0 IS A DIRECT CONTINUATION OF EO-1 AND EO-2 AND IS MOTIVATED BY THE SAME ANTI-MUSLIM ANIMUS. ....................... 155

19 CONCLUSION........................................................................................................................... 16

20

21

22 BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - Case No. 2:17-CV-01707-JLR - iii
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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 4 of 24

1 2
Regulations

TABLE OF AUTHORITIES

Page(s)

3 8 C.F.R. § 207.7(d) ........................................................................................................................13

4 82 F.R. 8977 § 5(b) (Jan. 27, 2017) ...............................................................................................11

5 Executive Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017) ....................................................2

6 Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017)..................................................2

7 Executive Order No. 13,815 ............................................................................................................1

Other Authorities 8

Aisha Gill, Honor Killings and the Quest for Justice in Black and Minority Ethnic

9

Communities in the United Kingdom, 20 Crim. Just. Pol’y Rev. 475, 480

(2009) .......................................................................................................................................13

10 Brittany E. Hayes et al., An Exploratory Study of Honor Crimes in the United

11

States, 31 J. Fam. Violence 303, 304 (2016) ...........................................................................13

12

Inderpal Grewal, Outsourcing Patriarchy: Feminist Encounters, Transnational Mediations and the Crime of ‘Honour Killings,’ 15 Int’l Feminist J. Pol. 1, 5

(2013) .......................................................................................................................................13 13

Jon Hurwitz & Mark Peffley, Playing the Race Card in the Post–Willie Horton

14

Era: The Impact of Racialized Code Words on Support for Punitive Crime

Policy, Pub. Opinion Q. 99 (2005) ..........................................................................................14

15

K.M. Devries et al., The Global Prevalence of Intimate Partner Violence Against

16

Women, 340 Science 1527, 1527 (2013) ....................................................................... 13 & 14

17 Lila Abu-Lughod, DO MUSLIM WOMEN NEED SAVING? 139 (2013).............................................13

Mattias Ekman, Online Islamophobia and the Politics of Fear: Manufacturing the

18

Green Scare, 38 Ethnic & Racial Stud. 1986, 1995 (2015).....................................................14

19 Nicholas A. Valentino et al. Cues That Matter: How Political Ads Prime Racial

Attitudes During Campaigns, 96 Am. Pol. Sci. Rev. 75, 75–76 (2002) ..................................14

20

Sherene Razack, CASTING OUT: THE EVICTION OF MUSLIMS FROM WESTERN LAW

21

AND POLITICS 128 (2008) .........................................................................................................13

22 BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - Case No. 2:17-CV-01707-JLR - iv
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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 5 of 24

1 Tali Mendelberg, THE RACE CARD: CAMPAIGN STRATEGY, IMPLICIT MESSAGING, AND THE NORM OF EQUALITY 94-95 (2001).............................................................................14
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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 6 of 24

1

INTEREST OF AMICI CURIAE

2

The issue in this case is whether the Trump Administration’s recent changes to the U.S.

3 Refugee Admissions Program (“USRAP”) are premised on impermissible and unlawful anti-

4 Muslim animus. Amici Muslim Advocates and the MacArthur Justice Center (“MJC”) submit

5 this brief in support of Plaintiffs’ Motion for a Preliminary Injunction.

6

Muslim Advocates, a national legal advocacy and educational organization formed in

7 2005, works on the frontlines of civil rights to guarantee freedom and justice for Americans of

8 all faiths. The issues at stake in this case directly relate to Muslim Advocates’ work fighting

9 institutional discrimination against the American Muslim community, and its extensive work

10 assisting individuals who are impacted by the travel and refugee bans.

11

The MacArthur Justice Center is a not-for-profit organization founded by the family of

12 J. Roderick MacArthur to advocate for human rights and social justice through litigation. MJC

13 has represented clients facing myriad human rights and civil rights injustices, including issues

14 of discrimination, the unlawful detention of foreign nationals, and the rights of marginalized

15 groups in the American justice system. MJC has an interest in the rule of law and the

16 independence of the judiciary in determining whether government officials have acted with

17 discriminatory animus against an unpopular minority group.

18

INTRODUCTION

19

The executive order at issue in this litigation (“Refugee Ban 3.0” or the “Ban”)1 is

20 motivated by unconstitutional animus against Muslims seeking to enter the United States as

21 refugees. This case, like the travel and refugee ban cases that preceded it, presents the rare

22 instance where a state actor explicitly announces his discriminatory motive for an action. The

23 President has not only made clear his intent to use the Office of the President and Executive

24 Branch federal agencies to discriminate against Muslims and to favor Christians, but in

25 repeated statements before and after taking office, he has specifically indicated his animus

26
1 The Refugee Ban 3.0 is Executive Order No. 13,815, and its accompanying memorandum, with the addendum,

27 are attached as exhibits A and B to the Declaration of David Burman in Support of Plaintiffs’ Motion for
Preliminary Injunction (“Burman Decl.”), respectively.

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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 7 of 24

1 toward Muslims, and also his specific intent to prevent Muslims from entering the United

2 States in part by implementing a ban on refugee admissions.

3

Within a week of taking office, the President initiated the first of several unilateral

4 executive orders intended to implement his campaign promise of banning Muslims from

5 entering the country. Far from ever retracting his discriminatory intent, his Administration has

6 embraced it: Asked recently whether “the President think[s] that Muslims are a threat to the

7 United States?” his Deputy Press Secretary explained, “the President has addressed these 8 issues with the travel order that he issued earlier this year and the companion proclamation.”2

9 And the President himself has repeatedly derided his own Department of Justice for drafting

10 orders that are too “politically correct”—i.e., that fail to expressly acknowledge the religious

11 animus that he has unabashedly communicated.

12

In fact, the predecessor executive orders that called for the interagency review

13 culminating in Refugee Ban 3.0, “EO-1”3 and “EO-2,”4 contained anti-Muslim and pro-

14 Christian bias on their face, referring to “honor killings” (a term with a long history as a

15 Muslim slur) and prioritizing the applications of Christian refugees.

16

Understood in context as a fulfillment of the President’s stated intentions and previous

17 travel bans, Refugee Ban 3.0 is plainly the President’s implementation of his long-promised

18 discriminatory ban. The effect of the Ban would be to suspend refugee applications from the

19 countries that send the vast majority of Muslim refugees to the United States and shift priority

20 to countries with refugees that are mostly Christian. Even more tellingly, the Ban’s suspension

21 of applications from children and spouses of refugees who have already been resettled to the

22 United States would cut off family reunion for a record number of Muslim refugees. The Ban

23 thus threatens to actualize the President’s signature pledge to prevent Muslims from entering

24 the country, and this Court should not allow it to move forward.

25
2 The White House, Press Gaggle by Principal Deputy Press Secretary Raj Shah en route St. Louis, MO (Nov. 29,

26 2017) (emphasis added), https://www.whitehouse.gov/the-press-office/2017/11/29/press-gaggle-principal-deputy-

press-secretary-raj-shah-en-route-st-louis (last visited Dec. 4, 2017).

27

3 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017). 4 Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017).

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 2
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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 8 of 24

ARGUMENT

1

I. PREVENTING THE ENTRY OF MUSLIM REFUGEES IS AN INTEGRAL

2

PART OF THE PRESIDENT’S LONGSTANDING AND EXPRESS PLEDGE TO

BAN MUSLIMS.

3

The President’s latest plan to ban refugees is a realization of his repeated pledge to use

4

the Office of the President and Executive Branch federal agencies to both discriminate against

5

people who choose to practice Islam and to favor those who choose to adhere to Christianity—

6

a discriminatory intent he has reaffirmed both before and after taking office. The ban arises in

7

the context of the President’s broader attacks on Islam as a “problem” and his affirmative

8

dissemination of false propaganda to vilify people of the Muslim faith (including Muslim

9

migrants in particular).

10

11

A. The President Pledged To Favor Christians And Made Affirmative Efforts To Vilify Muslims.

12

As Plaintiffs note in their complaint and motion for preliminary injunction, within a

13 week of taking office, the President issued EO-1, the first predecessor to Refugee Ban 3.0; that

14 same day, he also appeared on television to make clear that the order was adopted for the

15 purpose of prioritizing Christians.5 Expressly drawing a comparison between Muslim and

16 Christian refugees, he explained that he viewed Christians as a “priority” and he was “going to

17 help” them.6 Days later, he again singled out his intent to help “Christians in the Middle-East.”7

18 On the day the President issued Refugee Ban 3.0—which, as set out below, effectively converts

19 the temporary ban on refugees into an indefinite one that disproportionately affects Muslim

20 refugees—his Vice President made similar remarks. In a speech to “In Defense of Christians”

21

22

23

24
5 (Cmpl. ¶¶ 3, 67; Pl. Motion at 4-5.)
25 6 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As

Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-

26 exclusive-president-trump-says-persecuted-christians-will-be-given-priority-as-refugees (last visited Dec. 4,
2017).
27 7 Donald J. Trump, Twitter (Jan. 29, 2017), https://twitter.com/realDonaldTrump/status/825721153142521858
(last visited Dec. 4, 2017).

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 3
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1 and in reference specifically to Christian refugees in the Middle East, the Vice President stated: 2 “Help is on the way.”8

3

Refugee Ban 3.0 must be understood in the context of the President’s longstanding

4 vilification of Muslims. The President has for years referred to Muslims in the United States as

5 a “problem.” As early as April 2011, Mr. Trump expressed his view that there “absolutely” was 6 “a Muslim problem” in the United States.9 He claimed that the Koran itself was the source of 7 the problem, claiming that it “teaches some very negative vibe” and “tremendous hatred.”10 He

8 has repeatedly echoed this view that there is a “massive Muslim problem” in the U.S. and 9 abroad.11 At an event in 2015, for instance, the President agreed with an audience member’s 10 comment that “We have a problem in this country. It’s called Muslims.”12 And several times

11 throughout 2015 and 2016, he declined to accept that a distinction could be drawn between

12 radical Islam and Islam itself. Asked to clarify: “Is it really a Muslim problem, or is it a radical 13 Islamist problem?” He responded: “Maybe it’s a Muslim problem, maybe it’s not”13 and 14 claimed “[i]t’s very hard to define.”14 Mr. Trump has repeatedly expressed the view that “Islam 15 hates us” and that Muslims have “tremendous hatred” and “unbelievable hatred.”15 Given the

16 opportunity to clarify whether his statement that “Islam hates us” referred to all 1.6 billion

17 8 The White House, Remarks by the Vice President at In Defense of Christians Solidarity Dinner (Oct. 25, 2017),

18

https://www.whitehouse.gov/the-press-office/2017/10/25/remarks-vice-president-defense-christians-solidaritydinner (last visited Dec. 4, 2017). While the order did not appear in the Federal Register until later, it had been

19

announced by the time of Pence’s remarks. 9 David Brody, Brody File Exclusive: Donald Trump Says Something in Koran Teaches a ‘Very Negative Vibe,’

20

CBN News (Apr. 12, 2011), http://www1.cbn.com/thebrodyfile/archive/2011/04/12/brody-file-exclusive-donaldtrump-says-something-in-koran-teaches (last visited Dec. 4, 2017).

10 Id.

21 11 Donald J. Trump, Twitter (Dec. 10, 2015), https://twitter.com/realDonaldTrump/

status/674934005725331456 (last visited Dec. 4, 2017); Donald J. Trump, Twitter (Dec. 10, 2015),
22 https://twitter.com/realDonaldTrump/status/674936832010887168 (last visited Dec. 4, 2017); Donald J. Trump,

Twitter (Dec. 10, 2015), https://twitter.com/realDonaldTrump/status/675123192864899072 (last visited Dec. 4,
23 2017).
12 Jonathan Merritt, Trump’s Proposals Could Backfire on Christians, The Atlantic (Nov. 24, 2015),

24 https://www.theatlantic.com/politics/archive/2015/11/donald-trump-muslims-christians/417255/ (last visited Dec.

4, 2017); Theodore Schleifer, Trump doesn’t challenge anti-Muslim questioner at event, CNN (Sept. 18, 2015),

25 http://www.cnn.com/2015/09/17/politics/donald-trump-obama-muslim-new-hampshire/ (last visited Dec. 4, 2017).
13 CNN Interview of Donald Trump, YouTube (Feb. 4, 2016), https://www.youtube.com/watch?v=uW9UlMqJtro

26 (minutes 18:42 to 18:46) (last visited Dec. 4, 2017).
14 Id.
27 15 Theodore Schleifer, Donald Trump: ‘I think Islam hates us’, CNN (Mar. 10, 2016),
http://www.cnn.com/2016/03/09/politics/donald-trump-islam-hates-us/ (last visited Dec. 4, 2017).

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 4
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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 10 of 24

1 Muslims in the world during one of the presidential debates, he responded: “I mean a lot of

2 them. I mean a lot of them. . . . [T]here’s tremendous hatred. And I will stick with exactly what 3 I said.”16

4

The President’s attack on Muslims has also included the affirmative dissemination of

5 group slander. Most recently, on November 29, 2017, the President promoted three unverified

6 videos published by a British anti-Muslim group depicting violent acts by purportedly Muslim

7 people—at least one of whom it turns out, is not Muslim—with titles intended to provoke

8 anti-Muslim bias. The videos were entitled “Muslim migrant beats up Dutch boy on 9 crutches!,”17 “Muslim Destroys a Statue of Virgin Mary!,”18 and “Islamist mob pushes teenage 10 boy off roof and beats him to death!”19

11

The President’s dissemination of these videos in manifest disregard of their effect or

12 their veracity is but the latest in an unbroken string of anti-Muslim statements and acts while in

13 office. On August 17, 2017, the President promoted his false story that terrorism could be

14 eradicated if suspected terrorists were subject to mass execution with bullets dripped in pigs’

15 blood. Given that this substance viewed as highly offensive by practicing Muslims, the

16 President was implying that “terrorist” is synonymous with “Muslim”: “Study what General

17 Pershing of the United States did to terrorists when caught. There was no more Radical Islamic 18 Terror for 35 years!”20 The statement referred to the following false story, which he recounted

19 on numerous occasions while campaigning:

20

So General Pershing, . . . they catch 50 terrorists in the Philippines . . . And as

you know, swine, pig, . . . a big problem for them, big problem. He took two

21

pigs, they chopped them open. Took the bullets that were going to go and shoot

these men. Took the bullets, the 50 bullets, dropped them in the pigs, swished

22

23 16 Transcript of Republican Debate in Miami, CNN (Mar. 15, 2016),

http://www.cnn.com/2016/03/10/politics/republican-debate-transcript-full-text/ (last visited Dec. 4, 2017).
24 17 Jayda Fransen, Twitter (Nov. 28, 2017), https://twitter.com/JaydaBF/status/935609305574903812 (last visited

Dec. 4, 2017).
25 18 Jayda Fransen, Twitter (Nov. 29, 2017), https://twitter.com/JaydaBF/status/935805606447013888 (last visited

Dec. 4, 2017).
26 19 Jayda Fransen, Twitter (Nov. 29, 2017), https://twitter.com/JaydaBF/status/935775552102981633 (last visited
Dec. 4, 2017).
27 20 Donald J. Trump, Twitter (Aug. 17, 2017), https://twitter.com/realDonaldTrump/
status/898254409511129088 (last visited Dec. 4, 2017).

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 5
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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 11 of 24

them around, so there was blood all over those bullets . . . They put the bullets

1

into the rifles. And they shot 49 men . . . I’m just saying, if we’re going to win,

we’re going to win or let’s not play the game and let’s not be a country any

2

more. They put the bullets in the rifles and they shot 49 of the 50 men. Dead.

Boom. So it was a pig-infested bullet in each one. . . . For 28 years, there was no

3

terrorism. . . . We have to do what we have to do. We have to clean it out.21

4

The President has also spread the false story that thousands of Muslims cheered on

5 rooftops during the September 11, 2011 attacks, claiming: “I watched when the World Trade

6 Center came tumbling down. And I watched in Jersey City, New Jersey, where thousands and

7 thousands of people were cheering as that building was coming down. Thousands of people 8 were cheering.”22 In the face of numerous authorities and articles debunking his claim,23 the 9 President repeated the lie on several occasions.24

10

Significantly, the President’s affirmative efforts to vilify Muslims have often focused

11 specifically on Muslim refugees by equating them with terrorists. He has thus equated being a

12 Syrian refugee with being a terrorist: “[W]e cannot allow people to come into the country who

13 want to destroy us, we cannot do it. We can’t allow the Syrians. We can’t allow the migration 14 of the Syrians into the country.”25 Mr. Trump has also stoked fear of Islam on the basis that his

15

16

17

18 21 FULL Speech: Donald Trump rally in Dayton, OH 3-12-2016, YouTube (Mar. 12, 2016),

19

https://www.youtube.com/watch?v=-9KOAHf4GCw (minutes 43:30 to 43:48) (last visited Dec. 4, 2017); see also Lydia Wheeler, Trump resurrects story of Muslims shot with pig’s blood-dipped bullets, The Hill (Mar. 12, 2016),

20

http://thehill.com/blogs/blog-briefing-room/news-campaigns/272780-trump-resurrects-story-of-muslims-shotwith-pigs (last visited Dec. 4, 2017); David Mikkelson, Pershing the Thought, Snopes (Apr. 28, 2016),

http://www.snopes.com/rumors/pershing.asp (debunking Mr. Trump’s story about General Pershing) (last visited
21 Dec. 4, 2017).
22 Glenn Kessler, Trump’s outrageous claim that ‘thousands’ of New Jersey Muslims celebrated the 9/11 attacks,
22 Wash. Post (Nov. 22, 2015), https://www.washingtonpost.com/news/fact-checker/wp/2015/11/22/donald-trumps-

outrageous-claim-that-thousands-of-new-jersey-muslims-celebrated-the-911-attacks/ (last visited Dec. 4, 2017).
23 23 See, e.g., Lauren Carroll, Fact Checking Trump’s claim that thousands in New Jersey cheered when World

Trade Center tumbled, Politifact (Nov. 22, 2015), http://www.politifact.com/truth-o-

24 meter/statements/2015/nov/22/donaldtrump/fact-checking-trumps-claim-thousands-new-jersey-ch/ (last visited

Dec. 4, 2017).
25 24 Kessler, supra, note 22; AP Archive, Trump Defends 9/11 Celebrations with Article (Nov. 24, 2015),

http://www.aparchive.com/metadata/US-OH-Trump-CR-/cadcfee1334d2a1fea065ba383ef6f8e (last visited Dec. 4,

26 2017); Donald J. Trump, Twitter (Nov. 25, 2015),
https://twitter.com/realDonaldTrump/status/669682774673137665 (last visited Dec. 4, 2017).
27 25 FULL Speech: Donald Trump rally in Dayton, OH 3-12-2016, YouTube (Mar. 12, 2016),
https://www.youtube.com/watch?v=-9KOAHf4GCw (minutes 42:45 to 46:45) (last visited Dec. 4, 2017).

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 6
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1 election opponent would “let the Muslims flow in”26 and stoked fear that “[r]efugees are trying 2 to take over our children” by telling them “how wonderful Islam is.”27

3

B. The President Has Expressly Stated His Intent To Curtail The Rights Of

Muslims, Including By Restricting Their Entry To The United States.

4

The President has also made clear his express intent to curtail the rights of Muslims in

5 various ways—including most notably to restrict their entry into the United States and to do so

6 in part by banning refugees.

7 Indeed, the signature promise of his campaign has always been that he would restrict

8 the entry of Muslims into the United States. He has further prioritized a ban on prohibiting the

9 entry of Muslim refugees. From the early days of his Presidential campaign, Mr. Trump

10 promised that, if elected, he would “be looking at” getting “rid of” Muslims.28 On December 7,

11 2015, Mr. Trump announced on his website: “Donald J. Trump is calling for a total and

12 complete shutdown of Muslims entering the United States.”29 The same day that Mr. Trump

13 issued this announcement, he also disseminated it to his millions of Twitter followers with the

14 title “Statement on Preventing Muslim Immigration”30 and, further equating Muslims with

15 hatred and terror, he tweeted, “Just put out a very important policy statement on the

16 extraordinary influx of hatred & danger coming into our country.”31 At a rally the same day,

17 Mr. Trump claimed numerous times that “[w]e have no choice” but to implement “a total and

18 complete shutdown of Muslims.”32 Asked how border officials would ideally implement his

19

26 Donald J. Trump, Twitter (Mar. 22, 2016), https://twitter.com/realDonaldTrump/
20 status/712473816614772736 (last visited Dec. 4, 2017).
27 Donald Trump Remarks in Manchester, New Hampshire, C-SPAN (Jun. 13, 2016), https://www.c-
21 span.org/video/?410976-1/donald-trump-delivers-remarks-national-security-threats (minutes 20:05 to 20:30) (last

visited Dec. 4, 2017).
22 28 See Schleifer, supra note 12.
29 Press Release, Trump-Pence, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015),
23 https://web.archive.org/web/20170508054010/

https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration

24 (Internet Archive record on May 8, 2017) (last visited Dec. 4, 2017).
30 Donald J. Trump, Twitter (Dec. 7, 2015), https://twitter.com/realDonaldTrump/

25 status/673993417429524480 (last visited Dec. 4, 2017).
31 Donald J. Trump, Twitter (Dec. 7, 2015), https://twitter.com/realdonaldtrump/status/673982228163072000 (last

26 visited Dec. 4, 2017).
32 Donald J. Trump is Calling for a Total and Complete Shutdown of Muslims Entering the United States Until

27 Our Country’s Representatives Can Figure Out What the Hell is Going On!, YouTube (Dec. 8, 2015),
https://www.youtube.com/watch?v=LRxozK6Bpvk (minutes 0:00 to 0:36) (last visited Dec. 4, 2017).

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 7
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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 13 of 24

1 plan, Mr. Trump explained: “They would say, ‘are you Muslim?’” and that “if they said yes, 2 they would not be allowed in the country.”33 His complete equation of terrorism with a faith of

3 1.6 billion people, including approximately 3.3 million American citizens, is clear.

4

The President has also advocated for a registry of all Muslims in America in the teeth of

5 direct comparisons to the Nazis’ registration of Jewish people. On November 20, 2015, for

6 instance, Mr. Trump stated that he would “certainly implement” a database tracking Muslims in 7 the United States.34 Asked whether he would favor making Muslims legally obligated to 8 register into the database, Mr. Trump responded, “They have to be—they have to be.”35 Again,

9 given the opportunity to clarify whether he was “ruling out a database on all Muslims?”, Mr. 10 Trump doubled down, stating “No not at all.” 36 And, perhaps most appallingly, when asked

11 how registering Muslims would be different from the Nazis’ registration of Jewish people, he 12 expressed indifference, saying four times: “You tell me.”37

13

The President even went so far as to expressly justify his intent to restrict the flow of

14 Muslims by reference to executive orders targeting Japanese Americans during World War II,

15 saying: “Take a look at Presidential proclamations back a long time ago . . . what [President 16 Roosevelt] was doing with Germans, Italians, and Japanese because he had to do it.”38 When

17 asked whether he was given “any pause at all” by being compared to Hitler, Mr. Trump 18 responded “No,”39 and justified banning Muslims based on President Roosevelt’s treatment of

19

20 33 Donald Trump On Muslim Travel Ban, Obama And 2016, YouTube (Dec. 8, 2015),

https://www.youtube.com/watch?v=5I3E3-U-1jc (minutes 14:58 to 15:14) (last visited Dec. 4, 2017); Hardball
21 with Chris Matthews Transcript 12/8/15, MSNBC (Dec. 8, 2015),

http://www.msnbc.com/transcripts/hardball/2015-12-08 (last visited Dec. 4, 2017).
22 34 Vaughn Hillyard, Donald Trump’s Plan for a Muslim Database Draws Comparison to Nazi Germany, NBC

News (Nov. 20, 2015), http://www.nbcnews.com/politics/2016-election/trump-says-he-would-certainly-
23 implement-muslim-database-n466716 (last visited Dec. 4, 2017).
35 Id.
24 36 See Lauren Carroll, In Context: Donald Trump’s comments on a database of American Muslims, Politifact (Nov.

24, 2015), http://www.politifact.com/truth-o-meter/article/2015/nov/24/donald-trumps-comments-database-

25 american-muslims/ (last visited Dec. 4, 2017).
37 See Hillyard, supra note 34.
26 38 Donald Trump On Muslim Travel Ban, Obama And 2016, YouTube (Dec. 8, 2015),
https://www.youtube.com/watch?v=5I3E3-U-1jc (minutes 00:46 to 01:03) (last visited Dec. 4, 2017).
27 39 Miriam Hernandez, Trump Cites History to Defend Muslim Immigration Ban, ABC 7 (Dec. 9, 2015),
http://abc7.com/politics/trump-cites-history-to-defend-muslim-immigration-ban/1116396/ (Dec. 4, 2017).

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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 14 of 24

1 Japanese Americans.40 Two days later, Mr. Trump defended his position by tweeting a link to

2 an article stating that Islam is a “very evil and wicked religion,” a “false religion,” advocating

3 that Muslims should be banned, and making further analogy to the treatment of Japanese during 4 World War II.41

5

As part of advocating a ban on entry of nationals from predominately Muslim countries,

6 the President consistently embraced a ban on refugees, and Syrian refugees in particular,

7 describing the latter as “one of the great Trojan horses” and saying that “[w]e cannot let them 8 into this country, period.”42 On numerous occasions, he urged that refugees should be banned

9 because “[t]hey may be from Syria, they may be ISIS” and stoked fear that “[t]his is a

10 migration, they have no anything, but they have cellphones — with ISIS flags on them and 11 worse.”43 He claimed that the United States had accepted “tens of thousands of Syrian refugees 12 . . . who are definitely in many cases ISIS aligned.”44

13

C. The President Has Reaffirmed His Discriminatory Intent On Numerous

Occasions Since Taking Office.

14

Mr. Trump has never backed down from his hateful statements and pledges since

15

assuming the Office of the President; in fact, he has repeatedly reaffirmed them. As discussed

16

above, as President, Mr. Trump has expressly stated that he would implement policy to favor

17

Christian refugees; affirmatively shared propaganda videos depicting purported violence by

18

Muslims without regard to their authenticity or their defamatory consequences for innocent

19

Muslims; and promoted propaganda such as his false story of a mass execution of terrorists

20

21 40 Id.
41 Donald J. Trump, Twitter (Dec. 10, 2015), https://twitter.com/realDonaldTrump/
22 status/675034063447662592 (last visited Dec. 4, 2017); see also Sarah Larimer, Why Franklin Graham says

Donald Trump is right about stopping Muslim immigration, Wash. Post (Dec. 10, 2015),
23 https://www.washingtonpost.com/news/acts-of-faith/wp/2015/12/10/why-franklin-graham-says-donald-trump-is-

right-about-stopping-muslim-immigration/ (last visited Dec. 4, 2017).
24 42 Tal Kopan, Donald Trump: Syrian refugees a ‘Trojan horse’, CNN (Nov. 16, 2015),

http://www.cnn.com/2015/11/16/politics/donald-trump-syrian-refugees/index.html (last visited Dec. 4, 2017).
25 43 Ben Kamisar, Trump to Syrian refugee children: ‘You can't come here’, The Hill (Feb. 8, 2016),

http://thehill.com/blogs/ballot-box/gop-primaries/268614-trump-to-syrian-refugee-children-you-cant-come-here

26 (last visited Dec. 4, 2017).
44 Trump: Taking in Syrian Refugees ‘Great Trojan Horse’, MSNBC (Oct. 19, 2016)

27 http://www.msnbc.com/msnbc-quick-cuts/watch/trump-taking-in-syrian-refugees-great-trojan-horse-
789644867592 (last visited Dec. 4, 2017).

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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 15 of 24

1 using weapons dipped in pigs’ blood. Continuing his discriminatory rhetoric specific to Muslim

2 migrants, the President has also repeated his oft-expressed view that “[t]he assimilation [of 3 Muslims in the U.S.] has been very, very hard. It’s been a very, very difficult process.”45

4

Senior members of the Trump Administration have expressly acknowledged that his

5 executive orders, including the present one, are motivated by negative stereotypes caricaturing

6 all Muslims as terrorists. Following the issuance of Refugee Ban 3.0, the President’s Deputy

7 Press Secretary was recently, squarely asked: “Does the President think that Muslims are a

8 threat to the United States?” Acknowledging the basis for the Refugee Ban in religious

9 stereotype, he responded, “[T]he President has addressed these issues with the travel order 10 that he issued earlier this year and the companion proclamation.”46

11

The President himself has made this discriminatory intent just as clear. After courts

12 enjoined EO-1, which included provisions limiting refugee admission and banning refugees

13 from certain countries, the President expressly complained that the refugees being admitted to

14 the United States as a result included a large percentage of Muslims, tweeting: “72% of

15 refugees admitted into U.S. (2/3-2/11) during COURT BREAKDOWN are from 7 countries: 16 SYRIA, IRAQ, SOMALIA, IRAN, SUDAN, LIBYA & YEMEN.”47 Following his issuance of

17 EO-2—and in the direct lead up to the present order—the President repeatedly derided his own 18 Department of Justice for taking an approach that was too “politically correct.”48 The only

19 plausible interpretation of that criticism is that the President understands his executive orders as

20 “politically incorrect,” i.e., based on an anti-Muslim presumption. He has also stated his view

21

22

45 Chris Cillizza, Donald Trump’s explanation of his wire-tapping tweets will shock and amaze you, Wash. Post
23 (Mar. 16, 2017), https://www.washingtonpost.com/

news/the-fix/wp/2017/03/16/donald-trump-explained-twitter-the-universe-and-everything-to-tucker-carlson/ (last

24 visited Dec. 4, 2017).
46 The White House, Press Gaggle by Principal Deputy Press Secretary Raj Shah en route St. Louis, MO

25 (November 29, 2017) (emphasis added), https://www.whitehouse.gov/the-press-office/2017/11/29/press-gaggle-

principal-deputy-press-secretary-raj-shah-en-route-st-louis (last visited Dec. 4, 2017).
26 47 Donald J. Trump, Twitter (Feb. 12, 2017), https://twitter.com/realDonaldTrump/status/830747067379232769
(last visited Dec. 4, 2017).
27 48 Donald J. Trump, Twitter (June 5, 2017), https://twitter.com/realDonaldTrump/
status/871899511525961728 (last visited Dec. 4, 2017).

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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 16 of 24

1 that “The travel ban into the United States should be far larger, tougher and more specific.”49

2 This is precisely what he has done with Refugee Ban 3.0, which makes the ban on refugees

3 indefinite and has an especially drastic impact on Muslim refugees.

4 II. 5 6

THE PREDECESSOR ORDERS THAT PRECEDED AND GAVE RISE TO REFUGEE BAN 3.0 WERE MOTIVATED ON THEIR FACE BY ANTIMUSLIM ANIMUS.
Refugee Ban 3.0 is a continuation and expansion of the temporary refugee suspensions

7 in EO-1 and EO-2. Both of those predecessors contained on their face evidence of anti-Muslim

8 animus. EO-1 prioritized the processing of refugee applications from religious minorities, a

9 provision that, by the President’s own admission, was designed to benefit Christian refugees

10 from Muslim-majority countries. And both EO-1 and EO-2 made explicit reference to “honor

11 killings,” an attempt to communicate anti-Muslim animus that is wholly unrelated to national

12 security. Refugee Ban 3.0 flows directly from these openly discriminatory orders, and is

13 motivated by the same anti-Muslim animus that animated its predecessors.

14

A. The Refugee Ban Provision Of EO-1 Included A Priority Designed To

Benefit Christian Refugees In Muslim-Majority Nations At The Expense Of

15

Muslim Refugees.

16

EO-1 explicitly required that refugee admissions be “prioritize[d]” if the refugee made a

17 claim “on the basis of religious-based persecution.”50 However, this priority was only available

18 if “the religion of the individual is a minority religion in the individual’s country of 19 nationality.”51 As the President explained in public statements made the day he signed EO-1,

20 this provision was designed to favor Christians, and to allow Christians from Muslim-majority 21 countries the ability to continue coming to the United States as refugees.52 Further, EO-2

22 eliminated the explicit reference to religious minorities but continued to operate as a ban on

23

24

25
49 Donald J. Trump, Twitter (Sept. 15, 2017), https://twitter.com/realDonaldTrump/

26 status/908645126146265090 (last visited Dec. 4, 2017).
50 82 F.R. 8977 § 5(b) (Jan. 27, 2017).

27

51 Id. 52 See Part I.A., supra

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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 17 of 24

1 Muslims, changing the religious composition of refugees entering the United States—from 2 50% Muslim and 41% Christian to 57% Christian and 31% Muslim.53

3

B. Both EO-1 And EO-2 Refer To “Honor Killings”—A Term Used

Commonly And Almost Exclusively To Denigrate Muslims.

4

In addition to the specific exception designed to disfavor Muslim refugees, the texts of

5

both EO-1 and EO-2 contain on their face language that reveals an invidious anti-Muslim intent

6

and is otherwise inexplicable. Both invoke, as justification, the practice of “honor killings”—

7

the homicide of a family member, typically female, due to the perpetrator’s belief that the

8

victim has shamed the family, usually by violating a religious tenet. Yet the idea of an “honor

9

killing” is wholly unrelated to the problem of international terrorism. Instead, it is deployed in

10

current political discourse as a coded message to invoke and reinforce animus against Muslims

11

by painting them as violent and uncivilized. Expressions of concern about “honor killings” are

12

hence not neutral references to all gender-based violence: they are a means of affirming and

13

propagating anti-Muslim stereotypes upon which the President and his surrogates have relied to

14

justify banning the entry of Muslims in the United States.

15

In EO-1, the term “honor killings” appears in the very first section as part of the

16

motivation for the order to prohibit “those who engage in acts of bigotry or hatred . . . including

17

‘honor’ killings” from entering the United States. EO-1 § 1. EO-1 further required that the

18

Secretary of Homeland Security collect data on “‘honor killings’ in the United States by foreign

19

nationals.” Id. § 10(iii). EO-2 reiterated this command. EO-2 § 11(a)(iii) (requiring that the

20

Secretary of Homeland Security “collect and make publicly available . . . information regarding

21

the number and types of acts of gender-based violence against women, including so- called

22

‘honor killings,’ in the United States by foreign nationals”) (emphasis added).

23

These references are inexplicable given the putative purpose of the two orders. There is

24

no known association between the incidence of “honor killings” and the likelihood that a

25

26

27 53 (Cmpl. ¶ 89.)

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1 government of one of the covered nations will supply information requested by U.S.

2 immigration authorities.

3

There is no correlation between Islam and intrafamilial violence against women.54

4 While regional rates vary, the incidence of intrafamilial violence exceeds 19 percent 5 everywhere in the world except East Asia.55 To the extent the term “honor killings” isolate a

6 specific subcategory of domestic violence, “[h]onor crimes are committed worldwide and . . . 7 cu[t] across cultures and religions.”56 Nor do Muslims condone such violence more often than 8 non-Muslims.57 To the contrary, Muslim religious leaders have repeatedly and forcefully 9 condemned violence against women.58

10

Despite all this, the term “honor killing” is used in current political discourse almost

11 exclusively to refer to Muslims, and thereby to promote that Muslims are distinctively violent

12 and uncivilized. There is a “constant association” of honor killings stories with “the Middle

13 East and South Asia, or immigrant communities originating in these regions, [which] has given 14 them a special association with Islam.”59

15

Individuals and groups with anti-Muslim biases commonly invoke so-called “honor

16 crimes” as a phenomenon that supposedly “divides civilized societies from uncivilized

17 54 K.M. Devries et al., The Global Prevalence of Intimate Partner Violence Against Women, 340 Science 1527,

18

1527 (2013) (estimating that 30 percent of women “aged 15 and over have experienced, during their lifetime, physical and/or sexual intimate partner violence”).

19

55 Id. at 1528. 56 Brittany E. Hayes et al., An Exploratory Study of Honor Crimes in the United States, 31 J. Fam. Violence 303,

20

304 (2016); Aisha Gill, Honor Killings and the Quest for Justice in Black and Minority Ethnic Communities in the United Kingdom, 20 Crim. Just. Pol’y Rev. 475, 480 (2009) (“Honor killings cut across ethnic, class, and religious

lines [and are committed] not only by Muslims but also by Druze, Christians, and occasionally Jews.”).
21 57 The Gallup Coexist Index 2009: A Global Study of Interfaith Relations 34 (2009), https://ec.europa.eu/migrant-

integration/librarydoc/the-gallup-coexist-index-2009-a-global-study-of-interfaith-relations (last visited Dec. 4,
22 2017).
58 See, e.g., Paola Loriggio, Shafia Murders: Imams Issue Fatwa Against Honour Killings, Domestic Violence,
23 Huffington Post (Feb. 4, 2012), http://www.huffingtonpost.ca/2012/02/04/honour-killi%20ng-imams-fatwa-

against_n_1254697.html (last visited Dec. 4, 2017) (Rather than condoning gender- based violence, “Islam and

24 Islamic law . . . [over time] are coming to be invoked more and more against honor crimes.”); Lila Abu-Lughod,

DO MUSLIM WOMEN NEED SAVING? 139 (2013); Gill, supra, at 480 (“[B]oth Sharia law (Islamic law) and

25 customary law alike have strict guidelines forbidding [honor killings].”).
59 Abu-Lughod, supra fn. 58, at 114; accord Sherene Razack, CASTING OUT: THE EVICTION OF MUSLIMS FROM

26 WESTERN LAW AND POLITICS 128 (2008) (explaining how the same crime is labeled a crime of “passion” or of
“honor” depending on the religious identity of the perpetrator in a way that “reifies Muslims as stuck in

27 premodernity”); Inderpal Grewal, Outsourcing Patriarchy: Feminist Encounters, Transnational Mediations and
the Crime of ‘Honour Killings,’ 15 Int’l Feminist J. Pol. 1, 5 (2013).

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1 societies,”60 notwithstanding the pervasive occurrence of intrafamilial violence against women 2 across cultures.61 Anti-Muslim organizations and websites commonly depict Muslims as

3 “inherently violent” and prone to “rape, sexual abuse against children, violent acts caused by a

4 culture of honour, violence within arranged marriages, threats against public individuals and 5 physical violence against non-Muslims.”62

6

Coded stereotypes like these have frequently been used against disfavored minorities in

7 U.S. politics. For example, Jim Crow was defended by “coded” appeals to white supremacy 8 framed in terms of “African-Americans’ illegitimate sexual relations and proclivity to crime.”63 9 Coded invocations of racial fears are still employed in political debate.64 The use of “subtle”

10 allusions to negative stereotypes has been shown to reap political rewards because dog whistles 11 “activate racial attitudes” while maintaining a measure of deniability.65 That is precisely the

12 function the reference to “honor killings” in EO-1 and EO-2 plays.

13

In sum, neither EO-1’s nor EO-2’s reference to “honor killings” can be written off as

14 neutral nor superfluous. Instead, they are invocations of common negative stereotypes used to

15 malign Muslims as violent and uncivilized—precisely the same negative, hateful, and false

16 stereotypes that President Trump has conjured before and after inauguration. Such references

17 undermine the purported justifications for those orders, and Refugee Ban 3.0 that followed and

18 rendered these measures into permanent law, and show all to reflect impermissible animus

19 against Muslims.

20

21

22

60 Id. at 115.
23 61 Devries, supra, at 1528
62 Mattias Ekman, Online Islamophobia and the Politics of Fear: Manufacturing the Green Scare, 38 Ethnic &

24 Racial Stud. 1986, 1995 (2015) (emphasis added).
63 Tali Mendelberg, THE RACE CARD: CAMPAIGN STRATEGY, IMPLICIT MESSAGING, AND THE NORM OF EQUALITY

25 94-95 (2001).
64 Jon Hurwitz & Mark Peffley, Playing the Race Card in the Post–Willie Horton Era: The Impact of Racialized

26 Code Words on Support for Punitive Crime Policy, 69 Pub. Opinion Q. 99 (2005) (demonstrating the racially
loaded effect of crime-related language).
27 65 Nicholas A. Valentino et al. Cues That Matter: How Political Ads Prime Racial Attitudes During Campaigns,
96 Am. Pol. Sci. Rev. 75, 75–76 (2002).

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III. REFUGEE BAN 3.0 IS A DIRECT CONTINUATION OF EO-1 AND EO-2 AND

1

IS MOTIVATED BY THE SAME ANTI-MUSLIM ANIMUS.

2

Refugee Ban 3.0, like its precursors, discriminates against Muslim refugees. Refugee

3 Ban 3.0 was enacted the day after the refugee ban provision of EO-2 expired and is clearly 4 intended to continue the policies that EO-1 and EO-2 originally put in place.66 It consists of two

5 main provisions: first, a provision that suspends refugee admissions from eleven countries, the

6 overwhelming majority of which are Muslim; and second, a provision that suspends the

7 “follow-to-join” process permitting a spouse or child to be reunited with a refugee already

8 admitted to the United States, which in operation today tends largely to be used by Muslim

9 refugees. Each of these steps furthers the stated anti-Muslim policies of the Trump

10 administration and reflects the discriminatory animus evidenced in EO-1 and EO-2.

11

Refugee Ban 3.0 suspends refugee admissions from eleven countries that comprise the

12 majority of the Muslim refugees entering the United States. As the Complaint alleges, the

13 eleven countries affected by the suspension include nine countries with a population that is over

14 85% Muslim (Egypt, Iran, Iraq, Libya, Mali, Somalia, Sudan, Syria, and Yemen), and two 15 other countries (North Korea and South Sudan).67 In the last two fiscal years, the nine Muslim16 majority countries accounted for 80% of the Muslim immigrants to the United States,68 and 17 over 80% of the refugees resettled from those countries have been Muslim.69 By contrast, the

18 refugees admitted from countries not targeted by Refugee Ban 3.0 are 70% Christian and only 19 16% Muslim.70 The suspension thus operates to shift the composition of refugees admitted to

20 the United States from mostly Muslim to mostly Christian, nearly as efficiently as possible, by

21 using countries as a proxy for religion.

22

23

24 66 (Cmpl. ¶ 94); section I(C) supra.
67 (Cmpl. ¶ 103-104.) Many of these countries have been repeatedly targeted by the previous Executive Orders; for

25 example, six of these Muslim-majority countries were included in the travel bans of both EO-1 and EO-2 (Syria,

Sudan, Iran, Libya, Somalia, and Yemen). (Cmpl. ¶ 79); EO-2 § 2(c).
26 68 (Cmpl. ¶ 106)
69 (Cmpl. ¶ 105)
27 70 (Cmpl. ¶ 111); (Declaration of Casey Smith in Support of Plaintiff’s Motion for Preliminary Injunction (“Smith
Decl.”), Dkt. No. 44, ¶ 19).

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1

Refugee Ban 3.0 also indefinitely suspends the “follow-to-join” process, whereby the

2 spouse or child of a refugee accepted into the United States is permitted to join them. Memo at

3 3. Although this suspension applies worldwide, it has a disproportionate effect on Muslim

4 refugees: Follow-to-join is generally available only to family members of refugees admitted 5 within the last two years.71 Over the last two fiscal years, most refugees admitted to the United 6 States have been Muslim.72 Even prior to the recent increase in the number of Muslim refugees

7 admitted to the United States, Iraq and Somalia—two predominantly Muslim countries targeted

8 by the refugee and travel bans—were the nationalities most represented in the follow-to-join

9 process. Memo Addendum at 1.

10

Understood in context, therefore, Refugee Ban 3.0 is plainly the President’s

11 implementation of a longstanding pledge to prevent the entry of Muslims to the U.S.—

12 including specifically by restricting the flow of Muslim refugees—on the basis of an invidious

13 and false belief that equates Islam and violence. It plainly embodies the same anti-Muslim

14 animus that was expressly indicated in the predecessor orders that gave rise to Refugee Ban 3.0

15 in the first place. This Court should not allow it to be implemented.

16

CONCLUSION

17

For the foregoing reasons, amici urge this Court to grant Plaintiffs’ motion for a

18 Preliminary Injunction.

19

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27

71 8 C.F.R. § 207.7(d). 72 (Smith Decl. ¶ 21.)

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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 22 of 24

1

DATED this 4th day of December, 2017.

2

Muslim Advocates

3

By: /s/ Sorome Shebaya

Johnathan J. Smith, pro hac vice

4

(application pending)

Sirine Shebaya, pro hac vice (application

5

pending)

Matthew W. Callahan, pro hac vice

6

(application pending)

P.O. Box 66408

7

Washington, DC 20035

Telephone: (202) 897-2622

8

Fax: (202) 508-1007

E-mail: johnathan@muslimadvocates.org

9

E-mail: sirine@muslimadvocates.org

E-mail: matthew@muslimadvocates.org

10

The Roderick & Solange MacArthur Justice

11

Center

12

By: /s/ Amir H. Ali

13

Amir H. Ali, pro hac vice (application

pending)

14

718 7th Street NW

Washington, DC 20001

15

Telephone: (205) 869-3434

Fax: (206) 689-3435

16

E-mail: amir.ali@macarthurjustice.org

17

Aziz Hug

Attorney For Muslim Advocates

18

By: /s/ Aziz Huq

19

Aziz Huq, pro hac vice (application

pending)

20

1111 E. 60th Street

Chicago, IL 60622

21

Telephone: (773) 702-9566

Fax: (773) 702-9566

22

E-mail: huq@uchicago.edu

23

24

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27

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1

Davis Wright Tremaine LLP

Attorneys for Muslim Advocates and The

2

Roderick & Solange MacArthur Justice Center

3

By: /s/ Joseph P. Hoag

4

Joseph P. Hoag, WSBA #41971

1201 Third Avenue, Suite 2200

5

Seattle, WA 98101-3045

Telephone: (206) 757-8080

6

Fax: (206) 757-7080

E-mail: josephhoag@dwt.com

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on December 4, 2017, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to those

4 attorneys of record registered on the CM/ECF system. All other parties (if any) shall be served in

5 accordance with the Federal Rules of Civil Procedure

6

Dated this 4th date of December, 2017.

7

/s/ Joseph P. Hoag

8

Joseph P. Hoag, WSBA #41971

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 Case 2:17-cv-00178-JLR Document 73 Filed 12/07/17 Page 1 of 6

1

THE HONORABLE JAMES L. ROBART

2

3

4

5

6

7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 JOHN DOES, et al.,

10

Plaintiffs,

11

v.

12 DONALD TRUMP, et al.,

13

Defendants.

14

CASE NO. C17-0178JLR
JEWISH FAMILY SERVICE PLAINTIFFS’ SUPPLEMENTAL BRIEFING ON THE INAPPLICABILITY OF SUPREME COURT STAY ORDERS TO THE PENDING PRELIMINARY INJUNCTION MOTIONS
(RELATING TO CASE NO. C17-1707JLR)

15 JEWISH FAMILY SERVICE, et al.,

16

Plaintiffs,

17

v.

18 DONALD TRUMP, et al.,

19

Defendants.

20

CASE NO. C17-1707JLR

21

22

23

24

25

26

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Case 2:17-cv-00178-JLR Document 73 Filed 12/07/17 Page 2 of 6

1

The Supreme Court’s December 4 orders (the “Stay Orders”) staying preliminary

2 injunctions of portions of Proclamation No. 9,645, 82 Fed. Reg. 45,161 (Sept. 27, 2017) (“EO-

3 3”) in Int’l Refugee Assistance Project v. Trump, No. TDC-17-0361, 2017 WL 4674314 (D. Md.

4 Oct. 17, 2017) (“IRAP”) and in Hawai’i v. Trump, No. 17-00050 DKW-KSL, 2017 WL 4639560

5 (D. Haw. Oct. 17, 2017) (“Hawai’i”), have no impact on the preliminary injunction motions in

6 these cases. The Supreme Court did not opine on the merits or the equities in issuing the Stay

7 Orders, making it impossible to discern the bases on which they were granted. See Trump v. Int’l

8 Refugee Assistance Project, No. 17A560, 2017 WL 5987435 (U.S. Dec. 4, 2017); Trump v.

9 Hawai’i, No. 17A550, 2017 WL 5987406 (U.S. Dec. 4, 2017). Such stays do not require the

10 stay applicants to show that they are “more likely than not” to ultimately prevail on the merits.

11 Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011).

12

In any event, the Stay Orders have no effect here because this case and IRAP/Hawai’i

13 challenge different immigration policies, raise different legal and factual claims, and seek

14 different relief on behalf of different sets of parties. IRAP/Hawai’i challenge EO-3, the ban on

15 certain immigrant and non-immigrant entry from six Muslim-majority countries plus North

16 Korea and Venezuela, which the President proclaimed to be necessary after the conclusion of a

17 90-day “worldwide review” of immigration screening and vetting measures. 82 Fed. Reg.

18 45,161. This case, by contrast, challenges the Refugee Ban set forth in an agency memorandum

19 (“Memorandum”), which continues to suspend portions of the U.S. Refugee Admissions

20 Program (“USRAP”), purportedly so that the agencies can continue a review of the program that

21 was directed by, but apparently not completed under, prior Executive Orders. See Exec. Order

22 No. 13,769 (“EO-1”), 82 Fed. Reg. 8,977, 8,979 (Feb. 1, 2017) (suspending the USRAP for 120

23 days during review); Exec. Order No. 13,780 (“EO-2”), 82 Fed. Reg. 13,209, 13,215 (Mar. 9,

24 2017) (same). Plaintiffs’ challenge differs from those raised in IRAP/Hawai’i with respect to

25 every factor of the preliminary injunction inquiry: likelihood of success on the merits, irreparable

26 harm, balance of equities, and public interest. See PI Mot. (ECF 42) at 9.

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1

First, on the merits, Plaintiffs’ statutory challenge to the Memorandum differs from

2 IRAP/Hawai’i, which challenge the President’s claimed authority to issue EO-3 under 8 U.S.C.

3 § 1182(f) and § 1185(a)(1). See IRAP, 2017 WL 4674314, at *19; Hawai’i, 2017 WL 4639560,

4 at *9. In contrast, here, the President has not invoked either statute. The statutory question in

5 this case is whether the agencies, not the President, have the authority to suspend the USRAP for

6 follow-to-join petitioners and for nationals of eleven countries on the Security Advisory Opinion

7 (“SAO”) list without rulemaking procedures and without an adequate justification. As the JFS

8 Plaintiffs explained for the SAO ban and Doe Plaintiffs explained for the FTJ ban, the answer is

9 no. See PI Mot. at 17-23; Doe v. Trump, PI Mot. (ECF 45) at 9-14.

10

Moreover, although Plaintiffs’ constitutional challenges to the Memorandum are legally

11 similar to those in IRAP/Hawai’i, the evidence is different. In addition to the evidence of this

12 Administration’s anti-Muslim animus presented in IRAP/Hawai’i, Plaintiffs here have submitted

13 evidence establishing that the purpose and the effect of the Refugee Ban in particular is to

14 disfavor Muslim refugees and favor Christian refugees. See PI Mot. at 13-17. The Refugee Ban

15 suspends admissions from countries that account for 80 percent of the Muslim refugees entering

16 the United States and prioritizes applications from countries whose refugees have been 70

17 percent Christian—changing the religious composition of the USRAP in precisely the ways that

18 this Administration promised, both before and after taking office. See id. at 7-8, 13-17. This

19 type of religious preference violates every test under the Establishment Clause. See id.

20

Second, with respect to irreparable harm, beyond the injuries that Plaintiffs share with the

21 IRAP/Hawai’i plaintiffs, refugees—who, by definition, face serious harm amounting to

22 persecution—suffer additional irreparable injury from being stranded in perilous circumstances.

23 See Leiva-Perez, 640 F.3d at 969-70 (recognizing likelihood of physical danger to be irreparable

24 harm). Doe 1, for example, is an Iraqi former translator for the U.S. military who was on the

25 verge of resettling in the United States in early October 2017, but his life remains at risk every

26 day because of the Refugee Ban. Doe 1 Decl. (ECF 52) ¶¶ 3-16. Doe 4 faces such dire threats to

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Case 2:17-cv-00178-JLR Document 73 Filed 12/07/17 Page 4 of 6

1 her safety on a daily basis as a transgender woman in Egypt that the U.S. Embassy expedited

2 processing of her application prior to the Refugee Ban. Doe 4 Decl. (ECF 55) ¶¶ 3-7. Other

3 refugee Plaintiffs, their family members, and clients of the organizational Plaintiffs and their

4 family members are similarly at risk of physical harm because of the Refugee Ban. See, e.g.,

5 Doe 2 Decl. (ECF 53) ¶¶ 6, 10; Doe 5 Decl. (ECF 56) ¶¶ 4-6, 9; JFS-S Decl. (ECF 50) ¶¶ 21, 35;

6 JFS-SV Decl. (ECF 51) ¶¶ 24, 35, 42.

7

Finally, the balance of equities and the public interest also differentiate this case from

8 IRAP/Hawai’i. There, the government has argued that the stay was necessary to respond to

9 national security threats and to conduct foreign relations in accordance with the worldwide

10 review undertaken pursuant to the prior Executive Orders. App. to Stay, at 34-37, available at

11 https://tinyurl.com/yaa7xxrh. Here, after reviewing the USRAP under EO-1 and EO-2 since

12 January 2017, the Administration still has no justification for its SAO suspension beyond

13 generalized concerns and a desire to continue review of the USRAP. See Mem. at 2.

14 Refugees—particularly from the SAO countries—are already the most rigorously vetted group of

15 people entering the United States. See Nat’l Sec. Decl. (ECF 46) ¶¶ 8-11. The balance of

16 equities, as well as the public interest in the United States’ statutorily codified commitment to

17 refugee admissions, see Refugee Act of 1980, Pub. L. No. 96-212 § 101(b), 94 Stat. 102, weigh

18 strongly in favor of Plaintiffs’ request for preliminary relief—just as they did for EO-1 and

19 EO-2, which also suspended the USRAP pending review. See Washington v. Trump, 847 F.3d

20 1151, 1168-69 (9th Cir. 2017); Hawai’i v. Trump, 859 F.3d 741, 783-85 (9th Cir. 2017), vacated 21 by 874 F.3d 1112 (9th Cir. 2017).1

22

For all the reasons stated, the Supreme Court stay orders do not affect this Court’s

23 consideration of the pending preliminary injunction motions.

24

25 1 Notably, the Supreme Court did not stay the injunctions as to EO-2’s suspension of the USRAP, except for people
lacking bona fide relationships to U.S. entities or persons, Trump v. Int’l Refugee Assistance Project, 137 S. Ct.
26 2080, 2089 (U.S. June 26, 2017)—a limitation that should not apply in this case given the record of harm to
Plaintiffs, as explained in Plaintiffs’ motion, see PI Mot. at 23-24.

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Case 2:17-cv-00178-JLR Document 73 Filed 12/07/17 Page 5 of 6

1 Respectfully submitted,

2 /s/ Lauren Watts Staniar

3 David Burman, WSBA No. 10611 Lauren Watts Staniar, WSBA No. 48741

4 Tyler Roberts, WSBA No. 52688

Perkins Coie LLP 5 1201 Third Avenue, Suite 4900

6

Seattle, WA 98101-3099 Telephone: 206.359.8000

7 Facsimile: 206.359.9000 dburman@perkinscoie.com

8 lstaniar@perkinscoie.com

troberts@perkinscoie.com 9

10 Mariko Hirose, Pro Hac Vice Deepa Alagesan, Pro Hac Vice
11 Linda Evarts, Pro Hac Vice Kathryn C. Meyer, Pro Hac Vice
12 International Refugee Assistance Project
40 Rector Street, 9th Floor 13 New York, NY 10006
14 Tel: (646) 459-3044 mhirose@refugeerights.org
15 dalagesan@refugeerights.org levarts@refugeerights.org
16 kmeyer@refugeerights.org

17 Elizabeth Sweet, Pro Hac Vice

18 Mark Hetfield, Pro Hac Vice HIAS, Inc.

19 1300 Spring Street, Suite 500

Silver Spring, MD 20910 20 Tel: 301-844-7300

21

liz.sweet@hias.org mark.hetfield@hias.org

22

23

24

25

26

DATED: December 7, 2017
Justin B. Cox, Pro Hac Vice National Immigration Law Center PO Box 170208 Atlanta, GA 30317 Tel: (678) 279-5441 Fax: (213) 639-3911 cox@nilc.org
Karen C. Tumlin, Pro Hac Vice Melissa S. Keaney, Pro Hac Vice Esther H. Sung, Pro Hac Vice National Immigration Law Center 3450 Wilshire Blvd, #108-62 Los Angeles, CA 90010 Tel: (213) 639-3900 Fax: (213) 639-3911 tumlin@nilc.org keaney@nilc.org sung@nilc.org
Lauren E. Aguiar, Pro Hac Vice Mollie M. Kornreich, Pro Hac Vice Abigail E. Davis, Pro Hac Vice Four Times Square New York, NY 10036 Tel: (212) 735-3000 Fax: (212) 735-2000 lauren.aguiar@probonolaw.com mollie.kornreich@probonolaw.com abigail.sheehan@probonolaw.com
Counsel for Plaintiffs Jewish Family Service, et al.

PLAINTIFFS’ SUPPLEMENTAL BRIEF (No. 17-cv-01707-JLR) –4
137828647.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 73 Filed 12/07/17 Page 6 of 6

1

CERTIFICATE OF SERVICE

2

I hereby certify that on December 7, 2017, I electronically filed the foregoing document

3 with the Clerk of the Court using the CM/ECF system which will send notification of such filing

4 to all of the registered CM/ECF users for this case.

5

I hereby declare under penalty of perjury of the laws of the State of Washington that the

6 foregoing in true and correct.

7 DATED this 7th day of December, 2017.
8

9

/s/ Lauren Watts Staniar

10

Lauren Watts Staniar, WSBA No. 48741

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25

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PLAINTIFFS’ SUPPLEMENTAL BRIEF (No. 17-cv-01707-JLR) –5
137828647.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 Case 2:17-cv-00178-JLR Document 76 Filed 12/07/17 Page 1 of 6

1

The Honorable James L. Robart

2

3

4

5

6

7

8

9 10 JOHN DOE, et al.,

11

12

v.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
CASE NO. C17-0178JLR
Plaintiffs,

13 DONALD TRUMP, et al.,

14

Defendants.

15 JEWISH FAMILY SERVICES, et al.,

16

Plaintiffs,

17

v.

18 DONALD TRUMP, et al.,

19

20

Defendants.

CASE NO. C17-1707JLR

21

22

PLAINTIFF DOE’S SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR

PRELIMINARY INJUNCTION IN CASE NO. C17-0178JLR 23

24

25

26
PLAINTIFF’S SUPPL. BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178-JLR)

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 76 Filed 12/07/17 Page 2 of 6

1 Plaintiff Joseph Doe seeks an order, on behalf of himself and those similarly situated to

2 him, enjoining the indefinite suspension of follow-to-join (“FTJ”) derivative refugee admissions

3 that Defendants improperly enacted via the Agency Memo. The Supreme Court’s recent stay

4 orders in Hawai‘i v. Trump and IRAP v. Trump have no application here. They are summary

5 orders that express no view on any particular issue. And the preliminary injunction motions in

6 those cases are in all material respects distinct from this one. The scope of the order Plaintiff

7 seeks is narrower; he challenges a policy not at issue in Hawai‘i or IRAP; and he raises statutory,

8 APA, and due process claims that are not presented in those cases. The Supreme Court’s orders

9 have no impact on Plaintiff’s pending motion.

10 A.
11

Plaintiff’s Legal Arguments Are Distinct and Likely to Succeed on the Merits. The Supreme Court’s orders say nothing about Plaintiff’s likelihood of success in

12 challenging the Agency Memo’s follow-to-join ban. The Agency Memo has not been challenged

13 in those cases and has never been before the Supreme Court. Plaintiff’s claim centers on a

14 completely different statute, INA § 207(c)(2)(A), which creates an unambiguous statutory

15 entitlement, requiring Defendants to admit the qualifying spouses and minor children of refugees

16 who have resettled in the United States. This statute is not at issue in either IRAP or Hawai‘i,

17 where the plaintiffs rely on different statutes to make different claims. Nor do the plaintiffs in

18 those cases raise the APA or due process claims that Plaintiff raises here. Plaintiff’s arguments

19 are both likely to succeed and of a different nature from those arguments raised in the other

20 pieces of litigation over the various executive orders and proclamations.

21 Unlike the provisions at issue in IRAP and Hawai‘i, the Agency Memo indefinitely

22 nullifies a mandatory entitlement created by Congress. Congress drafted and passed into law

23 INA § 207(c)(2)(A), which enables principal refugees who have passed extensive security

24 screening and qualified to resettle in the United States to be reunited with their spouses and

25 minor children—who have also passed extensive screenings. As long as the principal refugee’s

26

PLAINTIFF’S SUPPL. REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 1

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 76 Filed 12/07/17 Page 3 of 6

1 family members do not meet any of the statutory grounds for inadmissibility, they “shall … be

2 entitled” to the same status as the principal refugee. 8 U.S.C. § 1157(c)(2)(A) (emphasis added).

3 The statutory entitlement at issue presents entirely distinct legal issues for analysis.

4 B.
5

The FTJ Suspension Causes Plaintiff Irreparable Harm. Preliminary relief is designed to prevent irreparable harm during the pendency of

6 litigation. The Hawai‘i and IRAP orders did not analyze irreparable harm, and indeed the Court’s

7 prior stay order recognized that plaintiffs who are separated from their families suffer irreparable

8 harm. See Trump v. IRAP, 137 S. Ct. 2080, 2087 (2017). In any event, nothing about the new

9 stay orders diminishes the irreparable harm here. Plaintiff Joseph Doe has been separated from

10 his wife and young children (who are 4, 5, and 9 years old) for nearly four years. They have

11 completed the exhaustive screening process and are eager to join him in the United States. Every

12 day that passes is lost time with his family that he cannot get back: he is missing the opportunity

13 to be with, to parent, to emotionally support, and to bond with his children as they grow up. The

14 milestones he has already missed and will continue to miss cannot ever be replaced, and the

15 indefinite nature of the Agency Memo’s suspension is mentally and emotionally punishing. This

16 harm is irreparable. See Mot. Prelim. Inj. § IV.B., Dkt. # 45.

17 C.
18

The Balance of Equities Tips in Plaintiff’s Favor. Although Defendants invoke “national security” as the rationale for the complete ban on

19 FTJ admissions and as a compelling interest weighing against an injunction, they cite no actual

20 evidence that the FTJ refugee screening process presents a security concern. Neither do they cite

21 any evidence that their alignment of that screening process with the principal refugee screening

22 process requires an indefinite suspension of all FTJ admissions—whether for national security or

23 other reasons. There is simply no evidence to support an indefinite ban on all FTJ refugees, the

24 vast majority of whom are women and children. Reply at 10, Dkt. # 54. The Agency Memo’s

25 recitation of national security as the rationale for this drastic measure is even thinner than the

26

PLAINTIFF’S SUPPL. REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 2

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 76 Filed 12/07/17 Page 4 of 6

1 rationales asserted by the government in Hawai‘i and IRAP. See Appl. for Stay at 3, Trump v.

2 Hawai‘i, No. 17A550 (U.S. Nov. 20, 2017) (describing review process).

3 A global ban on all FTJ refugees—that is, every spouse and child of a refugee who did

4 not physically accompany the refugee to the United States—is by definition not tailored in any

5 way. Moreover, Defendants have admitted that the ban is not even tailored to purported

6 screening deficiencies. Defendants concede that the review process for FTJ refugees in Kenya

7 and Thailand is sufficient, even though the Agency Memo on its face bans FTJ refugees from

8 those countries. Compare Resp. at 7, Dkt. # 51, with Agency Memo at 2-3. The banning of FTJ

9 refugees from countries with screening processes that are indisputably sufficient further

10 highlights the fact that the ban is not tailored to serve a national security purpose.

11 While Defendants have not demonstrated any compelling national security interest for

12 denying an injunction, enjoining the FTJ suspension is in the public interest. “‘[P]ublic interest

13 concerns are implicated when a constitutional right has been violated, because all citizens have a

14 stake in upholding the Constitution.’” Hernandez v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017)

15 (citation omitted) (affirming grant of preliminary injunction on basis of due process claim).

16 Defendants have violated Joseph Doe’s due process rights.

17 D.
18

Conclusion Nothing about the recent stay orders addresses Plaintiff’s pending motion, which

19 challenges a different policy issued by different officials, invokes different statutes, makes

20 different claims, and involves a different balance of equities. A preliminary injunction remains

21 warranted where the “‘balance of hardships … tips sharply towards the plaintiff … [and] the

22 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the

23 public interest.’” Does 1-10 v. Univ. of Washington, No. C16-1212JLR, 2017 WL 5899243, at *4

24 (W.D. Wash. Nov. 30, 2017) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135

25 (9th Cir. 2001)). The Supreme Court’s orders do not change this analysis.

26

PLAINTIFF’S SUPPL. REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 3

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 76 Filed 12/07/17 Page 5 of 6

1 DATED this 7th day of December, 2017.

2

3

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION

4

By: /s/ Emily Chiang

g

5

/s/ Lisa Nowlin

Emily Chiang, WSBA # 50517

6

Lisa Nowlin, WSBA # 51512

7

901 Fifth Avenue, Suite 630 Seattle, WA 98164

8

Telephone: (206) 624-2184

Email: echiang@aclu-wa.org

9

lnowlin@aclu-wa.org

10

Attorneys for Plaintiff

11

12

13

14

15

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KELLER ROHRBACK L.L.P.

By: /s/ Lynn Lincoln Sarko

n

By: /s/ Tana Lin

n

By: /s/ Amy Williams-Derry

y o

By: /s/ Derek W. Loeser______________

By: /s/ Alison S. Gaffney

Lynn Lincoln Sarko, WSBA # 16569

Tana Lin, WSBA # 35271

Amy Williams-Derry, WSBA # 28711

Derek W. Loeser, WSBA # 24274

Alison S. Gaffney, WSBA # 45565

1201 Third Avenue, Suite 3200

Seattle, WA 98101

Telephone: (206) 623-1900

Facsimile: (206) 623-3384

Email: lsarko@kellerrohrback.com

tlin@kellerrohrback.com

awilliams-derry@kellerrohrback.com

dloeser@kellerrohrback.com

agaffney@kellerrohrback.com

By: /s/ Laurie B. Ashton

N

Laurie B. Ashton (admitted pro hac vice)

3101 North Central Avenue, Suite 1400

Phoenix, AZ 85012-2600

Telephone: (602) 248-0088

Facsimile: (602) 248-2822

Email: lashton@kellerrohrback.com

By: /s/ Alison Chase

e

Alison Chase (admitted pro hac vice)

1129 State Street, Suite 8

Santa Barbara, CA 93101

Telephone: (805) 456-1496

Facsimile: (805) 456-1497

Email: achase@kellerrohrback.com

Attorneys for Plaintiff/Cooperating Attorneys for the American Civil Liberties Union Of Washington Foundation

PLAINTIFF’S SUPPL. REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 4

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 76 Filed 12/07/17 Page 6 of 6

1 CERTIFICATE OF SERVICE
2

3

I hereby certify that on December 7, 2017, I electronically filed the attached document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing

4 to the email addresses on the Court’s Electronic Mail Notice List.

5 DATED this 7th day of December, 2017.

6

KELLER ROHRBACK L.L.P.

7

8

By: /s/ Tana Lin

n

9

Tana Lin, WSBA # 35271

10

1201 Third Avenue, Suite 3200

11

Seattle, WA 98101

Telephone: (206) 623-1900

12

Facsimile: (206) 623-3384

Email: tlin@kellerrohrback.com

13

Attorney for Plaintiff/Cooperating

14

Attorney for the American Civil

15

Liberties Union Of Washington

Foundation

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFF’S SUPPL. REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 5

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

 
 Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 1 of 34

The Honorable James L. Robart 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 JOHN DOE, et al.,

Civil Action No. 2:17-cv-00178JLR

11

Plaintiffs,

12

v.

13 DONALD TRUMP, et al.,

14

Defendants.

15 JEWISH FAMILY SERVICE OF
16 SEATTLE, et al.,

17

Plaintiffs,

18

v.

19 DONALD TRUMP, et al.,

20

Defendants.

Civil Action No. 2:17-cv-01707JLR
DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND RESPONSE TO SUPPLEMENTAL STATEMENTS FILED IN BOTH CASES

21

22

23

24

25

26

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 2 of 34

1

TABLE OF CONTENTS

2 INTRODUCTION ....................................................................................................................... 1
3
BACKGROUND ......................................................................................................................... 3 4
5 STANDARD OF REVIEW ......................................................................................................... 5

6 ARGUMENT ............................................................................................................................... 5

7 I.

PLAINTIFFS’ CHALLENGES ARE NOT JUSTICIABLE........................................... 5

8

A. The Individual Plaintiffs Lack Article III Standing ............................................. 5

9

B. The Organizational Plaintiffs Lack Article III Standing...................................... 8

10

C. Plaintiffs’ Claims Are Barred By Principles Of Nonreviewability ................... 10

11

1. Plaintiffs’ Statutory Claims Are Not Reviewable.................................. 10

12

2. Plaintiffs’ Establishment Clause Claim Is Likewise Not

13

Reviewable............................................................................................. 12

14

D. Plaintiffs Cannot Otherwise Proceed Under The APA...................................... 14

15 II. PLAINTIFFS’ CLAIMS ARE NOT LIKELY TO SUCCEED ON THE MERITS ..... 15

16

A. The Joint Memorandum’s SAO Provision Does Not Violate The APA Or

INA .................................................................................................................... 16 17

18

1. The Government May Temporarily Prioritize Admission Resources While Conducting A Threat Analysis .................................. 16

19

2. Plaintiffs Cannot Show An APA Procedural Violation ......................... 18

20 3. The Joint Memorandum’s SAO Provision Is Neither Arbitrary Nor

21

Capricious .............................................................................................. 20

22

4. The Joint Memorandum’s SAO Provision Is Consistent With The

INA ........................................................................................................ 22 23

24

B. The Joint Memorandum Does Not Violate the Establishment Clause .............. 24

25

1. The Joint Memorandum Is Valid Under Mandel ................................... 24

26

2. Plaintiffs’ Claims Fail Even Apart From The Mandel Standard ........... 25

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - i Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 3 of 34

1 III. THE REMAINING FACTORS WEIGH AGAINST INJUNCTIVE RELIEF ............. 27 2 IV. A GLOBAL INJUNCTION WOULD BE INAPPROPRIATE..................................... 28 3 CONCLUSION.......................................................................................................................... 29 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - ii Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 4 of 34

1

INTRODUCTION

2

Plaintiffs ask the Court to preliminarily enjoin two provisions of a Joint Memorandum

3 issued by multiple Cabinet Secretaries regarding the operation of the U.S. Refugee Admissions 4 Program (USRAP).1 First, Plaintiffs challenge the joint determination by the Secretaries of State

5 and Homeland Security and Director of National Intelligence that a further review is needed of

6 eleven countries of origin for which certain refugee applicants are currently subject to Security

7 Advisory Opinions (SAOs). During this review (scheduled to last 90 days), the agencies will

8 “temporarily prioritize refugee applications from other non-SAO countries,” but will also consider

9 for admission those from SAO countries on a case-by-case basis. Joint Mem. at 2; Joint Mem.

10 Addendum at 3-4. Second, Plaintiffs seek to enjoin a provision regarding following-to-join

11 refugees. Such refugee applicants are not currently subject to the same screening and vetting

12 procedures as other refugee applicants. To ensure the security and welfare of the United States,

13 the Secretaries directed their agencies to implement screening procedures for following-to-join

14 refugees that are similar to those already used for principal refugees. During this implementation

15 period, while the Departments of Homeland Security and State and their vetting partners make

16 the necessary operational changes, following-to-join refugees processed at most locations will not

17 be admitted to the United States. Admissions will resume once the procedures are in place.

18

As a preliminary matter, the Court should not even consider Plaintiffs’ motion at this time.

19 In two orders issued simultaneously on December 4, 2017, the Supreme Court stayed injunctions

20 against enforcement of the “Presidential Proclamation Enhancing Vetting Capabilities for

21 Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” 22 (hereafter “Proclamation”).2 Lower courts had enjoined enforcement of the Proclamation based

23

24

1 See Joint Memorandum to the President from the Secretary of State, Acting Secretary of

Homeland Security, and Director of National Intelligence (Oct. 23, 2017) (ECF No. 43-1 (Exhibit

25 B)) [hereafter “Joint Mem.”]. Except where otherwise noted, docket numbers refer to pre-

consolidation filings in the Jewish Family Service case, No. 2:17-cv-1707 (JLR).

26

2 See Order, Trump v. IRAP, No. 17A560, 2017 WL 5987435 (U.S. Dec. 4, 2017); Order,

Trump v. Hawaii, No. 17A550, 2017 WL 5987406 (U.S. Dec. 4, 2017).

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 1 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 5 of 34

1 on some of the same claims that Plaintiffs raise with respect to the Joint Memorandum. As the

2 Government will explain more fully in a supplemental brief to be filed on December 11, 2017

3 (pursuant to this Court’s Order), just as the Supreme Court concluded that the Government may

4 enforce the Proclamation, the Court would very likely conclude that the Government may enforce

5 the challenged provisions of the Joint Memorandum as well.

6

Apart from this recent Supreme Court guidance, Plaintiffs’ claims fail because they are

7 not justiciable. Plaintiffs fail to satisfy threshold Article III requirements. Further, based on

8 fundamental principles of non-reviewability, Plaintiffs cannot pursue their statutory claims. The

9 Plaintiffs who are aliens outside the United States lack constitutional rights under the

10 Establishment Clause, whereas the Plaintiffs located in the United States have not alleged

11 cognizable violations of their individual constitutional rights. Moreover, Plaintiffs cannot

12 proceed under the Administrative Procedure Act (APA) because the Joint Memorandum is not

13 final agency action, and the decision to admit refugees is committed to agency discretion.

14

Even if Plaintiffs could overcome these jurisdictional hurdles, their claims fail on the

15 merits. With respect to the SAO provision (and not the following-to-join provision), Plaintiffs

16 argue that the Government lacks authority to implement that provision, that the provision violates

17 the APA because it needed to undergo notice-and-comment rulemaking and is arbitrary and

18 capricious, and that the provision conflicts with the Immigration and Nationality Act (INA). But

19 Plaintiffs ignore the wide discretion Congress vested in the Government over admission of

20 refugees and misunderstand the INA. Also, notice-and-comment rulemaking was not necessary

21 because the SAO provision is a procedural rule and falls within the APA’s foreign affairs

22 exception, and Plaintiffs cannot show that the Cabinet Secretaries acted arbitrarily and

23 capriciously in deciding to temporarily prioritize resources for non-SAO countries while they

24 “conduct a detailed threat analysis” of SAO countries for 90 days “to determine what additional

25 safeguards, if any, are necessary” to protect national security and the welfare of the United States.

26 Joint Mem. at 2. Plaintiffs also bring an Establishment Clause claim, arguing that both the SAO

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 2 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 6 of 34

1 provision and following-to-join provision are unconstitutional. But that constitutional claim is

2 governed by, and fails under, Kleindienst v. Mandel, 408 U.S. 753 (1972), as the Joint

3 Memorandum’s national-security foundation is plainly “facially legitimate and bona fide.” Id. at

4 770. And because the operative policy here is the Joint Memorandum, the relevant

5 decisionmakers are the Secretaries of State and Homeland Security and the Director of National

6 Intelligence. Plaintiffs have not alleged—much less demonstrated—that these decisionmakers

7 were motivated by animus in deciding to implement the Joint Memorandum.

8

BACKGROUND

9

Section 6(a) of Executive Order No. 13,780, titled Protecting the Nation from Foreign

10 Terrorist Entry into the United States (“EO-2”), directed the Secretaries of State and Homeland

11 Security to suspend travel of refugees and decisions on refugee applications under the USRAP,

12 pending a review of existing procedures. See 82 Fed. Reg. 13,209, 13,215 (Mar. 6, 2017). This

13 suspension was necessary to allow the Secretaries, in consultation with the Director of National

14 Intelligence, to “determine what additional procedures should be used to ensure that individuals

15 seeking admission as refugees do not pose a threat to the security and welfare of the United

16 States.” EO-2 § 6(a). During this suspension period, the agencies identified multiple ways to

17 enhance the refugee vetting process, and began implementing some of those improvements. This

18 review and implementation process proceeded in parallel with, and drew upon, a broader review

19 of the visa admission process also prescribed by EO-2. See Joint Mem. at 1.

20

Section 6(a) also provided that, at the conclusion of the review period, refugee travel and

21 USRAP adjudications would resume for stateless persons and nationals of countries for which the

22 officials “determined that the additional procedures implemented . . . are adequate to ensure”

23 national security and the welfare of the United States. On October 23, 2017, the Secretaries

24 advised the President, through a Joint Memorandum, that the improvements to the USRAP vetting

25 process were sufficient to allow the general resumption of that program, subject to conditions.

26

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 3 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 7 of 34

1

Plaintiffs seek to enjoin two conditions here. They first challenge the Secretaries’

2 determination that further review is needed for eleven countries of origin for which certain refugee

3 applicants are subject to SAOs because those countries were found, as of 2015, to pose an elevated

4 national-security risk to the United States. See Joint Mem. at 2; Joint Mem. Addendum at 3-4.

5 During this 90-day review period, the agencies will “temporarily prioritize refugee applications

6 from other non-SAO countries,” for whom processing may not require as many resources. Joint

7 Mem. at 2; Joint Mem. Addendum at 3-4. Applicants from the eleven countries may still be

8 considered for admission on a case-by-case basis. Joint Mem. at 2; Joint Mem. Addendum at 3.

9

Plaintiffs also challenge the Joint Memorandum’s provision that addresses the different

10 screening procedures currently applied to most “following-to-join” refugee applicants, eligible

11 family members of a “principal” refugee who has already resettled in the United States. See Joint

12 Mem. at 2-3. As the Joint Memorandum explains, most following-to-join refugee applicants do

13 not currently undergo the same security procedures as principal refugees or accompanying

14 derivative refugees (who are typically processed at the same time and location as the principal).

15 See Joint Mem. at 2-3 & n.1 (explaining these divergent procedures); see also Doe v. Trump, No.

16 2:17-cv-00178 (W.D. Wash.), ECF Nos. 51 at 6, 51–1 ¶¶ 3, 12-15. The Secretaries determined

17 that it is necessary to “implement adequate screening mechanisms for following-to-join refugees

18 that are similar to the processes employed for principal refugees, in order to ensure the security

19 and welfare of the United States.” Joint Mem. at 3; see also Joint Mem. Addendum at 4

20 (describing some of the additional security measures to be implemented). These officials further

21 determined that following-to-join refugees should not be admitted to the United States until the

22 additional screening procedures are in place. Joint Mem. at 3. The agencies are working

23 expeditiously to implement the additional screening procedures. See Joint Mem. Addendum at 4.

24

25

26

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 4 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 Once these procedures are in place, admissions of following-to-join refugees will resume 2 worldwide. See Joint Mem. at 3.3

3

Following receipt of the Joint Memorandum, on October 24 the President issued Executive

4 Order No. 13,815, Resuming the United States Refugee Admissions Program with Enhanced

5 Vetting Capabilities, 82 Fed. Reg. 50,055 (Oct. 24, 2017). The President acknowledged the

6 Secretaries’ joint determination that the USRAP may resume and that they will apply “special

7 measures” to certain categories of refugee applicants, and therefore the worldwide suspension

8 directed by EO-2 is no longer required. See id. §§ 2(a), (c). Going forward, the President directed

9 the Secretaries of State and Homeland Security to exercise their statutory authority to “continue

10 to assess and address any risks posed by particular refugees,” id. § 3(a), including by terminating

11 actions taken to address these risks when appropriate, id. § 3(a)(ii).

12

Plaintiffs now move to enjoin enforcement of the Joint Memorandum, claiming that the

13 SAO provision violates the APA and is ultra vires, and that the SAO and following-to-join

14 provisions violate the First Amendment’s Establishment Clause.

15

STANDARD OF REVIEW

16

Plaintiffs must show that they are “likely to succeed on the merits,” that they are likely to

17 “suffer irreparable harm in the absence of preliminary relief,” that the “balance of equities” tips

18 in their favor, and that “an injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S.

19 7, 20 (2008).

20

ARGUMENT

21 I. PLAINTIFFS’ CHALLENGES ARE NOT JUSTICIABLE

22

A. The Individual Plaintiffs Lack Article III Standing

23

To satisfy Article III’s standing requirements, “a plaintiff must show (1) it has suffered an

24 ‘injury in fact’[;] . . . (2) the injury is fairly traceable to the challenged action of the defendant;

25 3 As noted below, following-to-join refugee applicants processed at resettlement support
26 centers in Kenya and Thailand are unaffected by the implementation period, as adequate review

mechanisms are already in place in those countries.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 5 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a

2 favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S.

3 167, 180-81 (2000). The related doctrine of ripeness rejects as nonjusticiable claims that “rest[]

4 upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’”

5 Texas v. United States, 523 U.S. 296, 300 (1998) (citation omitted).

6

Plaintiffs’ challenges to the Joint Memorandum are premature. With respect to the

7 following-to-join provision, only two of the individual Plaintiffs—Afkab Hussein and John Doe

8 7—describe family members who are awaiting travel as following-to-join refugees. But

9 Hussein’s challenge fails at the outset, because his family members appear to be located in Kenya.

10 See Decl. of Afkab Mohamed Hussein in Support of Pls.’ Mot., ECF No. 48 ¶¶ 3, 10-11. As the

11 Government explained in Doe v. Trump, Kenya is one of two countries in which screening

12 procedures are already in place to ensure that following-to-join and principal refugees receive

13 comparable scrutiny. See Decl. of Jennifer B. Higgins, No. 2:17-cv-00178 (W.D. Wash.), ECF

14 No. 51–1 ¶ 11 (explaining that the Government is issuing travel authorizations for following-to-

15 join refugees who have been processed by resettlement support centers in Kenya and Thailand,

16 subject to other restrictions on refugee admissions). Hussein’s family members are apparently

17 unaffected by the following-to-join implementation period, and Hussein thus lacks standing to

18 challenge it. As for John Doe 7, his son has been waiting to travel since November 2016, months

19 before the first refugee-related executive order took effect. Decl. of John Doe #7, ECF No. 58 ¶

20 4. It would be speculative to infer that the following-to-join implementation period is the source

21 of any further delay in John Doe 7’s son’s travel, and “speculation is not enough to sustain Article

22 III standing,” Finkelman v. NFL, 810 F.3d 187, 200 (3d Cir. 2016).

23

With respect to the SAO provision, Plaintiffs’ claims are again speculative. Even if one

24 or more of the identified refugee applicants were on the brink of traveling to the United States, it

25 is not obvious that the SAO provision would stand in their way, given its allowance for case-by-

26

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1 case admission. See Joint Mem. at 2.4 Moreover, it is doubtful that these applicants are on the

2 brink of travel such that the 90-day SAO review period will have any concrete impact on them.

3 Afkab Hussein, for example, merely states that his wife and son have completed “several stages”

4 of the following-to-join screening process. ECF No. 48 ¶ 17. John Doe 1 applied for admission

5 through the Direct Access Program in 2014 and claims he is in the “end stage of processing,” but

6 he recently had problems with his passport. Decl. of John Doe #1 in Supp. of Pls.’ Mot., ECF

7 No. 52 ¶¶ 2, 15-16. John Doe 2 was still awaiting security checks as of earlier this year, while

8 Jane Doe 5 has been awaiting such checks since 2016. Compare Decl. of John Doe #2 in Supp.

9 of Pls.’ Mot., ECF No. 53 ¶ 9, with Decl. of Jane Doe #5 in Supp. of Pls.’ Mot., ECF No. 56 ¶ 7.

10 Jane Doe 4 only completed her International Organization for Migration and U.S. Citizenship and

11 Immigration Services (“USCIS”) interviews in September. Decl. of Jane Doe #4 in Supp. of Pls.’

12 Mot., ECF No. 55 ¶ 5. And as noted above, John Doe 7’s son has been waiting to travel since 13 November 2016. ECF No. 58 ¶ 4.5 With nothing more than speculation that the SAO provision

14 may adversely affect them (as opposed to the many known and incommensurable delays that are

15

16

17

18

19

4 For instance, Joseph Doe’s contention that his children should be exempt from the SAO

20 provision misses the mark. See Doe Pls.’ Notice Joining the Mot. for Prelim. Inj. in Jewish Family Service of Seattle v. Trump, Doe v. Trump, No. 2:17-cv-00178JLR (W.D. Wash.), ECF No. 62

21 (“Doe Notice”). The Joint Memorandum continues to allow admission of SAO nationals during

the 90-day review period on a case-by-case basis. Joint Mem. at 2. Joseph Doe has not shown 22 that his children cannot qualify for this exception.

23

5 The Doe Plaintiffs have named an additional party, Jeffrey Doe, who joins the Jewish Family Service Plaintiffs in challenging the SAO provision. See Doe Notice at 4. Jeffrey Doe

24 has not submitted a declaration, but the Doe Plaintiffs allege that Jeffrey’s parents and siblings applied for refugee status back in 2005 and received an initial approval letter from USCIS in 2006.

25 See Third Am. Compl. ¶ 89, Doe v. Trump, No. 2:17-cv-00178JLR (W.D. Wash.), ECF No. 42.

The family members have been assured by the Episcopal Diocese of Olympia since September 26 2015, and their most recent medical examinations have expired. In light of these allegations, there

is no reason to believe Jeffrey Doe’s family members are on the brink of travel.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 7 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 part and parcel of the ordinary refugee admissions process), Plaintiffs have not alleged an injury 2 that is fairly traceable to the Joint Memorandum and ripe for judicial redress.6

3

B. The Organizational Plaintiffs Lack Article III Standing

4

The organizational Plaintiffs, Jewish Family Service of Seattle (JFS-S) and Jewish Family

5 Services of Silicon Valley (JFS-SV), allege that they have been injured by the Joint Memorandum

6 because the challenged provisions force them to “divert significant resources away from [their]

7 core mission” and may lead to a loss of funding should the organizations fail to resettle as many

8 clients as they had anticipated. Mot. for Prelim. Inj. at 12, ECF No. 42 (“Pls.’ Br.”); see also Pls.’

9 Notice Joining the Mot. for Prelim. Inj. in Doe v. Trump at 3, ECF No. 70 (“JFS Notice”) (similar).

10

In support of these allegations, Plaintiffs cite Havens Realty Corp. v. Coleman, 455 U.S.

11 363 (1982). But Havens Realty involved a narrow type of injury in which the plaintiff

12 organization itself had a statutory right to truthful housing information, see id. at 373, and the

13 defendants’ “racially discriminatory steering practices” made it impossible for the organization

14 to fulfill its mission, id. at 379. By its own terms, Havens Realty does not satisfy Article III’s

15 requirement of an injury in fact any time there is “a setback to the organization’s abstract social

16 interests,” id. See La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d

17 1083, 1088 (9th Cir. 2010) (“An organization suing on its own behalf can establish injury when

18 it suffered ‘both a diversion of its resources and a frustration of its mission.’ It cannot manufacture

19 the injury by . . . simply choosing to spend money fixing a problem that otherwise would not

20 affect the organization at all.” (citations omitted)); see also Nat’l Ass’n of Home Builders v. EPA,

21 667 F.3d 6, 12 (D.C. Cir. 2011) (rejecting plaintiff’s theory of organizational standing based on

22 allocation of resources to regulatory comments, congressional testimony, and litigation).

23

The organizational Plaintiffs’ allegations concerning diversion of resources are the types

24 of abstract or self-inflicted harms that do not suffice for standing under Havens Realty and its

25

26

6 Several of the Plaintiffs describe a kind of stigmatic injury associated with what they

perceive as anti-Muslim sentiment. This misguided theory is discussed in Part I.C.2, infra.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 8 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 progeny or Article III. Plaintiffs have not shown that the Joint Memorandum impairs their core

2 mission. The challenged provisions do not suspend refugee admissions; on the contrary,

3 Executive Order No. 13,815 largely resumed the USRAP, subject to conditions for applicants of

4 special concern. Although those conditions may temporarily alter which individuals are resettled

5 as refugees, those conditions do not limit or otherwise restrict the overall number of individuals

6 who may be resettled as refugees. Moreover, the Government has long used nationality-based

7 distinctions in implementing the USRAP and prioritizing certain applicants. See Part II.A.1, infra.

8

Thus, nothing in the Joint Memorandum prevents JFS-S and JFS-SV from fulfilling their

9 missions. Rather, they may continue to do so by aiding the resettlement of refugees. Indeed,

10 these organizations already fulfill their missions by representing such clients who are unaffected

11 by the challenged provisions. See Decl. of Rabbi Will Berkovitz, ECF No. 50 ¶¶ 24, 26 (79 of

12 133 JFS-S clients are from non-SAO countries, and only 2% of JFS-S resettlements in fiscal year

13 2016 were following-to-join refugees); Decl. of Mindy Berkowitz, ECF No. 51 ¶ 32 (19 of 42

14 JFS-SV clients are from non-SAO countries). These organizations do not explain how policies

15 that may temporally alter which individuals are resettled as refugees—but do not suspend the

16 USRAP—impair the organizations’ missions in any meaningful way. Nor do they explain why

17 they are likely to suffer financial losses when nothing in the Joint Memorandum prevents them

18 from assisting with resettling refugees who are unaffected by the Joint Memorandum. Assuming

19 arguendo that the organizations have a protected interest in the admission of refugees generally,

20 they cite nothing giving them an interest in the admission of particular refugees, and they therefore 21 do not plausibly allege that the Joint Memorandum has injured them.7

22

23

24

25 7 Apart from their defective claims of injury in their own right, JFS-S and JFS-SV purport
26 to represent the interests of their third-party clients. Pls.’ Br. at 13. But third-party standing is

unavailable where, as here, the third party has itself suffered no injury.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 9 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1

C. Plaintiffs’ Claims Are Barred By Principles Of Nonreviewability

2

1. Plaintiffs’ Statutory Claims Are Not Reviewable

3

Plaintiffs’ statutory claims, which concern only the Joint Memorandum’s SAO provision

4 (not the following-to-join provision), are not subject to judicial review. The Supreme Court has

5 long recognized that “the power to . . . exclude aliens” is a “fundamental sovereign attribute

6 exercised by the Government’s political departments largely immune from judicial control.”

7 Fiallo v. Bell, 430 U.S. 787, 792 (1977) (citation omitted). “[I]t is not within the province of any

8 court, unless expressly authorized by law, to review the determination of the political branch of

9 the Government to exclude a given alien.” United States ex rel. Knauff v. Shaughnessy, 338 U.S.

10 537, 543 (1950) (emphasis added)). Courts have distilled from these longstanding principles that

11 the denial or revocation of a visa for an alien abroad “is not subject to judicial review . . . unless

12 Congress says otherwise.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999);

13 see also Doan v. INS, 160 F.3d 508, 509 (8th Cir. 1998) (“Administrative decisions excluding

14 aliens are not subject to judicial review unless there is a clear grant of authority by statute.”).

15 Courts refer to this rule as the “doctrine of consular nonreviewability,” Saavedra Bruno, 197 F.3d

16 at 1159, but the short-hand label merely reflects the context in which the principle most often

17 arises—in challenges to decisions by consular officials adjudicating visa applications. The

18 principle underlying the doctrine applies regardless of the manner in which the Executive Branch

19 denies entry to an alien abroad, including a refugee applicant. See Haitian Refugee Ctr., Inc. v.

20 Baker, 953 F.2d 1498, 1506 (11th Cir. 1992) (per curiam). It would make no sense to bar review

21 of consular or immigration officers’ case-specific determinations while permitting review of

22 Cabinet Secretaries’ determinations (such as the Joint Memorandum’s SAO and following-to-join

23 provisions) that are grounded in sensitive national-security judgments and that are applied by

24 lower-level officials in reviewing individual visa or refugee applications.

25

Plaintiffs have identified no statute that authorizes judicial review here. The statute

26 authorizing refugee admissions—8 U.S.C. § 1157—says nothing about judicial review. It simply

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 10 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 provides, in relevant part, that the “Attorney General may, in the Attorney General’s discretion

2 . . . admit any refugee who is not firmly resettled in any foreign country, is determined to be of

3 special humanitarian concern to the United States, and is admissible . . . as an immigrant.” 8 4 U.S.C. § 1157(c)(1);8 see also Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1506 (11th Cir.

5 1992) (per curiam) (“Contrary to the extensive procedures provided for with regard to aliens

6 within the United States, 8 U.S.C. § 1157, which applies to refugees seeking admission from

7 outside the United States, makes no provision for judicial review.”).

8

Nor is the APA any help to Plaintiffs here. The APA does not apply “to the extent that

9 . . . statutes preclude judicial review,” 5 U.S.C. § 701(a)(1), a determination that turns not only on

10 the statute’s express language but also on the “structure of the statutory scheme, its objectives, its

11 legislative history, and the nature of the administrative action involved,” Block v. Cmty. Nutrition

12 Inst., 467 U.S. 340, 345 (1984). Moreover, Section 702 of the APA includes a proviso that

13 preserves “other limitations on judicial review” that predated the APA. See Saavedra Bruno, 197

14 F.3d at 1158. Here, the conclusion is “unmistakable” from history that “the immigration laws

15 ‘preclude judicial review’ of [] consular visa decisions,” id. at 1160, and the same is true of

16 refugee determinations, see Haitian Refugee Ctr., 953 F.2d at 1506. At a minimum, the general

17 rule of “nonreviewability . . . represents one of the ‘limitations on judicial review’ unaffected by

18 § 702’s opening clause[.]” Saavedra Bruno, 197 F.3d at 1160.

19

Indeed, when the Supreme Court held that aliens physically present in the United States—

20 but not aliens abroad—could seek review of their exclusion orders under the APA, see Brownell

21 v. Tom We Shung, 352 U.S. 180, 184-86 (1956), Congress responded by abrogating that ruling.

22 See Act of Sept. 26, 1961, Pub. L. No. 87-301, § 5(a), 75 Stat. 650, 651-53; Saavedra Bruno, 197

23 F.3d at 1157-62 (recounting history). The House Report accompanying the abrogating statute

24 explained that APA suits would “give recognition to a fallacious doctrine that an alien has a ‘right’

25 to enter this country which he may litigate in the courts of the United States against the U.S.

26

8 This discretion now rests with the Secretary of Homeland Security. See 6 U.S.C. § 557.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 11 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 Government as a defendant.” H.R. Rep. No. 87-1086, at 33 (1961). Because an alien present in

2 the United States cannot invoke the APA to obtain review of an exclusion order, then a fortiori

3 neither can aliens abroad or U.S. persons acting on their behalf. And because Congress has

4 generally foreclosed judicial review of visa revocations, see 8 U.S.C. § 1201(i), it is implausible

5 that Congress would permit review of Executive decisions to restrict entry in the first instance.

6 Significantly, Plaintiffs have identified no precedent holding that policies excluding or prioritizing

7 admission for particular categories of refugees are judicially reviewable.

8

2. Plaintiffs’ Establishment Clause Claim Is Likewise Not Reviewable

9

The Supreme Court has twice engaged in limited review of constitutional claims involving

10 the exclusion of an alien abroad, but only when a U.S. citizen alleged a violation of that citizen’s

11 own constitutional rights. In Kleindienst v. Mandel, the Court reviewed a claim that the denial of

12 a waiver of visa-ineligibility to a Belgian national violated U.S. citizens’ First Amendment rights

13 to receive information. 408 U.S. at 756-59, 762-70. As the Court explained, the alien could not

14 seek review because he “had no constitutional right of entry to this country.” Id. at 762. The

15 Court addressed only the claim of U.S. citizens that the alien’s exclusion violated their own rights,

16 and then concluded that when the Executive exercises its authority to exclude an alien “on the

17 basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise

18 of that discretion” nor balance it against constitutional claims of others. Id. at 770. In Kerry v.

19 Din, the Court rejected a claim by a U.S. citizen that the refusal of a visa to her husband violated

20 her own due-process rights. 135 S. Ct. 2128, 2131 (2015) (opinion of Scalia, J.); id. at 2139

21 (Kennedy, J., concurring in the judgment). Limited review was available in each case only 22 because the plaintiffs asserted violations of their own constitutional rights as U.S. citizens.9

23

The individual Plaintiffs’ claimed constitutional injuries are not cognizable. Of the eleven

24 named Plaintiffs here, four (John Does 1–2, Jane Does 4–5) are prospective refugees located

25 9 Although the Ninth Circuit previously suggested in dicta that states might have standing
26 to assert “potential claims regarding possible due process rights” of various groups including

refugees, Washington v. Trump, 847 F.3d 1151, 1166 (9th Cir. 2017) (per curiam), cert. denied

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 12 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 overseas who cannot assert constitutional claims. Mandel, 408 U.S. at 762 (“It is clear that . . .

2 an unadmitted and nonresident alien[] ha[s] no constitutional right of entry to this country as a

3 nonimmigrant or otherwise.”). Though the remaining Plaintiffs may reside stateside, the Joint

4 Memorandum concerns the processing of refugees located abroad, not U.S. persons. In McGowan

5 v. Maryland, 366 U.S. 420, 429-30 (1961), the Supreme Court held that individuals who are

6 indirectly injured by alleged religious discrimination against others generally may not sue,

7 because they have not suffered violations of their own rights. The Court concluded that the

8 plaintiffs, employees of a store subject to a State’s Sunday-closing law, lacked standing to

9 challenge that law on free-exercise grounds because they “d[id] not allege any infringement of

10 their own religious freedoms.” Id. at 429. Similarly, in Elk Grove Unified School District v.

11 Newdow, 542 U.S. 1, 15-18 & n.8 (2004), abrogated in part on other grounds by Lexmark Int’l,

12 Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014), the Court held that a non-custodial

13 parent could not challenge recitation of the Pledge of Allegiance at his daughter’s school because

14 his “standing derive[d] entirely from his relationship with his daughter,” not from a violation of

15 his own rights. Likewise here, in challenging the application of the Joint Memorandum to family

16 members overseas, Plaintiffs are not asserting violations of their own rights. They are instead

17 seeking to advance the interests of third parties who have not entered the United States and who

18 themselves have no right to entry under our Constitution. Because Plaintiffs are not asserting any

19 violations of their own constitutional rights, Plaintiffs cannot benefit from the limited review

20 afforded in Mandel and the Din concurrence.

21

The stateside Plaintiffs also claim that the Joint Memorandum contains an anti-Muslim

22 sentiment that results in stigmatization. But the Joint Memorandum says nothing about religion,

23

24 sub nom. Golden v. Washington, No. 17-5424, 2017 WL 3224674 (Nov. 13, 2017) (mem.), that passing observation cannot be squared with Mandel’s demarcation between a constitutional claim

25 by an alien abroad (unreviewable) and a constitutional claim by a U.S. person (potentially

reviewable, provided the person alleges a violation of his/her individual rights). See also Trump 26 v. IRAP, 137 S. Ct. 2080, 2088 (2017) (“An unadmitted and nonresident alien has no constitutional

right of entry to this country.” (alterations omitted) (quoting Mandel, 408 U.S. at 762)).

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 13 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 and it certainly does not single out Plaintiffs or other U.S. persons similarly situated to them.

2 While a plaintiff may suffer a “spiritual” injury from the violation of his or her own rights when

3 he or she is “subjected to unwelcome religious exercises” or “forced to assume special burdens to

4 avoid them,” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc.,

5 454 U.S. 464, 486 n.22 (1982), Plaintiffs allege no such requirements or pressures here. In

6 analogous cases arising under the Equal Protection Clause, the Supreme Court has “ma[de] clear”

7 that “the stigmatizing injury often caused by [invidious] discrimination . . . accords a basis for

8 standing only to ‘those persons who are personally denied equal treatment’ by the challenged

9 discriminatory conduct.” Allen v. Wright, 468 U.S. 737, 755 (1984) (emphasis added) (citation

10 omitted), abrogated in part on other grounds by Lexmark Int’l, 134 S. Ct. 1377. The same rule

11 applies to Establishment Clause claims: “the psychological consequence presumably produced

12 by observation of conduct with which one disagrees” is not the type of “personal injury” that

13 supports standing to sue, “even though the disagreement is phrased in [Establishment Clause]

14 terms.” Valley Forge, 454 U.S. at 485-86; see also In re Navy Chaplaincy, 534 F.3d 756, 764

15 (D.C. Cir. 2008) (an Establishment Clause plaintiff may not “re-characterize[]” an abstract injury

16 flowing from “government action” directed against others as a personal injury from “a

17 governmental message [concerning] religion” directed at the plaintiff). Since no Plaintiff has

18 alleged a cognizable violation of his or her own constitutional rights, the doctrine of

19 nonreviewability controls, and the Court should decline to consider Plaintiffs’ claims.

20

D. Plaintiffs Cannot Otherwise Proceed Under The APA

21

Plaintiffs also cannot proceed under the APA because the challenged provisions are not

22 final agency action. Finality is a prerequisite to judicial review under the APA. See 5 U.S.C.

23 § 704. Two conditions must be satisfied before agency action will be deemed sufficiently final:

24 “First, the action must mark the consummation of the agency’s decisionmaking process . . . . And

25 second, the action must be one by which rights or obligations have been determined, or from

26

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1 which legal consequences will flow.” Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs,

2 543 F.3d 586, 591 (9th Cir. 2008) (citation omitted).

3

Even if Plaintiffs could show that the Joint Memorandum satisfies the first requirement

4 for finality, they cannot establish the second requirement because neither the SAO provision nor

5 the following-to-join implementation period determine rights or obligations or prescribe legal

6 consequences. The provisions do not deprive Plaintiffs or their family members of the opportunity

7 to obtain refugee status. At most, the provisions may delay their admission if they are otherwise

8 eligible. But a processing delay by itself does not alter a refugee’s “legal situation,” and thus

9 these provisions are not final agency action. See Int’l Bhd. of Teamsters v. U.S. Dep’t of Transp.,

10 861 F.3d 944, 952 (9th Cir. 2017) (issuance of pilot program report was not final agency action;

11 though it was the “final step in completing the pilot program,” clearing the way for permitting of

12 certain carriers, it “did not change the legal situation,” as agency retained discretion over

13 whether/when to issue permits).

14

Finally, the admission of refugees is committed to agency discretion by law. See 8 U.S.C.

15 § 1157(c)(1) (“[T]he [Secretary of Homeland Security] may, in the [Secretary’s] discretion and

16 pursuant to such regulations as the [Secretary] may prescribe, admit any refugee . . . .” (emphasis

17 added)); Haig v. Agee, 453 U.S. 280, 294 n.26 (1981) (“‘may’ expressly recognizes substantial

18 discretion”); see also Part II.A.1, infra. For that separate reason, Plaintiffs’ APA claims are

19 foreclosed. See 5 U.S.C. § 701(a) (“This chapter applies . . . except to the extent that . . . (2)

20 agency action is committed to agency discretion by law.”).

21 II. PLAINTIFFS’ CLAIMS ARE NOT LIKELY TO SUCCEED ON THE MERITS

22

While Plaintiffs’ motion challenges both provisions of the Joint Memorandum, they press

23 four claims against only the SAO provision, and not the following-to-join provision. Specifically,

24 they argue that the Government lacks authority to implement the SAO provision, that the

25 provision violates the APA because it needed to undergo notice-and-comment rulemaking and is

26 arbitrary and capricious, and that the provision conflicts with the INA. Plaintiffs also bring an

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 15 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 Establishment Clause claim, arguing that both the SAO provision and following-to-join provision 2 are unconstitutional. Each argument fails on the merits.10

3

A. The Joint Memorandum’s SAO Provision Does Not Violate The APA Or INA

4

1. The Government May Temporarily Prioritize Admission Resources

While Conducting A Threat Analysis 5
Contrary to Plaintiffs’ suggestion, the SAO provision plainly lies within the Government’s

6 discretion over refugee processing and prioritization. DHS is responsible for “[e]stablishing and

7 administering rules . . . governing the granting of visas or other forms of permission, including

8 parole, to enter the United States to individuals who are not a citizen or an alien lawfully admitted

9 for permanent residence in the United States.” 6 U.S.C. § 202(4). Authority over entry into the

10 United States necessarily encompasses authority to restrict entry. See Stephenson v. Shalala, 87

11 F.3d 350, 354 (9th Cir. 1996) (“Normally, we defer to an executive agency’s expert interpretation

12 of its enabling legislation when the agency’s view is reasonable and consistent with the statute’s

13 plain language, whether or not we would have made the same decision were we standing in the

14 agency’s shoes.”). Further, the INA expressly provides that the Secretary of Homeland Security

15 “may, in the [Secretary’s] discretion and pursuant to such regulations as the [Secretary] may

16 prescribe, admit any refugee.” 8 U.S.C. § 1157(c)(1) (emphasis added). Congress plainly vested

17 “discretion” in the Secretary to admit refugees. See Alaka v. Attorney Gen. of U.S., 456 F.3d 88,

18 97 (3d Cir. 2006) (“Congress knows how to specify discretion and has done so repeatedly in other

19 provisions of the INA.”) (citation omitted). And the statute provides that refugees “may” be

20 admitted—not that they must—and does not demand that the Government make a decision on a

21 specific timeframe. See Haig, 453 U.S. at 294 n.26 (“‘may’ expressly recognizes substantial

22 discretion”). Refugee resettlement is thus an act of discretion, not an entitlement. See I.N.S. v.

23 Stevic, 467 U.S. 407, 426 (1984) (recounting legislative history of Refugee Act of 1980,

24

25

10 To the extent Plaintiffs cross-reference statutory and due process arguments concerning

the following-to-join provision as raised by plaintiffs in the related case of Doe, et al. v. Trump, 26 et al., No. 2:17-cv-00178 (W.D. Wash.), the Government likewise incorporates by reference its

prior response to those arguments, see ECF No. 51 at 12-21.

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1 explaining “[i]t was plainly recognized, however, that merely because an individual or group of

2 refugees comes within the definition will not guarantee resettlement in the United States.”

3 (citation omitted)); cf. 8 U.S.C. § 1201(h) (“Nothing in this chapter shall be construed to entitle

4 any alien, to whom a visa or other documentation has been issued, to be admitted [to] the United

5 States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible under

6 this chapter, or any other provision of law.”). The discretion to decide who “may” be admitted

7 logically includes the ability to temporarily prioritize processing of applications from non-SAO

8 countries while assessing, for “the security and welfare of the United States,” whether additional

9 safeguards are necessary for applicants from SAO countries. Joint Mem. at 2.

10

Indeed, the Government routinely grants preferences on the basis of nationality. The

11 refugee program employs a priority system to determine which individuals are of special

12 humanitarian concern for purposes of access to the program. The Government regularly relies on

13 nationality to make priority designations, such as when it created a program for at-risk children 14 from certain Central American countries.11 Indeed, the Priority 2 and Priority 3 designations

15 illustrate the many ways in which nationality is considered in refugee processing and 16 prioritization.12 Plaintiffs’ argument would mean that the Government lacks the discretion to 17 make such distinctions, contrary to the agencies’ longstanding implementation of the USRAP.13

18

19

11 See USCIS, In-Country Refugee/Parole Processing for Minors in Honduras, El

20 Salvador and Guatemala (Central American Minors – CAM) (Aug. 16, 2017), https://www.uscis.gov/CAM.

21

12 See Report to Congress from the President, Proposed Refugee Admissions for Fiscal

Year 2018, at 10-11, 13 (2017), https://www.state.gov/documents/organization/274857.pdf.

22

13 Plaintiffs apparently read Section 1157(c)(1) to require the agency to promulgate a

23

regulation each time it exercises its discretion. See Pls.’ Br. at 19. But the INA simply says that the Government may prescribe regulations, not that it must do so each time it exercises its

24 discretion. Indeed, the preferences reflected in the Central America Minors program and Priority 2 and Priority 3 designations are not memorialized in regulations. The notion that an agency must

25 exercise its congressionally delegated powers through APA rulemaking is belied by the vast body

of agency guidance that is promulgated informally. See Andrew J. Wistrich, The Evolving 26 Temporality of Lawmaking, 44 Conn. L. Rev. 737, 788-89 (2012) (“The volume of formal

legislative rules promulgated by administrative agencies is dwarfed by the even larger amount of

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 17 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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2. Plaintiffs Cannot Show An APA Procedural Violation 1
The notice-and-comment procedures of the APA do not apply to the Joint Memorandum’s 2
SAO provision for two separate reasons. First, the APA explicitly exempts “rules of agency 3
organization, procedure, or practice” from its procedural requirements. 5 U.S.C. § 553(b)(3)(A). 4
Unlike legislative (or substantive) rules, which “create law” by, for example, establishing or 5
altering substantive standards, procedural rules involve “technical regulation of the form of 6
agency action and proceedings.” S. Cal. Edison Co. v. FERC, 770 F.2d 779, 783 (9th Cir. 1985). 7
The procedural rule exemption “covers agency actions that do not themselves alter the rights or 8
interests of parties, although [they] may alter the manner in which the parties present themselves 9
or their viewpoints to the agency.” JEM Broad. Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) 10
(citation omitted). In addition, “[a] procedural rule does not become substantive merely because 11
it has a substantive impact,” such as “by denying parties the opportunity to appeal if they fail to 12
comply with certain procedures.” United States v. Gonzales & Gonzales Bonds & Ins. Agency, 13
Inc., 728 F. Supp. 2d 1077, 1084 (N.D. Cal. 2010) (citing Sequoia Orange Co. v. Yeutter, 973 14
F.2d 752, 757 (9th Cir. 1992)). As long as a rule does not change substantive standards, it may 15
qualify as procedural. See, e.g., James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 317 16
(D.C. Cir. 2000) (concluding rule was procedural where it “did not alter the substantive criteria 17
by which [the agency] would approve or deny proposed labels,” but rather, “simply changed the 18
procedures [the agency] would follow in applying those substantive standards”); Gonzales, 728 19
F. Supp. 2d at 1084 (“[C]hanges in the timing, requirements or manner in which an application or 20
petition is made are generally considered procedural changes.”). 21
The SAO provision is a procedural rule. It does not change the substantive criteria for 22
determining whether an applicant can be admitted to the United States as a refugee. Instead, it 23
prioritizes on a temporary basis applications from non-SAO countries while the agencies “conduct 24
a detailed threat analysis” “to determine what additional safeguards, if any, are necessary to ensure 25

26 informal regulations, guidelines, policy statements, letter rulings, and the like. Most agencies

issue such materials, and their quantity is staggering.” (footnotes omitted)).

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 18 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 that the admission of refugees from these countries of concern does not pose a threat to the security

2 and welfare of the United States.” Joint Mem. at 2. Even after the review is complete, the same

3 substantive criteria for refugee admissions will apply as before, but potentially subject to

4 additional procedures identified during the review. See 8 U.S.C. §§ 1157(c), 1182(a).

5

Similar agency decisions to suspend the processing of applications while the agency

6 considers or implements changes to rules or processes have been held to be procedural in nature

7 and thus exempt from notice-and-comment rulemaking. E.g., Waste Mgmt., Inc. v. U.S. EPA.,

8 669 F. Supp. 536, 538-40 (D.D.C. 1987) (deferring consideration of applications for ocean

9 incineration permits until the agency promulgated new rules on the topic); Neighborhood TV Co.

10 v. FCC, 742 F.2d 629, 636-38 (D.D.C. 1984) (deciding to “freeze” processing of certain

11 applications for television translator licenses). As in those cases, the Joint Memorandum does not

12 change the substantive criteria by which applications would ultimately be assessed but at most

13 merely alters the agencies’ “method of operations” or “change[s their] procedures.” Waste Mgmt.,

14 669 F. Supp. at 540; see also Buckeye Cablevision, Inc. v. United States, 438 F.2d 948, 953 (6th

15 Cir. 1971) (upholding processing freeze adopted without notice and comment as a procedural

16 rule); Kessler v. FCC, 326 F.2d 673, 681-82 (D.C. Cir. 1963) (same). As such, the SAO provision

17 is a procedural rule exempt from notice-and-comment rulemaking.

18

Second, the SAO provision is exempt from notice-and-comment rulemaking because it

19 falls within the APA’s foreign affairs exception. The APA provides that notice-and-comment

20 procedures do not apply to regulations involving “a military or foreign affairs function of the

21 United States.” 5 U.S.C. § 553(a)(1). “For the exception to apply, the public rulemaking

22 provisions should provoke definitely undesirable international consequences.” Yassini v.

23 Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980).

24

The consequences that would follow from notice-and-comment procedures here have

25 already been held to trigger the exception in an analogous case. In Rajah v. Mukasey, 544 F.3d

26 427, 437 (2d Cir. 2008), the Second Circuit reviewed the National Security Entry-Exit

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 19 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 Registration System, a program devised after September 11th that required registration for certain

2 individuals from specific countries. In doing so, that court held that the Government’s notices

3 that designated the countries whose nationals were subject to the program fell within the APA’s

4 foreign affairs exception, explaining that the “relevance to international relations [was] facially

5 plain” and “at least three definitely undesirable international consequences” were “evident.” Id.

6 The same consequences would result here. First, in “explaining why some of a particular nation’s

7 citizens are regarded as a threat,” notice-and-comment rulemaking “might” result in “sensitive

8 foreign intelligence. . . be[ing] revealed.” Id. Second, “relations with other countries might be

9 impaired” if the Government “were to conduct and resolve a public debate over why some citizens

10 of particular countries were a potential danger.” Id. And third, “the process would be slow and

11 cumbersome, diminishing” the Government’s ability to understand and protect against “a

12 potential attack by foreign terrorists.” Id. Thus, the foreign affairs exception applies. See also

13 Yassini, 618 F.2d at 1361 (holding that INS regulation directed at Iranian nationals “fell within

14 the foreign affairs . . . exception[] to the notice and comment requirements of the APA”).

15

3. The Joint Memorandum’s SAO Provision Is Neither Arbitrary Nor

Capricious

16

Plaintiffs’ argument that the SAO provision is arbitrary and capricious likewise fails.

17

Review under the APA’s arbitrary and capricious standard is “narrow,” Arrington v. Daniels, 516

18

F.3d 1106, 1112-13 (9th Cir. 2008), and “highly deferential,” Crickon v. Thomas, 579 F.3d 978,

19

982 (9th Cir. 2009). A court must “presum[e] the agency action to be valid and affirm[] . . . if a

20

reasonable basis exists for [the agency’s] decision.” Id. (citation omitted). A reasonable basis

21

exists so long as “the agency considered the relevant factors and articulated a rational connection

22

between the facts found and the choices made.” Id. (citation omitted). The agency’s decision

23

“need only be a reasonable, not the best or most reasonable, decision.” River Runners for

24

Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (citation omitted). A court, moreover,

25

may not “substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of the United

26

States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 20 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1

Recognizing that “more than 300 persons who entered the United States as refugees are

2 currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation,”

3 EO-2 § 1(h), the agencies conducted an interagency review to identify multiple ways to enhance

4 the refugee vetting process and began implementing those improvements. Joint Mem. Addendum

5 at 1. In the Joint Memorandum, the officials advised the President that the improvements to the

6 USRAP vetting process are sufficient to allow the general resumption of that program, but that

7 they “continue to have concerns” about the admission of refugees from SAO countries, which

8 were “previously identified as posing a higher risk to the United States.” Joint Mem. at 2. To

9 address these concerns, the officials decided to “conduct a detailed threat analysis” of the SAO

10 countries “to determine what additional safeguards, if any, are necessary to ensure that the

11 admission of refugees from these countries of concern does not pose a threat to the security and

12 welfare of the United States.” Id. “This review will be tailored to each SAO country, and

13 decisions may be made for each country independently.” Joint Mem. Addendum at 3. While

14 performing this review, the agencies will temporarily prioritize refugee applications from non-

15 SAO countries, but will also consider for admission those from SAO countries on a case-by-case

16 basis. Joint Mem. at 2; Joint Mem. Addendum at 3-4.

17

Plaintiffs challenge the decision to temporarily prioritize non-SAO countries by

18 characterizing the Joint Memorandum as raising “unspecified concerns” and suggesting that the

19 Cabinet Secretaries have had enough time to conduct a review. Pls.’ Br. at 18 (citation omitted).

20 But their argument ignores that the Cabinet Secretaries’ national security judgment is entitled to

21 extreme deference, see Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 734 (D.C. Cir. 2007)

22 (judicial review “in an area at the intersection of national security, foreign policy, and

23 administrative law[] is extremely deferential”); that the agencies performed a worldwide review

24 of the USRAP and implemented improvements to the vetting process; and that this review was

25 the basis for the SAO provision. Joint Mem. Addendum at 1. Moreover, the Joint Memorandum

26 provides at least as much specificity as the SAO list, and thus finding the SAO provision to be

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 21 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 arbitrary and capricious could cast doubt on the SAO list itself, despite that the Government has

2 used such a list since the September 11th attacks. The Cabinet Secretaries’ decision to temporarily

3 prioritize refugee applications from non-SAO countries while they conduct this review is neither

4 arbitrary nor capricious. Joint Mem. at 2; Addendum at 3-4; see Neighborhood TV Co., 742 F.2d

5 at 639 (concluding agency’s decision to “freeze” processing of certain applications for licenses

6 while it engaged in rulemaking was reasonable because it “ensure[d] that . . . interim licensing

7 did not frustrate the ends of the rules ultimately adopted”); Waste Mgmt., Inc., 669 F. Supp. at

8 542-43 (“An agency in the process of writing new regulations on a topic as sensitive as ocean

9 incineration of hazardous waste cannot be faulted for maintaining the status quo [by not issuing

10 new operating permits] until it is satisfied that the incineration can proceed as safely as possible.”).

11

4. The Joint Memorandum’s SAO Provision Is Consistent With The INA

12

Plaintiffs argue that the SAO provision “fundamentally conflicts” with the INA because

13 it “rewrite[s]” the definition of “refugee” found in 8 U.S.C. § 1101(a)(42), and “impermissibly

14 alters admissibility standards” set out in 8 U.S.C. § 1182(a). Pls.’ Br. at 21. Section 1101(a)(42)

15 simply defines the term “refugee,” and Section 1182(a) states, in relevant part, that “aliens who

16 are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to

17 be admitted to the United States,” 8 U.S.C. § 1182(a). There is no conflict: Congress has set the

18 minimum required to gain entry as a refugee, but has still vested the Secretary with complete

19 “discretion” in deciding whether “any refugee” “may” be admitted. 8 U.S.C. § 1157(c)(1); see

20 also Part II.A.1, supra. There is nothing improper about the Cabinet Secretaries exercising that

21 discretion to temporarily prioritize admissions from non-SAO countries while reviewing whether

22 additional safeguards are necessary for those from countries found to “pose elevated potential

23 risks to national security.” Joint Mem. Addendum at 1. And though Plaintiffs apparently fault

24 the SAO provision for allowing admission of refugees from SAO countries on a case-by-case

25 basis, Pls.’ Br. at 21, the Government’s use of its discretion to provide such a waiver is a virtue

26 of the Joint Memorandum. If the agencies have the greater authority to temporarily prioritize

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 22 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 admissions from non-SAO countries (and they do), see Part II.A.1, supra, that necessarily

2 includes the lesser authority to provide for case-by-case exceptions. Indeed, waiver provisions

3 are routinely included in Presidential entry restrictions. See, e.g., Proclamation No. 8693, § 4, 76

4 Fed. Reg. 44,751 (July 24, 2011); Proclamation No. 8342, § 2, 74 Fed. Reg. 4093 (Jan. 21, 2009);

5 Proclamation No. 6958, § 2, 61 Fed. Reg. 60,007 (Nov. 22, 1996).

6

Plaintiffs’ contrary theory—that the Executive Branch is precluded from acting whenever

7 an INA provision addresses the same topic—is ill-suited to the arena of national security and

8 foreign affairs, which involve delicate balancing in the face of changing circumstances, such that

9 the Executive must be permitted to act quickly and flexibly. See Zemel v. Rusk, 381 U.S. 1, 17

10 (1965) (discussing the “changeable and explosive nature of contemporary international

11 relations”); Jama v. ICE, 543 U.S. 335, 348 (2005). In this setting, courts typically apply the

12 opposite presumption: courts will not assume Congress’s intent to foreclose the President’s

13 authority over national security and foreign affairs unless Congress has specifically expressed that

14 intent. See Jama, 543 U.S. at 348 (“To infer an absolute rule . . . where Congress has not clearly

15 set it forth would run counter to our customary policy of deference to the President in matters of

16 foreign affairs.”); Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988) (“[U]nless Congress

17 specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the

18 authority of the Executive in military and national security affairs.”). Plaintiffs’ interpretation of

19 the INA effectively eliminates the discretion Congress expressly provided the Executive Branch.

20

B. The Joint Memorandum Does Not Violate the Establishment Clause

21

The Court should not even consider Plaintiffs’ Establishment Clause challenge at this time

22 given the Supreme Court’s December 4, 2017, orders allowing the Proclamation to take full effect.

23 As the Government will explain in its forthcoming supplemental brief, the Supreme Court has

24 determined that plaintiffs are not likely to succeed on their Establishment Clause challenge to the

25 Proclamation, and Plaintiffs’ Establishment Clause claims here are even weaker because they

26 challenge decisions by the Secretaries, whose integrity has not been questioned.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 23 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1

However, if this Court is inclined to reach Plaintiffs’ Establishment Clause claims now, then

2 it should deny their request for injunctive relief.

3

1. The Joint Memorandum Is Valid Under Mandel

4

The Supreme Court has made clear that, “when the Executive exercises” its authority to

5 exclude aliens from the country “on the basis of a facially legitimate and bona fide reason, the

6 courts will neither look behind the exercise of that discretion, nor test it by balancing its

7 justification against the” asserted constitutional rights of U.S. citizens. Mandel, 408 U.S. at 770.

8 Mandel involved a First Amendment speech claim, but courts have applied its test to other

9 constitutional claims as well. See, e.g., Fiallo, 430 U.S. at 792-96 (equal protection); Rajah,

10 544 F.3d at 438 (claims alleging discrimination based on “religion, ethnicity, gender, and race”);

11 Washington v. Trump, 858 F.3d 1168, 1179-82 (9th Cir. 2017) (Bybee, J., dissenting from denial

12 of reconsideration en banc) (collecting cases). Mandel’s rule reflects that the Constitution

13 “exclusively” allocates power over the admission of aliens to the “political branches,” Mandel,

14 408 U.S. at 765 (citation omitted), and that aliens abroad have no constitutional rights at all 15 regarding entry into the country. See Fiallo, 430 U.S. at 792-96.14

16

Mandel compels rejecting Plaintiffs’ Establishment Clause claim because the Joint

17 Memorandum provides “facially legitimate and bona fide reason[s].” 408 U.S. at 770. For the

18 following-to-join provision, the Secretaries of State and Homeland Security and the Director of

19 National Intelligence determined that implementation of “adequate screening mechanisms for

20 following-to-join refugees that are similar to the processes employed for principal refugees” is

21 necessary “to ensure the security and welfare of the United States.” Joint Mem. at 3. And for the

22

23

14 Contrary to Plaintiffs’ assertion (Pls.’ Br. at 14 n.16), the Ninth Circuit has not rejected Mandel’s application to Plaintiffs’ Establishment Clause claim. See Washington, 847 F.3d at

24 1168 (per curiam) (expressly “reserv[ing] consideration” of Establishment Clause challenge). Moreover, the Supreme Court applied Mandel in Fiallo v. Bell, 430 U.S. 787, 792-96 (1977),

25 where it rejected a claim that a statute unconstitutionally discriminated against certain aliens based

on their sex and the legitimacy of their children. In doing so, the Court held that it could “see no 26 reason to review the broad congressional policy choice at issue [there] under a more exacting

standard than was applied in Kleindienst v. Mandel.” Id. at 795. Mandel likewise applies here.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 24 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 SAO provision, the Joint Memorandum explained that after review of the USRAP’s vetting

2 procedures, the Cabinet Secretaries “continue to have concerns” about the admission of refugees

3 from SAO countries, which were “previously identified as posing a higher risk to the United

4 States.” Joint Mem. at 2. Accordingly, those officials decided to “conduct a detailed threat

5 analysis” of the SAO countries “to determine what additional safeguards, if any, are necessary to

6 ensure that the admission of refugees from these countries of concern does not pose a threat to the

7 security and welfare of the United States.” Id.

8

Under Mandel’s rational-basis test, see Sessions v. Morales-Santana, 137 S. Ct. 1678,

9 1693 (2017), it is not for Plaintiffs or the Court to second-guess the national-security

10 determinations of these Executive Branch officials. See, e.g., Reno v. Am.-Arab Anti-

11 Discrimination Comm., 525 U.S. 471, 491 (1999) (courts are generally “ill equipped to determine

12 the[] authenticity and utterly unable to assess the[] adequacy” of the Executive’s “reasons for

13 deeming nationals of a particular country a special threat”). Because the Joint Memorandum

14 provides a facially legitimate and bona fide reason for imposing the conditions Plaintiffs

15 challenge, Plaintiffs’ constitutional claims fail.

16

2. Plaintiffs’ Claims Fail Even Apart From The Mandel Standard

17

Plaintiffs’ claims also fail without regard to Mandel because the Joint Memorandum is

18 valid under domestic Establishment Clause precedent. The Establishment Clause requires the

19 government to “‘pursue a course of neutrality toward religion,’ favoring neither one religion over

20 others nor religious adherents collectively over nonadherents.” Bd. of Educ. of Kiryas Joel Vill.

21 Sch. Dist. v. Grumet, 512 U.S. 687, 696 (1994) (internal citation omitted); see Church of the

22 Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993). The Joint Memorandum

23 fully comports with that principle. It does not draw “explicit and deliberate distinctions” based

24 on religion. Larson v. Valente, 456 U.S. 228, 246 n.23 (1982). To the contrary, it is entirely

25 neutral in terms of religion. The Joint Memorandum also was not motivated by a religious

26 purpose. Even in the domestic context, a court deciding whether official action violates the

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 25 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 29 of 34

1 Establishment Clause because of an improper religious purpose looks only to “the ‘text, legislative

2 history, and implementation of the statute,’ or comparable official act.” McCreary County v.

3 ACLU of Ky., 545 U.S. 844, 862 (2005). The court is not to engage in “judicial psychoanalysis

4 of a drafter’s heart of hearts.” Id. Rather, it is only an “official objective” of favoring or

5 disfavoring religion that implicates the Clause. Id. There is no basis for invalidating the Joint

6 Memorandum under that standard either. The Joint Memorandum’s text does not refer to or draw

7 any distinction based on religion. And its “operation,” Lukumi, 508 U.S. at 535, confirms that it

8 is religion-neutral: it applies regardless of one’s religion.

9

Plaintiffs nevertheless argue that the Joint Memorandum “target[s] . . . primarily majority-

10 Muslim countries.” Pls.’ Br. at 14, 17. But the following-to-join provision applies worldwide,

11 without regard to nationality or religion. And the list of eleven current SAO countries was not

12 selected based on the religious beliefs of the countries’ nationals; rather, the countries were

13 identified in 2015 through interagency consultations as countries that “pose elevated potential

14 risks to national security.” Joint Mem. Addendum at 1; cf. Rajah, 544 F.3d at 439 (holding that

15 a program regulating aliens from certain countries survived rational-basis review and was not

16 motivated by an improper animus toward Muslims even though all of the selected countries,

17 except North Korea, were predominantly Muslim).

18

Plaintiffs also rely on past judicial determinations regarding previous Executive Orders

19 that are not at issue here, as well as campaign-trail statements or other remarks that do not address

20 the Joint Memorandum. See Pls.’ Br. at 14-15. Because none of those decisions or statements

21 address the Joint Memorandum, they are not relevant to the Government’s purpose in issuing the

22 Joint Memorandum. Moreover, the relevant decision here is set forth in the Joint Memorandum,

23 which was issued by the Secretaries of State and Homeland Security and the Director of National

24 Intelligence. As the relevant decisionmakers, therefore, it is those officials’ purpose and intent

25 that are relevant to the Establishment Clause analysis. See, e.g., Vill. of Arlington Heights v.

26 Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977) (examining the “decisionmaker’s purposes”

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 26 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 30 of 34

1 in assessing equal protection claim); Modrovich v. Allegheny County, 385 F.3d 397, 411-12 (3d

2 Cir. 2004) (concluding that “statements made by other County officials” who were not “the

3 decision-maker for the County with respect to the Plaque” were not relevant to the Establishment

4 Clause purpose analysis). Plaintiffs have not alleged, let alone demonstrated, that the relevant 5 officials here were motivated by a religious purpose or harbored anti-Muslim animus.15

6

Even if the Court were to associate the Cabinet Secretaries’ actions here with past

7 decisions or statements by other officials (and it should not), the conclusion is the same: the Joint

8 Memorandum rests on sound constitutional footing. In the context of EO-2’s temporary

9 suspension of the refugee program, the district court in IRAP v. Trump, 241 F. Supp. 3d 539, 565

10 (D. Md. 2017), aff’d in part and vacated in part, 857 F.3d 554 (4th Cir. 2017), declined to enjoin

11 that provision, holding that there was insufficient evidence of animus connected to the refugee 12 program specifically.16 Plaintiffs fail to point to anything in the interim to change that conclusion.

13 Moreover, the President in EO-2 expressly disavowed any intent to benefit one religion over 14 another, see EO-2 § 1(b)(iv). Plaintiffs’ Establishment Clause claim fails.17

15 III. THE REMAINING FACTORS WEIGH AGAINST INJUNCTIVE RELIEF

16

Apart from their inability to demonstrate a likelihood of success on the merits, Plaintiffs

17 have not shown that “irreparable injury is likely in the absence of an injunction.” Winter, 555

18 U.S. at 22 (emphasis omitted). They have not established that the Joint Memorandum has caused

19 them an injury at all, let alone an irreparable one. Refugees from SAO countries may still qualify

20

21

15 Past actions cannot “forever taint” future government efforts. McCreary, 545 U.S. at

874. The “specific sequence of events” leading to the issuance of the Joint Memorandum— 22 especially the extensive, multi-agency process and decisions by the Secretaries of State and

23

Homeland Security and Director of National Intelligence—severs any connection between past executive orders’ supposed religious purpose and the Joint Memorandum. Id. at 866.

24

16 Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017), vacated as moot, 874 F.3d 1112 (9th

Cir. 2017), did not address whether EO-2’s refugee provision violated the Establishment Clause.

25

17 Plaintiffs add that the Joint Memorandum “violates the equal protection component of

the Due Process Clause.” Pls.’ Br. at 17 n.17. Issues averred in a perfunctory manner are waived, 26 see, e.g., Daily v. Astrue, No. CV-12-00389-JLQ, 2013 WL 5372897, at *5 (E.D. Wash. Sept. 25,

2013). In any event, Plaintiffs cannot show an equal protection violation, see Part I.C.2, supra.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 27 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 31 of 34

1 for admission on a case-by-case basis during the review period, while the following-to-join

2 provision simply prescribes an implementation period to bring screening procedures for

3 following-to-join and principal refugees into parity. At most these provisions might delay the

4 entry of some refugee applicants, but such delay does not constitute irreparable harm. After all,

5 processing times for refugees can vary widely and on average are quite lengthy. See U.S. Dep’t

6 of State, U.S. Refugee Admissions Program, https://www.state.gov/j/prm/ra/admissions

7 /index.htm. Because Plaintiffs have not shown that the challenged provisions will irreparably

8 harm them, they are not entitled to the extraordinary remedy of preliminary injunctive relief.

9

Conversely, an injunction would cause direct, irreparable harm to the Government and the

10 public interest. “[A]ny time a State is enjoined by a court from effectuating statutes enacted by

11 representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 133 S. Ct.

12 1, 3 (2012) (Roberts, C.J., in chambers) (citation omitted). This principle extends naturally to the

13 national-security judgments of Cabinet Secretaries. “It is ‘obvious and unarguable’ that no

14 governmental interest is more compelling than the security of the Nation.” Haig, 453 U.S. at 307

15 (citations omitted). These officials have jointly determined that, with certain exceptions,

16 admitting refugees from SAO countries without conducting a further review of those countries

17 and admitting following-to-join refugee applicants who have not been vetted through screening

18 processes similar to those employed for principal refugees would not be in the nation’s best

19 interest. This Court should not second-guess the Secretaries’ judgment, particularly in light of

20 the Supreme Court’s orders staying injunctions against the Proclamation. These stay orders

21 suggest that a majority of the Justices have concluded that, in this immigration and national-

22 security context, the balance of equities favors the Government.

23 IV. A GLOBAL INJUNCTION WOULD BE INAPPROPRIATE

24

Even if some relief were appropriate (and it is not), the Court should tailor any remedy to

25 address only the alleged injuries of Plaintiffs who have made an adequate showing to satisfy

26 Article III’s justiciability requirements. Article III requires that “a plaintiff must demonstrate

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 28 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 32 of 34

1 standing . . . for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137

2 S. Ct. 1645, 1650 (2017). The remedy sought therefore must “be limited to the inadequacy that

3 produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U.S. 343, 357

4 (1996). Equitable principles likewise require that injunctions “be no more burdensome to the

5 defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health

6 Ctr., Inc., 512 U.S. 753, 765 (1994) (citation omitted). Any injunction the Court enters should be

7 limited to relieving whatever irreparable injury the Court concludes one or more named Plaintiffs 8 have suffered or imminently will suffer as a consequence of the challenged provisions.18

9

CONCLUSION

10

The Court should deny Plaintiffs’ Motion for Preliminary Injunction.

11 12 DATED: December 7, 2017 13 14 15 16 17

Respectfully submitted,
CHAD A. READLER Principal Deputy Assistant Attorney General
JENNIFER D. RICKETTS Director, Federal Programs Branch
JOHN R. TYLER Assistant Director, Federal Programs Branch

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/s/ Joseph C. Dugan

MICHELLE R. BENNETT

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DANIEL SCHWEI

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KEVIN SNELL

JOSEPH C. DUGAN

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Trial Attorneys

U.S. Department of Justice

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Civil Division, Federal Programs Branch

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20 Massachusetts Avenue, NW

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18 The Jewish Family Service Plaintiffs attempt to justify a “nationwide injunction” by

contending that they “hail from all over the country.” JFS Notice at 3. But Plaintiffs collectively

25 reside in just five states. In any event, Plaintiffs’ proposed nationwide injunction is tantamount

to an award of classwide injunctive relief, but no class has been certified here. An “injunction 26 must be limited to apply only to the individual plaintiffs unless the district judge certifies a class

of plaintiffs.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983).

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 29 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 33 of 34

Washington, DC 20530

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Tel: (202) 514-3259

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Fax: (202) 616-8470 Email: joseph.dugan@usdoj.gov

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DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 30 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 34 of 34

1

CERTIFICATE OF SERVICE

2 I certify that on December 7, 2017, a copy of the foregoing document was electronically
3 filed with the Clerk of the Court using the CM/ECF system, which will send notification of such
4 filing to all counsel of record.
5 DATED this 7th day of December, 2017.
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/s/ Joseph C. Dugan JOSEPH C. DUGAN

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DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 31 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

 
 Case 2:17-cv-00178-JLR Document 64 Filed 12/04/17 Page 1 of 9

1

The Honorable James L. Robart

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3

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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JOHN DOES, et al.,
10

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v.

Plaintiffs,

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DONALD TRUMP, et al.,

13
Defendants.

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JEWISH FAMILY SERVICES, et al.,
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16
v.

Plaintiffs,

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DONALD TRUMP, et al.,
18

19

Defendants.

CASE NO. C17-0178-JLR STIPULATED MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF (RELATING TO BOTH CASES) CASE NO. C17-1707-JLR
NOTE ON MOTION CALENDAR: December 4, 2017

20

21

Amici curiae National Association for the Advancement of Colored People, Advocates

22

for Youth, Chicago Lawyers’ Committee for Civil Rights Under Law, Judge David L. Bazelon

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Center for Mental Health Law, Mississippi Center for Justice, National Center for Lesbian
24

Rights, People for the American Way Foundation, Southern Coalition for Social Justice, and
25

26

27 STIPULATED MOTION FOR LEAVE TO

28

FILE AMICI CURIAE BRIEF – 1

(Case No. C17-1707-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64 Filed 12/04/17 Page 2 of 9

Washington Lawyers’ Committee for Civil Rights and Urban Affairs, through undersigned
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counsel, respectfully seek leave to file the attached amici curiae brief.

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All parties have consented to the filing of this amici brief.

4

Interest of Amici

5
Amici are national and regional civil rights groups interested in the promotion of civil
6

liberties throughout the country, and the elimination of discrimination in any form:
7

8

1. The National Association for the Advancement of Colored People (NAACP) is

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the nation’s largest and oldest civil rights grassroots organization. Since its founding in 1909,

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the mission of the NAACP has been to ensure the political, educational, social, and economic

11
equality of all persons and to eliminate race-based discrimination. The NAACP has fought in
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the courts for decades to protect the guarantee of equal protection under law. To advance its

14

mission, the NAACP has represented parties in landmark civil rights cases, perhaps most

15

famously in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), which outlawed

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segregation in public schools. The NAACP also has filed numerous amicus briefs over its
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decades of existence in cases that significantly impact minority groups.
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2. The Advocates for Youth (Advocates) is a nonprofit organization that helps young

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people make informed and responsible decisions about their reproductive and sexual health. For

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more than three decades, Advocates has partnered with youth leaders, adult allies, and youth-

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serving organizations to advocate for effective adolescent reproductive and sexual health
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programs and policies. In 2017, Advocates launched the Muslim youth Leadership Council
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(MyLC). MyLC is a yearlong Leadership Council dedicated to bringing together young Muslim-

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identifying people in the United States and furthering their goals of becoming leaders within their

27 STIPULATED MOTION FOR LEAVE TO

28

FILE AMICI CURIAE BRIEF – 2

(Case No. C17-1707-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64 Filed 12/04/17 Page 3 of 9

communities and beyond. Each year MyLC recruits and trains 15-20 young people who advocate
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2

for the inclusion of young Muslim-identifying people in the planning, implementation, and

3

evaluation of Reproductive Justice related programming and policies at the local, state, and

4

federal levels.

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3. The Chicago Lawyers’ Committee for Civil Rights (CLCCR) is a nonprofit public
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interest law organization founded in 1969. CLCCR works to secure racial equity and economic
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opportunity for all. CLCCR provides legal representation through partnerships with the private

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bar, and collaborates with grassroots organizations and other advocacy groups to implement

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community-based solutions that advance civil rights. In all practice areas, including education

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equity, fair housing, economic opportunity, hate crime prevention, and voting rights, CLCCR
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advocates for immigrants who have been subject to racially-discriminatory governmental

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practices and policies. CLCCR’s goal is to ensure that America fulfills its promise of democracy

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and equal justice for all.

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4. The Judge David L. Bazelon Center for Mental Health Law is a national public
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interest organization founded in 1972 to advance the rights of individuals with mental disabilities.
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The Bazelon Center advocates for laws and policies that provide people with mental illness or

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intellectual disabilities the opportunities and resources they need to participate fully in their

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communities. Its litigation and policy advocacy is based on the Americans with Disabilities Act’s

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guarantees of non-discrimination and reasonable accommodation. People with mental illness or
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intellectual disability commonly face discrimination based on myths and stereotypes, and the
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eradication of such discrimination is among the Bazelon Center’s primary goals.

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27 STIPULATED MOTION FOR LEAVE TO

28

FILE AMICI CURIAE BRIEF – 3

(Case No. C17-1707-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64 Filed 12/04/17 Page 4 of 9

5. The Mississippi Center for Justice is a nonprofit public interest law organization
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founded in 2003 in Jackson, Mississippi and committed to advancing racial and economic justice.

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Supported and staffed by attorneys and other professionals, the Center develops and pursues

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strategies to combat discrimination and poverty statewide. One of amicus’ original areas of

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interest involved predatory loan practices directed at migrant poultry workers, and MCJ has
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remained concerned about the plight of Mississippi’s growing immigrant population for the last
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decade, particularly in the areas of access to healthcare, education, housing, and fair lending.

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6. The National Center for Lesbian Rights (NCLR) is a national non-profit legal

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organization dedicated to protecting and advancing the civil rights of lesbian, gay, bisexual, and

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transgender people and their families through litigation, public policy advocacy, and public
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education. Since its founding in 1977, NCLR has played a leading role in combating

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discrimination and securing fair and equal treatment for LGBT people and their families in cases

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across the country involving constitutional and civil rights. NCLR has a particular interest in

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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
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immigrants nationwide through, among other services, direct representation of immigrants in

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impact cases and individual asylum cases and advocacy for immigration and asylum policy

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reform.

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7. People For the American Way Foundation (PFAWF) is a nonpartisan civic
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organization established to promote and protect civil and constitutional rights, including religious
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liberty and freedom from discrimination. Founded in 1981 by a group of civic, educational, and

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religious leaders, PFAWF now has hundreds of thousands of members nationwide. Over its

27 STIPULATED MOTION FOR LEAVE TO

28

FILE AMICI CURIAE BRIEF – 4

(Case No. C17-1707-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64 Filed 12/04/17 Page 5 of 9

history, PFAWF has conducted extensive education, outreach, litigation, and other activities to
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promote these values. PFAWF strongly supports the principles that it violates the First

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Amendment and civil rights principles for government to take action that, effectively or on its

4

face, harms one particular religious group. This is especially important because of the additional

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harm such government opprobrium can and has caused, and with respect to particularly
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vulnerable populations like immigrants, as in this case.
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8. The Southern Coalition for Social Justice is a nonprofit public interest law

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organization founded in 2007 in Durham, North Carolina. SCSJ partners with communities of

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color and economically disadvantaged communities in the south to advance their political, social,

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and economic rights through the combination of legal advocacy, research, organizing, and
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communications. Originally, one of amicus’ primary practice areas was immigrants’ rights,

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which remains important to its mission. SCSJ frequently advocates on behalf of immigrants who

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have been subject to racially-discriminatory governmental practices, and promotes the

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application of basic human rights principles to policies affecting migrant communities.

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9.

The Washington Lawyers’ Committee for Civil Rights and Urban Affairs is a

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non-profit civil rights organization established to eradicate discrimination and poverty by

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enforcing civil rights laws through litigation. In furtherance of this mission, the Washington

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Lawyers’ Committee has a dedicated Immigrant Rights Project, which has served as a critical

22
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
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background or national origin, and who are often unaware of their legal rights and protections.

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27 STIPULATED MOTION FOR LEAVE TO

28

FILE AMICI CURIAE BRIEF – 5

(Case No. C17-1707-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64 Filed 12/04/17 Page 6 of 9

Summary of Argument
1

2

In promotion of their interests, amici respectfully submit this brief to advance a key

3

argument in support of granting the plaintiffs’ request for injunctive relief.

4

Amici submit that the balance of equities and public interest weigh heavily in favor of

5
enjoining President Trump’s September 24, 2017 Executive Order, “Enhancing Vetting
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Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or
7

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Other Public-Safety Threats” (the “Executive Order”), as it improperly promotes social

9

categorization and stereotyping that endangers the lives and well-being of individuals of the

10
Muslim faith. The Executive Order is the product of several centuries of Muslim stereotyping in

11
this country, and harms even those who are not the direct victims of specific attacks on
12

13

immigrants. Here, the evidence demonstrates that, regardless of the Government’s post-hoc

14

explanations, the Executive Order was motivated by animus toward Muslims and singled out, as

15

a proxy, those born in the targeted majority-Muslim countries.

16
No counsel for any party participated in the authoring of this document, in whole or in
17
part; no party or party’s counsel contributed any money that was intended to fund preparation or
18

19

submission of the brief; and no person, other than amici curiae, their members and their counsel,

20

contributed money that was intended to fund preparation or submission of the brief.

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Therefore, amici respectfully request that this Court grant their consent motion to

22
participate as amici in the consolidated cases.
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///

27 STIPULATED MOTION FOR LEAVE TO

28

FILE AMICI CURIAE BRIEF – 6

(Case No. C17-1707-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64 Filed 12/04/17 Page 7 of 9

DATED this 4th day of December, 2017.
1

2

Respectfully submitted,

3

/s/ Michael C. Subit

_____________________________________

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Michael C. Subit, Esquire (State Bar # 29189)

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Frank Freed Subit & Thomas LLP

705 2nd Avenue, Suite 1200

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Seattle WA 98104-1798

Phone: (206) 682-6711
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Email: msubit@frankfreed.com

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/s/Lynne Bernabei

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_____________________________________

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Lynne Bernabei (D.C. Bar # 938936

Alan R. Kabat (D.C. Bar # 462458)

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Bernabei & Kabat, PLLC

1400 – 16th Street N.W., Suite 500

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Washington, D.C. 20036-2223

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Phone: (202) 745-1942

email: Bernabei@bernabeipllc.com

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Kabat@bernabeipllc.com

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Counsel for Amici Curiae

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27 STIPULATED MOTION FOR LEAVE TO

28

FILE AMICI CURIAE BRIEF – 7

(Case No. C17-1707-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64 Filed 12/04/17 Page 8 of 9

Local Civil Rule 7.1 Corporate Disclosure Statement
1

2

Pursuant to Local Civil Rule 7.1, Amici National Association for the Advancement of

3

Colored People, Advocates for Youth, Chicago Lawyers’ Committee for Civil Rights Under

4

Law, Judge David L. Bazelon Center for Mental Health Law, Mississippi Center for Justice,

5
National Center for Lesbian Rights, People for the American Way Foundation, Southern
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Coalition for Social Justice, and Washington Lawyers’ Committee for Civil Rights and Urban
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Affairs, hereby certify as follows: Amici have no parent corporations, have no stock, and are

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not a joint venture, limited liability corporation (LLC), partnership, or a limited liability

10
partnership (LLP). Amicus People for the American Way Foundation is a non-profit affiliate

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of People for the American Way, a 501(c)(4) social welfare association.
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DATED this 4th day of December, 2017.

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Respectfully submitted,

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27 STIPULATED MOTION FOR LEAVE TO

28

FILE AMICI CURIAE BRIEF – 8

(Case No. C17-1707-JLR)

/s/ Michael C. Subit _____________________________________ Michael C. Subit, Esquire (State Bar # 29189) Frank Freed Subit & Thomas LLP 705 2nd Avenue, Suite 1200 Seattle WA 98104-1798 Phone: (206) 682-6711 Email: msubit@frankfreed.com
/s/ Lynne Bernabei __________________________ Lynne Bernabei (D.C. Bar # 938936 Alan R. Kabat (D.C. Bar # 462458) Bernabei & Kabat, PLLC 1400 – 16th Street N.W., Suite 500 Washington, D.C. 20036-2223 Phone: (202) 745-1942 email: Bernabei@bernabeipllc.com Kabat@bernabeipllc.com Counsel for Amici Curiae
FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 64 Filed 12/04/17 Page 9 of 9

1

CERTIFICATE OF SERVICE

2
I hereby certify that on December 4, 2017, I electronically filed the foregoing document
3
with the Clerk of the Court using the CM/ECF system which will send notification of such filing
4

5

to all of the registered CM/ECF users for this case.

6

I hereby declare under the penalty of perjury of the laws of the State of Washington that

7
the foregoing is true and correct.
8
DATED this 4th day of December, 2017.
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10
/s/ Michael C. Subit

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Michael C. Subit, WSBA No. 29189

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27 STIPULATED MOTION FOR LEAVE TO

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FILE AMICI CURIAE BRIEF – 9

(Case No. C17-1707-JLR)

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The Honorable James L. Robart
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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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JOHN DOES, et al.,
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v.
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Plaintiffs,

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DONALD TRUMP, et al.,

CASE NO. C17-0178-JLR AMICI CURIAE BRIEF (RELATING TO BOTH CASES)

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Defendants.

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JEWISH FAMILY SERVICES, et al.,

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v.

Plaintiffs,

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DONALD TRUMP, et al.,
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Defendants.
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CASE NO. C17-1707-JLR
Note on Motion Calendar: December 4, 2017

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AMICI CURIAE BRIEF (Case No. C-17-0178-JLR)

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TABLE OF CONTENTS
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INTEREST OF AMICI CURIAE .

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SUMMARY OF ARGUMENT .

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ARGUMENT .

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Social Categorization and Stereotyping Creates Dangerous Conditions for Members of

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Minority Groups .

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A. Stereotyping Minorities Creates a Climate for Discrimination .

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B. The Executive Order Is the Product of Centuries of Discriminatory Stereotypes

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About Muslims

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C. The Executive Order Is Based on Stereotypes About Muslims as “Anti-American”

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and “Terrorists” .

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D. Government Legitimization of Muslim Stereotypes Has Encouraged Violence

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Against Muslims, and Inhibited Millions of Muslims in the Practice of Their

Religion

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1. Government Stereotyping Leads to Violence and Discrimination

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2. The President’s Statements Have Encouraged Violence .

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3. Stereotyping and Discrimination Harms All Americans, Not Just Those

Directly Affected by Specific Acts

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CONCLUSION

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1
INTERESTS OF AMICI CURIAE
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Amici, National Association for the Advancement of Colored People, Advocates for

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Youth, Chicago Lawyers’ Committee for Civil Rights Under Law, Judge David L. Bazelon

5

Center for Mental Health Law, Mississippi Center for Justice, National Center for Lesbian

6
Rights, People for the American Way Foundation, Southern Coalition for Social Justice, and
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Washington Lawyers’ Committee for Civil Rights and Urban Affairs, are national and regional
8

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civil rights groups interested in the promotion of civil liberties throughout the country, and the

10

elimination of discrimination in any form.

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SUMMARY OF ARGUMENT

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In promotion of their interests, amici respectfully submit this brief to advance a key
13

14

argument in support of granting the plaintiffs’ request for injunctive relief. Amici submit that the

15

balance of equities and public interest weigh heavily in favor of enjoining President Trump’s

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September 24, 2017 Executive Order, “Enhancing Vetting Capabilities and Processes for

17
Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats”
18
(the “Executive Order”), as it improperly promotes social categorization and stereotyping that
19

20

endangers the lives and well-being of individuals of the Muslim faith. The Executive Order is

21

the product of several centuries of Muslim stereotyping in this country, and harms even those

22

who are not the direct victims of specific attacks on immigrants. Here, the evidence demonstrates

23
that, regardless of the Government’s post-hoc explanations, the Executive Order was motivated
24

by animus toward Muslims and singled out, as a proxy, those born in the targeted majority-
25

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Muslim countries.

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ARGUMENT
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2

Social Categorization and Stereotyping Creates

Dangerous Conditions for Members of Minority Groups.

3

4

A. Stereotyping Minorities Creates a Climate for Discrimination.

5

The balance of equities and public interest in this case weigh in favor of enjoining the

6
Executive Order due to the discrimination it promotes. As the courts have long recognized, laws
7
such as the Executive Order improperly promote social categorization and stereotyping of
8

9

Muslims that lead to the endangerment of the lives of those who practice Islam, a minority

10

religion.

11

The Supreme Court has repeatedly stated that discriminatory stereotypes can improperly

12
affect decision making. Most recently, the Court recognized that disparate impact liability
13
prevents segregated housing patterns that might otherwise result from the role of “covert and
14

15

illicit stereotyping.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project,

16

Inc., 135 S. Ct. 2507, 2522 (2015); see also Miller-El v. Dretke, 545 U.S. 231, 268 (2005)

17

(Breyer, J., concurring) (recognizing that “subtle forms of bias are automatic, unconscious, and

18
unintentional and escape notice, even the notice of those enacting the bias”).
19

In Price Waterhouse, the Supreme Court recognized the role that sex stereotyping plays
20

21

in discrimination cases, explaining that “stereotyped remarks can certainly be evidence that

22

gender played a part” in an adverse employment decision. Price Waterhouse v. Hopkins, 490

23
U.S. 228, 251 (1989).

24
In Windsor, the Supreme Court emphasized that laws whose “purpose and effect” is
25

26

“disapproval of” a “class” of people “impose a disadvantage, a separate status, and so a stigma”

27

on the targeted group. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013). The law at issue

28

in that case, the federal Defense of Marriage Act, targeted same-sex couples for discrimination

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and stigma, just as the challenged Executive Order today singles out Muslim individuals for ill-
1

2

treatment.

3

Similarly, in Cleburne, the Supreme Court explained that “race, alienage, and national

4

origin” are “so seldom relevant” to state interests, meaning that “such considerations are deemed

5
to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or
6

deserving as others.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). In
7

8

Griggs, the Supreme Court held that the “absence of discriminatory intent does not redeem

9

employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority

10
groups and are unrelated to measuring job capability.” Griggs v. Duke Power Co., 401 U.S. 424,

11
432 (1971).
12

13

The courts in other circuits also recognize that social categorization and stereotyping

14

create fertile grounds for discrimination, including in housing, employment decisions, and police

15

actions. See, e.g., Hassan v. City of New York, 804 F.3d 277, 306 (3d Cir. 2015) (rejecting

16
“appeals to ‘common sense’ which might be infected by stereotypes” as insufficient to justify
17
police surveillance of Muslim individuals, businesses, and institutions) (quoting Reynolds v.
18

19

Chicago, 296 F.3d 524, 526 (7th Cir. 2002)); Ahmed v. Johnson, 752 F.3d 490, 503 (1st Cir.

20

2014) (finding “lack of explicitly discriminatory behaviors” does not preclude a finding of

21

“unlawful animus” in employment discrimination because “unlawful discrimination can stem

22
from stereotypes and other types of cognitive biases, as well as from conscious animus”) (quoting
23

Thomas v. Eastman Kodak Co., 183 F.3d 38, 59 (1st Cir. 1999)); United States v. Stephens, 421
24

25

F.3d 503, 515 (7th Cir. 2005) (recognizing that racial stereotyping continues to play a role in jury

26

selection and the outcome of trials); Thomas, 183 F.3d at 42 (holding that Title VII’s ban on

27
“disparate treatment because of race” includes “acts based on conscious racial animus” and
28
“employer decisions that are based on stereotyped thinking”).

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Relevant research shows that a psychological triggering phenomenon known as
1

2

“priming” exacerbates stereotyping and makes it more extreme. Priming occurs when “subtle

3

influences . . . increase the ease with which certain information comes to mind.” Richard H.

4

Thaler & Cass R. Sunstein, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND

5
HAPPINESS 69 (2008). In the case of racial stereotyping, which shares many attributes with
6

stereotyping of Muslims, priming an individual with race-based stereotypes can influence later
7

8

decisions by that individual. Sandra Graham & Brian S. Lowery, Priming Unconscious Racial

9

Stereotypes about Adolescent Offenders, 28 L. & HUM. BEHAV. 483, 489 (2004).

10
Social science research repeatedly demonstrates that individuals have a persistent
11
tendency to defer blindly to priming from authority figures. See Stanley Milgram, Behavioral
12

13

Study of Obedience, 67 J. ABNORMAL & SOC. PSYCHOL. 371, 375-76 (1963). Therefore, as the

14

Supreme Court’s decisions in Brown v. Board of Education of Topeka, 347 U.S. 483, 493-94

15

(1954) and Loving v. Virginia, 388 U.S. 1, 8-12 (1967), demonstrate, discrimination with the

16
sanction of law raises unique and particular dangers.
17
B. The Executive Order Is the Product of Centuries of Discriminatory
18
Stereotypes About Muslims.
19

20

This country has had a long history of official stereotyping of Muslims as un-American

21

and unworthy of becoming Americans. During the Colonial era, two of the most outspoken

22
public figures who disseminated stereotypes of Muslims (then known as “Mahometans”) were
23
Cotton Mather and Aaron Burr – they consistently referred to “Mahometans” in highly
24

25

derogatory terms, including denouncing “that false Prophet and great Imposter Mahomet.”1

26

27

1 Thomas S. Kidd, AMERICAN CHRISTIANS AND ISLAM: EVANGELICAL CULTURE AND MUSLIMS FROM THE COLONIAL

28

PERIOD TO THE AGE OF TERRORISM 12 (2009); Thomas S. Kidd, “Is It Worse to Follow Mahomet than the Devil?”

Early American Uses of Islam, 72 CHURCH HISTORY 766, 771-73, 779-80 (2003).

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Even after this country became independent, prejudice against Muslims, as expressed
1

2

through consistent stereotyping, continued throughout the nineteenth century and into the

3

twentieth century.2 For example, in discussing immigration legislation in 1910, Representative

4

Burnett of Alabama repeatedly referred to “Syrians” – then a catch-all term for Middle Eastern

5
immigrants who were Muslims – in derogatory terms, and made clear that he and his colleagues
6

viewed those immigrants as “the dirty Syrian[s] of today,” and among “the least desirable” aliens,
7

8

because “the Syrians are the same way, mixed up with the Arabians and the people of African

9

and western Asiatic countries, until they are not our kind of people; and they are not the kind of

10

people from which those who settled this country sprang.”3 As set forth in Section C, infra, these

11
are the same kind of statements recently made about Muslims.
12

13

In this century, the stereotyping of Muslims has continued unabated, leading to increased

14

discrimination against Muslims, rising to the level of violence. Even prior to the Executive

15

Orders in 2017, commentators documented and denounced the ongoing stereotyping of Muslims

16
and the ensuing discrimination and violence.
17
Professor Perry recognized that “many commentators have suggested that Arabs
18

19

generally and Muslims specifically may represent the last ‘legitimate’ subjects of slanderous

20

imagery and stereotypes.” Barbara Perry, Anti-Muslim Violence in the Post-9/11 Era: Motive

21

Forces, 4 HATE CRIMES 172, 176 (Barbara Perry & Randy Blazak, eds. 2009). Political leaders

22
have an outsized impact in fostering this stereotyping and its ensuing discrimination and
23

violence: “Even more powerful in providing justifications for anti-Muslim violence is the
24

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2 See, e.g., Erik Love, ISLAMOPHOBIA AND RACISM IN AMERICA 41, 86-89 (2017); Jeffrey L. Thomas,

26

SCAPEGOATING ISLAM: INTOLERANCE, SECURITY, AND THE AMERICAN MUSLIM 1-14 (2015); Peter Gottschalk &

Gabriel Greenberg, Common Heritage, Uncommon Fear: Islamophobia in the United States and British India, 1687-

27

1947, in ISLAMOPHOBIA IN AMERICA: THE ANATOMY OF INTOLERANCE (Carl W. Ernst ed. 2013); Robert J. Allison,

THE CRESCENT OBSCURED: THE UNITED STATES AND THE MUSLIM WORLD 1776-1815 (1995).

28

3 HEARINGS BEFORE COMMITTEE ON IMMIGRATION AND NATURALIZATION, HOUSE OF REPRESENTATIVES, 61st Cong.

383, 386, 393, 396 (1910) (statement of Rep. John L. Burnett, Alabama).

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explicit exploitation of public images and related fears by political leaders. To the extent that
1

2

this is so, there emerges a climate that bestows ‘permission to hate.’” Id. at 181. Thus, she

3

concluded that:

4

[S]tate practices provide a context and a framework for the broader demonization and

5

marginalization of minority groups. Through its rhetoric and policies, the state

absorbs and reflects back onto the public hostile and negative perceptions of the Other
6
– in this case, Muslims. Public expressions of racism by state actors are constituted

7

of and by public sentiments of intolerance, dislike, or suspicion of particular groups.

8

Thus, the state seems to reaffirm the legitimacy of such beliefs, while at the same

time giving them public voice.

9

10

Id. at 185 (emphasis added).

11

Professor Aziz, who testified to Congress on this issue, wrote, “In the United States,

12

numerous polls show a rise in anti-Muslim bias that is manifesting into tangible hate crimes,

13
mosque vandalism, employment discrimination, and bullying of Muslim kids in schools.” Sahar
14

F. Aziz, Losing the “War of Ideas:” A Critique of Countering Violent Extremism Programs, 52
15

16

TEXAS INT’L L.J. 255, 265 (2017).

17

Professor Cashin wrote that “Explicit, public anti-Muslim comments do not appear to

18
engender similar widespread outrage” as do racist remarks, and instead “appear to be on the rise,”

19
because of the lack of public rejection of such views. Sheryll Cashin, To Be Muslim or Muslim-
20

21

Looking in America: A Comparative Exploration of Racial and Religious Prejudice in the 21st

22

Century, 2 DUKE FORUM L. & SOC. CHANGE 125, 127-28 (2010). “In the wake of the 9/11 attacks,

23

it is more socially acceptable to express explicit bias against Arabs or Muslims than against

24
blacks or other racial/ethnic groups.” Id. at 132.
25
Muslim stereotyping has manifested in the form of violence against Muslims, or even
26

27

those who are erroneously perceived as being Muslims (such as Sikhs). Although the serious

28

under-reporting of such crimes causes the available statistics to understate the actual prevalence

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of anti-Muslim violence,4 it is well-documented throughout 2016,5 and continuing into 2017. See
1

2

Section D.2, infra.

3

Thus, from Colonial times to the present, this country has had a long and deliberate

4

political tradition of officially stereotyping Muslims – a history that created an atmosphere that

5
legitimizes and encourages discrimination and violence against Muslims.
6

C. The Executive Order Is Based on Stereotypes About Muslims as “Anti-
7
American” and “Terrorists.”
8

9

As in the cases cited above, the Muslim ban bears the imprimatur of the Executive Branch

10
and engenders precisely the type of discriminatory harms that the Supreme Court has held cannot

11
withstand constitutional muster. Since December 7, 2015, when then-candidate Donald Trump
12

13

issued a written statement calling for a “total and complete shutdown on Muslims entering the

14

United States” in the wake of the terror attack in San Bernardino, California, a “Muslim ban” has

15

been a major item on his policy agenda.6 At that time, his campaign characterized a bar on

16
Muslim entry into the United States as a way to stop this country from being the “victims of the
17
horrendous attacks by people that believe only in Jihad.”7 He did so with no evidence other than
18

19

extensive stereotyping.

20

Mr. Trump’s labeling of Muslims as “terrorists” has been relentless. On January 4, 2016,

21

22

4 Todd H. Green, THE FEAR OF ISLAM: AN INTRODUCTION TO ISLAMOPHOBIA IN THE WEST 282-84 (2015) (discussing

statistics on crimes against Muslims and problems with underreporting); see generally U.S. Dep’t of Justice, Bureau

23

of Justice Statistics, Special Report, HATE CRIME VICTIMIZATION, 2004-2015 (2017) (noting problems with

underreporting and different methodologies for categorizing these crimes); U.S. Dep’t of Justice, Bureau of Justice

24

Statistics, Special Report, HATE CRIMES REPORTED BY VICTIMS AND POLICE (2005) (same).

25

5 See, e.g., Aziz, 52 TEXAS INT’L L.J., supra, at 266-68 & nn. 65-80 (collecting examples from 2015 and 2016 of violence against Muslims).

26

6 Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 575-76 & n.5 (4th Cir. 2017) (en banc), vacated as moot,

2017 WL 4518553 (U.S. Oct. 10, 2017)); see also Christine Wang, “Trump Website Takes Down Muslim Ban

27

Statement After Reporter Grills Spicer in Briefing,” CNBC.COM (May 8, 2017),

https://www.cnbc.com/2017/05/08/trump-website-takes-down-muslim-ban-statement-after-reporter-grills-spicer-

28

in-briefing.html. 7 Int’l Refugee Assistance Project, 857 F.3d at 575 n.5.

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the Trump campaign premiered its first television advertisement, in which he “call[ed] for a total
1

2

and complete shutdown of Muslims entering the United States” until doubts about “radical

3

Islamic terrorism” can be “figure[d] out.”8 The link he drew between “radical Islamic terrorism”

4

and all individual Muslims entering the United States was stated with no supporting evidence.

5
Subsequently, candidate Trump, in a major foreign policy speech on April 27, 2016, stated that
6
“The struggle against radical Islam also takes place in our homeland. . . . We must stop importing
7

8

extremism through senseless immigration policies.”9 He made these statements, relying entirely

9

on stereotypes, and presenting no evidence or facts to support these claims.10

10
As a matter of law, this Court can rely on campaign statements as part of its analysis of

11
whether the Executive Orders reflect illegal stereotyping and bias against Muslims. For example,
12

13

the Second Circuit held that campaign statements by the successful candidate for Mayor of

14

Yonkers – in which he “promised … to impose a moratorium on all subsidized housing in

15

Yonkers” – was evidence of the “intent to preserve the existing racial imbalance” in that city.

16
United States v. Yonkers Board of Educ., 837 F.2d 1181, 1191, 1222 (2d Cir. 1987). Similarly,
17
the Eleventh Circuit held that campaign promises by Roy Moore, made while running for the
18

19

position of Chief Justice of the Alabama Supreme Court, i.e., that he would install the Ten

20

Commandments monument in the courthouse rotunda, could be used as evidence of his intent to

21

violate the Establishment Clause. Glassroth v. Moore, 335 F.3d 1282, 1285-87, 1292 (11th Cir.

22

23

8 Jeremy Diamond, Donald Trump: Ban all Muslim Travel to United States, CNN POLITICS (Dec. 8, 2015),

http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration; see also Jill Colvin and Steve

24

Peoples, “Trump’s First TV Ad Pushes Proposal to Ban Muslims from Entering U.S.,” The Globe and Mail

(Toronto), Jan. 5, 2016, at A-9.

25

9 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.

26

10 Although President Trump has publicly labeled Muslims as dangerous “terrorists,” he has failed to condemn the

hate crimes perpetuated against them over the past year. See, e.g., Jack Moore, Trump’s Failure to Condemn

27

Minnesota Mosque Attacks Stirs Social Media Anger, NEWSWEEK (Aug. 17, 2017),

http://www.newsweek.com/trump-failure-condemn-minnesota-mosque-attack-stirs-social-media-anger-647694

28

(President Trump’s silence following a January 2017 shooting at a Quebec mosque, June 2017 attacks in Virginia

and London, and an August 2017 bomb attack at a mosque in Minnesota).

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2003). More generally, “the historical background of the decision [to discriminate] is one
1

2

evidentiary source, particularly if it reveals a series of official actions taken for invidious

3

purposes.” Village of Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252,

4

267 (1977) (citations omitted). Here, as in Yonkers, Glassroth, and Village of Arlington Heights,

5
evidence of candidate-Trump’s campaign statements and campaign promises is probative
6

evidence of the intent to discriminate against Muslims – an intent that was implemented just one
7

8

week after the Inauguration, when he issued the first of a series of Executive Orders that all

9

shared the same goals: to fulfill his campaign pledge.

10
On January 27, 2017, President Trump signed Executive Order 13,769, entitled

11
“Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 FED. REG. 8977
12

13

(Feb. 1, 2017). Among other immigration restrictions, Executive Order 13,769 temporarily

14

banned all nationals from seven majority-Muslim countries from entering the United States: Iran,

15

Iraq, Syria, Sudan, Yemen, Libya, and Somalia.

16
While many surrogates of the current Administration pushed back at the characterization
17
of E.O. 13,769 as a “Muslim ban,” the President embraced it. He told the public via Twitter,
18

19

“[c]all it what you want, [E.O. 13,769] is about keeping bad people (with bad intentions) out of

20

country!”11 Throughout his campaign, and now in office, President Trump has consistently

21

labeled Muslims as “bad people” who must be kept out of America in the interest of national

22
security.
23

24

25

26

11 Jane Onyanga-Omara, British PM Criticizes Trump’s Travel Ban; Theresa May Calls Controversial Move

27

“Divisive and Wrong,” USA TODAY, Feb. 2, 2017, at 5A. The Department of Justice recently informed a district

court that Trump’s tweets (Twitter postings) are “official statements of the President of the United States,” since “a

28

tweet can be the equivalent of a public statement or speech.” James Madison Project v. Dep’t of Justice, No. 1:17-

cv-00144, Def. Supp. Mem., at 2, 5-6 & n.4 (ECF No. 29) (D.D.C. Nov. 13, 2017).

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After multiple lower courts enjoined enforcement of E.O. 13,769,12 the Trump
1

2

Administration announced plans to revise the order. On March 6, 2017, the Administration

3

issued Executive Order 13,780, “Protecting the Nation from Foreign Terrorist Entry into the

4

United States.” 82 FED. REG. 13,209 (Mar. 9, 2017). The revised Executive Order preserved

5
several core provisions of the prior Order: it suspended the United States Refugee Admissions
6

Program for 120 days, and it suspended the entry into the United States of nationals of six of the
7

8

seven majority-Muslim countries designated in E.O. 13,769 for 90 days. See E.O. 13,780, §§

9

6(a); 2(c). As did E.O. 13,769, the redrafted Order targeted only majority-Muslim countries, as

10
proxies for all Muslims. This Court upheld the district court’s decision enjoining the second

11
Executive Order. Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (en
12

13

banc). The Supreme Court vacated this Court’s decision as moot in light of the expiration of the

14

second Executive Order. Trump v. International Refugee Assistance Project, 138 S. Ct. __, 2017

15

WL 4518553 (U.S. Oct. 10, 2017).

16
President Trump then issued the third iteration of the Executive Order on September 24,
17
2017. See 82 Fed. Reg. 45,161 (Sept. 27, 2017). Although that order purported to expand its
18

19

scope into non-Muslim countries by including North Korea and Venezuela, this country has

20

hardly any visitors from North Korea, and the order as to Venezuela was limited to certain high-

21

level officials. Id.

22
The third version of the Executive Order continues to target Muslims. Judge Chuang of
23

the District of Maryland correctly found that “the inclusion of two non-majority Muslim nations,
24

25

North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the

26

12 Washington v. Trump, No. 2:17-cv-141, Temporary Restraining Order, 2017 WL 462040 (W.D. Wash. Feb. 3,

27

2017), motion for stay denied, 847 F.3d 1151 (9th Cir. 2017); Tootkaboni v. Trump, No. 1:17-cv-10154, Temporary

Restraining Order, 2017 WL 386550 (D. Mass. Jan. 29, 2017); Darweesh v. Trump, No. 1:17-cv-480, Temporary

28

Restraining Order, 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017); Aziz v. Trump, 234 F. Supp. 3d 724 (E.D. Va. 2017)

(preliminary injunction).

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Proclamation,” requiring the court to “assess whether, as has occurred in other Establishment
1

2

Clause cases, the insertion of these countries was ‘a litigating position’ rather than an earnest

3

effort to ‘cast off’ the prior ‘unmistakable’ objective.” See International Refugee Assistance

4

Project v. Trump, 2017 WL 4674314, at *33 (D. Md. Oct. 17, 2017) (quoting McCreary County

5
v. Amer. Civil Liberties Union of Kentucky, 545 U.S. 844, 871-72 (2005)). The district court thus
6

granted plaintiffs’ motion for a preliminary injunction as to this third iteration of the travel ban.
7

8

Id. at *41. The district court reviewed the record of Trump’s campaign statements, id. at *30,

9

and the statements that he made after taking office, id. at *30, *31, *33, *36, to conclude that the

10
“primary purpose” of the travel ban was “the desire to impose a Muslim ban.” Id. at *37.

11
Thus, “approximately 80 percent of all the Muslim refugees who resettled in the United
12

13

States over the past two years were from the [nine] targeted countries. Perhaps more tellingly,

14

of the refugees who came to the U.S. over the last two years from all of the other countries . . .

15

approximately 70 percent were Christian and just 16 percent were Muslim.”13

16
The government’s intent to ban Muslims will exacerbate widespread discrimination that
17
Muslims already face. The official action of marking a group, Muslims, as a dangerous “fifth
18

19

column,” drives societal biases against them and creates conditions where violence against them

20

is seen as more acceptable because they are perceived, in President Trump’s words, to be “bad

21

people.”

22
In 2011, the Pew Research Center surveyed Western cultures to determine which
23

characteristics Western populations associate with people in the Muslim world. That survey
24

25

found that about half of the respondents characterized Muslims as “violent,” and more than half

26

27

13 Dalia Lithwick & Jeremy Stahl, Sneak Attack: Trump Is Trying to Secretly Push Through Another Muslim Ban,

SLATE, JURISPRUDENCE (Nov. 10, 2017),

28

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/trump_is_trying_to_secretly_sneak_throu

gh_another_muslim_ban.html.

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characterized Muslims as “fanatical.”14
1

2

Thus, it is no surprise that the Pew Research Center’s 2017 survey of Muslims in this

3

country found that discrimination against them was increasing, and that they are even more

4

concerned in light of the President’s Executive Orders.15

5
In a recent news analysis discussing ongoing social science research relating to
6

stereotyping against the most recent Muslim immigrants in this country and Canada, Science
7

8

magazine recognized that “Prejudice of course can be directed against any group by any other.

9

But immigrants, and even more so refugees and asylum seekers, may be especially vulnerable

10
because of their tenuous place in a larger society.” Jennifer Couzin-Frankel, Battling Bias: How

11
Can We Blunt Prejudice Against Immigrants?, 350 SCIENCE 687, 688 (May 19, 2017). This
12

13

applies with even greater force to child immigrants and refugees, who are even more vulnerable

14

than their parents. (The recent escalation of deportation orders similarly harms child immigrants

15

and refugees.)

16
Recent social science research demonstrates both the already-existing climate of
17
prejudice against Muslims and Arabs and the unconscious nature of that bias. “Non-Arab and
18

19

non-Muslim test takers manifested strong implicit bias against Muslims. These results are in

20

sharp contrast to self-reported attitudes.” Carol Izumi, Implicit Bias and the Illusion of Mediator

21

Neutrality, 34 WASH. U. J. L. & POL. 71, 93 (2010). A “sample of U.S. citizens on average

22
viewed Muslims and Arabs as not sharing their interests and stereotyped them as not especially
23

sincere, honest, friendly, or warm.” Susan T. Fiske, et al., Policy Forum: Why Ordinary People
24

25

26

14 Pew Research Center, Global Attitudes Project, Muslim-Western Tensions Persist (July 21, 2011),

http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#.

27

15 Pew Research Center, U.S. Muslims Concerned About Their Place in Society, but Continue to Believe in the

American Dream (July 26, 2017) http://www.pewforum.org/2017/07/26/findings-from-pew-research-centers-2017-

28

survey-of-us-muslims/; see also Abigail Hauslohner, Anti-Muslim Discrimination on Rise in U.S., Study Finds,

WASHINGTON POST, July 26, 2017, at A-3.

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Torture Enemy Prisoners, 206 SCIENCE 1482-83 (Nov. 26, 2004).
1

2

D. Government Legitimization of Muslim Stereotypes Has Encouraged

Violence Against Muslims, and Inhibited Millions of Muslims in the Practice

3

of Their Religion.

4

5

There can be no doubt that, given its origin and history, the Executive Order is based on

6

the social categorization of Muslims as “anti-American,” “terrorists,” those with “hatred for

7
Americans,” and “bad people.” In this case, President Trump’s repeated, unsubstantiated claims
8
that Muslims are dangerous, and should be barred from entering the country, are just the “cue”
9

10

needed to release otherwise suppressed and legally prohibited violence against Muslims. The

11

President’s deliberate stereotyping of Muslims as “dangerous” and “terrorists” and his ban on the

12

immigration of Muslims, place an official “imprimatur” on those stereotypes, magnifying their

13
effect.
14
The Supreme Court, in Cleburne, held that a city council’s insistence that a group home
15

16

for individuals with intellectual disabilities obtain a special-use permit to operate was premised

17

on unsubstantiated “negative attitudes or fears” of nearby property owners, which were

18

impermissible bases for disparate treatment. City of Cleburne v. Cleburne Living Ctr., 473 U.S.

19
432, 448 (1985). Although “‘[p]rivate biases may be outside the reach of the law . . . the law
20

cannot, directly or indirectly, give them effect.’” Id. (quoting Palmore v. Sidoti, 466 U.S. 429,
21

22

433 (1984)). Here, too, the law cannot give effect to private biases against Muslims.

23

1. Government Stereotyping Leads to Violence and Discrimination.

24
When someone in a position of authority, as President Trump, categorizes Muslims as
25
dangerous and terrorists, he communicates that they are “outsiders” and not full members of the
26

27

political community. By way of comparison, the Supreme Court found unconstitutional a school-

28

sponsored religious message, delivered over the school’s public address system, by a speaker

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representing the student body, under the supervision of the faculty, and pursuant to a school
1

2

policy. Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290, 309-10 (2000). The Supreme Court’s

3

reasoning was based on its view that the school policy created two classes of people—those who

4

adhered to the favored religion, and those who did not. Id.

5
The President’s steadfast support of what he calls a “Muslim ban” similarly sends the
6

message that those who adhere to Islam are not part of American society, as opposed to Christians
7

8

and other non-Muslims, who are favored by the ban. In doing so, he “sends a message to non-

9

adherents [to the Christian faith] that they are outsiders, not full members of the political

10
community, and an accompanying message to adherents that they are insiders, favored members

11
of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J.
12

13

concurring); see also Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“When homosexual conduct

14

is made criminal by the law of the State, that declaration in and of itself is an invitation to subject

15

homosexual persons to discrimination in both the public and in the private spheres.”). The

16
Executive Order and the President’s statements characterize Muslims as homogenous and a
17
national threat and thereby engender a climate conducive to violence against Muslims.
18

19

2.

The President’s Statements Have Encouraged Violence.

20

This Administration tolerated, if not encouraged, crimes against Muslims, through its

21

determination to implement the travel ban affecting them – in effect telling all Muslims (whether

22
born here or abroad) – that they do not belong here.
23

Starting in February 2016, only two months after then-candidate Trump’s December 7,
24

25

2015 and January 4, 2016 statements (supra), three nationalists in Kansas (the “Crusaders,” a

26

militia group) engaged in a conspiracy to use weapons of mass destruction “to carry out a violent

27
attack against Muslims in their community” through “destroy[ing] an apartment complex in
28

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Garden City, Kansas, which contains a mosque and is home to many Muslims.”16 They openly
1

2

discussed going to apartment buildings known to house refugees to “start kicking in the doors of

3

the Somali apartments, and kill them one by one,” and then expanded their target to include

4

“city/county commission meetings, local public officials, landlords who rent property to Muslim

5
refugees, and organizations providing assistance to Muslim refugees,” since “the only good
6
Muslim is a dead Muslim.”17
7

8

The February 22, 2017 shooting of Srinivas Kuchibhotla, Alok Madasani, and Ian Grillot

9

in Olathe, Kansas is the most horrifying example of the social categorization of Muslims as

10

enemies of the American people.18 Kuchibhotla and Madasani, two engineers at a local

11
technology company, and both Indian immigrants, had gathered with co-workers at a bar near
12

13

their office to watch a local college basketball game. Also at that bar was Adam Purinton, who

14

mistook both Kuchibhotla and Madasani as Iranians (which is one of the nationalities targeted

15

by the Executive Order and its predecessor as barred from entry into the United States). Purinton

16
approached and shot at Kuchibhotla and Madasani, telling them to “get out of our country!”
17
Kuchibhotla was killed, and Madasani was wounded. Ian Grillot, a patrolman present at the
18

19

scene, was wounded while attempting to intervene. Purinton fled across the state border into

20

Missouri and told a bartender in a second bar that he needed to hide out because he had just shot

21

two “Iranians.” Putting aside Purinton’s stereotyped view that his victims were Iranians simply

22
because they were foreign-born immigrants, his actions demonstrate the danger that social
23

24

25

16 United States v. Allen, et al., No. 6:16-cr-10141, Criminal Complaint, at ¶¶ 2, 9 (ECF No. 1) (D. Kan. Oct. 14,

2016); see also Second Superseding Indictment (ECF No. 89) (D. Kan. Mar. 16, 2017).

26

17 United States v. Allen, et al., No. 6:16-cr-10141, Criminal Complaint, at ¶¶ 13, 19 (ECF No. 1) (D. Kan. Oct. 14,

2016).

27

18 Audra D. S. Burch, Facing a Void Left by Hate, N.Y. TIMES, July 9, 2017, at A1, A12-A13; Matt Stevens, Justice

Dept. Calls Killing in Kansas a Hate Crime, N.Y. TIMES, June 10, 2017, at A18; John Eligon, et al., Drinks at a

28

Bar, Ethnic Insults, then Gunshots, N.Y. TIMES, Feb. 25, 2017, A1, A17; see also United States v. Purinton, No.

2:17-cr-20028, Indictment (D. Kan. June 9, 2017).

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categorization can cause by exaggerating both the distance between in-groups (“real Americans”)
1

2

and out-groups (“Iranians”), as well the homogeneity of the out-group. The Administration’s

3

travel ban against Muslims does just that.

4

In addition, a rash of arsons and vandalism at mosques has occurred following the

5
issuance of E.O. 13,769. On January 28, 2017, one day after the first Order, a fire destroyed the
6
Islamic Center of Victoria, Texas.19 On February 24, 2017, a blaze broke out at the Daarus
7

8

Salaam Mosque near Tampa, Florida.20 Combined with two arsons of mosques shortly before

9

President Trump’s inauguration, the United States has seen an unprecedented surge of hate

10

crimes against the Muslim community.21

11
Other recent attacks on mosques in the United States include an explosion at a mosque in
12

13

Bloomington, Minnesota in August 2017.22

14

On March 3, 2017, a Sikh man was shot in his Kent, Washington driveway when a man

15

approached him and said “go back to your own country.”23

16
It is undeniable that the public interest in this country is best served by tolerance of
17
different religions as the Constitution requires, and tolerance of both foreign-born and American-
18

19

born adherents of different religions. The public interest is not served by discriminatory

20

21

19 U.S. Attorney’s Office, Southern District of Texas, Victoria Man Charged with Hate Crime in Burning of Mosque

22

(June 22, 2017), https://www.justice.gov/usao-sdtx/pr/victoria-man-charged-hate-crime-burning-mosque;

Anonymous, Fire Destroys Texas Mosque in Early Hours, N.Y. TIMES, Jan. 29, 2017, at A4; see also United States

23

v. Perez, No. 6:17-cr-00035, Superseding Indictment (S.D. Tex. June 22, 2017).

20 Tony Marrero, Mosque Fire Deliberately Set, TAMPA BAY TIMES, Feb. 25, 2017, at 1; Anonymous, 2nd Florida

24

Mosque Hit by Arson in Past 6 Months, ST. LOUIS POST-DISPATCH, Feb. 25, 2017, at A6.

21 Albert Samaha & Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and

25

Advocates Stunned, BUZZFEEDNEWS (Feb. 28, 2017), https://www.buzzfeed.com/albertsamaha/four-mosques-burn-

as-2017-begins; Taylor Goldenstein, Blaze Completely Destroys Islamic Center’s Building, AUSTIN AMERICAN-

26

STATESMAN, Jan. 8, 2017, at B1.

22 Nick Corasaniti, Minnesota Mosque Shaken by an Early-Morning Blast, N.Y. TIMES, Aug. 6, 2017, at A-19; Kurtis

27

Lee, U.S. Muslims on Edge after Bombing; the FBI Is Leading the Investigation into an Attack that Damaged a

Minnesota Mosque, L.A. TIMES, Aug. 6, 2017, at A-10.

28

23 Ellen Barry, U.S. and Indian Officials Condemn Shooting of Sikh, N.Y. TIMES, Mar. 6, 2017, at A-9; Cleve R.

Wootson, Sikh Man, 39, Shot in Suspected Hate Crime, WASH. POST, Mar. 5, 2017, at A-3.

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stereotyping against Muslims that legitimizes or encourages discrimination and violence in our
1

2

country, or by a law which gives effect to private biases.

3

The insidious effect of the Muslim ban does not impact only those persons seeking to

4

enter the United States from the seven designated countries. Instead, by promoting social

5
stereotypes and priming individuals to act on those stereotypes, the ban creates fertile grounds
6

for violence against all minorities. The Executive Order fundamentally threatens the American
7

8

ideal of a diverse society working across divisions for the greater societal good.

9

3. Stereotyping and Discrimination Harms All Americans, Not Just Those

10

Directly Affected by Specific Acts.

11

Social science research has consistently demonstrated that stereotyping of any group

12
harms all individuals in that group, even those who are not directly affected by specific acts of
13
violence or discrimination. For example, Professor McDevitt and several other researchers
14

15

recognized that:

16

Because bias crimes have the unique impact of reaching far beyond the primary

17

victim, due to the dimension of victim interchangeability, every member of the

minority group who is aware of the crime is affected by a solitary crime against

18

one individual minority member.

19
Jack McDevitt, et al., Consequences for Victims: A Comparison of Bias- and Non-Bias-Motivated
20

21

Assaults, 45 AM. BEHAVIORAL SCIENTIST 697, 712 (2001).

22

Similarly, violent crimes on the basis of religious stereotypes, i.e., against Muslims, have

23

the same broader impact as do terrorist crimes:

24
Nonetheless, terrorism and violent hate crimes . . . have at least one basic

25

characteristic in common: the violence inflicted on the victims is also aimed at a

26

larger community. . . . hate crimes directly target individual members of a social

group but indirectly send a message of intolerance to the entire group. The victims

27

of hate crimes are selected because of their symbolic value as representatives of

28

the entire social group.

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Jeffrey Thomas, SCAPEGOATING ISLAM: INTOLERANCE, SECURITY, AND THE AMERICAN MUSLIM
1

2

137 (2015).

3

Senator John McCain recently recognized this fundamental principle when he criticized

4

several fellow members of Congress who had made ad hominem attacks on a former government

5
official due to that person’s Muslim heritage:
6

When anyone—not least a member of Congress—launches specious and degrading
7
attacks against fellow Americans on the basis of nothing more than fear of who they

8

are and ignorance of what they stand for, it defames the spirit of our Nation, and we

9

all grow poorer because of it.

10

158 CONG. REC. S5106 (daily ed. July 18, 2012) (statement of Sen. John McCain).

11
Here, too, the latest Executive Order and the underlying statements by the President have
12
only encouraged stereotyping of Muslims, which has adversely affected all Muslims, young and
13

14

old, natives and recent immigrants, and has harmed our society as a whole.

15

CONCLUSION

16

For the foregoing reasons, and those set forth in the briefs of the Plaintiffs, amici curiae

17
respectfully request that this Court enjoin the Executive Order.
18

DATED: December 4, 2017.
19

20

Respectfully submitted,

21

/s/ Michael C. Subit
22
_____________________________________

23

Michael C. Subit, Esquire (State Bar # 29189)

Frank Freed Subit & Thomas LLP

24

705 2nd Avenue, Suite 1200

25

Seattle WA 98104-1798

Phone: (206) 682-6711

26

Fax: (206) 682-0401

Email: msubit@frankfreed.com
27

28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
AMICI CURIAE BRIEF - 20 (Case No. C-17-0178-JLR)

/s/ Lynne Bernabei _____________________________________ Lynne Bernabei (D.C. Bar # 938936 Alan R. Kabat (D.C. Bar # 462458) Bernabei & Kabat, PLLC 1400 – 16th Street N.W., Suite 500 Washington, D.C. 20036-2223 Phone: (202) 745-1942 Fax: (202) 745-2627 email: Bernabei@bernabeipllc.com Kabat@bernabeipllc.com Counsel for Amici Curiae
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Case 2:17-cv-00178-JLR Document 64-1 Filed 12/04/17 Page 22 of 22

CERTIFICATE OF SERVICE
1

2

I hereby certify that on December 4, 2017, I electronically filed the foregoing document

3

with the Clerk of the Court using the CM/ECF system which will send notification of such filing

4

to all of the registered CM/ECF users for this case.

5
I hereby declare under the penalty of perjury of the laws of the State of Washington that
6
the foregoing is true and correct.
7

8

DATED this 4th day of December, 2017.

9

10

/s/ Michael C. Subit

Michael C. Subit, WSBA No. 29189

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 2:17-cv-00178-JLR Document 66 Filed 12/04/17 Page 1 of 5

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 JEWISH FAMILY SERVICE OF SEATTLE, et 10 al.,

11

Plaintiffs,

12

v. DONALD J. TRUMP, in his official capacity as

13 President of the United States, et al.,

14

Defendants.

15

No. 2:17-CV-01707-JLR
MOTION TO FILE BRIEF OF AMICI MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER IN SUPPORT OF PRELIMINARY INJUNCTION
Noted for Consideration: Dec. 4, 2017

16 Muslim Advocates and the Roderick & Solange MacArthur Justice Center (“MJC”)
17 respectfully move for leave to file the accompanying amicus brief in support of Plaintiffs’
18 motion for a preliminary injunction. The parties have consented to the filing of the associated
19 amicus brief.
20
INTEREST OF AMICI 21
Muslim Advocates is a national legal advocacy and educational organization formed in 22
2005 that works on the frontlines of civil rights to guarantee freedom and justice for Americans 23
of all faiths. The issues at stake in this case directly relate to Muslim Advocates’ work fighting 24
institutional discrimination against the American Muslim community. 25
The MacArthur Justice Center is a not-for-profit organization founded by the family of 26
J. Roderick MacArthur to advocate for human rights and social justice through litigation. MJC 27

MOTION TO FILE BRIEF OF AMICI MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER – Case No. 2:17-CV-01707-JLR - 1
4849-0381-4488v.2 -

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LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00178-JLR Document 66 Filed 12/04/17 Page 2 of 5

1 has represented clients facing myriad human rights and civil rights injustices, including issues

2 of discrimination, the unlawful detention of foreign nationals, and the rights of marginalized

3 groups in the American justice system. MJC has an interest in the rule of law and the

4 independence of the judiciary in determining whether government officials have acted with

5 discriminatory animus against an unpopular minority group.

6

Amici submit this brief to document the long history of religious animus that led to the

7 order under consideration by the Court. This includes the President’s extensive record of

8 hostility against people of the Muslim faith, his open desire to curtail their rights, and his

9 specific, sustained promise to inhibit their entry to the U.S.—including specifically by

10 prohibiting the entry of Muslim refugees. It also describes express anti-Muslim terminology

11 used in the predecessor Executive Orders that created the basis for the present order. MJC’s

12 prior briefing was relied upon by the U.S. District Court for the District of Hawaii in enjoining

13 Executive Order 13780, see Hawai‘i v. Trump, 241 F. Supp. 3d 1119, 1137 n.14 (D. Haw.

14 2017), and by parties in the various proceedings challenging the President’s orders.

15

ARGUMENT

16

The Court has broad discretion to permit a non-party to participate in an action as

17 amicus curiae. See, e.g., Gerritson v. de la Madrid Hurtado, 819 F.2d 1511, 1514 n.3 (9th Cir.

18 1987); Skokomish Indian Tribe v. Goldmark, No. 13-cv-5071-JLR, 2013 WL 5720053, at *1

19 (W.D. Wash. Oct. 21, 2013) (“The court has ‘broad discretion’ to appoint amicus curiae.”)

20 (citing Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982)); Nat. Res. Def. Council v. Evans,

21 243 F. Supp. 2d 1046, 1047 (N.D. Cal. 2003) (amici “may file briefs and may possibly

22 participate in oral argument” in district court actions). Indeed, “[d]istrict courts frequently

23 welcome amicus briefs from non-parties concerning legal issues that have potential

24 ramifications beyond the parties directly involved or if the amicus has ‘unique information or

25 perspective that can help the court beyond the help that the lawyers for the parties are able to

26 provide.’” Sonoma Falls Dev., LLC v. Nev. Gold & Casinos, Inc., 272 F. Supp. 2d 919, 925

27 (N.D. Cal. 2003) (quoting Cobell v. Norton, 246 F. Supp. 2d 59, 62 (D.D.C. 2003) (citation

MOTION TO FILE BRIEF OF AMICI MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER – Case No. 2:17-CV-01707-JLR - 2
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1 omitted)). No special qualifications are required; “an individual seeking to appear as amicus

2 must merely make a showing that his participation is useful to or otherwise desirable to the

3 court.” In re Roxford Foods Litig., 790 F. Supp. 987, 997 (E.D. Cal. 1991).

4

Because Amici have special interest and expertise in anti-Muslim animus—both

5 historically and with regard to the present administration—their participation as amici curiae is

6 appropriate in this matter in which the Court will consider issues of particular public interest.

7 See Liberty Res., Inc. v. Phila. Hous. Auth., 395 F. Supp. 2d 206, 209 (E.D. Pa. 2005). (“Courts

8 have found the participation of an amicus especially proper . . . where an issue of general public

9 interest is at stake.”). This is because the primary role of an amicus is “to assist the Court in

10 reaching the right decision in a case affected with the interest of the general public.” Russell v.

11 Bd. of Plumbing Examiners of Cty. of Westchester, 74 F. Supp. 2d 349, 351 (S.D.N.Y. 1999).

12

Amici accordingly request leave to file the accompanying brief as amici curiae in

13 support of Plaintiffs’ motion for preliminary injunction.

14

15

DATED this 4th day of December, 2017.

16

Muslim Advocates

17

By: /s/ Sorome Shebaya

Johnathan J. Smith, pro hac vice

18

(application pending)

Sirine Shebaya, pro hac vice (application

19

pending)

Matthew W. Callahan, pro hac vice

20

(application pending)

P.O. Box 66408

21

Washington, DC 20035

Telephone: (202) 897-2622

22

Fax: (202) 508-1007

E-mail: johnathan@muslimadvocates.org

23

E-mail: sirine@muslimadvocates.org

E-mail: matthew@muslimadvocates.org

24

25

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1

The Roderick & Solange MacArthur Justice

Center

2

3

By: /s/ Amir H. Ali

Amir H. Ali, pro hac vice (application

4

pending)

718 7th Street NW

5

Washington, DC 20001

Telephone: (205) 869-3434

6

Fax: (206) 689-3435

E-mail: amir.ali@macarthurjustice.org

7

Aziz Hug

8

Attorney For Muslim Advocates

9

By: /s/ Aziz Huq

Aziz Huq, pro hac vice (application

10

pending)

1111 E. 60th Street

11

Chicago, IL 60622

Telephone: (773) 702-9566

12

Fax: (773) 702-9566

E-mail: huq@uchicago.edu

13

Davis Wright Tremaine LLP

14

Attorneys for Muslim Advocates and The

Roderick & Solange MacArthur Justice Center

15

16

By: /s/ Joseph P. Hoag

Joseph P. Hoag, WSBA #41971

17

1201 Third Avenue, Suite 2200

Seattle, WA 98101-3045

18

Telephone: (206) 757-8080

Fax: (206) 757-7080

19

E-mail: josephhoag@dwt.com

20

21

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on December 4, 2017, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to those

4 attorneys of record registered on the CM/ECF system. All other parties (if any) shall be served in

5 accordance with the Federal Rules of Civil Procedure

6

Dated this 4th date of December, 2017.

7

/s/ Joseph P. Hoag

8

Joseph P. Hoag, WSBA #41971

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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 1 of 24

1 The Honorable James L. Robart
2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

8 JEWISH FAMILY SERVICE OF SEATTLE, et al.,
9 Plaintiffs,

10

v.

DONALD J. TRUMP, in his official capacity as 11 President of the United States, et al.,

12

Defendants.

No. 2:17-CV-01707-JLR
BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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1

CORPORATE DISCLOSURE STATEMENT

2

Pursuant to Civil Local Rule 7.1, amici curiae Muslim Advocates and the Roderick and

3 Solange MacArthur Justice Center state that they are not-for-profit organizations with no parents,

4 subsidiaries, or affiliates, and that no publicly-held corporation owns 10 percent or more of their
stock. 5

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1

TABLE OF CONTENTS

2 CORPORATE DISCLOSURE STATEMENT ........................................................................... II

3 TABLE OF AUTHORITIES .....................................................................................................iIV

4 INTEREST OF AMICI CURIAE................................................................................................. 1

INTRODUCTION ........................................................................................................................ 1 5

ARGUMENT ................................................................................................................................ 3

6 I.

PREVENTING THE ENTRY OF MUSLIM REFUGEES IS AN INTEGRAL

7

PART OF THE PRESIDENT’S LONGSTANDING AND EXPRESS PLEDGE

TO BAN MUSLIMS......................................................................................................... 3

8

A. The President Pledged To Favor Christians And Made Affirmative Efforts

To Vilify Muslims................................................................................................. 3 9

B. The President Has Expressly Stated His Intent To Curtail The Rights Of

10

Muslims, Including By Restricting Their Entry To The United States. ............... 7

11 12
II. 13 14 15

C. The President Has Reaffirmed His Discriminatory Intent On Numerous Occasions Since Taking Office............................................................................. 9
THE PREDECESSOR ORDERS THAT PRECEDED AND GAVE RISE TO REFUGEE BAN 3.0 WERE MOTIVATED ON THEIR FACE BY ANTIMUSLIM ANIMUS........................................................................................................ 11
A. The Refugee Ban Provision Of EO-1 Included A Priority Designed To Benefit Christian Refugees In Muslim-Majority Nations At The Expense Of Muslim Refugees. .......................................................................................... 11

16
17 III.
18

B. Both EO-1 And EO-2 Refer To “Honor Killings”—A Term Used Commonly And Almost Exclusively To Denigrate Muslims............................. 12
REFUGEE BAN 3.0 IS A DIRECT CONTINUATION OF EO-1 AND EO-2 AND IS MOTIVATED BY THE SAME ANTI-MUSLIM ANIMUS. ....................... 155

19 CONCLUSION........................................................................................................................... 16

20

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1 2
Regulations

TABLE OF AUTHORITIES

Page(s)

3 8 C.F.R. § 207.7(d) ........................................................................................................................13

4 82 F.R. 8977 § 5(b) (Jan. 27, 2017) ...............................................................................................11

5 Executive Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017) ....................................................2

6 Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017)..................................................2

7 Executive Order No. 13,815 ............................................................................................................1

Other Authorities 8

Aisha Gill, Honor Killings and the Quest for Justice in Black and Minority Ethnic

9

Communities in the United Kingdom, 20 Crim. Just. Pol’y Rev. 475, 480

(2009) .......................................................................................................................................13

10 Brittany E. Hayes et al., An Exploratory Study of Honor Crimes in the United

11

States, 31 J. Fam. Violence 303, 304 (2016) ...........................................................................13

12

Inderpal Grewal, Outsourcing Patriarchy: Feminist Encounters, Transnational Mediations and the Crime of ‘Honour Killings,’ 15 Int’l Feminist J. Pol. 1, 5

(2013) .......................................................................................................................................13 13

Jon Hurwitz & Mark Peffley, Playing the Race Card in the Post–Willie Horton

14

Era: The Impact of Racialized Code Words on Support for Punitive Crime

Policy, Pub. Opinion Q. 99 (2005) ..........................................................................................14

15

K.M. Devries et al., The Global Prevalence of Intimate Partner Violence Against

16

Women, 340 Science 1527, 1527 (2013) ....................................................................... 13 & 14

17 Lila Abu-Lughod, DO MUSLIM WOMEN NEED SAVING? 139 (2013).............................................13

Mattias Ekman, Online Islamophobia and the Politics of Fear: Manufacturing the

18

Green Scare, 38 Ethnic & Racial Stud. 1986, 1995 (2015).....................................................14

19 Nicholas A. Valentino et al. Cues That Matter: How Political Ads Prime Racial

Attitudes During Campaigns, 96 Am. Pol. Sci. Rev. 75, 75–76 (2002) ..................................14

20

Sherene Razack, CASTING OUT: THE EVICTION OF MUSLIMS FROM WESTERN LAW

21

AND POLITICS 128 (2008) .........................................................................................................13

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1 Tali Mendelberg, THE RACE CARD: CAMPAIGN STRATEGY, IMPLICIT MESSAGING, AND THE NORM OF EQUALITY 94-95 (2001).............................................................................14
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1

INTEREST OF AMICI CURIAE

2

The issue in this case is whether the Trump Administration’s recent changes to the U.S.

3 Refugee Admissions Program (“USRAP”) are premised on impermissible and unlawful anti-

4 Muslim animus. Amici Muslim Advocates and the MacArthur Justice Center (“MJC”) submit

5 this brief in support of Plaintiffs’ Motion for a Preliminary Injunction.

6

Muslim Advocates, a national legal advocacy and educational organization formed in

7 2005, works on the frontlines of civil rights to guarantee freedom and justice for Americans of

8 all faiths. The issues at stake in this case directly relate to Muslim Advocates’ work fighting

9 institutional discrimination against the American Muslim community, and its extensive work

10 assisting individuals who are impacted by the travel and refugee bans.

11

The MacArthur Justice Center is a not-for-profit organization founded by the family of

12 J. Roderick MacArthur to advocate for human rights and social justice through litigation. MJC

13 has represented clients facing myriad human rights and civil rights injustices, including issues

14 of discrimination, the unlawful detention of foreign nationals, and the rights of marginalized

15 groups in the American justice system. MJC has an interest in the rule of law and the

16 independence of the judiciary in determining whether government officials have acted with

17 discriminatory animus against an unpopular minority group.

18

INTRODUCTION

19

The executive order at issue in this litigation (“Refugee Ban 3.0” or the “Ban”)1 is

20 motivated by unconstitutional animus against Muslims seeking to enter the United States as

21 refugees. This case, like the travel and refugee ban cases that preceded it, presents the rare

22 instance where a state actor explicitly announces his discriminatory motive for an action. The

23 President has not only made clear his intent to use the Office of the President and Executive

24 Branch federal agencies to discriminate against Muslims and to favor Christians, but in

25 repeated statements before and after taking office, he has specifically indicated his animus

26
1 The Refugee Ban 3.0 is Executive Order No. 13,815, and its accompanying memorandum, with the addendum,

27 are attached as exhibits A and B to the Declaration of David Burman in Support of Plaintiffs’ Motion for
Preliminary Injunction (“Burman Decl.”), respectively.

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1 toward Muslims, and also his specific intent to prevent Muslims from entering the United

2 States in part by implementing a ban on refugee admissions.

3

Within a week of taking office, the President initiated the first of several unilateral

4 executive orders intended to implement his campaign promise of banning Muslims from

5 entering the country. Far from ever retracting his discriminatory intent, his Administration has

6 embraced it: Asked recently whether “the President think[s] that Muslims are a threat to the

7 United States?” his Deputy Press Secretary explained, “the President has addressed these 8 issues with the travel order that he issued earlier this year and the companion proclamation.”2

9 And the President himself has repeatedly derided his own Department of Justice for drafting

10 orders that are too “politically correct”—i.e., that fail to expressly acknowledge the religious

11 animus that he has unabashedly communicated.

12

In fact, the predecessor executive orders that called for the interagency review

13 culminating in Refugee Ban 3.0, “EO-1”3 and “EO-2,”4 contained anti-Muslim and pro-

14 Christian bias on their face, referring to “honor killings” (a term with a long history as a

15 Muslim slur) and prioritizing the applications of Christian refugees.

16

Understood in context as a fulfillment of the President’s stated intentions and previous

17 travel bans, Refugee Ban 3.0 is plainly the President’s implementation of his long-promised

18 discriminatory ban. The effect of the Ban would be to suspend refugee applications from the

19 countries that send the vast majority of Muslim refugees to the United States and shift priority

20 to countries with refugees that are mostly Christian. Even more tellingly, the Ban’s suspension

21 of applications from children and spouses of refugees who have already been resettled to the

22 United States would cut off family reunion for a record number of Muslim refugees. The Ban

23 thus threatens to actualize the President’s signature pledge to prevent Muslims from entering

24 the country, and this Court should not allow it to move forward.

25
2 The White House, Press Gaggle by Principal Deputy Press Secretary Raj Shah en route St. Louis, MO (Nov. 29,

26 2017) (emphasis added), https://www.whitehouse.gov/the-press-office/2017/11/29/press-gaggle-principal-deputy-

press-secretary-raj-shah-en-route-st-louis (last visited Dec. 4, 2017).

27

3 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017). 4 Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017).

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ARGUMENT

1

I. PREVENTING THE ENTRY OF MUSLIM REFUGEES IS AN INTEGRAL

2

PART OF THE PRESIDENT’S LONGSTANDING AND EXPRESS PLEDGE TO

BAN MUSLIMS.

3

The President’s latest plan to ban refugees is a realization of his repeated pledge to use

4

the Office of the President and Executive Branch federal agencies to both discriminate against

5

people who choose to practice Islam and to favor those who choose to adhere to Christianity—

6

a discriminatory intent he has reaffirmed both before and after taking office. The ban arises in

7

the context of the President’s broader attacks on Islam as a “problem” and his affirmative

8

dissemination of false propaganda to vilify people of the Muslim faith (including Muslim

9

migrants in particular).

10

11

A. The President Pledged To Favor Christians And Made Affirmative Efforts To Vilify Muslims.

12

As Plaintiffs note in their complaint and motion for preliminary injunction, within a

13 week of taking office, the President issued EO-1, the first predecessor to Refugee Ban 3.0; that

14 same day, he also appeared on television to make clear that the order was adopted for the

15 purpose of prioritizing Christians.5 Expressly drawing a comparison between Muslim and

16 Christian refugees, he explained that he viewed Christians as a “priority” and he was “going to

17 help” them.6 Days later, he again singled out his intent to help “Christians in the Middle-East.”7

18 On the day the President issued Refugee Ban 3.0—which, as set out below, effectively converts

19 the temporary ban on refugees into an indefinite one that disproportionately affects Muslim

20 refugees—his Vice President made similar remarks. In a speech to “In Defense of Christians”

21

22

23

24
5 (Cmpl. ¶¶ 3, 67; Pl. Motion at 4-5.)
25 6 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As

Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-

26 exclusive-president-trump-says-persecuted-christians-will-be-given-priority-as-refugees (last visited Dec. 4,
2017).
27 7 Donald J. Trump, Twitter (Jan. 29, 2017), https://twitter.com/realDonaldTrump/status/825721153142521858
(last visited Dec. 4, 2017).

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1 and in reference specifically to Christian refugees in the Middle East, the Vice President stated: 2 “Help is on the way.”8

3

Refugee Ban 3.0 must be understood in the context of the President’s longstanding

4 vilification of Muslims. The President has for years referred to Muslims in the United States as

5 a “problem.” As early as April 2011, Mr. Trump expressed his view that there “absolutely” was 6 “a Muslim problem” in the United States.9 He claimed that the Koran itself was the source of 7 the problem, claiming that it “teaches some very negative vibe” and “tremendous hatred.”10 He

8 has repeatedly echoed this view that there is a “massive Muslim problem” in the U.S. and 9 abroad.11 At an event in 2015, for instance, the President agreed with an audience member’s 10 comment that “We have a problem in this country. It’s called Muslims.”12 And several times

11 throughout 2015 and 2016, he declined to accept that a distinction could be drawn between

12 radical Islam and Islam itself. Asked to clarify: “Is it really a Muslim problem, or is it a radical 13 Islamist problem?” He responded: “Maybe it’s a Muslim problem, maybe it’s not”13 and 14 claimed “[i]t’s very hard to define.”14 Mr. Trump has repeatedly expressed the view that “Islam 15 hates us” and that Muslims have “tremendous hatred” and “unbelievable hatred.”15 Given the

16 opportunity to clarify whether his statement that “Islam hates us” referred to all 1.6 billion

17 8 The White House, Remarks by the Vice President at In Defense of Christians Solidarity Dinner (Oct. 25, 2017),

18

https://www.whitehouse.gov/the-press-office/2017/10/25/remarks-vice-president-defense-christians-solidaritydinner (last visited Dec. 4, 2017). While the order did not appear in the Federal Register until later, it had been

19

announced by the time of Pence’s remarks. 9 David Brody, Brody File Exclusive: Donald Trump Says Something in Koran Teaches a ‘Very Negative Vibe,’

20

CBN News (Apr. 12, 2011), http://www1.cbn.com/thebrodyfile/archive/2011/04/12/brody-file-exclusive-donaldtrump-says-something-in-koran-teaches (last visited Dec. 4, 2017).

10 Id.

21 11 Donald J. Trump, Twitter (Dec. 10, 2015), https://twitter.com/realDonaldTrump/

status/674934005725331456 (last visited Dec. 4, 2017); Donald J. Trump, Twitter (Dec. 10, 2015),
22 https://twitter.com/realDonaldTrump/status/674936832010887168 (last visited Dec. 4, 2017); Donald J. Trump,

Twitter (Dec. 10, 2015), https://twitter.com/realDonaldTrump/status/675123192864899072 (last visited Dec. 4,
23 2017).
12 Jonathan Merritt, Trump’s Proposals Could Backfire on Christians, The Atlantic (Nov. 24, 2015),

24 https://www.theatlantic.com/politics/archive/2015/11/donald-trump-muslims-christians/417255/ (last visited Dec.

4, 2017); Theodore Schleifer, Trump doesn’t challenge anti-Muslim questioner at event, CNN (Sept. 18, 2015),

25 http://www.cnn.com/2015/09/17/politics/donald-trump-obama-muslim-new-hampshire/ (last visited Dec. 4, 2017).
13 CNN Interview of Donald Trump, YouTube (Feb. 4, 2016), https://www.youtube.com/watch?v=uW9UlMqJtro

26 (minutes 18:42 to 18:46) (last visited Dec. 4, 2017).
14 Id.
27 15 Theodore Schleifer, Donald Trump: ‘I think Islam hates us’, CNN (Mar. 10, 2016),
http://www.cnn.com/2016/03/09/politics/donald-trump-islam-hates-us/ (last visited Dec. 4, 2017).

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1 Muslims in the world during one of the presidential debates, he responded: “I mean a lot of

2 them. I mean a lot of them. . . . [T]here’s tremendous hatred. And I will stick with exactly what 3 I said.”16

4

The President’s attack on Muslims has also included the affirmative dissemination of

5 group slander. Most recently, on November 29, 2017, the President promoted three unverified

6 videos published by a British anti-Muslim group depicting violent acts by purportedly Muslim

7 people—at least one of whom it turns out, is not Muslim—with titles intended to provoke

8 anti-Muslim bias. The videos were entitled “Muslim migrant beats up Dutch boy on 9 crutches!,”17 “Muslim Destroys a Statue of Virgin Mary!,”18 and “Islamist mob pushes teenage 10 boy off roof and beats him to death!”19

11

The President’s dissemination of these videos in manifest disregard of their effect or

12 their veracity is but the latest in an unbroken string of anti-Muslim statements and acts while in

13 office. On August 17, 2017, the President promoted his false story that terrorism could be

14 eradicated if suspected terrorists were subject to mass execution with bullets dripped in pigs’

15 blood. Given that this substance viewed as highly offensive by practicing Muslims, the

16 President was implying that “terrorist” is synonymous with “Muslim”: “Study what General

17 Pershing of the United States did to terrorists when caught. There was no more Radical Islamic 18 Terror for 35 years!”20 The statement referred to the following false story, which he recounted

19 on numerous occasions while campaigning:

20

So General Pershing, . . . they catch 50 terrorists in the Philippines . . . And as

you know, swine, pig, . . . a big problem for them, big problem. He took two

21

pigs, they chopped them open. Took the bullets that were going to go and shoot

these men. Took the bullets, the 50 bullets, dropped them in the pigs, swished

22

23 16 Transcript of Republican Debate in Miami, CNN (Mar. 15, 2016),

http://www.cnn.com/2016/03/10/politics/republican-debate-transcript-full-text/ (last visited Dec. 4, 2017).
24 17 Jayda Fransen, Twitter (Nov. 28, 2017), https://twitter.com/JaydaBF/status/935609305574903812 (last visited

Dec. 4, 2017).
25 18 Jayda Fransen, Twitter (Nov. 29, 2017), https://twitter.com/JaydaBF/status/935805606447013888 (last visited

Dec. 4, 2017).
26 19 Jayda Fransen, Twitter (Nov. 29, 2017), https://twitter.com/JaydaBF/status/935775552102981633 (last visited
Dec. 4, 2017).
27 20 Donald J. Trump, Twitter (Aug. 17, 2017), https://twitter.com/realDonaldTrump/
status/898254409511129088 (last visited Dec. 4, 2017).

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them around, so there was blood all over those bullets . . . They put the bullets

1

into the rifles. And they shot 49 men . . . I’m just saying, if we’re going to win,

we’re going to win or let’s not play the game and let’s not be a country any

2

more. They put the bullets in the rifles and they shot 49 of the 50 men. Dead.

Boom. So it was a pig-infested bullet in each one. . . . For 28 years, there was no

3

terrorism. . . . We have to do what we have to do. We have to clean it out.21

4

The President has also spread the false story that thousands of Muslims cheered on

5 rooftops during the September 11, 2011 attacks, claiming: “I watched when the World Trade

6 Center came tumbling down. And I watched in Jersey City, New Jersey, where thousands and

7 thousands of people were cheering as that building was coming down. Thousands of people 8 were cheering.”22 In the face of numerous authorities and articles debunking his claim,23 the 9 President repeated the lie on several occasions.24

10

Significantly, the President’s affirmative efforts to vilify Muslims have often focused

11 specifically on Muslim refugees by equating them with terrorists. He has thus equated being a

12 Syrian refugee with being a terrorist: “[W]e cannot allow people to come into the country who

13 want to destroy us, we cannot do it. We can’t allow the Syrians. We can’t allow the migration 14 of the Syrians into the country.”25 Mr. Trump has also stoked fear of Islam on the basis that his

15

16

17

18 21 FULL Speech: Donald Trump rally in Dayton, OH 3-12-2016, YouTube (Mar. 12, 2016),

19

https://www.youtube.com/watch?v=-9KOAHf4GCw (minutes 43:30 to 43:48) (last visited Dec. 4, 2017); see also Lydia Wheeler, Trump resurrects story of Muslims shot with pig’s blood-dipped bullets, The Hill (Mar. 12, 2016),

20

http://thehill.com/blogs/blog-briefing-room/news-campaigns/272780-trump-resurrects-story-of-muslims-shotwith-pigs (last visited Dec. 4, 2017); David Mikkelson, Pershing the Thought, Snopes (Apr. 28, 2016),

http://www.snopes.com/rumors/pershing.asp (debunking Mr. Trump’s story about General Pershing) (last visited
21 Dec. 4, 2017).
22 Glenn Kessler, Trump’s outrageous claim that ‘thousands’ of New Jersey Muslims celebrated the 9/11 attacks,
22 Wash. Post (Nov. 22, 2015), https://www.washingtonpost.com/news/fact-checker/wp/2015/11/22/donald-trumps-

outrageous-claim-that-thousands-of-new-jersey-muslims-celebrated-the-911-attacks/ (last visited Dec. 4, 2017).
23 23 See, e.g., Lauren Carroll, Fact Checking Trump’s claim that thousands in New Jersey cheered when World

Trade Center tumbled, Politifact (Nov. 22, 2015), http://www.politifact.com/truth-o-

24 meter/statements/2015/nov/22/donaldtrump/fact-checking-trumps-claim-thousands-new-jersey-ch/ (last visited

Dec. 4, 2017).
25 24 Kessler, supra, note 22; AP Archive, Trump Defends 9/11 Celebrations with Article (Nov. 24, 2015),

http://www.aparchive.com/metadata/US-OH-Trump-CR-/cadcfee1334d2a1fea065ba383ef6f8e (last visited Dec. 4,

26 2017); Donald J. Trump, Twitter (Nov. 25, 2015),
https://twitter.com/realDonaldTrump/status/669682774673137665 (last visited Dec. 4, 2017).
27 25 FULL Speech: Donald Trump rally in Dayton, OH 3-12-2016, YouTube (Mar. 12, 2016),
https://www.youtube.com/watch?v=-9KOAHf4GCw (minutes 42:45 to 46:45) (last visited Dec. 4, 2017).

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1 election opponent would “let the Muslims flow in”26 and stoked fear that “[r]efugees are trying 2 to take over our children” by telling them “how wonderful Islam is.”27

3

B. The President Has Expressly Stated His Intent To Curtail The Rights Of

Muslims, Including By Restricting Their Entry To The United States.

4

The President has also made clear his express intent to curtail the rights of Muslims in

5 various ways—including most notably to restrict their entry into the United States and to do so

6 in part by banning refugees.

7 Indeed, the signature promise of his campaign has always been that he would restrict

8 the entry of Muslims into the United States. He has further prioritized a ban on prohibiting the

9 entry of Muslim refugees. From the early days of his Presidential campaign, Mr. Trump

10 promised that, if elected, he would “be looking at” getting “rid of” Muslims.28 On December 7,

11 2015, Mr. Trump announced on his website: “Donald J. Trump is calling for a total and

12 complete shutdown of Muslims entering the United States.”29 The same day that Mr. Trump

13 issued this announcement, he also disseminated it to his millions of Twitter followers with the

14 title “Statement on Preventing Muslim Immigration”30 and, further equating Muslims with

15 hatred and terror, he tweeted, “Just put out a very important policy statement on the

16 extraordinary influx of hatred & danger coming into our country.”31 At a rally the same day,

17 Mr. Trump claimed numerous times that “[w]e have no choice” but to implement “a total and

18 complete shutdown of Muslims.”32 Asked how border officials would ideally implement his

19

26 Donald J. Trump, Twitter (Mar. 22, 2016), https://twitter.com/realDonaldTrump/
20 status/712473816614772736 (last visited Dec. 4, 2017).
27 Donald Trump Remarks in Manchester, New Hampshire, C-SPAN (Jun. 13, 2016), https://www.c-
21 span.org/video/?410976-1/donald-trump-delivers-remarks-national-security-threats (minutes 20:05 to 20:30) (last

visited Dec. 4, 2017).
22 28 See Schleifer, supra note 12.
29 Press Release, Trump-Pence, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015),
23 https://web.archive.org/web/20170508054010/

https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration

24 (Internet Archive record on May 8, 2017) (last visited Dec. 4, 2017).
30 Donald J. Trump, Twitter (Dec. 7, 2015), https://twitter.com/realDonaldTrump/

25 status/673993417429524480 (last visited Dec. 4, 2017).
31 Donald J. Trump, Twitter (Dec. 7, 2015), https://twitter.com/realdonaldtrump/status/673982228163072000 (last

26 visited Dec. 4, 2017).
32 Donald J. Trump is Calling for a Total and Complete Shutdown of Muslims Entering the United States Until

27 Our Country’s Representatives Can Figure Out What the Hell is Going On!, YouTube (Dec. 8, 2015),
https://www.youtube.com/watch?v=LRxozK6Bpvk (minutes 0:00 to 0:36) (last visited Dec. 4, 2017).

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1 plan, Mr. Trump explained: “They would say, ‘are you Muslim?’” and that “if they said yes, 2 they would not be allowed in the country.”33 His complete equation of terrorism with a faith of

3 1.6 billion people, including approximately 3.3 million American citizens, is clear.

4

The President has also advocated for a registry of all Muslims in America in the teeth of

5 direct comparisons to the Nazis’ registration of Jewish people. On November 20, 2015, for

6 instance, Mr. Trump stated that he would “certainly implement” a database tracking Muslims in 7 the United States.34 Asked whether he would favor making Muslims legally obligated to 8 register into the database, Mr. Trump responded, “They have to be—they have to be.”35 Again,

9 given the opportunity to clarify whether he was “ruling out a database on all Muslims?”, Mr. 10 Trump doubled down, stating “No not at all.” 36 And, perhaps most appallingly, when asked

11 how registering Muslims would be different from the Nazis’ registration of Jewish people, he 12 expressed indifference, saying four times: “You tell me.”37

13

The President even went so far as to expressly justify his intent to restrict the flow of

14 Muslims by reference to executive orders targeting Japanese Americans during World War II,

15 saying: “Take a look at Presidential proclamations back a long time ago . . . what [President 16 Roosevelt] was doing with Germans, Italians, and Japanese because he had to do it.”38 When

17 asked whether he was given “any pause at all” by being compared to Hitler, Mr. Trump 18 responded “No,”39 and justified banning Muslims based on President Roosevelt’s treatment of

19

20 33 Donald Trump On Muslim Travel Ban, Obama And 2016, YouTube (Dec. 8, 2015),

https://www.youtube.com/watch?v=5I3E3-U-1jc (minutes 14:58 to 15:14) (last visited Dec. 4, 2017); Hardball
21 with Chris Matthews Transcript 12/8/15, MSNBC (Dec. 8, 2015),

http://www.msnbc.com/transcripts/hardball/2015-12-08 (last visited Dec. 4, 2017).
22 34 Vaughn Hillyard, Donald Trump’s Plan for a Muslim Database Draws Comparison to Nazi Germany, NBC

News (Nov. 20, 2015), http://www.nbcnews.com/politics/2016-election/trump-says-he-would-certainly-
23 implement-muslim-database-n466716 (last visited Dec. 4, 2017).
35 Id.
24 36 See Lauren Carroll, In Context: Donald Trump’s comments on a database of American Muslims, Politifact (Nov.

24, 2015), http://www.politifact.com/truth-o-meter/article/2015/nov/24/donald-trumps-comments-database-

25 american-muslims/ (last visited Dec. 4, 2017).
37 See Hillyard, supra note 34.
26 38 Donald Trump On Muslim Travel Ban, Obama And 2016, YouTube (Dec. 8, 2015),
https://www.youtube.com/watch?v=5I3E3-U-1jc (minutes 00:46 to 01:03) (last visited Dec. 4, 2017).
27 39 Miriam Hernandez, Trump Cites History to Defend Muslim Immigration Ban, ABC 7 (Dec. 9, 2015),
http://abc7.com/politics/trump-cites-history-to-defend-muslim-immigration-ban/1116396/ (Dec. 4, 2017).

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1 Japanese Americans.40 Two days later, Mr. Trump defended his position by tweeting a link to

2 an article stating that Islam is a “very evil and wicked religion,” a “false religion,” advocating

3 that Muslims should be banned, and making further analogy to the treatment of Japanese during 4 World War II.41

5

As part of advocating a ban on entry of nationals from predominately Muslim countries,

6 the President consistently embraced a ban on refugees, and Syrian refugees in particular,

7 describing the latter as “one of the great Trojan horses” and saying that “[w]e cannot let them 8 into this country, period.”42 On numerous occasions, he urged that refugees should be banned

9 because “[t]hey may be from Syria, they may be ISIS” and stoked fear that “[t]his is a

10 migration, they have no anything, but they have cellphones — with ISIS flags on them and 11 worse.”43 He claimed that the United States had accepted “tens of thousands of Syrian refugees 12 . . . who are definitely in many cases ISIS aligned.”44

13

C. The President Has Reaffirmed His Discriminatory Intent On Numerous

Occasions Since Taking Office.

14

Mr. Trump has never backed down from his hateful statements and pledges since

15

assuming the Office of the President; in fact, he has repeatedly reaffirmed them. As discussed

16

above, as President, Mr. Trump has expressly stated that he would implement policy to favor

17

Christian refugees; affirmatively shared propaganda videos depicting purported violence by

18

Muslims without regard to their authenticity or their defamatory consequences for innocent

19

Muslims; and promoted propaganda such as his false story of a mass execution of terrorists

20

21 40 Id.
41 Donald J. Trump, Twitter (Dec. 10, 2015), https://twitter.com/realDonaldTrump/
22 status/675034063447662592 (last visited Dec. 4, 2017); see also Sarah Larimer, Why Franklin Graham says

Donald Trump is right about stopping Muslim immigration, Wash. Post (Dec. 10, 2015),
23 https://www.washingtonpost.com/news/acts-of-faith/wp/2015/12/10/why-franklin-graham-says-donald-trump-is-

right-about-stopping-muslim-immigration/ (last visited Dec. 4, 2017).
24 42 Tal Kopan, Donald Trump: Syrian refugees a ‘Trojan horse’, CNN (Nov. 16, 2015),

http://www.cnn.com/2015/11/16/politics/donald-trump-syrian-refugees/index.html (last visited Dec. 4, 2017).
25 43 Ben Kamisar, Trump to Syrian refugee children: ‘You can't come here’, The Hill (Feb. 8, 2016),

http://thehill.com/blogs/ballot-box/gop-primaries/268614-trump-to-syrian-refugee-children-you-cant-come-here

26 (last visited Dec. 4, 2017).
44 Trump: Taking in Syrian Refugees ‘Great Trojan Horse’, MSNBC (Oct. 19, 2016)

27 http://www.msnbc.com/msnbc-quick-cuts/watch/trump-taking-in-syrian-refugees-great-trojan-horse-
789644867592 (last visited Dec. 4, 2017).

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1 using weapons dipped in pigs’ blood. Continuing his discriminatory rhetoric specific to Muslim

2 migrants, the President has also repeated his oft-expressed view that “[t]he assimilation [of 3 Muslims in the U.S.] has been very, very hard. It’s been a very, very difficult process.”45

4

Senior members of the Trump Administration have expressly acknowledged that his

5 executive orders, including the present one, are motivated by negative stereotypes caricaturing

6 all Muslims as terrorists. Following the issuance of Refugee Ban 3.0, the President’s Deputy

7 Press Secretary was recently, squarely asked: “Does the President think that Muslims are a

8 threat to the United States?” Acknowledging the basis for the Refugee Ban in religious

9 stereotype, he responded, “[T]he President has addressed these issues with the travel order 10 that he issued earlier this year and the companion proclamation.”46

11

The President himself has made this discriminatory intent just as clear. After courts

12 enjoined EO-1, which included provisions limiting refugee admission and banning refugees

13 from certain countries, the President expressly complained that the refugees being admitted to

14 the United States as a result included a large percentage of Muslims, tweeting: “72% of

15 refugees admitted into U.S. (2/3-2/11) during COURT BREAKDOWN are from 7 countries: 16 SYRIA, IRAQ, SOMALIA, IRAN, SUDAN, LIBYA & YEMEN.”47 Following his issuance of

17 EO-2—and in the direct lead up to the present order—the President repeatedly derided his own 18 Department of Justice for taking an approach that was too “politically correct.”48 The only

19 plausible interpretation of that criticism is that the President understands his executive orders as

20 “politically incorrect,” i.e., based on an anti-Muslim presumption. He has also stated his view

21

22

45 Chris Cillizza, Donald Trump’s explanation of his wire-tapping tweets will shock and amaze you, Wash. Post
23 (Mar. 16, 2017), https://www.washingtonpost.com/

news/the-fix/wp/2017/03/16/donald-trump-explained-twitter-the-universe-and-everything-to-tucker-carlson/ (last

24 visited Dec. 4, 2017).
46 The White House, Press Gaggle by Principal Deputy Press Secretary Raj Shah en route St. Louis, MO

25 (November 29, 2017) (emphasis added), https://www.whitehouse.gov/the-press-office/2017/11/29/press-gaggle-

principal-deputy-press-secretary-raj-shah-en-route-st-louis (last visited Dec. 4, 2017).
26 47 Donald J. Trump, Twitter (Feb. 12, 2017), https://twitter.com/realDonaldTrump/status/830747067379232769
(last visited Dec. 4, 2017).
27 48 Donald J. Trump, Twitter (June 5, 2017), https://twitter.com/realDonaldTrump/
status/871899511525961728 (last visited Dec. 4, 2017).

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1 that “The travel ban into the United States should be far larger, tougher and more specific.”49

2 This is precisely what he has done with Refugee Ban 3.0, which makes the ban on refugees

3 indefinite and has an especially drastic impact on Muslim refugees.

4 II. 5 6

THE PREDECESSOR ORDERS THAT PRECEDED AND GAVE RISE TO REFUGEE BAN 3.0 WERE MOTIVATED ON THEIR FACE BY ANTIMUSLIM ANIMUS.
Refugee Ban 3.0 is a continuation and expansion of the temporary refugee suspensions

7 in EO-1 and EO-2. Both of those predecessors contained on their face evidence of anti-Muslim

8 animus. EO-1 prioritized the processing of refugee applications from religious minorities, a

9 provision that, by the President’s own admission, was designed to benefit Christian refugees

10 from Muslim-majority countries. And both EO-1 and EO-2 made explicit reference to “honor

11 killings,” an attempt to communicate anti-Muslim animus that is wholly unrelated to national

12 security. Refugee Ban 3.0 flows directly from these openly discriminatory orders, and is

13 motivated by the same anti-Muslim animus that animated its predecessors.

14

A. The Refugee Ban Provision Of EO-1 Included A Priority Designed To

Benefit Christian Refugees In Muslim-Majority Nations At The Expense Of

15

Muslim Refugees.

16

EO-1 explicitly required that refugee admissions be “prioritize[d]” if the refugee made a

17 claim “on the basis of religious-based persecution.”50 However, this priority was only available

18 if “the religion of the individual is a minority religion in the individual’s country of 19 nationality.”51 As the President explained in public statements made the day he signed EO-1,

20 this provision was designed to favor Christians, and to allow Christians from Muslim-majority 21 countries the ability to continue coming to the United States as refugees.52 Further, EO-2

22 eliminated the explicit reference to religious minorities but continued to operate as a ban on

23

24

25
49 Donald J. Trump, Twitter (Sept. 15, 2017), https://twitter.com/realDonaldTrump/

26 status/908645126146265090 (last visited Dec. 4, 2017).
50 82 F.R. 8977 § 5(b) (Jan. 27, 2017).

27

51 Id. 52 See Part I.A., supra

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1 Muslims, changing the religious composition of refugees entering the United States—from 2 50% Muslim and 41% Christian to 57% Christian and 31% Muslim.53

3

B. Both EO-1 And EO-2 Refer To “Honor Killings”—A Term Used

Commonly And Almost Exclusively To Denigrate Muslims.

4

In addition to the specific exception designed to disfavor Muslim refugees, the texts of

5

both EO-1 and EO-2 contain on their face language that reveals an invidious anti-Muslim intent

6

and is otherwise inexplicable. Both invoke, as justification, the practice of “honor killings”—

7

the homicide of a family member, typically female, due to the perpetrator’s belief that the

8

victim has shamed the family, usually by violating a religious tenet. Yet the idea of an “honor

9

killing” is wholly unrelated to the problem of international terrorism. Instead, it is deployed in

10

current political discourse as a coded message to invoke and reinforce animus against Muslims

11

by painting them as violent and uncivilized. Expressions of concern about “honor killings” are

12

hence not neutral references to all gender-based violence: they are a means of affirming and

13

propagating anti-Muslim stereotypes upon which the President and his surrogates have relied to

14

justify banning the entry of Muslims in the United States.

15

In EO-1, the term “honor killings” appears in the very first section as part of the

16

motivation for the order to prohibit “those who engage in acts of bigotry or hatred . . . including

17

‘honor’ killings” from entering the United States. EO-1 § 1. EO-1 further required that the

18

Secretary of Homeland Security collect data on “‘honor killings’ in the United States by foreign

19

nationals.” Id. § 10(iii). EO-2 reiterated this command. EO-2 § 11(a)(iii) (requiring that the

20

Secretary of Homeland Security “collect and make publicly available . . . information regarding

21

the number and types of acts of gender-based violence against women, including so- called

22

‘honor killings,’ in the United States by foreign nationals”) (emphasis added).

23

These references are inexplicable given the putative purpose of the two orders. There is

24

no known association between the incidence of “honor killings” and the likelihood that a

25

26

27 53 (Cmpl. ¶ 89.)

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1 government of one of the covered nations will supply information requested by U.S.

2 immigration authorities.

3

There is no correlation between Islam and intrafamilial violence against women.54

4 While regional rates vary, the incidence of intrafamilial violence exceeds 19 percent 5 everywhere in the world except East Asia.55 To the extent the term “honor killings” isolate a

6 specific subcategory of domestic violence, “[h]onor crimes are committed worldwide and . . . 7 cu[t] across cultures and religions.”56 Nor do Muslims condone such violence more often than 8 non-Muslims.57 To the contrary, Muslim religious leaders have repeatedly and forcefully 9 condemned violence against women.58

10

Despite all this, the term “honor killing” is used in current political discourse almost

11 exclusively to refer to Muslims, and thereby to promote that Muslims are distinctively violent

12 and uncivilized. There is a “constant association” of honor killings stories with “the Middle

13 East and South Asia, or immigrant communities originating in these regions, [which] has given 14 them a special association with Islam.”59

15

Individuals and groups with anti-Muslim biases commonly invoke so-called “honor

16 crimes” as a phenomenon that supposedly “divides civilized societies from uncivilized

17 54 K.M. Devries et al., The Global Prevalence of Intimate Partner Violence Against Women, 340 Science 1527,

18

1527 (2013) (estimating that 30 percent of women “aged 15 and over have experienced, during their lifetime, physical and/or sexual intimate partner violence”).

19

55 Id. at 1528. 56 Brittany E. Hayes et al., An Exploratory Study of Honor Crimes in the United States, 31 J. Fam. Violence 303,

20

304 (2016); Aisha Gill, Honor Killings and the Quest for Justice in Black and Minority Ethnic Communities in the United Kingdom, 20 Crim. Just. Pol’y Rev. 475, 480 (2009) (“Honor killings cut across ethnic, class, and religious

lines [and are committed] not only by Muslims but also by Druze, Christians, and occasionally Jews.”).
21 57 The Gallup Coexist Index 2009: A Global Study of Interfaith Relations 34 (2009), https://ec.europa.eu/migrant-

integration/librarydoc/the-gallup-coexist-index-2009-a-global-study-of-interfaith-relations (last visited Dec. 4,
22 2017).
58 See, e.g., Paola Loriggio, Shafia Murders: Imams Issue Fatwa Against Honour Killings, Domestic Violence,
23 Huffington Post (Feb. 4, 2012), http://www.huffingtonpost.ca/2012/02/04/honour-killi%20ng-imams-fatwa-

against_n_1254697.html (last visited Dec. 4, 2017) (Rather than condoning gender- based violence, “Islam and

24 Islamic law . . . [over time] are coming to be invoked more and more against honor crimes.”); Lila Abu-Lughod,

DO MUSLIM WOMEN NEED SAVING? 139 (2013); Gill, supra, at 480 (“[B]oth Sharia law (Islamic law) and

25 customary law alike have strict guidelines forbidding [honor killings].”).
59 Abu-Lughod, supra fn. 58, at 114; accord Sherene Razack, CASTING OUT: THE EVICTION OF MUSLIMS FROM

26 WESTERN LAW AND POLITICS 128 (2008) (explaining how the same crime is labeled a crime of “passion” or of
“honor” depending on the religious identity of the perpetrator in a way that “reifies Muslims as stuck in

27 premodernity”); Inderpal Grewal, Outsourcing Patriarchy: Feminist Encounters, Transnational Mediations and
the Crime of ‘Honour Killings,’ 15 Int’l Feminist J. Pol. 1, 5 (2013).

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1 societies,”60 notwithstanding the pervasive occurrence of intrafamilial violence against women 2 across cultures.61 Anti-Muslim organizations and websites commonly depict Muslims as

3 “inherently violent” and prone to “rape, sexual abuse against children, violent acts caused by a

4 culture of honour, violence within arranged marriages, threats against public individuals and 5 physical violence against non-Muslims.”62

6

Coded stereotypes like these have frequently been used against disfavored minorities in

7 U.S. politics. For example, Jim Crow was defended by “coded” appeals to white supremacy 8 framed in terms of “African-Americans’ illegitimate sexual relations and proclivity to crime.”63 9 Coded invocations of racial fears are still employed in political debate.64 The use of “subtle”

10 allusions to negative stereotypes has been shown to reap political rewards because dog whistles 11 “activate racial attitudes” while maintaining a measure of deniability.65 That is precisely the

12 function the reference to “honor killings” in EO-1 and EO-2 plays.

13

In sum, neither EO-1’s nor EO-2’s reference to “honor killings” can be written off as

14 neutral nor superfluous. Instead, they are invocations of common negative stereotypes used to

15 malign Muslims as violent and uncivilized—precisely the same negative, hateful, and false

16 stereotypes that President Trump has conjured before and after inauguration. Such references

17 undermine the purported justifications for those orders, and Refugee Ban 3.0 that followed and

18 rendered these measures into permanent law, and show all to reflect impermissible animus

19 against Muslims.

20

21

22

60 Id. at 115.
23 61 Devries, supra, at 1528
62 Mattias Ekman, Online Islamophobia and the Politics of Fear: Manufacturing the Green Scare, 38 Ethnic &

24 Racial Stud. 1986, 1995 (2015) (emphasis added).
63 Tali Mendelberg, THE RACE CARD: CAMPAIGN STRATEGY, IMPLICIT MESSAGING, AND THE NORM OF EQUALITY

25 94-95 (2001).
64 Jon Hurwitz & Mark Peffley, Playing the Race Card in the Post–Willie Horton Era: The Impact of Racialized

26 Code Words on Support for Punitive Crime Policy, 69 Pub. Opinion Q. 99 (2005) (demonstrating the racially
loaded effect of crime-related language).
27 65 Nicholas A. Valentino et al. Cues That Matter: How Political Ads Prime Racial Attitudes During Campaigns,
96 Am. Pol. Sci. Rev. 75, 75–76 (2002).

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 14
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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 20 of 24

III. REFUGEE BAN 3.0 IS A DIRECT CONTINUATION OF EO-1 AND EO-2 AND

1

IS MOTIVATED BY THE SAME ANTI-MUSLIM ANIMUS.

2

Refugee Ban 3.0, like its precursors, discriminates against Muslim refugees. Refugee

3 Ban 3.0 was enacted the day after the refugee ban provision of EO-2 expired and is clearly 4 intended to continue the policies that EO-1 and EO-2 originally put in place.66 It consists of two

5 main provisions: first, a provision that suspends refugee admissions from eleven countries, the

6 overwhelming majority of which are Muslim; and second, a provision that suspends the

7 “follow-to-join” process permitting a spouse or child to be reunited with a refugee already

8 admitted to the United States, which in operation today tends largely to be used by Muslim

9 refugees. Each of these steps furthers the stated anti-Muslim policies of the Trump

10 administration and reflects the discriminatory animus evidenced in EO-1 and EO-2.

11

Refugee Ban 3.0 suspends refugee admissions from eleven countries that comprise the

12 majority of the Muslim refugees entering the United States. As the Complaint alleges, the

13 eleven countries affected by the suspension include nine countries with a population that is over

14 85% Muslim (Egypt, Iran, Iraq, Libya, Mali, Somalia, Sudan, Syria, and Yemen), and two 15 other countries (North Korea and South Sudan).67 In the last two fiscal years, the nine Muslim16 majority countries accounted for 80% of the Muslim immigrants to the United States,68 and 17 over 80% of the refugees resettled from those countries have been Muslim.69 By contrast, the

18 refugees admitted from countries not targeted by Refugee Ban 3.0 are 70% Christian and only 19 16% Muslim.70 The suspension thus operates to shift the composition of refugees admitted to

20 the United States from mostly Muslim to mostly Christian, nearly as efficiently as possible, by

21 using countries as a proxy for religion.

22

23

24 66 (Cmpl. ¶ 94); section I(C) supra.
67 (Cmpl. ¶ 103-104.) Many of these countries have been repeatedly targeted by the previous Executive Orders; for

25 example, six of these Muslim-majority countries were included in the travel bans of both EO-1 and EO-2 (Syria,

Sudan, Iran, Libya, Somalia, and Yemen). (Cmpl. ¶ 79); EO-2 § 2(c).
26 68 (Cmpl. ¶ 106)
69 (Cmpl. ¶ 105)
27 70 (Cmpl. ¶ 111); (Declaration of Casey Smith in Support of Plaintiff’s Motion for Preliminary Injunction (“Smith
Decl.”), Dkt. No. 44, ¶ 19).

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 15
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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 21 of 24

1

Refugee Ban 3.0 also indefinitely suspends the “follow-to-join” process, whereby the

2 spouse or child of a refugee accepted into the United States is permitted to join them. Memo at

3 3. Although this suspension applies worldwide, it has a disproportionate effect on Muslim

4 refugees: Follow-to-join is generally available only to family members of refugees admitted 5 within the last two years.71 Over the last two fiscal years, most refugees admitted to the United 6 States have been Muslim.72 Even prior to the recent increase in the number of Muslim refugees

7 admitted to the United States, Iraq and Somalia—two predominantly Muslim countries targeted

8 by the refugee and travel bans—were the nationalities most represented in the follow-to-join

9 process. Memo Addendum at 1.

10

Understood in context, therefore, Refugee Ban 3.0 is plainly the President’s

11 implementation of a longstanding pledge to prevent the entry of Muslims to the U.S.—

12 including specifically by restricting the flow of Muslim refugees—on the basis of an invidious

13 and false belief that equates Islam and violence. It plainly embodies the same anti-Muslim

14 animus that was expressly indicated in the predecessor orders that gave rise to Refugee Ban 3.0

15 in the first place. This Court should not allow it to be implemented.

16

CONCLUSION

17

For the foregoing reasons, amici urge this Court to grant Plaintiffs’ motion for a

18 Preliminary Injunction.

19

20

21

22

23

24

25

26

27

71 8 C.F.R. § 207.7(d). 72 (Smith Decl. ¶ 21.)

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 16
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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 22 of 24

1

DATED this 4th day of December, 2017.

2

Muslim Advocates

3

By: /s/ Sorome Shebaya

Johnathan J. Smith, pro hac vice

4

(application pending)

Sirine Shebaya, pro hac vice (application

5

pending)

Matthew W. Callahan, pro hac vice

6

(application pending)

P.O. Box 66408

7

Washington, DC 20035

Telephone: (202) 897-2622

8

Fax: (202) 508-1007

E-mail: johnathan@muslimadvocates.org

9

E-mail: sirine@muslimadvocates.org

E-mail: matthew@muslimadvocates.org

10

The Roderick & Solange MacArthur Justice

11

Center

12

By: /s/ Amir H. Ali

13

Amir H. Ali, pro hac vice (application

pending)

14

718 7th Street NW

Washington, DC 20001

15

Telephone: (205) 869-3434

Fax: (206) 689-3435

16

E-mail: amir.ali@macarthurjustice.org

17

Aziz Hug

Attorney For Muslim Advocates

18

By: /s/ Aziz Huq

19

Aziz Huq, pro hac vice (application

pending)

20

1111 E. 60th Street

Chicago, IL 60622

21

Telephone: (773) 702-9566

Fax: (773) 702-9566

22

E-mail: huq@uchicago.edu

23

24

25

26

27

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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 23 of 24

1

Davis Wright Tremaine LLP

Attorneys for Muslim Advocates and The

2

Roderick & Solange MacArthur Justice Center

3

By: /s/ Joseph P. Hoag

4

Joseph P. Hoag, WSBA #41971

1201 Third Avenue, Suite 2200

5

Seattle, WA 98101-3045

Telephone: (206) 757-8080

6

Fax: (206) 757-7080

E-mail: josephhoag@dwt.com

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 18
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Case 2:17-cv-00178-JLR Document 66-1 Filed 12/04/17 Page 24 of 24

1

CERTIFICATE OF SERVICE

2

I hereby certify that on December 4, 2017, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to those

4 attorneys of record registered on the CM/ECF system. All other parties (if any) shall be served in

5 accordance with the Federal Rules of Civil Procedure

6

Dated this 4th date of December, 2017.

7

/s/ Joseph P. Hoag

8

Joseph P. Hoag, WSBA #41971

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 19
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 Case 2:17-cv-00178-JLR Document 68 Filed 12/05/17 Page 1 of 2

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10

JOHN DOES, et al.,

11

Plaintiffs,

v.

12

DONAT,D TRTTMP ~t ~1
13

Defendants. 14

JEWISH FAMILY SERVICES, et

15

al.,

CASE NO. C17-0178JLR ORDER DIRECTING SUPPLEMENTAL BRIEFING (RELATING TO BOTH CASES)
CASE NO C17-1707JLR

16

Plaintiffs,

17

v.

18

DONALD TRUMP, et al.,

Defendants. 19

Presently pending before the court are Plaintiffs' motion for a preliminary 20

21 injunction in John Does, et al. v. Trump, et al., No. C17-0178 (Dkt. # 45) and Plaintiffs'

22 II

ORDER-I

Case 2:17-cv-00178-JLR Document 68 Filed 12/05/17 Page 2 of 2

1 motion for a preliminary injunction in Jewish Family Services v. Trump, eta!., No.

2 C17-1707JLR (Dkt. # 42).

3

On December 4, 2017, the Supreme Court issued two orders staying two district

4 court orders granting preliminary injunctions with respect to certain aspects of

5 Presidential Proclamation No. 9,645,83 Fed. Reg. 45,161 (Sept. 27, 2007) ("E0-3")

6 pending the Government's appeals in the Ninth and Fourth Circuit Courts of Appeal and

7 the Government's petition for a writ of certiorari. See Trump v. Int'l Refugee Assistance

8 Project, No. 17A560, 2017 WL 5987435, at *1 (U.S. Dec. 4, 2017); Trump v. Hawaii,

9 No. 17A550, 2017 WL 5987406, at *1 (U.S. Dec. 4, 2017). The court recognizes that,

10 although E0-3 addresses certain aspects of immigration, it does not address refugees.

11 Nevertheless, the court orders the parties to provide supplemental briefing concerning

12 what impact, if any, the Supreme Court's December 4, 2017, orders have concerning the

13 two pending motions for preliminary injunction. Plaintiffs in Doe, eta!. v. Trump, No.

14 C17-0178JLR, and Plaintiffs in Jewish Family Services, eta!. v. Trump, No.

15 C17-1707JLR, shall each file briefs no longer than three-pages and no later than

16 Thursday, December 7, 2017. Defendants shall file a combined response to Plaintiffs'

17 briefs no longer than five-pages and no later than Monday, December 11, 2017.

18

IT IS SO ORDERED.

~

19

Dated this .5_ day of December, 2017.

20

.ROBART

21

United St tes District Judge

22

ORDER-2

 
 Case 2:17-cv-00178-JLR Document 69 Filed 12/05/17 Page 1 of 4

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 JEWISH FAMILY SERVICE OF SEATTLE, et al.,
10
Plaintiffs, 11
v. 12 DONALD J. TRUMP, in his official capacity as
President of the United States, et al., 13
Defendants. 14

No. 2:17-CV-01707-JLR No. 2:17-CV-00178-JLR
PRAECIPE
[CLERK’S ACTION REQUIRED]

15

16 TO THE CLERK OF THE COURT:
17 COMES NOW, Muslim Advocates and The Roderick & Solange MacArthur Justice
18 Center and hereby files this Praecipe to the Brief of Amici Curiae Muslim Advocates and the
19 Roderick & Solange MacArthur Center in Support of Plaintiffs’ Motion for Preliminary
20 Injunction filed on December 4, 2017 in order to amend/correct the following.
21 A. For Case Number 2:17-CV-00178-JLR:
22

23

•

ECF No. 66 at 31 – change “Sorome” in the signature line of the first signature

block to “Sirine”

24

• ECF No. 66 at 4 – change “Hug in the first line of the third signature block (for

25

Aziz Huq) to “Huq”

26

27 1 All page numbers refer to page numbers designated by the ECF header. To the extent brief page numbers in
document footers disagree with the ECF header page numbers, the ECF header numbers are intended herein.

PRAECIPE – Case No. 2:17-CV-01707-JLR; No. 2:17-CV-00178-JLR - 1
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Case 2:17-cv-00178-JLR Document 69 Filed 12/05/17 Page 2 of 4

• ECF No. 66-1 at 22 – change “Sorome” in the signature line of the first

1

signature block to “Sirine” and change “Hug in the first line of the third

2

signature block (for Aziz Huq) to “Huq” (these are the same changes as in ECF

No. 66).

3

4

The originally filed document did not have the handwritten signature.

5

The attached Motion to File Brief of Amici Muslim Advocates and The MacArthur

6 Justice Center in Support of Preliminary Injunction, and the attached Brief of Amici Curiae

7 Muslim Advocates and The Roderick & Solange MacArthur Justice Center in Support of

8 Plaintiffs’ Motion for Preliminary Injunction, reflect the referenced corrections and are

9 requested to replace Dkt. Nos. 66 and 66-1, respectively.

10

B. For Case Number 2:17-CV-01707-JLR:

11

•

ECF No. 81 at 32 – change “Sorome” in the signature line of the first signature

block to “Sirine” 12

13

• ECF No. 81 at 4 – change “Hug in the first line of the third signature block (for Aziz Huq) to “Huq”

14 • ECF No. 82 at 22 (using the ECF header numbers, not the document’s

15

numbering in the footer) – change “Sorome” in the signature line of the first

signature block to “Sirine” and change “Hug in the first line of the third

16

signature block (for Aziz Huq) to “Huq” (these are the same changes as in ECF

17

No. 66).

18

The originally filed document did not have the handwritten signature.

19

The attached Motion to File Brief of Amici Muslim Advocates and The MacArthur

20 Justice Center in Support of Preliminary Injunction, and the attached Brief of Amici Curiae

21 Muslim Advocates and The Roderick & Solange MacArthur Justice Center in Support of

22 Plaintiffs’ Motion for Preliminary Injunction, reflect the referenced corrections and are

23 requested to replace Dkt. Nos. 81 and 82, respectively.

24

25

DATED this 5th day of December, 2017.

26
2 Counsel is currently denied permission to view ECF Nos. 81 and 82 on the Court’s Case Management/Electronic
27 Case Files system. However, because the same Motion and Amici Brief are on file in both Case Number 17-178
and 17-1707, counsel believes the same ECF page numbers should apply to Case Number 17-1707.

PRAECIPE – Case No. 2:17-CV-01707-JLR; No. 2:17-CV-00178-JLR - 2
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Case 2:17-cv-00178-JLR Document 69 Filed 12/05/17 Page 3 of 4

Muslim Advocates

1

By: /s/ Sirine Shebaya

2

Johnathan J. Smith, pro hac vice

(application pending)

3

Sirine Shebaya, pro hac vice (application

pending)

4

Matthew W. Callahan, pro hac vice

(application pending)

5

P.O. Box 66408

Washington, DC 20035

6

Telephone: (202) 897-2622

Fax: (202) 508-1007

7

E-mail: johnathan@muslimadvocates.org

E-mail: sirine@muslimadvocates.org

8

E-mail: matthew@muslimadvocates.org

9

The Roderick & Solange MacArthur Justice

Center

10

By: /s/ Amir H. Ali

11

Amir H. Ali, pro hac vice (application

pending)

12

718 7th Street NW

Washington, DC 20001

13

Telephone: (205) 869-3434

Fax: (206) 689-3435

14

E-mail: amir.ali@macarthurjustice.org

15

Aziz Huq

16

Attorney For Muslim Advocates

17

By: /s/ Aziz Huq

Aziz Huq, pro hac vice (application

18

pending)

1111 E. 60th Street

19

Chicago, IL 60622

Telephone: (773) 702-9566

20

Fax: (773) 702-9566

E-mail: huq@uchicago.edu

21

Davis Wright Tremaine LLP

22

Attorneys for Muslim Advocates and The

Roderick & Solange MacArthur Justice Center

23

By: /s/ Joseph P. Hoag

24

Joseph P. Hoag, WSBA #41971

1201 Third Avenue, Suite 2200

25

Seattle, WA 98101-3045

Telephone: (206) 757-8080

26

Fax: (206) 757-7080

E-mail: josephhoag@dwt.com 27

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Case 2:17-cv-00178-JLR Document 69 Filed 12/05/17 Page 4 of 4

1

CERTIFICATE OF SERVICE

2

3

I hereby certify that on December 5, 2017, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system, which will send notification of such filing to those 4

attorneys of record registered on the CM/ECF system. All other parties (if any) shall be served in 5

6 accordance with the Federal Rules of Civil Procedure

7

Dated this 5th date of December, 2017.

8

/s/ Joseph P. Hoag

9

Joseph P. Hoag, WSBA #41971

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

PRAECIPE – Case No. 2:17-CV-01707-JLR; No. 2:17-CV-00178-JLR - 4
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Case 2:17-cv-00178-JLR Document 69-1 Filed 12/05/17 Page 1 of 5

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 JEWISH FAMILY SERVICE OF SEATTLE, et 10 al.,

11

Plaintiffs,

12

v. DONALD J. TRUMP, in his official capacity as

13 President of the United States, et al.,

14

Defendants.

15

No. 2:17-CV-01707-JLR
MOTION TO FILE BRIEF OF AMICI MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER IN SUPPORT OF PRELIMINARY INJUNCTION
Noted for Consideration: Dec. 4, 2017

16 Muslim Advocates and the Roderick & Solange MacArthur Justice Center (“MJC”)
17 respectfully move for leave to file the accompanying amicus brief in support of Plaintiffs’
18 motion for a preliminary injunction. The parties have consented to the filing of the associated
19 amicus brief.
20
INTEREST OF AMICI 21
Muslim Advocates is a national legal advocacy and educational organization formed in 22
2005 that works on the frontlines of civil rights to guarantee freedom and justice for Americans 23
of all faiths. The issues at stake in this case directly relate to Muslim Advocates’ work fighting 24
institutional discrimination against the American Muslim community. 25
The MacArthur Justice Center is a not-for-profit organization founded by the family of 26
J. Roderick MacArthur to advocate for human rights and social justice through litigation. MJC 27

MOTION TO FILE BRIEF OF AMICI MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER – Case No. 2:17-CV-01707-JLR - 1
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Case 2:17-cv-00178-JLR Document 69-1 Filed 12/05/17 Page 2 of 5

1 has represented clients facing myriad human rights and civil rights injustices, including issues

2 of discrimination, the unlawful detention of foreign nationals, and the rights of marginalized

3 groups in the American justice system. MJC has an interest in the rule of law and the

4 independence of the judiciary in determining whether government officials have acted with

5 discriminatory animus against an unpopular minority group.

6

Amici submit this brief to document the long history of religious animus that led to the

7 order under consideration by the Court. This includes the President’s extensive record of

8 hostility against people of the Muslim faith, his open desire to curtail their rights, and his

9 specific, sustained promise to inhibit their entry to the U.S.—including specifically by

10 prohibiting the entry of Muslim refugees. It also describes express anti-Muslim terminology

11 used in the predecessor Executive Orders that created the basis for the present order. MJC’s

12 prior briefing was relied upon by the U.S. District Court for the District of Hawaii in enjoining

13 Executive Order 13780, see Hawai‘i v. Trump, 241 F. Supp. 3d 1119, 1137 n.14 (D. Haw.

14 2017), and by parties in the various proceedings challenging the President’s orders.

15

ARGUMENT

16

The Court has broad discretion to permit a non-party to participate in an action as

17 amicus curiae. See, e.g., Gerritson v. de la Madrid Hurtado, 819 F.2d 1511, 1514 n.3 (9th Cir.

18 1987); Skokomish Indian Tribe v. Goldmark, No. 13-cv-5071-JLR, 2013 WL 5720053, at *1

19 (W.D. Wash. Oct. 21, 2013) (“The court has ‘broad discretion’ to appoint amicus curiae.”)

20 (citing Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982)); Nat. Res. Def. Council v. Evans,

21 243 F. Supp. 2d 1046, 1047 (N.D. Cal. 2003) (amici “may file briefs and may possibly

22 participate in oral argument” in district court actions). Indeed, “[d]istrict courts frequently

23 welcome amicus briefs from non-parties concerning legal issues that have potential

24 ramifications beyond the parties directly involved or if the amicus has ‘unique information or

25 perspective that can help the court beyond the help that the lawyers for the parties are able to

26 provide.’” Sonoma Falls Dev., LLC v. Nev. Gold & Casinos, Inc., 272 F. Supp. 2d 919, 925

27 (N.D. Cal. 2003) (quoting Cobell v. Norton, 246 F. Supp. 2d 59, 62 (D.D.C. 2003) (citation

MOTION TO FILE BRIEF OF AMICI MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER – Case No. 2:17-CV-01707-JLR - 2
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Case 2:17-cv-00178-JLR Document 69-1 Filed 12/05/17 Page 3 of 5

1 omitted)). No special qualifications are required; “an individual seeking to appear as amicus

2 must merely make a showing that his participation is useful to or otherwise desirable to the

3 court.” In re Roxford Foods Litig., 790 F. Supp. 987, 997 (E.D. Cal. 1991).

4

Because Amici have special interest and expertise in anti-Muslim animus—both

5 historically and with regard to the present administration—their participation as amici curiae is

6 appropriate in this matter in which the Court will consider issues of particular public interest.

7 See Liberty Res., Inc. v. Phila. Hous. Auth., 395 F. Supp. 2d 206, 209 (E.D. Pa. 2005). (“Courts

8 have found the participation of an amicus especially proper . . . where an issue of general public

9 interest is at stake.”). This is because the primary role of an amicus is “to assist the Court in

10 reaching the right decision in a case affected with the interest of the general public.” Russell v.

11 Bd. of Plumbing Examiners of Cty. of Westchester, 74 F. Supp. 2d 349, 351 (S.D.N.Y. 1999).

12

Amici accordingly request leave to file the accompanying brief as amici curiae in

13 support of Plaintiffs’ motion for preliminary injunction.

14

15

DATED this 4th day of December, 2017.

16

Muslim Advocates

17

By: /s/ Sirine Shebaya

Johnathan J. Smith, pro hac vice

18

(application pending)

Sirine Shebaya, pro hac vice (application

19

pending)

Matthew W. Callahan, pro hac vice

20

(application pending)

P.O. Box 66408

21

Washington, DC 20035

Telephone: (202) 897-2622

22

Fax: (202) 508-1007

E-mail: johnathan@muslimadvocates.org

23

E-mail: sirine@muslimadvocates.org

E-mail: matthew@muslimadvocates.org

24

25

26

27
MOTION TO FILE BRIEF OF AMICI MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER – Case No. 2:17-CV-01707-JLR - 3
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Case 2:17-cv-00178-JLR Document 69-1 Filed 12/05/17 Page 4 of 5

1

The Roderick & Solange MacArthur Justice

Center

2

By: /s/ Amir H. Ali

3

Amir H. Ali, pro hac vice (application

pending)

4

718 7th Street NW

Washington, DC 20001

5

Telephone: (205) 869-3434

Fax: (206) 689-3435

6

E-mail: amir.ali@macarthurjustice.org

7

Aziz Huq

8

Attorney For Muslim Advocates

9

By: /s/ Aziz Huq

Aziz Huq, pro hac vice (application

10

pending)

1111 E. 60th Street

11

Chicago, IL 60622

Telephone: (773) 702-9566

12

Fax: (773) 702-9566

E-mail: huq@uchicago.edu

13

14

Davis Wright Tremaine LLP

Attorneys for Muslim Advocates and The

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Roderick & Solange MacArthur Justice Center

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By: /s/ Joseph P. Hoag

Joseph P. Hoag, WSBA #41971

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1201 Third Avenue, Suite 2200

Seattle, WA 98101-3045

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Telephone: (206) 757-8080

Fax: (206) 757-7080

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E-mail: josephhoag@dwt.com

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CERTIFICATE OF SERVICE

2

I hereby certify that on December 4, 2017, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to those

4 attorneys of record registered on the CM/ECF system. All other parties (if any) shall be served in

5 accordance with the Federal Rules of Civil Procedure

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Dated this 4th date of December, 2017.

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/s/ Joseph P. Hoag

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Joseph P. Hoag, WSBA #41971

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Case 2:17-cv-00178-JLR Document 69-2 Filed 12/05/17 Page 1 of 24

1 The Honorable James L. Robart
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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON AT SEATTLE

8 JEWISH FAMILY SERVICE OF SEATTLE, et al.,
9 Plaintiffs,

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v.

DONALD J. TRUMP, in his official capacity as 11 President of the United States, et al.,

12

Defendants.

No. 2:17-CV-01707-JLR
BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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1

CORPORATE DISCLOSURE STATEMENT

2

Pursuant to Civil Local Rule 7.1, amici curiae Muslim Advocates and the Roderick and

3 Solange MacArthur Justice Center state that they are not-for-profit organizations with no parents,

4 subsidiaries, or affiliates, and that no publicly-held corporation owns 10 percent or more of their
stock. 5

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Case 2:17-cv-00178-JLR Document 69-2 Filed 12/05/17 Page 3 of 24

1

TABLE OF CONTENTS

2 CORPORATE DISCLOSURE STATEMENT ........................................................................... II

3 TABLE OF AUTHORITIES .....................................................................................................iIV

4 INTEREST OF AMICI CURIAE................................................................................................. 1

INTRODUCTION ........................................................................................................................ 1 5

ARGUMENT ................................................................................................................................ 3

6 I.

PREVENTING THE ENTRY OF MUSLIM REFUGEES IS AN INTEGRAL

7

PART OF THE PRESIDENT’S LONGSTANDING AND EXPRESS PLEDGE

TO BAN MUSLIMS......................................................................................................... 3

8

A. The President Pledged To Favor Christians And Made Affirmative Efforts

9

To Vilify Muslims................................................................................................. 3

B. The President Has Expressly Stated His Intent To Curtail The Rights Of

10

Muslims, Including By Restricting Their Entry To The United States. ............... 7

11 12
II. 13 14 15

C. The President Has Reaffirmed His Discriminatory Intent On Numerous Occasions Since Taking Office............................................................................. 9
THE PREDECESSOR ORDERS THAT PRECEDED AND GAVE RISE TO REFUGEE BAN 3.0 WERE MOTIVATED ON THEIR FACE BY ANTIMUSLIM ANIMUS........................................................................................................ 11
A. The Refugee Ban Provision Of EO-1 Included A Priority Designed To Benefit Christian Refugees In Muslim-Majority Nations At The Expense Of Muslim Refugees. .......................................................................................... 11

16
17 III.
18

B. Both EO-1 And EO-2 Refer To “Honor Killings”—A Term Used Commonly And Almost Exclusively To Denigrate Muslims............................. 12
REFUGEE BAN 3.0 IS A DIRECT CONTINUATION OF EO-1 AND EO-2 AND IS MOTIVATED BY THE SAME ANTI-MUSLIM ANIMUS. ....................... 155

19 CONCLUSION........................................................................................................................... 16

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1 2
Regulations

TABLE OF AUTHORITIES

Page(s)

3 8 C.F.R. § 207.7(d) ........................................................................................................................13

4 82 F.R. 8977 § 5(b) (Jan. 27, 2017) ...............................................................................................11

5 Executive Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017) ....................................................2

6 Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017)..................................................2

7 Executive Order No. 13,815 ............................................................................................................1

Other Authorities 8

Aisha Gill, Honor Killings and the Quest for Justice in Black and Minority Ethnic

9

Communities in the United Kingdom, 20 Crim. Just. Pol’y Rev. 475, 480

(2009) .......................................................................................................................................13

10 Brittany E. Hayes et al., An Exploratory Study of Honor Crimes in the United

11

States, 31 J. Fam. Violence 303, 304 (2016) ...........................................................................13

12

Inderpal Grewal, Outsourcing Patriarchy: Feminist Encounters, Transnational Mediations and the Crime of ‘Honour Killings,’ 15 Int’l Feminist J. Pol. 1, 5

(2013) .......................................................................................................................................13 13

Jon Hurwitz & Mark Peffley, Playing the Race Card in the Post–Willie Horton

14

Era: The Impact of Racialized Code Words on Support for Punitive Crime

Policy, Pub. Opinion Q. 99 (2005) ..........................................................................................14

15

K.M. Devries et al., The Global Prevalence of Intimate Partner Violence Against

16

Women, 340 Science 1527, 1527 (2013) ....................................................................... 13 & 14

17 Lila Abu-Lughod, DO MUSLIM WOMEN NEED SAVING? 139 (2013).............................................13

Mattias Ekman, Online Islamophobia and the Politics of Fear: Manufacturing the

18

Green Scare, 38 Ethnic & Racial Stud. 1986, 1995 (2015).....................................................14

19 Nicholas A. Valentino et al. Cues That Matter: How Political Ads Prime Racial

Attitudes During Campaigns, 96 Am. Pol. Sci. Rev. 75, 75–76 (2002) ..................................14

20

Sherene Razack, CASTING OUT: THE EVICTION OF MUSLIMS FROM WESTERN LAW

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AND POLITICS 128 (2008) .........................................................................................................13

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1 Tali Mendelberg, THE RACE CARD: CAMPAIGN STRATEGY, IMPLICIT MESSAGING, AND THE NORM OF EQUALITY 94-95 (2001).............................................................................14
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1

INTEREST OF AMICI CURIAE

2

The issue in this case is whether the Trump Administration’s recent changes to the U.S.

3 Refugee Admissions Program (“USRAP”) are premised on impermissible and unlawful anti-

4 Muslim animus. Amici Muslim Advocates and the MacArthur Justice Center (“MJC”) submit

5 this brief in support of Plaintiffs’ Motion for a Preliminary Injunction.

6

Muslim Advocates, a national legal advocacy and educational organization formed in

7 2005, works on the frontlines of civil rights to guarantee freedom and justice for Americans of

8 all faiths. The issues at stake in this case directly relate to Muslim Advocates’ work fighting

9 institutional discrimination against the American Muslim community, and its extensive work

10 assisting individuals who are impacted by the travel and refugee bans.

11

The MacArthur Justice Center is a not-for-profit organization founded by the family of

12 J. Roderick MacArthur to advocate for human rights and social justice through litigation. MJC

13 has represented clients facing myriad human rights and civil rights injustices, including issues

14 of discrimination, the unlawful detention of foreign nationals, and the rights of marginalized

15 groups in the American justice system. MJC has an interest in the rule of law and the

16 independence of the judiciary in determining whether government officials have acted with

17 discriminatory animus against an unpopular minority group.

18

INTRODUCTION

19

The executive order at issue in this litigation (“Refugee Ban 3.0” or the “Ban”)1 is

20 motivated by unconstitutional animus against Muslims seeking to enter the United States as

21 refugees. This case, like the travel and refugee ban cases that preceded it, presents the rare

22 instance where a state actor explicitly announces his discriminatory motive for an action. The

23 President has not only made clear his intent to use the Office of the President and Executive

24 Branch federal agencies to discriminate against Muslims and to favor Christians, but in

25 repeated statements before and after taking office, he has specifically indicated his animus

26
1 The Refugee Ban 3.0 is Executive Order No. 13,815, and its accompanying memorandum, with the addendum,

27 are attached as exhibits A and B to the Declaration of David Burman in Support of Plaintiffs’ Motion for
Preliminary Injunction (“Burman Decl.”), respectively.

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1 toward Muslims, and also his specific intent to prevent Muslims from entering the United

2 States in part by implementing a ban on refugee admissions.

3

Within a week of taking office, the President initiated the first of several unilateral

4 executive orders intended to implement his campaign promise of banning Muslims from

5 entering the country. Far from ever retracting his discriminatory intent, his Administration has

6 embraced it: Asked recently whether “the President think[s] that Muslims are a threat to the

7 United States?” his Deputy Press Secretary explained, “the President has addressed these 8 issues with the travel order that he issued earlier this year and the companion proclamation.”2

9 And the President himself has repeatedly derided his own Department of Justice for drafting

10 orders that are too “politically correct”—i.e., that fail to expressly acknowledge the religious

11 animus that he has unabashedly communicated.

12

In fact, the predecessor executive orders that called for the interagency review

13 culminating in Refugee Ban 3.0, “EO-1”3 and “EO-2,”4 contained anti-Muslim and pro-

14 Christian bias on their face, referring to “honor killings” (a term with a long history as a

15 Muslim slur) and prioritizing the applications of Christian refugees.

16

Understood in context as a fulfillment of the President’s stated intentions and previous

17 travel bans, Refugee Ban 3.0 is plainly the President’s implementation of his long-promised

18 discriminatory ban. The effect of the Ban would be to suspend refugee applications from the

19 countries that send the vast majority of Muslim refugees to the United States and shift priority

20 to countries with refugees that are mostly Christian. Even more tellingly, the Ban’s suspension

21 of applications from children and spouses of refugees who have already been resettled to the

22 United States would cut off family reunion for a record number of Muslim refugees. The Ban

23 thus threatens to actualize the President’s signature pledge to prevent Muslims from entering

24 the country, and this Court should not allow it to move forward.

25
2 The White House, Press Gaggle by Principal Deputy Press Secretary Raj Shah en route St. Louis, MO (Nov. 29,

26 2017) (emphasis added), https://www.whitehouse.gov/the-press-office/2017/11/29/press-gaggle-principal-deputy-

press-secretary-raj-shah-en-route-st-louis (last visited Dec. 4, 2017).

27

3 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017). 4 Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017).

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Case 2:17-cv-00178-JLR Document 69-2 Filed 12/05/17 Page 8 of 24

ARGUMENT

1

I. PREVENTING THE ENTRY OF MUSLIM REFUGEES IS AN INTEGRAL

2

PART OF THE PRESIDENT’S LONGSTANDING AND EXPRESS PLEDGE TO

BAN MUSLIMS.

3

The President’s latest plan to ban refugees is a realization of his repeated pledge to use

4

the Office of the President and Executive Branch federal agencies to both discriminate against

5

people who choose to practice Islam and to favor those who choose to adhere to Christianity—

6

a discriminatory intent he has reaffirmed both before and after taking office. The ban arises in

7

the context of the President’s broader attacks on Islam as a “problem” and his affirmative

8

dissemination of false propaganda to vilify people of the Muslim faith (including Muslim

9

migrants in particular).

10

11

A. The President Pledged To Favor Christians And Made Affirmative Efforts To Vilify Muslims.

12

As Plaintiffs note in their complaint and motion for preliminary injunction, within a

13 week of taking office, the President issued EO-1, the first predecessor to Refugee Ban 3.0; that

14 same day, he also appeared on television to make clear that the order was adopted for the

15 purpose of prioritizing Christians.5 Expressly drawing a comparison between Muslim and

16 Christian refugees, he explained that he viewed Christians as a “priority” and he was “going to

17 help” them.6 Days later, he again singled out his intent to help “Christians in the Middle-East.”7

18 On the day the President issued Refugee Ban 3.0—which, as set out below, effectively converts

19 the temporary ban on refugees into an indefinite one that disproportionately affects Muslim

20 refugees—his Vice President made similar remarks. In a speech to “In Defense of Christians”

21

22

23

24
5 (Cmpl. ¶¶ 3, 67; Pl. Motion at 4-5.)
25 6 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As

Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-

26 exclusive-president-trump-says-persecuted-christians-will-be-given-priority-as-refugees (last visited Dec. 4,
2017).
27 7 Donald J. Trump, Twitter (Jan. 29, 2017), https://twitter.com/realDonaldTrump/status/825721153142521858
(last visited Dec. 4, 2017).

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1 and in reference specifically to Christian refugees in the Middle East, the Vice President stated: 2 “Help is on the way.”8

3

Refugee Ban 3.0 must be understood in the context of the President’s longstanding

4 vilification of Muslims. The President has for years referred to Muslims in the United States as

5 a “problem.” As early as April 2011, Mr. Trump expressed his view that there “absolutely” was 6 “a Muslim problem” in the United States.9 He claimed that the Koran itself was the source of 7 the problem, claiming that it “teaches some very negative vibe” and “tremendous hatred.”10 He

8 has repeatedly echoed this view that there is a “massive Muslim problem” in the U.S. and 9 abroad.11 At an event in 2015, for instance, the President agreed with an audience member’s 10 comment that “We have a problem in this country. It’s called Muslims.”12 And several times

11 throughout 2015 and 2016, he declined to accept that a distinction could be drawn between

12 radical Islam and Islam itself. Asked to clarify: “Is it really a Muslim problem, or is it a radical 13 Islamist problem?” He responded: “Maybe it’s a Muslim problem, maybe it’s not”13 and 14 claimed “[i]t’s very hard to define.”14 Mr. Trump has repeatedly expressed the view that “Islam 15 hates us” and that Muslims have “tremendous hatred” and “unbelievable hatred.”15 Given the

16 opportunity to clarify whether his statement that “Islam hates us” referred to all 1.6 billion

17 8 The White House, Remarks by the Vice President at In Defense of Christians Solidarity Dinner (Oct. 25, 2017),

18

https://www.whitehouse.gov/the-press-office/2017/10/25/remarks-vice-president-defense-christians-solidaritydinner (last visited Dec. 4, 2017). While the order did not appear in the Federal Register until later, it had been

19

announced by the time of Pence’s remarks. 9 David Brody, Brody File Exclusive: Donald Trump Says Something in Koran Teaches a ‘Very Negative Vibe,’

20

CBN News (Apr. 12, 2011), http://www1.cbn.com/thebrodyfile/archive/2011/04/12/brody-file-exclusive-donaldtrump-says-something-in-koran-teaches (last visited Dec. 4, 2017).

10 Id.

21 11 Donald J. Trump, Twitter (Dec. 10, 2015), https://twitter.com/realDonaldTrump/

status/674934005725331456 (last visited Dec. 4, 2017); Donald J. Trump, Twitter (Dec. 10, 2015),
22 https://twitter.com/realDonaldTrump/status/674936832010887168 (last visited Dec. 4, 2017); Donald J. Trump,

Twitter (Dec. 10, 2015), https://twitter.com/realDonaldTrump/status/675123192864899072 (last visited Dec. 4,
23 2017).
12 Jonathan Merritt, Trump’s Proposals Could Backfire on Christians, The Atlantic (Nov. 24, 2015),

24 https://www.theatlantic.com/politics/archive/2015/11/donald-trump-muslims-christians/417255/ (last visited Dec.

4, 2017); Theodore Schleifer, Trump doesn’t challenge anti-Muslim questioner at event, CNN (Sept. 18, 2015),

25 http://www.cnn.com/2015/09/17/politics/donald-trump-obama-muslim-new-hampshire/ (last visited Dec. 4, 2017).
13 CNN Interview of Donald Trump, YouTube (Feb. 4, 2016), https://www.youtube.com/watch?v=uW9UlMqJtro

26 (minutes 18:42 to 18:46) (last visited Dec. 4, 2017).
14 Id.
27 15 Theodore Schleifer, Donald Trump: ‘I think Islam hates us’, CNN (Mar. 10, 2016),
http://www.cnn.com/2016/03/09/politics/donald-trump-islam-hates-us/ (last visited Dec. 4, 2017).

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1 Muslims in the world during one of the presidential debates, he responded: “I mean a lot of

2 them. I mean a lot of them. . . . [T]here’s tremendous hatred. And I will stick with exactly what 3 I said.”16

4

The President’s attack on Muslims has also included the affirmative dissemination of

5 group slander. Most recently, on November 29, 2017, the President promoted three unverified

6 videos published by a British anti-Muslim group depicting violent acts by purportedly Muslim

7 people—at least one of whom it turns out, is not Muslim—with titles intended to provoke

8 anti-Muslim bias. The videos were entitled “Muslim migrant beats up Dutch boy on 9 crutches!,”17 “Muslim Destroys a Statue of Virgin Mary!,”18 and “Islamist mob pushes teenage 10 boy off roof and beats him to death!”19

11

The President’s dissemination of these videos in manifest disregard of their effect or

12 their veracity is but the latest in an unbroken string of anti-Muslim statements and acts while in

13 office. On August 17, 2017, the President promoted his false story that terrorism could be

14 eradicated if suspected terrorists were subject to mass execution with bullets dripped in pigs’

15 blood. Given that this substance viewed as highly offensive by practicing Muslims, the

16 President was implying that “terrorist” is synonymous with “Muslim”: “Study what General

17 Pershing of the United States did to terrorists when caught. There was no more Radical Islamic 18 Terror for 35 years!”20 The statement referred to the following false story, which he recounted

19 on numerous occasions while campaigning:

20

So General Pershing, . . . they catch 50 terrorists in the Philippines . . . And as

you know, swine, pig, . . . a big problem for them, big problem. He took two

21

pigs, they chopped them open. Took the bullets that were going to go and shoot

these men. Took the bullets, the 50 bullets, dropped them in the pigs, swished

22

23 16 Transcript of Republican Debate in Miami, CNN (Mar. 15, 2016),

http://www.cnn.com/2016/03/10/politics/republican-debate-transcript-full-text/ (last visited Dec. 4, 2017).
24 17 Jayda Fransen, Twitter (Nov. 28, 2017), https://twitter.com/JaydaBF/status/935609305574903812 (last visited

Dec. 4, 2017).
25 18 Jayda Fransen, Twitter (Nov. 29, 2017), https://twitter.com/JaydaBF/status/935805606447013888 (last visited

Dec. 4, 2017).
26 19 Jayda Fransen, Twitter (Nov. 29, 2017), https://twitter.com/JaydaBF/status/935775552102981633 (last visited
Dec. 4, 2017).
27 20 Donald J. Trump, Twitter (Aug. 17, 2017), https://twitter.com/realDonaldTrump/
status/898254409511129088 (last visited Dec. 4, 2017).

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them around, so there was blood all over those bullets . . . They put the bullets

1

into the rifles. And they shot 49 men . . . I’m just saying, if we’re going to win,

we’re going to win or let’s not play the game and let’s not be a country any

2

more. They put the bullets in the rifles and they shot 49 of the 50 men. Dead.

Boom. So it was a pig-infested bullet in each one. . . . For 28 years, there was no

3

terrorism. . . . We have to do what we have to do. We have to clean it out.21

4

The President has also spread the false story that thousands of Muslims cheered on

5 rooftops during the September 11, 2011 attacks, claiming: “I watched when the World Trade

6 Center came tumbling down. And I watched in Jersey City, New Jersey, where thousands and

7 thousands of people were cheering as that building was coming down. Thousands of people 8 were cheering.”22 In the face of numerous authorities and articles debunking his claim,23 the 9 President repeated the lie on several occasions.24

10

Significantly, the President’s affirmative efforts to vilify Muslims have often focused

11 specifically on Muslim refugees by equating them with terrorists. He has thus equated being a

12 Syrian refugee with being a terrorist: “[W]e cannot allow people to come into the country who

13 want to destroy us, we cannot do it. We can’t allow the Syrians. We can’t allow the migration 14 of the Syrians into the country.”25 Mr. Trump has also stoked fear of Islam on the basis that his

15

16

17

18 21 FULL Speech: Donald Trump rally in Dayton, OH 3-12-2016, YouTube (Mar. 12, 2016),

19

https://www.youtube.com/watch?v=-9KOAHf4GCw (minutes 43:30 to 43:48) (last visited Dec. 4, 2017); see also Lydia Wheeler, Trump resurrects story of Muslims shot with pig’s blood-dipped bullets, The Hill (Mar. 12, 2016),

20

http://thehill.com/blogs/blog-briefing-room/news-campaigns/272780-trump-resurrects-story-of-muslims-shotwith-pigs (last visited Dec. 4, 2017); David Mikkelson, Pershing the Thought, Snopes (Apr. 28, 2016),

http://www.snopes.com/rumors/pershing.asp (debunking Mr. Trump’s story about General Pershing) (last visited
21 Dec. 4, 2017).
22 Glenn Kessler, Trump’s outrageous claim that ‘thousands’ of New Jersey Muslims celebrated the 9/11 attacks,
22 Wash. Post (Nov. 22, 2015), https://www.washingtonpost.com/news/fact-checker/wp/2015/11/22/donald-trumps-

outrageous-claim-that-thousands-of-new-jersey-muslims-celebrated-the-911-attacks/ (last visited Dec. 4, 2017).
23 23 See, e.g., Lauren Carroll, Fact Checking Trump’s claim that thousands in New Jersey cheered when World

Trade Center tumbled, Politifact (Nov. 22, 2015), http://www.politifact.com/truth-o-

24 meter/statements/2015/nov/22/donaldtrump/fact-checking-trumps-claim-thousands-new-jersey-ch/ (last visited

Dec. 4, 2017).
25 24 Kessler, supra, note 22; AP Archive, Trump Defends 9/11 Celebrations with Article (Nov. 24, 2015),

http://www.aparchive.com/metadata/US-OH-Trump-CR-/cadcfee1334d2a1fea065ba383ef6f8e (last visited Dec. 4,

26 2017); Donald J. Trump, Twitter (Nov. 25, 2015),
https://twitter.com/realDonaldTrump/status/669682774673137665 (last visited Dec. 4, 2017).
27 25 FULL Speech: Donald Trump rally in Dayton, OH 3-12-2016, YouTube (Mar. 12, 2016),
https://www.youtube.com/watch?v=-9KOAHf4GCw (minutes 42:45 to 46:45) (last visited Dec. 4, 2017).

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1 election opponent would “let the Muslims flow in”26 and stoked fear that “[r]efugees are trying 2 to take over our children” by telling them “how wonderful Islam is.”27

3

B. The President Has Expressly Stated His Intent To Curtail The Rights Of

Muslims, Including By Restricting Their Entry To The United States.

4

The President has also made clear his express intent to curtail the rights of Muslims in

5 various ways—including most notably to restrict their entry into the United States and to do so

6 in part by banning refugees.

7 Indeed, the signature promise of his campaign has always been that he would restrict

8 the entry of Muslims into the United States. He has further prioritized a ban on prohibiting the

9 entry of Muslim refugees. From the early days of his Presidential campaign, Mr. Trump

10 promised that, if elected, he would “be looking at” getting “rid of” Muslims.28 On December 7,

11 2015, Mr. Trump announced on his website: “Donald J. Trump is calling for a total and

12 complete shutdown of Muslims entering the United States.”29 The same day that Mr. Trump

13 issued this announcement, he also disseminated it to his millions of Twitter followers with the

14 title “Statement on Preventing Muslim Immigration”30 and, further equating Muslims with

15 hatred and terror, he tweeted, “Just put out a very important policy statement on the

16 extraordinary influx of hatred & danger coming into our country.”31 At a rally the same day,

17 Mr. Trump claimed numerous times that “[w]e have no choice” but to implement “a total and

18 complete shutdown of Muslims.”32 Asked how border officials would ideally implement his

19

26 Donald J. Trump, Twitter (Mar. 22, 2016), https://twitter.com/realDonaldTrump/
20 status/712473816614772736 (last visited Dec. 4, 2017).
27 Donald Trump Remarks in Manchester, New Hampshire, C-SPAN (Jun. 13, 2016), https://www.c-
21 span.org/video/?410976-1/donald-trump-delivers-remarks-national-security-threats (minutes 20:05 to 20:30) (last

visited Dec. 4, 2017).
22 28 See Schleifer, supra note 12.
29 Press Release, Trump-Pence, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015),
23 https://web.archive.org/web/20170508054010/

https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration

24 (Internet Archive record on May 8, 2017) (last visited Dec. 4, 2017).
30 Donald J. Trump, Twitter (Dec. 7, 2015), https://twitter.com/realDonaldTrump/

25 status/673993417429524480 (last visited Dec. 4, 2017).
31 Donald J. Trump, Twitter (Dec. 7, 2015), https://twitter.com/realdonaldtrump/status/673982228163072000 (last

26 visited Dec. 4, 2017).
32 Donald J. Trump is Calling for a Total and Complete Shutdown of Muslims Entering the United States Until

27 Our Country’s Representatives Can Figure Out What the Hell is Going On!, YouTube (Dec. 8, 2015),
https://www.youtube.com/watch?v=LRxozK6Bpvk (minutes 0:00 to 0:36) (last visited Dec. 4, 2017).

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Case 2:17-cv-00178-JLR Document 69-2 Filed 12/05/17 Page 13 of 24

1 plan, Mr. Trump explained: “They would say, ‘are you Muslim?’” and that “if they said yes, 2 they would not be allowed in the country.”33 His complete equation of terrorism with a faith of

3 1.6 billion people, including approximately 3.3 million American citizens, is clear.

4

The President has also advocated for a registry of all Muslims in America in the teeth of

5 direct comparisons to the Nazis’ registration of Jewish people. On November 20, 2015, for

6 instance, Mr. Trump stated that he would “certainly implement” a database tracking Muslims in 7 the United States.34 Asked whether he would favor making Muslims legally obligated to 8 register into the database, Mr. Trump responded, “They have to be—they have to be.”35 Again,

9 given the opportunity to clarify whether he was “ruling out a database on all Muslims?”, Mr. 10 Trump doubled down, stating “No not at all.” 36 And, perhaps most appallingly, when asked

11 how registering Muslims would be different from the Nazis’ registration of Jewish people, he 12 expressed indifference, saying four times: “You tell me.”37

13

The President even went so far as to expressly justify his intent to restrict the flow of

14 Muslims by reference to executive orders targeting Japanese Americans during World War II,

15 saying: “Take a look at Presidential proclamations back a long time ago . . . what [President 16 Roosevelt] was doing with Germans, Italians, and Japanese because he had to do it.”38 When

17 asked whether he was given “any pause at all” by being compared to Hitler, Mr. Trump 18 responded “No,”39 and justified banning Muslims based on President Roosevelt’s treatment of

19

20 33 Donald Trump On Muslim Travel Ban, Obama And 2016, YouTube (Dec. 8, 2015),

https://www.youtube.com/watch?v=5I3E3-U-1jc (minutes 14:58 to 15:14) (last visited Dec. 4, 2017); Hardball
21 with Chris Matthews Transcript 12/8/15, MSNBC (Dec. 8, 2015),

http://www.msnbc.com/transcripts/hardball/2015-12-08 (last visited Dec. 4, 2017).
22 34 Vaughn Hillyard, Donald Trump’s Plan for a Muslim Database Draws Comparison to Nazi Germany, NBC

News (Nov. 20, 2015), http://www.nbcnews.com/politics/2016-election/trump-says-he-would-certainly-
23 implement-muslim-database-n466716 (last visited Dec. 4, 2017).
35 Id.
24 36 See Lauren Carroll, In Context: Donald Trump’s comments on a database of American Muslims, Politifact (Nov.

24, 2015), http://www.politifact.com/truth-o-meter/article/2015/nov/24/donald-trumps-comments-database-

25 american-muslims/ (last visited Dec. 4, 2017).
37 See Hillyard, supra note 34.
26 38 Donald Trump On Muslim Travel Ban, Obama And 2016, YouTube (Dec. 8, 2015),
https://www.youtube.com/watch?v=5I3E3-U-1jc (minutes 00:46 to 01:03) (last visited Dec. 4, 2017).
27 39 Miriam Hernandez, Trump Cites History to Defend Muslim Immigration Ban, ABC 7 (Dec. 9, 2015),
http://abc7.com/politics/trump-cites-history-to-defend-muslim-immigration-ban/1116396/ (Dec. 4, 2017).

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1 Japanese Americans.40 Two days later, Mr. Trump defended his position by tweeting a link to

2 an article stating that Islam is a “very evil and wicked religion,” a “false religion,” advocating

3 that Muslims should be banned, and making further analogy to the treatment of Japanese during 4 World War II.41

5

As part of advocating a ban on entry of nationals from predominately Muslim countries,

6 the President consistently embraced a ban on refugees, and Syrian refugees in particular,

7 describing the latter as “one of the great Trojan horses” and saying that “[w]e cannot let them 8 into this country, period.”42 On numerous occasions, he urged that refugees should be banned

9 because “[t]hey may be from Syria, they may be ISIS” and stoked fear that “[t]his is a

10 migration, they have no anything, but they have cellphones — with ISIS flags on them and 11 worse.”43 He claimed that the United States had accepted “tens of thousands of Syrian refugees 12 . . . who are definitely in many cases ISIS aligned.”44

13

C. The President Has Reaffirmed His Discriminatory Intent On Numerous

Occasions Since Taking Office.

14

Mr. Trump has never backed down from his hateful statements and pledges since

15

assuming the Office of the President; in fact, he has repeatedly reaffirmed them. As discussed

16

above, as President, Mr. Trump has expressly stated that he would implement policy to favor

17

Christian refugees; affirmatively shared propaganda videos depicting purported violence by

18

Muslims without regard to their authenticity or their defamatory consequences for innocent

19

Muslims; and promoted propaganda such as his false story of a mass execution of terrorists

20

21 40 Id.
41 Donald J. Trump, Twitter (Dec. 10, 2015), https://twitter.com/realDonaldTrump/
22 status/675034063447662592 (last visited Dec. 4, 2017); see also Sarah Larimer, Why Franklin Graham says

Donald Trump is right about stopping Muslim immigration, Wash. Post (Dec. 10, 2015),
23 https://www.washingtonpost.com/news/acts-of-faith/wp/2015/12/10/why-franklin-graham-says-donald-trump-is-

right-about-stopping-muslim-immigration/ (last visited Dec. 4, 2017).
24 42 Tal Kopan, Donald Trump: Syrian refugees a ‘Trojan horse’, CNN (Nov. 16, 2015),

http://www.cnn.com/2015/11/16/politics/donald-trump-syrian-refugees/index.html (last visited Dec. 4, 2017).
25 43 Ben Kamisar, Trump to Syrian refugee children: ‘You can't come here’, The Hill (Feb. 8, 2016),

http://thehill.com/blogs/ballot-box/gop-primaries/268614-trump-to-syrian-refugee-children-you-cant-come-here

26 (last visited Dec. 4, 2017).
44 Trump: Taking in Syrian Refugees ‘Great Trojan Horse’, MSNBC (Oct. 19, 2016)

27 http://www.msnbc.com/msnbc-quick-cuts/watch/trump-taking-in-syrian-refugees-great-trojan-horse-
789644867592 (last visited Dec. 4, 2017).

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1 using weapons dipped in pigs’ blood. Continuing his discriminatory rhetoric specific to Muslim

2 migrants, the President has also repeated his oft-expressed view that “[t]he assimilation [of 3 Muslims in the U.S.] has been very, very hard. It’s been a very, very difficult process.”45

4

Senior members of the Trump Administration have expressly acknowledged that his

5 executive orders, including the present one, are motivated by negative stereotypes caricaturing

6 all Muslims as terrorists. Following the issuance of Refugee Ban 3.0, the President’s Deputy

7 Press Secretary was recently, squarely asked: “Does the President think that Muslims are a

8 threat to the United States?” Acknowledging the basis for the Refugee Ban in religious

9 stereotype, he responded, “[T]he President has addressed these issues with the travel order 10 that he issued earlier this year and the companion proclamation.”46

11

The President himself has made this discriminatory intent just as clear. After courts

12 enjoined EO-1, which included provisions limiting refugee admission and banning refugees

13 from certain countries, the President expressly complained that the refugees being admitted to

14 the United States as a result included a large percentage of Muslims, tweeting: “72% of

15 refugees admitted into U.S. (2/3-2/11) during COURT BREAKDOWN are from 7 countries: 16 SYRIA, IRAQ, SOMALIA, IRAN, SUDAN, LIBYA & YEMEN.”47 Following his issuance of

17 EO-2—and in the direct lead up to the present order—the President repeatedly derided his own 18 Department of Justice for taking an approach that was too “politically correct.”48 The only

19 plausible interpretation of that criticism is that the President understands his executive orders as

20 “politically incorrect,” i.e., based on an anti-Muslim presumption. He has also stated his view

21

22

45 Chris Cillizza, Donald Trump’s explanation of his wire-tapping tweets will shock and amaze you, Wash. Post
23 (Mar. 16, 2017), https://www.washingtonpost.com/

news/the-fix/wp/2017/03/16/donald-trump-explained-twitter-the-universe-and-everything-to-tucker-carlson/ (last

24 visited Dec. 4, 2017).
46 The White House, Press Gaggle by Principal Deputy Press Secretary Raj Shah en route St. Louis, MO

25 (November 29, 2017) (emphasis added), https://www.whitehouse.gov/the-press-office/2017/11/29/press-gaggle-

principal-deputy-press-secretary-raj-shah-en-route-st-louis (last visited Dec. 4, 2017).
26 47 Donald J. Trump, Twitter (Feb. 12, 2017), https://twitter.com/realDonaldTrump/status/830747067379232769
(last visited Dec. 4, 2017).
27 48 Donald J. Trump, Twitter (June 5, 2017), https://twitter.com/realDonaldTrump/
status/871899511525961728 (last visited Dec. 4, 2017).

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1 that “The travel ban into the United States should be far larger, tougher and more specific.”49

2 This is precisely what he has done with Refugee Ban 3.0, which makes the ban on refugees

3 indefinite and has an especially drastic impact on Muslim refugees.

4 II. 5 6

THE PREDECESSOR ORDERS THAT PRECEDED AND GAVE RISE TO REFUGEE BAN 3.0 WERE MOTIVATED ON THEIR FACE BY ANTIMUSLIM ANIMUS.
Refugee Ban 3.0 is a continuation and expansion of the temporary refugee suspensions

7 in EO-1 and EO-2. Both of those predecessors contained on their face evidence of anti-Muslim

8 animus. EO-1 prioritized the processing of refugee applications from religious minorities, a

9 provision that, by the President’s own admission, was designed to benefit Christian refugees

10 from Muslim-majority countries. And both EO-1 and EO-2 made explicit reference to “honor

11 killings,” an attempt to communicate anti-Muslim animus that is wholly unrelated to national

12 security. Refugee Ban 3.0 flows directly from these openly discriminatory orders, and is

13 motivated by the same anti-Muslim animus that animated its predecessors.

14

A. The Refugee Ban Provision Of EO-1 Included A Priority Designed To

Benefit Christian Refugees In Muslim-Majority Nations At The Expense Of

15

Muslim Refugees.

16

EO-1 explicitly required that refugee admissions be “prioritize[d]” if the refugee made a

17 claim “on the basis of religious-based persecution.”50 However, this priority was only available

18 if “the religion of the individual is a minority religion in the individual’s country of 19 nationality.”51 As the President explained in public statements made the day he signed EO-1,

20 this provision was designed to favor Christians, and to allow Christians from Muslim-majority 21 countries the ability to continue coming to the United States as refugees.52 Further, EO-2

22 eliminated the explicit reference to religious minorities but continued to operate as a ban on

23

24

25
49 Donald J. Trump, Twitter (Sept. 15, 2017), https://twitter.com/realDonaldTrump/

26 status/908645126146265090 (last visited Dec. 4, 2017).
50 82 F.R. 8977 § 5(b) (Jan. 27, 2017).

27

51 Id. 52 See Part I.A., supra

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1 Muslims, changing the religious composition of refugees entering the United States—from 2 50% Muslim and 41% Christian to 57% Christian and 31% Muslim.53

3

B. Both EO-1 And EO-2 Refer To “Honor Killings”—A Term Used

Commonly And Almost Exclusively To Denigrate Muslims.

4

In addition to the specific exception designed to disfavor Muslim refugees, the texts of

5

both EO-1 and EO-2 contain on their face language that reveals an invidious anti-Muslim intent

6

and is otherwise inexplicable. Both invoke, as justification, the practice of “honor killings”—

7

the homicide of a family member, typically female, due to the perpetrator’s belief that the

8

victim has shamed the family, usually by violating a religious tenet. Yet the idea of an “honor

9

killing” is wholly unrelated to the problem of international terrorism. Instead, it is deployed in

10

current political discourse as a coded message to invoke and reinforce animus against Muslims

11

by painting them as violent and uncivilized. Expressions of concern about “honor killings” are

12

hence not neutral references to all gender-based violence: they are a means of affirming and

13

propagating anti-Muslim stereotypes upon which the President and his surrogates have relied to

14

justify banning the entry of Muslims in the United States.

15

In EO-1, the term “honor killings” appears in the very first section as part of the

16

motivation for the order to prohibit “those who engage in acts of bigotry or hatred . . . including

17

‘honor’ killings” from entering the United States. EO-1 § 1. EO-1 further required that the

18

Secretary of Homeland Security collect data on “‘honor killings’ in the United States by foreign

19

nationals.” Id. § 10(iii). EO-2 reiterated this command. EO-2 § 11(a)(iii) (requiring that the

20

Secretary of Homeland Security “collect and make publicly available . . . information regarding

21

the number and types of acts of gender-based violence against women, including so- called

22

‘honor killings,’ in the United States by foreign nationals”) (emphasis added).

23

These references are inexplicable given the putative purpose of the two orders. There is

24

no known association between the incidence of “honor killings” and the likelihood that a

25

26

27 53 (Cmpl. ¶ 89.)

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1 government of one of the covered nations will supply information requested by U.S.

2 immigration authorities.

3

There is no correlation between Islam and intrafamilial violence against women.54

4 While regional rates vary, the incidence of intrafamilial violence exceeds 19 percent 5 everywhere in the world except East Asia.55 To the extent the term “honor killings” isolate a

6 specific subcategory of domestic violence, “[h]onor crimes are committed worldwide and . . . 7 cu[t] across cultures and religions.”56 Nor do Muslims condone such violence more often than 8 non-Muslims.57 To the contrary, Muslim religious leaders have repeatedly and forcefully 9 condemned violence against women.58

10

Despite all this, the term “honor killing” is used in current political discourse almost

11 exclusively to refer to Muslims, and thereby to promote that Muslims are distinctively violent

12 and uncivilized. There is a “constant association” of honor killings stories with “the Middle

13 East and South Asia, or immigrant communities originating in these regions, [which] has given 14 them a special association with Islam.”59

15

Individuals and groups with anti-Muslim biases commonly invoke so-called “honor

16 crimes” as a phenomenon that supposedly “divides civilized societies from uncivilized

17 54 K.M. Devries et al., The Global Prevalence of Intimate Partner Violence Against Women, 340 Science 1527,

18

1527 (2013) (estimating that 30 percent of women “aged 15 and over have experienced, during their lifetime, physical and/or sexual intimate partner violence”).

19

55 Id. at 1528. 56 Brittany E. Hayes et al., An Exploratory Study of Honor Crimes in the United States, 31 J. Fam. Violence 303,

20

304 (2016); Aisha Gill, Honor Killings and the Quest for Justice in Black and Minority Ethnic Communities in the United Kingdom, 20 Crim. Just. Pol’y Rev. 475, 480 (2009) (“Honor killings cut across ethnic, class, and religious

lines [and are committed] not only by Muslims but also by Druze, Christians, and occasionally Jews.”).
21 57 The Gallup Coexist Index 2009: A Global Study of Interfaith Relations 34 (2009), https://ec.europa.eu/migrant-

integration/librarydoc/the-gallup-coexist-index-2009-a-global-study-of-interfaith-relations (last visited Dec. 4,
22 2017).
58 See, e.g., Paola Loriggio, Shafia Murders: Imams Issue Fatwa Against Honour Killings, Domestic Violence,
23 Huffington Post (Feb. 4, 2012), http://www.huffingtonpost.ca/2012/02/04/honour-killi%20ng-imams-fatwa-

against_n_1254697.html (last visited Dec. 4, 2017) (Rather than condoning gender- based violence, “Islam and

24 Islamic law . . . [over time] are coming to be invoked more and more against honor crimes.”); Lila Abu-Lughod,

DO MUSLIM WOMEN NEED SAVING? 139 (2013); Gill, supra, at 480 (“[B]oth Sharia law (Islamic law) and

25 customary law alike have strict guidelines forbidding [honor killings].”).
59 Abu-Lughod, supra fn. 58, at 114; accord Sherene Razack, CASTING OUT: THE EVICTION OF MUSLIMS FROM

26 WESTERN LAW AND POLITICS 128 (2008) (explaining how the same crime is labeled a crime of “passion” or of
“honor” depending on the religious identity of the perpetrator in a way that “reifies Muslims as stuck in

27 premodernity”); Inderpal Grewal, Outsourcing Patriarchy: Feminist Encounters, Transnational Mediations and
the Crime of ‘Honour Killings,’ 15 Int’l Feminist J. Pol. 1, 5 (2013).

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1 societies,”60 notwithstanding the pervasive occurrence of intrafamilial violence against women 2 across cultures.61 Anti-Muslim organizations and websites commonly depict Muslims as

3 “inherently violent” and prone to “rape, sexual abuse against children, violent acts caused by a

4 culture of honour, violence within arranged marriages, threats against public individuals and 5 physical violence against non-Muslims.”62

6

Coded stereotypes like these have frequently been used against disfavored minorities in

7 U.S. politics. For example, Jim Crow was defended by “coded” appeals to white supremacy 8 framed in terms of “African-Americans’ illegitimate sexual relations and proclivity to crime.”63 9 Coded invocations of racial fears are still employed in political debate.64 The use of “subtle”

10 allusions to negative stereotypes has been shown to reap political rewards because dog whistles 11 “activate racial attitudes” while maintaining a measure of deniability.65 That is precisely the

12 function the reference to “honor killings” in EO-1 and EO-2 plays.

13

In sum, neither EO-1’s nor EO-2’s reference to “honor killings” can be written off as

14 neutral nor superfluous. Instead, they are invocations of common negative stereotypes used to

15 malign Muslims as violent and uncivilized—precisely the same negative, hateful, and false

16 stereotypes that President Trump has conjured before and after inauguration. Such references

17 undermine the purported justifications for those orders, and Refugee Ban 3.0 that followed and

18 rendered these measures into permanent law, and show all to reflect impermissible animus

19 against Muslims.

20

21

22

60 Id. at 115.
23 61 Devries, supra, at 1528
62 Mattias Ekman, Online Islamophobia and the Politics of Fear: Manufacturing the Green Scare, 38 Ethnic &

24 Racial Stud. 1986, 1995 (2015) (emphasis added).
63 Tali Mendelberg, THE RACE CARD: CAMPAIGN STRATEGY, IMPLICIT MESSAGING, AND THE NORM OF EQUALITY

25 94-95 (2001).
64 Jon Hurwitz & Mark Peffley, Playing the Race Card in the Post–Willie Horton Era: The Impact of Racialized

26 Code Words on Support for Punitive Crime Policy, 69 Pub. Opinion Q. 99 (2005) (demonstrating the racially
loaded effect of crime-related language).
27 65 Nicholas A. Valentino et al. Cues That Matter: How Political Ads Prime Racial Attitudes During Campaigns,
96 Am. Pol. Sci. Rev. 75, 75–76 (2002).

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III. REFUGEE BAN 3.0 IS A DIRECT CONTINUATION OF EO-1 AND EO-2 AND

1

IS MOTIVATED BY THE SAME ANTI-MUSLIM ANIMUS.

2

Refugee Ban 3.0, like its precursors, discriminates against Muslim refugees. Refugee

3 Ban 3.0 was enacted the day after the refugee ban provision of EO-2 expired and is clearly 4 intended to continue the policies that EO-1 and EO-2 originally put in place.66 It consists of two

5 main provisions: first, a provision that suspends refugee admissions from eleven countries, the

6 overwhelming majority of which are Muslim; and second, a provision that suspends the

7 “follow-to-join” process permitting a spouse or child to be reunited with a refugee already

8 admitted to the United States, which in operation today tends largely to be used by Muslim

9 refugees. Each of these steps furthers the stated anti-Muslim policies of the Trump

10 administration and reflects the discriminatory animus evidenced in EO-1 and EO-2.

11

Refugee Ban 3.0 suspends refugee admissions from eleven countries that comprise the

12 majority of the Muslim refugees entering the United States. As the Complaint alleges, the

13 eleven countries affected by the suspension include nine countries with a population that is over

14 85% Muslim (Egypt, Iran, Iraq, Libya, Mali, Somalia, Sudan, Syria, and Yemen), and two 15 other countries (North Korea and South Sudan).67 In the last two fiscal years, the nine Muslim16 majority countries accounted for 80% of the Muslim immigrants to the United States,68 and 17 over 80% of the refugees resettled from those countries have been Muslim.69 By contrast, the

18 refugees admitted from countries not targeted by Refugee Ban 3.0 are 70% Christian and only 19 16% Muslim.70 The suspension thus operates to shift the composition of refugees admitted to

20 the United States from mostly Muslim to mostly Christian, nearly as efficiently as possible, by

21 using countries as a proxy for religion.

22

23

24 66 (Cmpl. ¶ 94); section I(C) supra.
67 (Cmpl. ¶ 103-104.) Many of these countries have been repeatedly targeted by the previous Executive Orders; for

25 example, six of these Muslim-majority countries were included in the travel bans of both EO-1 and EO-2 (Syria,

Sudan, Iran, Libya, Somalia, and Yemen). (Cmpl. ¶ 79); EO-2 § 2(c).
26 68 (Cmpl. ¶ 106)
69 (Cmpl. ¶ 105)
27 70 (Cmpl. ¶ 111); (Declaration of Casey Smith in Support of Plaintiff’s Motion for Preliminary Injunction (“Smith
Decl.”), Dkt. No. 44, ¶ 19).

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1

Refugee Ban 3.0 also indefinitely suspends the “follow-to-join” process, whereby the

2 spouse or child of a refugee accepted into the United States is permitted to join them. Memo at

3 3. Although this suspension applies worldwide, it has a disproportionate effect on Muslim

4 refugees: Follow-to-join is generally available only to family members of refugees admitted 5 within the last two years.71 Over the last two fiscal years, most refugees admitted to the United 6 States have been Muslim.72 Even prior to the recent increase in the number of Muslim refugees

7 admitted to the United States, Iraq and Somalia—two predominantly Muslim countries targeted

8 by the refugee and travel bans—were the nationalities most represented in the follow-to-join

9 process. Memo Addendum at 1.

10

Understood in context, therefore, Refugee Ban 3.0 is plainly the President’s

11 implementation of a longstanding pledge to prevent the entry of Muslims to the U.S.—

12 including specifically by restricting the flow of Muslim refugees—on the basis of an invidious

13 and false belief that equates Islam and violence. It plainly embodies the same anti-Muslim

14 animus that was expressly indicated in the predecessor orders that gave rise to Refugee Ban 3.0

15 in the first place. This Court should not allow it to be implemented.

16

CONCLUSION

17

For the foregoing reasons, amici urge this Court to grant Plaintiffs’ motion for a

18 Preliminary Injunction.

19

20

21

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71 8 C.F.R. § 207.7(d). 72 (Smith Decl. ¶ 21.)

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 16
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Case 2:17-cv-00178-JLR Document 69-2 Filed 12/05/17 Page 22 of 24

1

DATED this 4th day of December, 2017.

2

Muslim Advocates

3

By: /s/ Sirine Shebaya

Johnathan J. Smith, pro hac vice

4

(application pending)

Sirine Shebaya, pro hac vice (application

5

pending)

Matthew W. Callahan, pro hac vice

6

(application pending)

P.O. Box 66408

7

Washington, DC 20035

Telephone: (202) 897-2622

8

Fax: (202) 508-1007

E-mail: johnathan@muslimadvocates.org

9

E-mail: sirine@muslimadvocates.org

E-mail: matthew@muslimadvocates.org

10

11

The Roderick & Solange MacArthur Justice

Center

12

By: /s/ Amir H. Ali

13

Amir H. Ali, pro hac vice (application

pending)

14

718 7th Street NW

Washington, DC 20001

15

Telephone: (205) 869-3434

Fax: (206) 689-3435

16

E-mail: amir.ali@macarthurjustice.org

17

Aziz Huq

18

Attorney For Muslim Advocates

19

By: /s/ Aziz Huq

Aziz Huq, pro hac vice (application

20

pending)

1111 E. 60th Street

21

Chicago, IL 60622

Telephone: (773) 702-9566

22

Fax: (773) 702-9566

E-mail: huq@uchicago.edu

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1

Davis Wright Tremaine LLP

Attorneys for Muslim Advocates and The

2

Roderick & Solange MacArthur Justice Center

3

By: /s/ Joseph P. Hoag

Joseph P. Hoag, WSBA #41971

4

1201 Third Avenue, Suite 2200

Seattle, WA 98101-3045

5

Telephone: (206) 757-8080

Fax: (206) 757-7080

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E-mail: josephhoag@dwt.com

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on December 4, 2017, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to those

4 attorneys of record registered on the CM/ECF system. All other parties (if any) shall be served in

5 accordance with the Federal Rules of Civil Procedure

6

Dated this 4th date of December, 2017.

7

/s/ Joseph P. Hoag

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Joseph P. Hoag, WSBA #41971

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BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 19
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 Case 2:17-cv-00178-JLR Document 70 Filed 12/05/17 Page 1 of 22

1
The Honorable James L. Robart
2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

11
JOHN DOES, et al.,
12
v.
13

Plaintiffs,

14

DONALD TRUMP, et al.,

CASE NO. C17-0178-JLR AMICI CURIAE BRIEF (RELATING TO BOTH CASES)

15

Defendants.

16

JEWISH FAMILY SERVICES, et al.,

17

18

v.

Plaintiffs,

19
DONALD TRUMP, et al.,
20
Defendants.
21

CASE NO. C17-1707-JLR

22

23

24

25

26

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TABLE OF CONTENTS
1

2

INTEREST OF AMICI CURIAE .

.

.

.

.

.

.

2

3

SUMMARY OF ARGUMENT .

.

.

.

.

.

.

2

4

ARGUMENT .

.

.

.

.

.

.

.

.

.

3

5

Social Categorization and Stereotyping Creates Dangerous Conditions for Members of

6

Minority Groups .

.

.

.

.

.

.

.

.

3

7

A. Stereotyping Minorities Creates a Climate for Discrimination .

.

3

8

B. The Executive Order Is the Product of Centuries of Discriminatory Stereotypes

9

About Muslims

.

.

.

.

.

.

.

.

5

10
C. The Executive Order Is Based on Stereotypes About Muslims as “Anti-American”

11

and “Terrorists” .

.

.

.

.

.

.

.

8

12

D. Government Legitimization of Muslim Stereotypes Has Encouraged Violence

13

Against Muslims, and Inhibited Millions of Muslims in the Practice of Their

Religion

.

.

.

.

.

.

.

.

.

14

14

1. Government Stereotyping Leads to Violence and Discrimination

.

14

15

16

2. The President’s Statements Have Encouraged Violence .

.

.

15

17

3. Stereotyping and Discrimination Harms All Americans, Not Just Those

Directly Affected by Specific Acts

.

.

.

.

.

18

18

19

CONCLUSION

.

.

.

.

.

.

.

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.

19

20

21

22

23

24

25

26

27

28

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1
INTERESTS OF AMICI CURIAE
2

3

Amici, National Association for the Advancement of Colored People, Advocates for

4

Youth, Chicago Lawyers’ Committee for Civil Rights Under Law, Judge David L. Bazelon

5

Center for Mental Health Law, Mississippi Center for Justice, National Center for Lesbian

6
Rights, People for the American Way Foundation, Southern Coalition for Social Justice, and
7

Washington Lawyers’ Committee for Civil Rights and Urban Affairs, are national and regional
8

9

civil rights groups interested in the promotion of civil liberties throughout the country, and the

10

elimination of discrimination in any form.

11
SUMMARY OF ARGUMENT

12
In promotion of their interests, amici respectfully submit this brief to advance a key
13

14

argument in support of granting the plaintiffs’ request for injunctive relief. Amici submit that the

15

balance of equities and public interest weigh heavily in favor of enjoining President Trump’s

16

September 24, 2017 Executive Order, “Enhancing Vetting Capabilities and Processes for

17
Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats”
18
(the “Executive Order”), as it improperly promotes social categorization and stereotyping that
19

20

endangers the lives and well-being of individuals of the Muslim faith. The Executive Order is

21

the product of several centuries of Muslim stereotyping in this country, and harms even those

22

who are not the direct victims of specific attacks on immigrants. Here, the evidence demonstrates

23
that, regardless of the Government’s post-hoc explanations, the Executive Order was motivated
24

by animus toward Muslims and singled out, as a proxy, those born in the targeted majority-
25

26

Muslim countries.

27

28

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ARGUMENT
1

2

Social Categorization and Stereotyping Creates

Dangerous Conditions for Members of Minority Groups.

3

4

A. Stereotyping Minorities Creates a Climate for Discrimination.

5

The balance of equities and public interest in this case weigh in favor of enjoining the

6
Executive Order due to the discrimination it promotes. As the courts have long recognized, laws
7
such as the Executive Order improperly promote social categorization and stereotyping of
8

9

Muslims that lead to the endangerment of the lives of those who practice Islam, a minority

10

religion.

11

The Supreme Court has repeatedly stated that discriminatory stereotypes can improperly

12
affect decision making. Most recently, the Court recognized that disparate impact liability
13
prevents segregated housing patterns that might otherwise result from the role of “covert and
14

15

illicit stereotyping.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project,

16

Inc., 135 S. Ct. 2507, 2522 (2015); see also Miller-El v. Dretke, 545 U.S. 231, 268 (2005)

17

(Breyer, J., concurring) (recognizing that “subtle forms of bias are automatic, unconscious, and

18
unintentional and escape notice, even the notice of those enacting the bias”).
19

In Price Waterhouse, the Supreme Court recognized the role that sex stereotyping plays
20

21

in discrimination cases, explaining that “stereotyped remarks can certainly be evidence that

22

gender played a part” in an adverse employment decision. Price Waterhouse v. Hopkins, 490

23
U.S. 228, 251 (1989).

24
In Windsor, the Supreme Court emphasized that laws whose “purpose and effect” is
25

26

“disapproval of” a “class” of people “impose a disadvantage, a separate status, and so a stigma”

27

on the targeted group. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013). The law at issue

28

in that case, the federal Defense of Marriage Act, targeted same-sex couples for discrimination

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and stigma, just as the challenged Executive Order today singles out Muslim individuals for ill-
1

2

treatment.

3

Similarly, in Cleburne, the Supreme Court explained that “race, alienage, and national

4

origin” are “so seldom relevant” to state interests, meaning that “such considerations are deemed

5
to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or
6

deserving as others.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). In
7

8

Griggs, the Supreme Court held that the “absence of discriminatory intent does not redeem

9

employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority

10
groups and are unrelated to measuring job capability.” Griggs v. Duke Power Co., 401 U.S. 424,

11
432 (1971).
12

13

The courts in other circuits also recognize that social categorization and stereotyping

14

create fertile grounds for discrimination, including in housing, employment decisions, and police

15

actions. See, e.g., Hassan v. City of New York, 804 F.3d 277, 306 (3d Cir. 2015) (rejecting

16
“appeals to ‘common sense’ which might be infected by stereotypes” as insufficient to justify
17
police surveillance of Muslim individuals, businesses, and institutions) (quoting Reynolds v.
18

19

Chicago, 296 F.3d 524, 526 (7th Cir. 2002)); Ahmed v. Johnson, 752 F.3d 490, 503 (1st Cir.

20

2014) (finding “lack of explicitly discriminatory behaviors” does not preclude a finding of

21

“unlawful animus” in employment discrimination because “unlawful discrimination can stem

22
from stereotypes and other types of cognitive biases, as well as from conscious animus”) (quoting
23

Thomas v. Eastman Kodak Co., 183 F.3d 38, 59 (1st Cir. 1999)); United States v. Stephens, 421
24

25

F.3d 503, 515 (7th Cir. 2005) (recognizing that racial stereotyping continues to play a role in jury

26

selection and the outcome of trials); Thomas, 183 F.3d at 42 (holding that Title VII’s ban on

27
“disparate treatment because of race” includes “acts based on conscious racial animus” and
28
“employer decisions that are based on stereotyped thinking”).

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Relevant research shows that a psychological triggering phenomenon known as
1

2

“priming” exacerbates stereotyping and makes it more extreme. Priming occurs when “subtle

3

influences . . . increase the ease with which certain information comes to mind.” Richard H.

4

Thaler & Cass R. Sunstein, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND

5
HAPPINESS 69 (2008). In the case of racial stereotyping, which shares many attributes with
6

stereotyping of Muslims, priming an individual with race-based stereotypes can influence later
7

8

decisions by that individual. Sandra Graham & Brian S. Lowery, Priming Unconscious Racial

9

Stereotypes about Adolescent Offenders, 28 L. & HUM. BEHAV. 483, 489 (2004).

10
Social science research repeatedly demonstrates that individuals have a persistent
11
tendency to defer blindly to priming from authority figures. See Stanley Milgram, Behavioral
12

13

Study of Obedience, 67 J. ABNORMAL & SOC. PSYCHOL. 371, 375-76 (1963). Therefore, as the

14

Supreme Court’s decisions in Brown v. Board of Education of Topeka, 347 U.S. 483, 493-94

15

(1954) and Loving v. Virginia, 388 U.S. 1, 8-12 (1967), demonstrate, discrimination with the

16
sanction of law raises unique and particular dangers.
17
B. The Executive Order Is the Product of Centuries of Discriminatory
18
Stereotypes About Muslims.
19

20

This country has had a long history of official stereotyping of Muslims as un-American

21

and unworthy of becoming Americans. During the Colonial era, two of the most outspoken

22
public figures who disseminated stereotypes of Muslims (then known as “Mahometans”) were
23
Cotton Mather and Aaron Burr – they consistently referred to “Mahometans” in highly
24

25

derogatory terms, including denouncing “that false Prophet and great Imposter Mahomet.”1

26

27

1 Thomas S. Kidd, AMERICAN CHRISTIANS AND ISLAM: EVANGELICAL CULTURE AND MUSLIMS FROM THE COLONIAL

28

PERIOD TO THE AGE OF TERRORISM 12 (2009); Thomas S. Kidd, “Is It Worse to Follow Mahomet than the Devil?”

Early American Uses of Islam, 72 CHURCH HISTORY 766, 771-73, 779-80 (2003).

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Even after this country became independent, prejudice against Muslims, as expressed
1

2

through consistent stereotyping, continued throughout the nineteenth century and into the

3

twentieth century.2 For example, in discussing immigration legislation in 1910, Representative

4

Burnett of Alabama repeatedly referred to “Syrians” – then a catch-all term for Middle Eastern

5
immigrants who were Muslims – in derogatory terms, and made clear that he and his colleagues
6

viewed those immigrants as “the dirty Syrian[s] of today,” and among “the least desirable” aliens,
7

8

because “the Syrians are the same way, mixed up with the Arabians and the people of African

9

and western Asiatic countries, until they are not our kind of people; and they are not the kind of

10

people from which those who settled this country sprang.”3 As set forth in Section C, infra, these

11
are the same kind of statements recently made about Muslims.
12

13

In this century, the stereotyping of Muslims has continued unabated, leading to increased

14

discrimination against Muslims, rising to the level of violence. Even prior to the Executive

15

Orders in 2017, commentators documented and denounced the ongoing stereotyping of Muslims

16
and the ensuing discrimination and violence.
17
Professor Perry recognized that “many commentators have suggested that Arabs
18

19

generally and Muslims specifically may represent the last ‘legitimate’ subjects of slanderous

20

imagery and stereotypes.” Barbara Perry, Anti-Muslim Violence in the Post-9/11 Era: Motive

21

Forces, 4 HATE CRIMES 172, 176 (Barbara Perry & Randy Blazak, eds. 2009). Political leaders

22
have an outsized impact in fostering this stereotyping and its ensuing discrimination and
23

violence: “Even more powerful in providing justifications for anti-Muslim violence is the
24

25

2 See, e.g., Erik Love, ISLAMOPHOBIA AND RACISM IN AMERICA 41, 86-89 (2017); Jeffrey L. Thomas,

26

SCAPEGOATING ISLAM: INTOLERANCE, SECURITY, AND THE AMERICAN MUSLIM 1-14 (2015); Peter Gottschalk &

Gabriel Greenberg, Common Heritage, Uncommon Fear: Islamophobia in the United States and British India, 1687-

27

1947, in ISLAMOPHOBIA IN AMERICA: THE ANATOMY OF INTOLERANCE (Carl W. Ernst ed. 2013); Robert J. Allison,

THE CRESCENT OBSCURED: THE UNITED STATES AND THE MUSLIM WORLD 1776-1815 (1995).

28

3 HEARINGS BEFORE COMMITTEE ON IMMIGRATION AND NATURALIZATION, HOUSE OF REPRESENTATIVES, 61st Cong.

383, 386, 393, 396 (1910) (statement of Rep. John L. Burnett, Alabama).

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explicit exploitation of public images and related fears by political leaders. To the extent that
1

2

this is so, there emerges a climate that bestows ‘permission to hate.’” Id. at 181. Thus, she

3

concluded that:

4

[S]tate practices provide a context and a framework for the broader demonization and

5

marginalization of minority groups. Through its rhetoric and policies, the state

absorbs and reflects back onto the public hostile and negative perceptions of the Other
6
– in this case, Muslims. Public expressions of racism by state actors are constituted

7

of and by public sentiments of intolerance, dislike, or suspicion of particular groups.

8

Thus, the state seems to reaffirm the legitimacy of such beliefs, while at the same

time giving them public voice.

9

10

Id. at 185 (emphasis added).

11

Professor Aziz, who testified to Congress on this issue, wrote, “In the United States,

12

numerous polls show a rise in anti-Muslim bias that is manifesting into tangible hate crimes,

13
mosque vandalism, employment discrimination, and bullying of Muslim kids in schools.” Sahar
14

F. Aziz, Losing the “War of Ideas:” A Critique of Countering Violent Extremism Programs, 52
15

16

TEXAS INT’L L.J. 255, 265 (2017).

17

Professor Cashin wrote that “Explicit, public anti-Muslim comments do not appear to

18
engender similar widespread outrage” as do racist remarks, and instead “appear to be on the rise,”

19
because of the lack of public rejection of such views. Sheryll Cashin, To Be Muslim or Muslim-
20

21

Looking in America: A Comparative Exploration of Racial and Religious Prejudice in the 21st

22

Century, 2 DUKE FORUM L. & SOC. CHANGE 125, 127-28 (2010). “In the wake of the 9/11 attacks,

23

it is more socially acceptable to express explicit bias against Arabs or Muslims than against

24
blacks or other racial/ethnic groups.” Id. at 132.
25
Muslim stereotyping has manifested in the form of violence against Muslims, or even
26

27

those who are erroneously perceived as being Muslims (such as Sikhs). Although the serious

28

under-reporting of such crimes causes the available statistics to understate the actual prevalence

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of anti-Muslim violence,4 it is well-documented throughout 2016,5 and continuing into 2017. See
1

2

Section D.2, infra.

3

Thus, from Colonial times to the present, this country has had a long and deliberate

4

political tradition of officially stereotyping Muslims – a history that created an atmosphere that

5
legitimizes and encourages discrimination and violence against Muslims.
6

C. The Executive Order Is Based on Stereotypes About Muslims as “Anti-
7
American” and “Terrorists.”
8

9

As in the cases cited above, the Muslim ban bears the imprimatur of the Executive Branch

10
and engenders precisely the type of discriminatory harms that the Supreme Court has held cannot

11
withstand constitutional muster. Since December 7, 2015, when then-candidate Donald Trump
12

13

issued a written statement calling for a “total and complete shutdown on Muslims entering the

14

United States” in the wake of the terror attack in San Bernardino, California, a “Muslim ban” has

15

been a major item on his policy agenda.6 At that time, his campaign characterized a bar on

16
Muslim entry into the United States as a way to stop this country from being the “victims of the
17
horrendous attacks by people that believe only in Jihad.”7 He did so with no evidence other than
18

19

extensive stereotyping.

20

Mr. Trump’s labeling of Muslims as “terrorists” has been relentless. On January 4, 2016,

21

22

4 Todd H. Green, THE FEAR OF ISLAM: AN INTRODUCTION TO ISLAMOPHOBIA IN THE WEST 282-84 (2015) (discussing

statistics on crimes against Muslims and problems with underreporting); see generally U.S. Dep’t of Justice, Bureau

23

of Justice Statistics, Special Report, HATE CRIME VICTIMIZATION, 2004-2015 (2017) (noting problems with

underreporting and different methodologies for categorizing these crimes); U.S. Dep’t of Justice, Bureau of Justice

24

Statistics, Special Report, HATE CRIMES REPORTED BY VICTIMS AND POLICE (2005) (same).

25

5 See, e.g., Aziz, 52 TEXAS INT’L L.J., supra, at 266-68 & nn. 65-80 (collecting examples from 2015 and 2016 of violence against Muslims).

26

6 Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 575-76 & n.5 (4th Cir. 2017) (en banc), vacated as moot,

2017 WL 4518553 (U.S. Oct. 10, 2017)); see also Christine Wang, “Trump Website Takes Down Muslim Ban

27

Statement After Reporter Grills Spicer in Briefing,” CNBC.COM (May 8, 2017),

https://www.cnbc.com/2017/05/08/trump-website-takes-down-muslim-ban-statement-after-reporter-grills-spicer-

28

in-briefing.html. 7 Int’l Refugee Assistance Project, 857 F.3d at 575 n.5.

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the Trump campaign premiered its first television advertisement, in which he “call[ed] for a total
1

2

and complete shutdown of Muslims entering the United States” until doubts about “radical

3

Islamic terrorism” can be “figure[d] out.”8 The link he drew between “radical Islamic terrorism”

4

and all individual Muslims entering the United States was stated with no supporting evidence.

5
Subsequently, candidate Trump, in a major foreign policy speech on April 27, 2016, stated that
6
“The struggle against radical Islam also takes place in our homeland. . . . We must stop importing
7

8

extremism through senseless immigration policies.”9 He made these statements, relying entirely

9

on stereotypes, and presenting no evidence or facts to support these claims.10

10
As a matter of law, this Court can rely on campaign statements as part of its analysis of

11
whether the Executive Orders reflect illegal stereotyping and bias against Muslims. For example,
12

13

the Second Circuit held that campaign statements by the successful candidate for Mayor of

14

Yonkers – in which he “promised … to impose a moratorium on all subsidized housing in

15

Yonkers” – was evidence of the “intent to preserve the existing racial imbalance” in that city.

16
United States v. Yonkers Board of Educ., 837 F.2d 1181, 1191, 1222 (2d Cir. 1987). Similarly,
17
the Eleventh Circuit held that campaign promises by Roy Moore, made while running for the
18

19

position of Chief Justice of the Alabama Supreme Court, i.e., that he would install the Ten

20

Commandments monument in the courthouse rotunda, could be used as evidence of his intent to

21

violate the Establishment Clause. Glassroth v. Moore, 335 F.3d 1282, 1285-87, 1292 (11th Cir.

22

23

8 Jeremy Diamond, Donald Trump: Ban all Muslim Travel to United States, CNN POLITICS (Dec. 8, 2015),

http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration; see also Jill Colvin and Steve

24

Peoples, “Trump’s First TV Ad Pushes Proposal to Ban Muslims from Entering U.S.,” The Globe and Mail

(Toronto), Jan. 5, 2016, at A-9.

25

9 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.

26

10 Although President Trump has publicly labeled Muslims as dangerous “terrorists,” he has failed to condemn the

hate crimes perpetuated against them over the past year. See, e.g., Jack Moore, Trump’s Failure to Condemn

27

Minnesota Mosque Attacks Stirs Social Media Anger, NEWSWEEK (Aug. 17, 2017),

http://www.newsweek.com/trump-failure-condemn-minnesota-mosque-attack-stirs-social-media-anger-647694

28

(President Trump’s silence following a January 2017 shooting at a Quebec mosque, June 2017 attacks in Virginia

and London, and an August 2017 bomb attack at a mosque in Minnesota).

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2003). More generally, “the historical background of the decision [to discriminate] is one
1

2

evidentiary source, particularly if it reveals a series of official actions taken for invidious

3

purposes.” Village of Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252,

4

267 (1977) (citations omitted). Here, as in Yonkers, Glassroth, and Village of Arlington Heights,

5
evidence of candidate-Trump’s campaign statements and campaign promises is probative
6

evidence of the intent to discriminate against Muslims – an intent that was implemented just one
7

8

week after the Inauguration, when he issued the first of a series of Executive Orders that all

9

shared the same goals: to fulfill his campaign pledge.

10
On January 27, 2017, President Trump signed Executive Order 13,769, entitled

11
“Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 FED. REG. 8977
12

13

(Feb. 1, 2017). Among other immigration restrictions, Executive Order 13,769 temporarily

14

banned all nationals from seven majority-Muslim countries from entering the United States: Iran,

15

Iraq, Syria, Sudan, Yemen, Libya, and Somalia.

16
While many surrogates of the current Administration pushed back at the characterization
17
of E.O. 13,769 as a “Muslim ban,” the President embraced it. He told the public via Twitter,
18

19

“[c]all it what you want, [E.O. 13,769] is about keeping bad people (with bad intentions) out of

20

country!”11 Throughout his campaign, and now in office, President Trump has consistently

21

labeled Muslims as “bad people” who must be kept out of America in the interest of national

22
security.
23

24

25

26

11 Jane Onyanga-Omara, British PM Criticizes Trump’s Travel Ban; Theresa May Calls Controversial Move

27

“Divisive and Wrong,” USA TODAY, Feb. 2, 2017, at 5A. The Department of Justice recently informed a district

court that Trump’s tweets (Twitter postings) are “official statements of the President of the United States,” since “a

28

tweet can be the equivalent of a public statement or speech.” James Madison Project v. Dep’t of Justice, No. 1:17-

cv-00144, Def. Supp. Mem., at 2, 5-6 & n.4 (ECF No. 29) (D.D.C. Nov. 13, 2017).

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After multiple lower courts enjoined enforcement of E.O. 13,769,12 the Trump
1

2

Administration announced plans to revise the order. On March 6, 2017, the Administration

3

issued Executive Order 13,780, “Protecting the Nation from Foreign Terrorist Entry into the

4

United States.” 82 FED. REG. 13,209 (Mar. 9, 2017). The revised Executive Order preserved

5
several core provisions of the prior Order: it suspended the United States Refugee Admissions
6

Program for 120 days, and it suspended the entry into the United States of nationals of six of the
7

8

seven majority-Muslim countries designated in E.O. 13,769 for 90 days. See E.O. 13,780, §§

9

6(a); 2(c). As did E.O. 13,769, the redrafted Order targeted only majority-Muslim countries, as

10
proxies for all Muslims. This Court upheld the district court’s decision enjoining the second

11
Executive Order. Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (en
12

13

banc). The Supreme Court vacated this Court’s decision as moot in light of the expiration of the

14

second Executive Order. Trump v. International Refugee Assistance Project, 138 S. Ct. __, 2017

15

WL 4518553 (U.S. Oct. 10, 2017).

16
President Trump then issued the third iteration of the Executive Order on September 24,
17
2017. See 82 Fed. Reg. 45,161 (Sept. 27, 2017). Although that order purported to expand its
18

19

scope into non-Muslim countries by including North Korea and Venezuela, this country has

20

hardly any visitors from North Korea, and the order as to Venezuela was limited to certain high-

21

level officials. Id.

22
The third version of the Executive Order continues to target Muslims. Judge Chuang of
23

the District of Maryland correctly found that “the inclusion of two non-majority Muslim nations,
24

25

North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the

26

12 Washington v. Trump, No. 2:17-cv-141, Temporary Restraining Order, 2017 WL 462040 (W.D. Wash. Feb. 3,

27

2017), motion for stay denied, 847 F.3d 1151 (9th Cir. 2017); Tootkaboni v. Trump, No. 1:17-cv-10154, Temporary

Restraining Order, 2017 WL 386550 (D. Mass. Jan. 29, 2017); Darweesh v. Trump, No. 1:17-cv-480, Temporary

28

Restraining Order, 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017); Aziz v. Trump, 234 F. Supp. 3d 724 (E.D. Va. 2017)

(preliminary injunction).

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Proclamation,” requiring the court to “assess whether, as has occurred in other Establishment
1

2

Clause cases, the insertion of these countries was ‘a litigating position’ rather than an earnest

3

effort to ‘cast off’ the prior ‘unmistakable’ objective.” See International Refugee Assistance

4

Project v. Trump, 2017 WL 4674314, at *33 (D. Md. Oct. 17, 2017) (quoting McCreary County

5
v. Amer. Civil Liberties Union of Kentucky, 545 U.S. 844, 871-72 (2005)). The district court thus
6

granted plaintiffs’ motion for a preliminary injunction as to this third iteration of the travel ban.
7

8

Id. at *41. The district court reviewed the record of Trump’s campaign statements, id. at *30,

9

and the statements that he made after taking office, id. at *30, *31, *33, *36, to conclude that the

10
“primary purpose” of the travel ban was “the desire to impose a Muslim ban.” Id. at *37.

11
Thus, “approximately 80 percent of all the Muslim refugees who resettled in the United
12

13

States over the past two years were from the [nine] targeted countries. Perhaps more tellingly,

14

of the refugees who came to the U.S. over the last two years from all of the other countries . . .

15

approximately 70 percent were Christian and just 16 percent were Muslim.”13

16
The government’s intent to ban Muslims will exacerbate widespread discrimination that
17
Muslims already face. The official action of marking a group, Muslims, as a dangerous “fifth
18

19

column,” drives societal biases against them and creates conditions where violence against them

20

is seen as more acceptable because they are perceived, in President Trump’s words, to be “bad

21

people.”

22
In 2011, the Pew Research Center surveyed Western cultures to determine which
23

characteristics Western populations associate with people in the Muslim world. That survey
24

25

found that about half of the respondents characterized Muslims as “violent,” and more than half

26

27

13 Dalia Lithwick & Jeremy Stahl, Sneak Attack: Trump Is Trying to Secretly Push Through Another Muslim Ban,

SLATE, JURISPRUDENCE (Nov. 10, 2017),

28

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/trump_is_trying_to_secretly_sneak_throu

gh_another_muslim_ban.html.

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characterized Muslims as “fanatical.”14
1

2

Thus, it is no surprise that the Pew Research Center’s 2017 survey of Muslims in this

3

country found that discrimination against them was increasing, and that they are even more

4

concerned in light of the President’s Executive Orders.15

5
In a recent news analysis discussing ongoing social science research relating to
6

stereotyping against the most recent Muslim immigrants in this country and Canada, Science
7

8

magazine recognized that “Prejudice of course can be directed against any group by any other.

9

But immigrants, and even more so refugees and asylum seekers, may be especially vulnerable

10
because of their tenuous place in a larger society.” Jennifer Couzin-Frankel, Battling Bias: How

11
Can We Blunt Prejudice Against Immigrants?, 350 SCIENCE 687, 688 (May 19, 2017). This
12

13

applies with even greater force to child immigrants and refugees, who are even more vulnerable

14

than their parents. (The recent escalation of deportation orders similarly harms child immigrants

15

and refugees.)

16
Recent social science research demonstrates both the already-existing climate of
17
prejudice against Muslims and Arabs and the unconscious nature of that bias. “Non-Arab and
18

19

non-Muslim test takers manifested strong implicit bias against Muslims. These results are in

20

sharp contrast to self-reported attitudes.” Carol Izumi, Implicit Bias and the Illusion of Mediator

21

Neutrality, 34 WASH. U. J. L. & POL. 71, 93 (2010). A “sample of U.S. citizens on average

22
viewed Muslims and Arabs as not sharing their interests and stereotyped them as not especially
23

sincere, honest, friendly, or warm.” Susan T. Fiske, et al., Policy Forum: Why Ordinary People
24

25

26

14 Pew Research Center, Global Attitudes Project, Muslim-Western Tensions Persist (July 21, 2011),

http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#.

27

15 Pew Research Center, U.S. Muslims Concerned About Their Place in Society, but Continue to Believe in the

American Dream (July 26, 2017) http://www.pewforum.org/2017/07/26/findings-from-pew-research-centers-2017-

28

survey-of-us-muslims/; see also Abigail Hauslohner, Anti-Muslim Discrimination on Rise in U.S., Study Finds,

WASHINGTON POST, July 26, 2017, at A-3.

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Torture Enemy Prisoners, 206 SCIENCE 1482-83 (Nov. 26, 2004).
1

2

D. Government Legitimization of Muslim Stereotypes Has Encouraged

Violence Against Muslims, and Inhibited Millions of Muslims in the Practice

3

of Their Religion.

4

5

There can be no doubt that, given its origin and history, the Executive Order is based on

6

the social categorization of Muslims as “anti-American,” “terrorists,” those with “hatred for

7
Americans,” and “bad people.” In this case, President Trump’s repeated, unsubstantiated claims
8
that Muslims are dangerous, and should be barred from entering the country, are just the “cue”
9

10

needed to release otherwise suppressed and legally prohibited violence against Muslims. The

11

President’s deliberate stereotyping of Muslims as “dangerous” and “terrorists” and his ban on the

12

immigration of Muslims, place an official “imprimatur” on those stereotypes, magnifying their

13
effect.
14
The Supreme Court, in Cleburne, held that a city council’s insistence that a group home
15

16

for individuals with intellectual disabilities obtain a special-use permit to operate was premised

17

on unsubstantiated “negative attitudes or fears” of nearby property owners, which were

18

impermissible bases for disparate treatment. City of Cleburne v. Cleburne Living Ctr., 473 U.S.

19
432, 448 (1985). Although “‘[p]rivate biases may be outside the reach of the law . . . the law
20

cannot, directly or indirectly, give them effect.’” Id. (quoting Palmore v. Sidoti, 466 U.S. 429,
21

22

433 (1984)). Here, too, the law cannot give effect to private biases against Muslims.

23

1. Government Stereotyping Leads to Violence and Discrimination.

24
When someone in a position of authority, as President Trump, categorizes Muslims as
25
dangerous and terrorists, he communicates that they are “outsiders” and not full members of the
26

27

political community. By way of comparison, the Supreme Court found unconstitutional a school-

28

sponsored religious message, delivered over the school’s public address system, by a speaker

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representing the student body, under the supervision of the faculty, and pursuant to a school
1

2

policy. Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290, 309-10 (2000). The Supreme Court’s

3

reasoning was based on its view that the school policy created two classes of people—those who

4

adhered to the favored religion, and those who did not. Id.

5
The President’s steadfast support of what he calls a “Muslim ban” similarly sends the
6

message that those who adhere to Islam are not part of American society, as opposed to Christians
7

8

and other non-Muslims, who are favored by the ban. In doing so, he “sends a message to non-

9

adherents [to the Christian faith] that they are outsiders, not full members of the political

10
community, and an accompanying message to adherents that they are insiders, favored members

11
of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J.
12

13

concurring); see also Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“When homosexual conduct

14

is made criminal by the law of the State, that declaration in and of itself is an invitation to subject

15

homosexual persons to discrimination in both the public and in the private spheres.”). The

16
Executive Order and the President’s statements characterize Muslims as homogenous and a
17
national threat and thereby engender a climate conducive to violence against Muslims.
18

19

2.

The President’s Statements Have Encouraged Violence.

20

This Administration tolerated, if not encouraged, crimes against Muslims, through its

21

determination to implement the travel ban affecting them – in effect telling all Muslims (whether

22
born here or abroad) – that they do not belong here.
23

Starting in February 2016, only two months after then-candidate Trump’s December 7,
24

25

2015 and January 4, 2016 statements (supra), three nationalists in Kansas (the “Crusaders,” a

26

militia group) engaged in a conspiracy to use weapons of mass destruction “to carry out a violent

27
attack against Muslims in their community” through “destroy[ing] an apartment complex in
28

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Garden City, Kansas, which contains a mosque and is home to many Muslims.”16 They openly
1

2

discussed going to apartment buildings known to house refugees to “start kicking in the doors of

3

the Somali apartments, and kill them one by one,” and then expanded their target to include

4

“city/county commission meetings, local public officials, landlords who rent property to Muslim

5
refugees, and organizations providing assistance to Muslim refugees,” since “the only good
6
Muslim is a dead Muslim.”17
7

8

The February 22, 2017 shooting of Srinivas Kuchibhotla, Alok Madasani, and Ian Grillot

9

in Olathe, Kansas is the most horrifying example of the social categorization of Muslims as

10

enemies of the American people.18 Kuchibhotla and Madasani, two engineers at a local

11
technology company, and both Indian immigrants, had gathered with co-workers at a bar near
12

13

their office to watch a local college basketball game. Also at that bar was Adam Purinton, who

14

mistook both Kuchibhotla and Madasani as Iranians (which is one of the nationalities targeted

15

by the Executive Order and its predecessor as barred from entry into the United States). Purinton

16
approached and shot at Kuchibhotla and Madasani, telling them to “get out of our country!”
17
Kuchibhotla was killed, and Madasani was wounded. Ian Grillot, a patrolman present at the
18

19

scene, was wounded while attempting to intervene. Purinton fled across the state border into

20

Missouri and told a bartender in a second bar that he needed to hide out because he had just shot

21

two “Iranians.” Putting aside Purinton’s stereotyped view that his victims were Iranians simply

22
because they were foreign-born immigrants, his actions demonstrate the danger that social
23

24

25

16 United States v. Allen, et al., No. 6:16-cr-10141, Criminal Complaint, at ¶¶ 2, 9 (ECF No. 1) (D. Kan. Oct. 14,

2016); see also Second Superseding Indictment (ECF No. 89) (D. Kan. Mar. 16, 2017).

26

17 United States v. Allen, et al., No. 6:16-cr-10141, Criminal Complaint, at ¶¶ 13, 19 (ECF No. 1) (D. Kan. Oct. 14,

2016).

27

18 Audra D. S. Burch, Facing a Void Left by Hate, N.Y. TIMES, July 9, 2017, at A1, A12-A13; Matt Stevens, Justice

Dept. Calls Killing in Kansas a Hate Crime, N.Y. TIMES, June 10, 2017, at A18; John Eligon, et al., Drinks at a

28

Bar, Ethnic Insults, then Gunshots, N.Y. TIMES, Feb. 25, 2017, A1, A17; see also United States v. Purinton, No.

2:17-cr-20028, Indictment (D. Kan. June 9, 2017).

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categorization can cause by exaggerating both the distance between in-groups (“real Americans”)
1

2

and out-groups (“Iranians”), as well the homogeneity of the out-group. The Administration’s

3

travel ban against Muslims does just that.

4

In addition, a rash of arsons and vandalism at mosques has occurred following the

5
issuance of E.O. 13,769. On January 28, 2017, one day after the first Order, a fire destroyed the
6
Islamic Center of Victoria, Texas.19 On February 24, 2017, a blaze broke out at the Daarus
7

8

Salaam Mosque near Tampa, Florida.20 Combined with two arsons of mosques shortly before

9

President Trump’s inauguration, the United States has seen an unprecedented surge of hate

10

crimes against the Muslim community.21

11
Other recent attacks on mosques in the United States include an explosion at a mosque in
12

13

Bloomington, Minnesota in August 2017.22

14

On March 3, 2017, a Sikh man was shot in his Kent, Washington driveway when a man

15

approached him and said “go back to your own country.”23

16
It is undeniable that the public interest in this country is best served by tolerance of
17
different religions as the Constitution requires, and tolerance of both foreign-born and American-
18

19

born adherents of different religions. The public interest is not served by discriminatory

20

21

19 U.S. Attorney’s Office, Southern District of Texas, Victoria Man Charged with Hate Crime in Burning of Mosque

22

(June 22, 2017), https://www.justice.gov/usao-sdtx/pr/victoria-man-charged-hate-crime-burning-mosque;

Anonymous, Fire Destroys Texas Mosque in Early Hours, N.Y. TIMES, Jan. 29, 2017, at A4; see also United States

23

v. Perez, No. 6:17-cr-00035, Superseding Indictment (S.D. Tex. June 22, 2017).

20 Tony Marrero, Mosque Fire Deliberately Set, TAMPA BAY TIMES, Feb. 25, 2017, at 1; Anonymous, 2nd Florida

24

Mosque Hit by Arson in Past 6 Months, ST. LOUIS POST-DISPATCH, Feb. 25, 2017, at A6.

21 Albert Samaha & Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and

25

Advocates Stunned, BUZZFEEDNEWS (Feb. 28, 2017), https://www.buzzfeed.com/albertsamaha/four-mosques-burn-

as-2017-begins; Taylor Goldenstein, Blaze Completely Destroys Islamic Center’s Building, AUSTIN AMERICAN-

26

STATESMAN, Jan. 8, 2017, at B1.

22 Nick Corasaniti, Minnesota Mosque Shaken by an Early-Morning Blast, N.Y. TIMES, Aug. 6, 2017, at A-19; Kurtis

27

Lee, U.S. Muslims on Edge after Bombing; the FBI Is Leading the Investigation into an Attack that Damaged a

Minnesota Mosque, L.A. TIMES, Aug. 6, 2017, at A-10.

28

23 Ellen Barry, U.S. and Indian Officials Condemn Shooting of Sikh, N.Y. TIMES, Mar. 6, 2017, at A-9; Cleve R.

Wootson, Sikh Man, 39, Shot in Suspected Hate Crime, WASH. POST, Mar. 5, 2017, at A-3.

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stereotyping against Muslims that legitimizes or encourages discrimination and violence in our
1

2

country, or by a law which gives effect to private biases.

3

The insidious effect of the Muslim ban does not impact only those persons seeking to

4

enter the United States from the seven designated countries. Instead, by promoting social

5
stereotypes and priming individuals to act on those stereotypes, the ban creates fertile grounds
6

for violence against all minorities. The Executive Order fundamentally threatens the American
7

8

ideal of a diverse society working across divisions for the greater societal good.

9

3. Stereotyping and Discrimination Harms All Americans, Not Just Those

10

Directly Affected by Specific Acts.

11

Social science research has consistently demonstrated that stereotyping of any group

12
harms all individuals in that group, even those who are not directly affected by specific acts of
13
violence or discrimination. For example, Professor McDevitt and several other researchers
14

15

recognized that:

16

Because bias crimes have the unique impact of reaching far beyond the primary

17

victim, due to the dimension of victim interchangeability, every member of the

minority group who is aware of the crime is affected by a solitary crime against

18

one individual minority member.

19
Jack McDevitt, et al., Consequences for Victims: A Comparison of Bias- and Non-Bias-Motivated
20

21

Assaults, 45 AM. BEHAVIORAL SCIENTIST 697, 712 (2001).

22

Similarly, violent crimes on the basis of religious stereotypes, i.e., against Muslims, have

23

the same broader impact as do terrorist crimes:

24
Nonetheless, terrorism and violent hate crimes . . . have at least one basic

25

characteristic in common: the violence inflicted on the victims is also aimed at a

26

larger community. . . . hate crimes directly target individual members of a social

group but indirectly send a message of intolerance to the entire group. The victims

27

of hate crimes are selected because of their symbolic value as representatives of

28

the entire social group.

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Jeffrey Thomas, SCAPEGOATING ISLAM: INTOLERANCE, SECURITY, AND THE AMERICAN MUSLIM
1

2

137 (2015).

3

Senator John McCain recently recognized this fundamental principle when he criticized

4

several fellow members of Congress who had made ad hominem attacks on a former government

5
official due to that person’s Muslim heritage:
6

When anyone—not least a member of Congress—launches specious and degrading
7
attacks against fellow Americans on the basis of nothing more than fear of who they

8

are and ignorance of what they stand for, it defames the spirit of our Nation, and we

9

all grow poorer because of it.

10

158 CONG. REC. S5106 (daily ed. July 18, 2012) (statement of Sen. John McCain).

11
Here, too, the latest Executive Order and the underlying statements by the President have
12
only encouraged stereotyping of Muslims, which has adversely affected all Muslims, young and
13

14

old, natives and recent immigrants, and has harmed our society as a whole.

15

CONCLUSION

16

For the foregoing reasons, and those set forth in the briefs of the Plaintiffs, amici curiae

17
respectfully request that this Court enjoin the Executive Order.
18

DATED: December 5, 2017.
19

20

Respectfully submitted,

21

/s/ Michael C. Subit
22
_____________________________________

23

Michael C. Subit, Esquire (State Bar # 29189)

Frank Freed Subit & Thomas LLP

24

705 2nd Avenue, Suite 1200

25

Seattle WA 98104-1798

Phone: (206) 682-6711

26

Fax: (206) 682-0401

Email: msubit@frankfreed.com
27

28

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/s/ Lynne Bernabei _____________________________________ Lynne Bernabei (D.C. Bar # 938936 Alan R. Kabat (D.C. Bar # 462458) Bernabei & Kabat, PLLC 1400 – 16th Street N.W., Suite 500 Washington, D.C. 20036-2223 Phone: (202) 745-1942 Fax: (202) 745-2627 email: Bernabei@bernabeipllc.com Kabat@bernabeipllc.com Counsel for Amici Curiae
FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

Case 2:17-cv-00178-JLR Document 70 Filed 12/05/17 Page 22 of 22

CERTIFICATE OF SERVICE
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I hereby certify that on December 5, 2017, I electronically filed the foregoing document

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with the Clerk of the Court using the CM/ECF system which will send notification of such filing

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to all of the registered CM/ECF users for this case.

5
I hereby declare under the penalty of perjury of the laws of the State of Washington that
6
the foregoing is true and correct.
7

8

DATED this 5th day of December, 2017.

9

10

/s/ Michael C. Subit

Michael C. Subit, WSBA No. 29189

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AMICI CURIAE BRIEF - 21 (Case No. C-17-0178-JLR)

FRANK FREED SUBIT & THOMAS LLP
Suite 1200 Hoge Building, 705 Second Avenue Seattle, Washington 98104-1798 (206) 682-6711

 
 Case 2:17-cv-00178-JLR Document 71 Filed 12/06/17 Page 1 of 23

1 The Honorable James L. Robart
2

3

4

5

6 UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

8

JOHN DOES, et al.,
9 Plaintiffs,

10

v.

11 DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
12 Defendants.
13

No. 2:17-CV-0178-JLR
BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
(related to Case No. 2:17-CV1707-JLR)

14 JEWISH FAMILY SERVICE OF SEATTLE, et al.,
15 Plaintiffs,
16 v.
17 DONALD J. TRUMP, in his official capacity as 18 President of the United States, et al.,
Defendants. 19

No. 2:17-CV-01707-JLR

20

21

22 BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND
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Case 2:17-cv-00178-JLR Document 71 Filed 12/06/17 Page 2 of 23

1

CORPORATE DISCLOSURE STATEMENT

2

Pursuant to Civil Local Rule 7.1, amici curiae Muslim Advocates and the Roderick and

3 Solange MacArthur Justice Center state that they are not-for-profit organizations with no parents,

4 subsidiaries, or affiliates, and that no publicly-held corporation owns 10 percent or more of their
stock. 5

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Case 2:17-cv-00178-JLR Document 71 Filed 12/06/17 Page 3 of 23

1

TABLE OF CONTENTS

2 CORPORATE DISCLOSURE STATEMENT ........................................................................... II

3 TABLE OF AUTHORITIES ......................................................................................................IV

4 INTEREST OF AMICI CURIAE ................................................................................................. 1

INTRODUCTION ........................................................................................................................ 1 5

ARGUMENT ................................................................................................................................ 3

6 I.

PREVENTING THE ENTRY OF MUSLIM REFUGEES IS AN INTEGRAL

7

PART OF THE PRESIDENT’S LONGSTANDING AND EXPRESS PLEDGE

TO BAN MUSLIMS. ....................................................................................................... 3

8

A. The President Pledged To Favor Christians And Made Affirmative Efforts

9

To Vilify Muslims. ............................................................................................... 3

B. The President Has Expressly Stated His Intent To Curtail The Rights Of

10

Muslims, Including By Restricting Their Entry To The United States. ............... 7

11 12
II. 13 14 15

C. The President Has Reaffirmed His Discriminatory Intent On Numerous Occasions Since Taking Office............................................................................. 9
THE PREDECESSOR ORDERS THAT PRECEDED AND GAVE RISE TO REFUGEE BAN 3.0 WERE MOTIVATED ON THEIR FACE BY ANTIMUSLIM ANIMUS........................................................................................................ 11
A. The Refugee Ban Provision Of EO-1 Included A Priority Designed To Benefit Christian Refugees In Muslim-Majority Nations At The Expense Of Muslim Refugees. .......................................................................................... 11

16
17 III.
18

B. Both EO-1 And EO-2 Refer To “Honor Killings”—A Term Used Commonly And Almost Exclusively To Denigrate Muslims............................. 12
REFUGEE BAN 3.0 IS A DIRECT CONTINUATION OF EO-1 AND EO-2 AND IS MOTIVATED BY THE SAME ANTI-MUSLIM ANIMUS. ....................... 155

19 CONCLUSION........................................................................................................................... 16

20

21

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Case 2:17-cv-00178-JLR Document 71 Filed 12/06/17 Page 4 of 23

1 2
Regulations

TABLE OF AUTHORITIES

Page(s)

3 8 C.F.R. § 207.7(d) ........................................................................................................................13

4 82 F.R. 8977 § 5(b) (Jan. 27, 2017) ...............................................................................................11

5 Executive Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017) ....................................................2

6 Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017)..................................................2

7 Executive Order No. 13,815 ............................................................................................................1

Other Authorities 8

Aisha Gill, Honor Killings and the Quest for Justice in Black and Minority Ethnic

9

Communities in the United Kingdom, 20 Crim. Just. Pol’y Rev. 475, 480

(2009) .......................................................................................................................................13

10 Brittany E. Hayes et al., An Exploratory Study of Honor Crimes in the United

11

States, 31 J. Fam. Violence 303, 304 (2016) ...........................................................................13

12

Inderpal Grewal, Outsourcing Patriarchy: Feminist Encounters, Transnational Mediations and the Crime of ‘Honour Killings,’ 15 Int’l Feminist J. Pol. 1, 5

(2013) .......................................................................................................................................13 13

Jon Hurwitz & Mark Peffley, Playing the Race Card in the Post–Willie Horton

14

Era: The Impact of Racialized Code Words on Support for Punitive Crime

Policy, Pub. Opinion Q. 99 (2005) ..........................................................................................14

15

K.M. Devries et al., The Global Prevalence of Intimate Partner Violence Against

16

Women, 340 Science 1527, 1527 (2013) ....................................................................... 13 & 14

17 Lila Abu-Lughod, DO MUSLIM WOMEN NEED SAVING? 139 (2013).............................................13

Mattias Ekman, Online Islamophobia and the Politics of Fear: Manufacturing the

18

Green Scare, 38 Ethnic & Racial Stud. 1986, 1995 (2015).....................................................14

19 Nicholas A. Valentino et al. Cues That Matter: How Political Ads Prime Racial

Attitudes During Campaigns, 96 Am. Pol. Sci. Rev. 75, 75–76 (2002) ..................................14

20

Sherene Razack, CASTING OUT: THE EVICTION OF MUSLIMS FROM WESTERN LAW

21

AND POLITICS 128 (2008) .........................................................................................................13

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Case 2:17-cv-00178-JLR Document 71 Filed 12/06/17 Page 5 of 23

1 Tali Mendelberg, THE RACE CARD: CAMPAIGN STRATEGY, IMPLICIT MESSAGING, AND THE NORM OF EQUALITY 94-95 (2001).............................................................................14
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1

INTEREST OF AMICI CURIAE

2

The issue in this case is whether the Trump Administration’s recent changes to the U.S.

3 Refugee Admissions Program (“USRAP”) are premised on impermissible and unlawful anti-

4 Muslim animus. Amici Muslim Advocates and the MacArthur Justice Center (“MJC”) submit

5 this brief in support of Plaintiffs’ Motion for a Preliminary Injunction.

6

Muslim Advocates, a national legal advocacy and educational organization formed in

7 2005, works on the frontlines of civil rights to guarantee freedom and justice for Americans of

8 all faiths. The issues at stake in this case directly relate to Muslim Advocates’ work fighting

9 institutional discrimination against the American Muslim community, and its extensive work

10 assisting individuals who are impacted by the travel and refugee bans.

11

The MacArthur Justice Center is a not-for-profit organization founded by the family of

12 J. Roderick MacArthur to advocate for human rights and social justice through litigation. MJC

13 has represented clients facing myriad human rights and civil rights injustices, including issues

14 of discrimination, the unlawful detention of foreign nationals, and the rights of marginalized

15 groups in the American justice system. MJC has an interest in the rule of law and the

16 independence of the judiciary in determining whether government officials have acted with

17 discriminatory animus against an unpopular minority group.

18

INTRODUCTION

19

The executive order at issue in this litigation (“Refugee Ban 3.0” or the “Ban”)1 is

20 motivated by unconstitutional animus against Muslims seeking to enter the United States as

21 refugees. This case, like the travel and refugee ban cases that preceded it, presents the rare

22 instance where a state actor explicitly announces his discriminatory motive for an action. The

23 President has not only made clear his intent to use the Office of the President and Executive

24 Branch federal agencies to discriminate against Muslims and to favor Christians, but in

25 repeated statements before and after taking office, he has specifically indicated his animus

26
1 The Refugee Ban 3.0 is Executive Order No. 13,815, and its accompanying memorandum, with the addendum,

27 are attached as exhibits A and B to the Declaration of David Burman in Support of Plaintiffs’ Motion for
Preliminary Injunction (“Burman Decl.”), respectively.

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Case 2:17-cv-00178-JLR Document 71 Filed 12/06/17 Page 7 of 23

1 toward Muslims, and also his specific intent to prevent Muslims from entering the United

2 States in part by implementing a ban on refugee admissions.

3

Within a week of taking office, the President initiated the first of several unilateral

4 executive orders intended to implement his campaign promise of banning Muslims from

5 entering the country. Far from ever retracting his discriminatory intent, his Administration has

6 embraced it: Asked recently whether “the President think[s] that Muslims are a threat to the

7 United States?” his Deputy Press Secretary explained, “the President has addressed these 8 issues with the travel order that he issued earlier this year and the companion proclamation.”2

9 And the President himself has repeatedly derided his own Department of Justice for drafting

10 orders that are too “politically correct”—i.e., that fail to expressly acknowledge the religious

11 animus that he has unabashedly communicated.

12

In fact, the predecessor executive orders that called for the interagency review

13 culminating in Refugee Ban 3.0, “EO-1”3 and “EO-2,”4 contained anti-Muslim and pro-

14 Christian bias on their face, referring to “honor killings” (a term with a long history as a

15 Muslim slur) and prioritizing the applications of Christian refugees.

16

Understood in context as a fulfillment of the President’s stated intentions and previous

17 travel bans, Refugee Ban 3.0 is plainly the President’s implementation of his long-promised

18 discriminatory ban. The effect of the Ban would be to suspend refugee applications from the

19 countries that send the vast majority of Muslim refugees to the United States and shift priority

20 to countries with refugees that are mostly Christian. Even more tellingly, the Ban’s suspension

21 of applications from children and spouses of refugees who have already been resettled to the

22 United States would cut off family reunion for a record number of Muslim refugees. The Ban

23 thus threatens to actualize the President’s signature pledge to prevent Muslims from entering

24 the country, and this Court should not allow it to move forward.

25
2 The White House, Press Gaggle by Principal Deputy Press Secretary Raj Shah en route St. Louis, MO (Nov. 29,

26 2017) (emphasis added), https://www.whitehouse.gov/the-press-office/2017/11/29/press-gaggle-principal-deputy-

press-secretary-raj-shah-en-route-st-louis (last visited Dec. 4, 2017).

27

3 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017). 4 Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017).

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Case 2:17-cv-00178-JLR Document 71 Filed 12/06/17 Page 8 of 23

ARGUMENT 1

I. 2

PREVENTING THE ENTRY OF MUSLIM REFUGEES IS AN INTEGRAL PART OF THE PRESIDENT’S LONGSTANDING AND EXPRESS PLEDGE TO

BAN MUSLIMS.
3 The President’s latest plan to ban refugees is a realization of his repeated pledge to use

4 the Office of the President and Executive Branch federal agencies to both discriminate against

5 people who choose to practice Islam and to favor those who choose to adhere to Christianity—

6 a discriminatory intent he has reaffirmed both before and after taking office. The ban arises in

7 the context of the President’s broader attacks on Islam as a “problem” and his affirmative

8 dissemination of false propaganda to vilify people of the Muslim faith (including Muslim

9 migrants in particular).

10

11

A. The President Pledged To Favor Christians And Made Affirmative Efforts To Vilify Muslims.

12

As Plaintiffs note in their complaint and motion for preliminary injunction, within a

13 week of taking office, the President issued EO-1, the first predecessor to Refugee Ban 3.0; that

14 same day, he also appeared on television to make clear that the order was adopted for the

15 purpose of prioritizing Christians.5 Expressly drawing a comparison between Muslim and

16 Christian refugees, he explained that he viewed Christians as a “priority” and he was “going to

17 help” them.6 Days later, he again singled out his intent to help “Christians in the Middle-East.”7

18 On the day the President issued Refugee Ban 3.0—which, as set out below, effectively converts

19 the temporary ban on refugees into an indefinite one that disproportionately affects Muslim

20 refugees—his Vice President made similar remarks. In a speech to “In Defense of Christians”

21

22

23

24
5 (Cmpl. ¶¶ 3, 67; Pl. Motion at 4-5.)
25 6 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As

Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-

26 exclusive-president-trump-says-persecuted-christians-will-be-given-priority-as-refugees (last visited Dec. 4,
2017).
27 7 Donald J. Trump, Twitter (Jan. 29, 2017), https://twitter.com/realDonaldTrump/status/825721153142521858
(last visited Dec. 4, 2017).

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Case 2:17-cv-00178-JLR Document 71 Filed 12/06/17 Page 9 of 23

1 and in reference specifically to Christian refugees in the Middle East, the Vice President stated: 2 “Help is on the way.”8

3

Refugee Ban 3.0 must be understood in the context of the President’s longstanding

4 vilification of Muslims. The President has for years referred to Muslims in the United States as

5 a “problem.” As early as April 2011, Mr. Trump expressed his view that there “absolutely” was 6 “a Muslim problem” in the United States.9 He claimed that the Koran itself was the source of 7 the problem, claiming that it “teaches some very negative vibe” and “tremendous hatred.”10 He

8 has repeatedly echoed this view that there is a “massive Muslim problem” in the U.S. and 9 abroad.11 At an event in 2015, for instance, the President agreed with an audience member’s 10 comment that “We have a problem in this country. It’s called Muslims.”12 And several times

11 throughout 2015 and 2016, he declined to accept that a distinction could be drawn between

12 radical Islam and Islam itself. Asked to clarify: “Is it really a Muslim problem, or is it a radical 13 Islamist problem?” He responded: “Maybe it’s a Muslim problem, maybe it’s not”13 and 14 claimed “[i]t’s very hard to define.”14 Mr. Trump has repeatedly expressed the view that “Islam 15 hates us” and that Muslims have “tremendous hatred” and “unbelievable hatred.”15 Given the

16 opportunity to clarify whether his statement that “Islam hates us” referred to all 1.6 billion

17 8 The White House, Remarks by the Vice President at In Defense of Christians Solidarity Dinner (Oct. 25, 2017),

18

https://www.whitehouse.gov/the-press-office/2017/10/25/remarks-vice-president-defense-christians-solidaritydinner (last visited Dec. 4, 2017). While the order did not appear in the Federal Register until later, it had been

19

announced by the time of Pence’s remarks. 9 David Brody, Brody File Exclusive: Donald Trump Says Something in Koran Teaches a ‘Very Negative Vibe,’

CBN News (Apr. 12, 2011), http://www1.cbn.com/thebrodyfile/archive/2011/04/12/brody-file-exclusive-donald-
20 trump-says-something-in-koran-teaches (last visited Dec. 4, 2017).
10 Id.
21 11 Donald J. Trump, Twitter (Dec. 10, 2015), https://twitter.com/realDonaldTrump/

status/674934005725331456 (last visited Dec. 4, 2017); Donald J. Trump, Twitter (Dec. 10, 2015),
22 https://twitter.com/realDonaldTrump/status/674936832010887168 (last visited Dec. 4, 2017); Donald J. Trump,

Twitter (Dec. 10, 2015), https://twitter.com/realDonaldTrump/status/675123192864899072 (last visited Dec. 4,
23 2017).
12 Jonathan Merritt, Trump’s Proposals Could Backfire on Christians, The Atlantic (Nov. 24, 2015),

24 https://www.theatlantic.com/politics/archive/2015/11/donald-trump-muslims-christians/417255/ (last visited Dec.

4, 2017); Theodore Schleifer, Trump doesn’t challenge anti-Muslim questioner at event, CNN (Sept. 18, 2015),

25 http://www.cnn.com/2015/09/17/politics/donald-trump-obama-muslim-new-hampshire/ (last visited Dec. 4, 2017).
13 CNN Interview of Donald Trump, YouTube (Feb. 4, 2016), https://www.youtube.com/watch?v=uW9UlMqJtro

26 (minutes 18:42 to 18:46) (last visited Dec. 4, 2017).
14 Id.
27 15 Theodore Schleifer, Donald Trump: ‘I think Islam hates us’, CNN (Mar. 10, 2016),
http://www.cnn.com/2016/03/09/politics/donald-trump-islam-hates-us/ (last visited Dec. 4, 2017).

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1 Muslims in the world during one of the presidential debates, he responded: “I mean a lot of

2 them. I mean a lot of them. . . . [T]here’s tremendous hatred. And I will stick with exactly what 3 I said.”16

4

The President’s attack on Muslims has also included the affirmative dissemination of

5 group slander. Most recently, on November 29, 2017, the President promoted three unverified

6 videos published by a British anti-Muslim group depicting violent acts by purportedly Muslim

7 people—at least one of whom it turns out, is not Muslim—with titles intended to provoke

8 anti-Muslim bias. The videos were entitled “Muslim migrant beats up Dutch boy on 9 crutches!,”17 “Muslim Destroys a Statue of Virgin Mary!,”18 and “Islamist mob pushes teenage 10 boy off roof and beats him to death!”19

11

The President’s dissemination of these videos in manifest disregard of their effect or

12 their veracity is but the latest in an unbroken string of anti-Muslim statements and acts while in

13 office. On August 17, 2017, the President promoted his false story that terrorism could be

14 eradicated if suspected terrorists were subject to mass execution with bullets dripped in pigs’

15 blood. Given that this substance viewed as highly offensive by practicing Muslims, the

16 President was implying that “terrorist” is synonymous with “Muslim”: “Study what General

17 Pershing of the United States did to terrorists when caught. There was no more Radical Islamic 18 Terror for 35 years!”20 The statement referred to the following false story, which he recounted

19 on numerous occasions while campaigning:

20

So General Pershing, . . . they catch 50 terrorists in the Philippines . . . And as

you know, swine, pig, . . . a big problem for them, big problem. He took two

21

pigs, they chopped them open. Took the bullets that were going to go and shoot

these men. Took the bullets, the 50 bullets, dropped them in the pigs, swished

22

23 16 Transcript of Republican Debate in Miami, CNN (Mar. 15, 2016),

http://www.cnn.com/2016/03/10/politics/republican-debate-transcript-full-text/ (last visited Dec. 4, 2017).
24 17 Jayda Fransen, Twitter (Nov. 28, 2017), https://twitter.com/JaydaBF/status/935609305574903812 (last visited

Dec. 4, 2017).
25 18 Jayda Fransen, Twitter (Nov. 29, 2017), https://twitter.com/JaydaBF/status/935805606447013888 (last visited

Dec. 4, 2017).
26 19 Jayda Fransen, Twitter (Nov. 29, 2017), https://twitter.com/JaydaBF/status/935775552102981633 (last visited
Dec. 4, 2017).
27 20 Donald J. Trump, Twitter (Aug. 17, 2017), https://twitter.com/realDonaldTrump/
status/898254409511129088 (last visited Dec. 4, 2017).

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them around, so there was blood all over those bullets . . . They put the bullets

1

into the rifles. And they shot 49 men . . . I’m just saying, if we’re going to win,

we’re going to win or let’s not play the game and let’s not be a country any

2

more. They put the bullets in the rifles and they shot 49 of the 50 men. Dead.

Boom. So it was a pig-infested bullet in each one. . . . For 28 years, there was no

3

terrorism. . . . We have to do what we have to do. We have to clean it out.21

4

The President has also spread the false story that thousands of Muslims cheered on

5 rooftops during the September 11, 2011 attacks, claiming: “I watched when the World Trade

6 Center came tumbling down. And I watched in Jersey City, New Jersey, where thousands and

7 thousands of people were cheering as that building was coming down. Thousands of people 8 were cheering.”22 In the face of numerous authorities and articles debunking his claim,23 the 9 President repeated the lie on several occasions.24

10

Significantly, the President’s affirmative efforts to vilify Muslims have often focused

11 specifically on Muslim refugees by equating them with terrorists. He has thus equated being a

12 Syrian refugee with being a terrorist: “[W]e cannot allow people to come into the country who

13 want to destroy us, we cannot do it. We can’t allow the Syrians. We can’t allow the migration 14 of the Syrians into the country.”25 Mr. Trump has also stoked fear of Islam on the basis that his

15

16

17

18 21 FULL Speech: Donald Trump rally in Dayton, OH 3-12-2016, YouTube (Mar. 12, 2016),

19

https://www.youtube.com/watch?v=-9KOAHf4GCw (minutes 43:30 to 43:48) (last visited Dec. 4, 2017); see also Lydia Wheeler, Trump resurrects story of Muslims shot with pig’s blood-dipped bullets, The Hill (Mar. 12, 2016),

http://thehill.com/blogs/blog-briefing-room/news-campaigns/272780-trump-resurrects-story-of-muslims-shot-
20 with-pigs (last visited Dec. 4, 2017); David Mikkelson, Pershing the Thought, Snopes (Apr. 28, 2016),

http://www.snopes.com/rumors/pershing.asp (debunking Mr. Trump’s story about General Pershing) (last visited
21 Dec. 4, 2017).
22 Glenn Kessler, Trump’s outrageous claim that ‘thousands’ of New Jersey Muslims celebrated the 9/11 attacks,
22 Wash. Post (Nov. 22, 2015), https://www.washingtonpost.com/news/fact-checker/wp/2015/11/22/donald-trumps-

outrageous-claim-that-thousands-of-new-jersey-muslims-celebrated-the-911-attacks/ (last visited Dec. 4, 2017).
23 23 See, e.g., Lauren Carroll, Fact Checking Trump’s claim that thousands in New Jersey cheered when World

Trade Center tumbled, Politifact (Nov. 22, 2015), http://www.politifact.com/truth-o-

24 meter/statements/2015/nov/22/donaldtrump/fact-checking-trumps-claim-thousands-new-jersey-ch/ (last visited

Dec. 4, 2017).
25 24 Kessler, supra, note 22; AP Archive, Trump Defends 9/11 Celebrations with Article (Nov. 24, 2015),

http://www.aparchive.com/metadata/US-OH-Trump-CR-/cadcfee1334d2a1fea065ba383ef6f8e (last visited Dec. 4,

26 2017); Donald J. Trump, Twitter (Nov. 25, 2015),
https://twitter.com/realDonaldTrump/status/669682774673137665 (last visited Dec. 4, 2017).
27 25 FULL Speech: Donald Trump rally in Dayton, OH 3-12-2016, YouTube (Mar. 12, 2016),
https://www.youtube.com/watch?v=-9KOAHf4GCw (minutes 42:45 to 46:45) (last visited Dec. 4, 2017).

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1 election opponent would “let the Muslims flow in”26 and stoked fear that “[r]efugees are trying 2 to take over our children” by telling them “how wonderful Islam is.”27

3

B. The President Has Expressly Stated His Intent To Curtail The Rights Of

Muslims, Including By Restricting Their Entry To The United States.

4

The President has also made clear his express intent to curtail the rights of Muslims in

5 various ways—including most notably to restrict their entry into the United States and to do so

6 in part by banning refugees.

7 Indeed, the signature promise of his campaign has always been that he would restrict

8 the entry of Muslims into the United States. He has further prioritized a ban on prohibiting the

9 entry of Muslim refugees. From the early days of his Presidential campaign, Mr. Trump

10 promised that, if elected, he would “be looking at” getting “rid of” Muslims.28 On December 7,

11 2015, Mr. Trump announced on his website: “Donald J. Trump is calling for a total and

12 complete shutdown of Muslims entering the United States.”29 The same day that Mr. Trump

13 issued this announcement, he also disseminated it to his millions of Twitter followers with the

14 title “Statement on Preventing Muslim Immigration”30 and, further equating Muslims with

15 hatred and terror, he tweeted, “Just put out a very important policy statement on the

16 extraordinary influx of hatred & danger coming into our country.”31 At a rally the same day,

17 Mr. Trump claimed numerous times that “[w]e have no choice” but to implement “a total and

18 complete shutdown of Muslims.”32 Asked how border officials would ideally implement his

19

26 Donald J. Trump, Twitter (Mar. 22, 2016), https://twitter.com/realDonaldTrump/
20 status/712473816614772736 (last visited Dec. 4, 2017).
27 Donald Trump Remarks in Manchester, New Hampshire, C-SPAN (Jun. 13, 2016), https://www.c-
21 span.org/video/?410976-1/donald-trump-delivers-remarks-national-security-threats (minutes 20:05 to 20:30) (last

visited Dec. 4, 2017).
22 28 See Schleifer, supra note 12.
29 Press Release, Trump-Pence, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015),
23 https://web.archive.org/web/20170508054010/

https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration

24 (Internet Archive record on May 8, 2017) (last visited Dec. 4, 2017).
30 Donald J. Trump, Twitter (Dec. 7, 2015), https://twitter.com/realDonaldTrump/

25 status/673993417429524480 (last visited Dec. 4, 2017).
31 Donald J. Trump, Twitter (Dec. 7, 2015), https://twitter.com/realdonaldtrump/status/673982228163072000 (last

26 visited Dec. 4, 2017).
32 Donald J. Trump is Calling for a Total and Complete Shutdown of Muslims Entering the United States Until

27 Our Country’s Representatives Can Figure Out What the Hell is Going On!, YouTube (Dec. 8, 2015),
https://www.youtube.com/watch?v=LRxozK6Bpvk (minutes 0:00 to 0:36) (last visited Dec. 4, 2017).

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Case 2:17-cv-00178-JLR Document 71 Filed 12/06/17 Page 13 of 23

1 plan, Mr. Trump explained: “They would say, ‘are you Muslim?’” and that “if they said yes, 2 they would not be allowed in the country.”33 His complete equation of terrorism with a faith of

3 1.6 billion people, including approximately 3.3 million American citizens, is clear.

4

The President has also advocated for a registry of all Muslims in America in the teeth of

5 direct comparisons to the Nazis’ registration of Jewish people. On November 20, 2015, for

6 instance, Mr. Trump stated that he would “certainly implement” a database tracking Muslims in 7 the United States.34 Asked whether he would favor making Muslims legally obligated to 8 register into the database, Mr. Trump responded, “They have to be—they have to be.”35 Again,

9 given the opportunity to clarify whether he was “ruling out a database on all Muslims?”, Mr. 10 Trump doubled down, stating “No not at all.” 36 And, perhaps most appallingly, when asked

11 how registering Muslims would be different from the Nazis’ registration of Jewish people, he 12 expressed indifference, saying four times: “You tell me.”37

13

The President even went so far as to expressly justify his intent to restrict the flow of

14 Muslims by reference to executive orders targeting Japanese Americans during World War II,

15 saying: “Take a look at Presidential proclamations back a long time ago . . . what [President 16 Roosevelt] was doing with Germans, Italians, and Japanese because he had to do it.”38 When

17 asked whether he was given “any pause at all” by being compared to Hitler, Mr. Trump 18 responded “No,”39 and justified banning Muslims based on President Roosevelt’s treatment of

19

20 33 Donald Trump On Muslim Travel Ban, Obama And 2016, YouTube (Dec. 8, 2015),

https://www.youtube.com/watch?v=5I3E3-U-1jc (minutes 14:58 to 15:14) (last visited Dec. 4, 2017); Hardball
21 with Chris Matthews Transcript 12/8/15, MSNBC (Dec. 8, 2015),

http://www.msnbc.com/transcripts/hardball/2015-12-08 (last visited Dec. 4, 2017).
22 34 Vaughn Hillyard, Donald Trump’s Plan for a Muslim Database Draws Comparison to Nazi Germany, NBC

News (Nov. 20, 2015), http://www.nbcnews.com/politics/2016-election/trump-says-he-would-certainly-
23 implement-muslim-database-n466716 (last visited Dec. 4, 2017).
35 Id.
24 36 See Lauren Carroll, In Context: Donald Trump’s comments on a database of American Muslims, Politifact (Nov.

24, 2015), http://www.politifact.com/truth-o-meter/article/2015/nov/24/donald-trumps-comments-database-

25 american-muslims/ (last visited Dec. 4, 2017).
37 See Hillyard, supra note 34.
26 38 Donald Trump On Muslim Travel Ban, Obama And 2016, YouTube (Dec. 8, 2015),
https://www.youtube.com/watch?v=5I3E3-U-1jc (minutes 00:46 to 01:03) (last visited Dec. 4, 2017).
27 39 Miriam Hernandez, Trump Cites History to Defend Muslim Immigration Ban, ABC 7 (Dec. 9, 2015),
http://abc7.com/politics/trump-cites-history-to-defend-muslim-immigration-ban/1116396/ (Dec. 4, 2017).

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1 Japanese Americans.40 Two days later, Mr. Trump defended his position by tweeting a link to

2 an article stating that Islam is a “very evil and wicked religion,” a “false religion,” advocating

3 that Muslims should be banned, and making further analogy to the treatment of Japanese during 4 World War II.41

5

As part of advocating a ban on entry of nationals from predominately Muslim countries,

6 the President consistently embraced a ban on refugees, and Syrian refugees in particular,

7 describing the latter as “one of the great Trojan horses” and saying that “[w]e cannot let them 8 into this country, period.”42 On numerous occasions, he urged that refugees should be banned

9 because “[t]hey may be from Syria, they may be ISIS” and stoked fear that “[t]his is a

10 migration, they have no anything, but they have cellphones — with ISIS flags on them and 11 worse.”43 He claimed that the United States had accepted “tens of thousands of Syrian refugees 12 . . . who are definitely in many cases ISIS aligned.”44

13

C. The President Has Reaffirmed His Discriminatory Intent On Numerous

Occasions Since Taking Office.
14 Mr. Trump has never backed down from his hateful statements and pledges since

15 assuming the Office of the President; in fact, he has repeatedly reaffirmed them. As discussed

16 above, as President, Mr. Trump has expressly stated that he would implement policy to favor

17 Christian refugees; affirmatively shared propaganda videos depicting purported violence by

18 Muslims without regard to their authenticity or their defamatory consequences for innocent

19 Muslims; and promoted propaganda such as his false story of a mass execution of terrorists

20

21 40 Id.
41 Donald J. Trump, Twitter (Dec. 10, 2015), https://twitter.com/realDonaldTrump/
22 status/675034063447662592 (last visited Dec. 4, 2017); see also Sarah Larimer, Why Franklin Graham says

Donald Trump is right about stopping Muslim immigration, Wash. Post (Dec. 10, 2015),
23 https://www.washingtonpost.com/news/acts-of-faith/wp/2015/12/10/why-franklin-graham-says-donald-trump-is-

right-about-stopping-muslim-immigration/ (last visited Dec. 4, 2017).
24 42 Tal Kopan, Donald Trump: Syrian refugees a ‘Trojan horse’, CNN (Nov. 16, 2015),

http://www.cnn.com/2015/11/16/politics/donald-trump-syrian-refugees/index.html (last visited Dec. 4, 2017).
25 43 Ben Kamisar, Trump to Syrian refugee children: ‘You can't come here’, The Hill (Feb. 8, 2016),

http://thehill.com/blogs/ballot-box/gop-primaries/268614-trump-to-syrian-refugee-children-you-cant-come-here

26 (last visited Dec. 4, 2017).
44 Trump: Taking in Syrian Refugees ‘Great Trojan Horse’, MSNBC (Oct. 19, 2016)

27 http://www.msnbc.com/msnbc-quick-cuts/watch/trump-taking-in-syrian-refugees-great-trojan-horse-
789644867592 (last visited Dec. 4, 2017).

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1 using weapons dipped in pigs’ blood. Continuing his discriminatory rhetoric specific to Muslim

2 migrants, the President has also repeated his oft-expressed view that “[t]he assimilation [of 3 Muslims in the U.S.] has been very, very hard. It’s been a very, very difficult process.”45

4

Senior members of the Trump Administration have expressly acknowledged that his

5 executive orders, including the present one, are motivated by negative stereotypes caricaturing

6 all Muslims as terrorists. Following the issuance of Refugee Ban 3.0, the President’s Deputy

7 Press Secretary was recently, squarely asked: “Does the President think that Muslims are a

8 threat to the United States?” Acknowledging the basis for the Refugee Ban in religious

9 stereotype, he responded, “[T]he President has addressed these issues with the travel order 10 that he issued earlier this year and the companion proclamation.”46

11

The President himself has made this discriminatory intent just as clear. After courts

12 enjoined EO-1, which included provisions limiting refugee admission and banning refugees

13 from certain countries, the President expressly complained that the refugees being admitted to

14 the United States as a result included a large percentage of Muslims, tweeting: “72% of

15 refugees admitted into U.S. (2/3-2/11) during COURT BREAKDOWN are from 7 countries: 16 SYRIA, IRAQ, SOMALIA, IRAN, SUDAN, LIBYA & YEMEN.”47 Following his issuance of

17 EO-2—and in the direct lead up to the present order—the President repeatedly derided his own 18 Department of Justice for taking an approach that was too “politically correct.”48 The only

19 plausible interpretation of that criticism is that the President understands his executive orders as

20 “politically incorrect,” i.e., based on an anti-Muslim presumption. He has also stated his view

21

22

45 Chris Cillizza, Donald Trump’s explanation of his wire-tapping tweets will shock and amaze you, Wash. Post
23 (Mar. 16, 2017), https://www.washingtonpost.com/

news/the-fix/wp/2017/03/16/donald-trump-explained-twitter-the-universe-and-everything-to-tucker-carlson/ (last

24 visited Dec. 4, 2017).
46 The White House, Press Gaggle by Principal Deputy Press Secretary Raj Shah en route St. Louis, MO

25 (November 29, 2017) (emphasis added), https://www.whitehouse.gov/the-press-office/2017/11/29/press-gaggle-

principal-deputy-press-secretary-raj-shah-en-route-st-louis (last visited Dec. 4, 2017).
26 47 Donald J. Trump, Twitter (Feb. 12, 2017), https://twitter.com/realDonaldTrump/status/830747067379232769
(last visited Dec. 4, 2017).
27 48 Donald J. Trump, Twitter (June 5, 2017), https://twitter.com/realDonaldTrump/
status/871899511525961728 (last visited Dec. 4, 2017).

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1 that “The travel ban into the United States should be far larger, tougher and more specific.”49

2 This is precisely what he has done with Refugee Ban 3.0, which makes the ban on refugees

3 indefinite and has an especially drastic impact on Muslim refugees.

4 II. 5 6

THE PREDECESSOR ORDERS THAT PRECEDED AND GAVE RISE TO REFUGEE BAN 3.0 WERE MOTIVATED ON THEIR FACE BY ANTIMUSLIM ANIMUS.
Refugee Ban 3.0 is a continuation and expansion of the temporary refugee suspensions

7 in EO-1 and EO-2. Both of those predecessors contained on their face evidence of anti-Muslim

8 animus. EO-1 prioritized the processing of refugee applications from religious minorities, a

9 provision that, by the President’s own admission, was designed to benefit Christian refugees

10 from Muslim-majority countries. And both EO-1 and EO-2 made explicit reference to “honor

11 killings,” an attempt to communicate anti-Muslim animus that is wholly unrelated to national

12 security. Refugee Ban 3.0 flows directly from these openly discriminatory orders, and is

13 motivated by the same anti-Muslim animus that animated its predecessors.

14

A. The Refugee Ban Provision Of EO-1 Included A Priority Designed To

Benefit Christian Refugees In Muslim-Majority Nations At The Expense Of

15

Muslim Refugees.

16

EO-1 explicitly required that refugee admissions be “prioritize[d]” if the refugee made a

17 claim “on the basis of religious-based persecution.”50 However, this priority was only available

18 if “the religion of the individual is a minority religion in the individual’s country of 19 nationality.”51 As the President explained in public statements made the day he signed EO-1,

20 this provision was designed to favor Christians, and to allow Christians from Muslim-majority 21 countries the ability to continue coming to the United States as refugees.52 Further, EO-2

22 eliminated the explicit reference to religious minorities but continued to operate as a ban on

23

24

25
49 Donald J. Trump, Twitter (Sept. 15, 2017), https://twitter.com/realDonaldTrump/

26 status/908645126146265090 (last visited Dec. 4, 2017).
50 82 F.R. 8977 § 5(b) (Jan. 27, 2017).

27

51 Id. 52 See Part I.A., supra

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1 Muslims, changing the religious composition of refugees entering the United States—from 2 50% Muslim and 41% Christian to 57% Christian and 31% Muslim.53

3

B. Both EO-1 And EO-2 Refer To “Honor Killings”—A Term Used

Commonly And Almost Exclusively To Denigrate Muslims.
4 In addition to the specific exception designed to disfavor Muslim refugees, the texts of

5 both EO-1 and EO-2 contain on their face language that reveals an invidious anti-Muslim intent

6 and is otherwise inexplicable. Both invoke, as justification, the practice of “honor killings”—

7 the homicide of a family member, typically female, due to the perpetrator’s belief that the

8 victim has shamed the family, usually by violating a religious tenet. Yet the idea of an “honor

9 killing” is wholly unrelated to the problem of international terrorism. Instead, it is deployed in

10 current political discourse as a coded message to invoke and reinforce animus against Muslims

11 by painting them as violent and uncivilized. Expressions of concern about “honor killings” are

12 hence not neutral references to all gender-based violence: they are a means of affirming and

13 propagating anti-Muslim stereotypes upon which the President and his surrogates have relied to

14 justify banning the entry of Muslims in the United States.

15 In EO-1, the term “honor killings” appears in the very first section as part of the

16 motivation for the order to prohibit “those who engage in acts of bigotry or hatred . . . including

17 ‘honor’ killings” from entering the United States. EO-1 § 1. EO-1 further required that the

18 Secretary of Homeland Security collect data on “‘honor killings’ in the United States by foreign

19 nationals.” Id. § 10(iii). EO-2 reiterated this command. EO-2 § 11(a)(iii) (requiring that the

20 Secretary of Homeland Security “collect and make publicly available . . . information regarding

21 the number and types of acts of gender-based violence against women, including so- called

22 ‘honor killings,’ in the United States by foreign nationals”) (emphasis added).

23 These references are inexplicable given the putative purpose of the two orders. There is

24 no known association between the incidence of “honor killings” and the likelihood that a

25

26

27 53 (Cmpl. ¶ 89.)

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1 government of one of the covered nations will supply information requested by U.S.

2 immigration authorities.

3

There is no correlation between Islam and intrafamilial violence against women.54

4 While regional rates vary, the incidence of intrafamilial violence exceeds 19 percent 5 everywhere in the world except East Asia.55 To the extent the term “honor killings” isolate a

6 specific subcategory of domestic violence, “[h]onor crimes are committed worldwide and . . . 7 cu[t] across cultures and religions.”56 Nor do Muslims condone such violence more often than 8 non-Muslims.57 To the contrary, Muslim religious leaders have repeatedly and forcefully 9 condemned violence against women.58

10

Despite all this, the term “honor killing” is used in current political discourse almost

11 exclusively to refer to Muslims, and thereby to promote that Muslims are distinctively violent

12 and uncivilized. There is a “constant association” of honor killings stories with “the Middle

13 East and South Asia, or immigrant communities originating in these regions, [which] has given 14 them a special association with Islam.”59

15

Individuals and groups with anti-Muslim biases commonly invoke so-called “honor

16 crimes” as a phenomenon that supposedly “divides civilized societies from uncivilized

17 54 K.M. Devries et al., The Global Prevalence of Intimate Partner Violence Against Women, 340 Science 1527,

18

1527 (2013) (estimating that 30 percent of women “aged 15 and over have experienced, during their lifetime, physical and/or sexual intimate partner violence”).

19

55 Id. at 1528. 56 Brittany E. Hayes et al., An Exploratory Study of Honor Crimes in the United States, 31 J. Fam. Violence 303,

304 (2016); Aisha Gill, Honor Killings and the Quest for Justice in Black and Minority Ethnic Communities in the
20 United Kingdom, 20 Crim. Just. Pol’y Rev. 475, 480 (2009) (“Honor killings cut across ethnic, class, and religious

lines [and are committed] not only by Muslims but also by Druze, Christians, and occasionally Jews.”).
21 57 The Gallup Coexist Index 2009: A Global Study of Interfaith Relations 34 (2009), https://ec.europa.eu/migrant-

integration/librarydoc/the-gallup-coexist-index-2009-a-global-study-of-interfaith-relations (last visited Dec. 4,
22 2017).
58 See, e.g., Paola Loriggio, Shafia Murders: Imams Issue Fatwa Against Honour Killings, Domestic Violence,
23 Huffington Post (Feb. 4, 2012), http://www.huffingtonpost.ca/2012/02/04/honour-killi%20ng-imams-fatwa-

against_n_1254697.html (last visited Dec. 4, 2017) (Rather than condoning gender- based violence, “Islam and

24 Islamic law . . . [over time] are coming to be invoked more and more against honor crimes.”); Lila Abu-Lughod,

DO MUSLIM WOMEN NEED SAVING? 139 (2013); Gill, supra, at 480 (“[B]oth Sharia law (Islamic law) and

25 customary law alike have strict guidelines forbidding [honor killings].”).
59 Abu-Lughod, supra fn. 58, at 114; accord Sherene Razack, CASTING OUT: THE EVICTION OF MUSLIMS FROM

26 WESTERN LAW AND POLITICS 128 (2008) (explaining how the same crime is labeled a crime of “passion” or of
“honor” depending on the religious identity of the perpetrator in a way that “reifies Muslims as stuck in

27 premodernity”); Inderpal Grewal, Outsourcing Patriarchy: Feminist Encounters, Transnational Mediations and
the Crime of ‘Honour Killings,’ 15 Int’l Feminist J. Pol. 1, 5 (2013).

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1 societies,”60 notwithstanding the pervasive occurrence of intrafamilial violence against women 2 across cultures.61 Anti-Muslim organizations and websites commonly depict Muslims as

3 “inherently violent” and prone to “rape, sexual abuse against children, violent acts caused by a

4 culture of honour, violence within arranged marriages, threats against public individuals and 5 physical violence against non-Muslims.”62

6

Coded stereotypes like these have frequently been used against disfavored minorities in

7 U.S. politics. For example, Jim Crow was defended by “coded” appeals to white supremacy 8 framed in terms of “African-Americans’ illegitimate sexual relations and proclivity to crime.”63 9 Coded invocations of racial fears are still employed in political debate.64 The use of “subtle”

10 allusions to negative stereotypes has been shown to reap political rewards because dog whistles 11 “activate racial attitudes” while maintaining a measure of deniability.65 That is precisely the

12 function the reference to “honor killings” in EO-1 and EO-2 plays.

13

In sum, neither EO-1’s nor EO-2’s reference to “honor killings” can be written off as

14 neutral nor superfluous. Instead, they are invocations of common negative stereotypes used to

15 malign Muslims as violent and uncivilized—precisely the same negative, hateful, and false

16 stereotypes that President Trump has conjured before and after inauguration. Such references

17 undermine the purported justifications for those orders, and Refugee Ban 3.0 that followed and

18 rendered these measures into permanent law, and show all to reflect impermissible animus

19 against Muslims.

20

21

22

60 Id. at 115.
23 61 Devries, supra, at 1528
62 Mattias Ekman, Online Islamophobia and the Politics of Fear: Manufacturing the Green Scare, 38 Ethnic &

24 Racial Stud. 1986, 1995 (2015) (emphasis added).
63 Tali Mendelberg, THE RACE CARD: CAMPAIGN STRATEGY, IMPLICIT MESSAGING, AND THE NORM OF EQUALITY

25 94-95 (2001).
64 Jon Hurwitz & Mark Peffley, Playing the Race Card in the Post–Willie Horton Era: The Impact of Racialized

26 Code Words on Support for Punitive Crime Policy, 69 Pub. Opinion Q. 99 (2005) (demonstrating the racially
loaded effect of crime-related language).
27 65 Nicholas A. Valentino et al. Cues That Matter: How Political Ads Prime Racial Attitudes During Campaigns,
96 Am. Pol. Sci. Rev. 75, 75–76 (2002).

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III. REFUGEE BAN 3.0 IS A DIRECT CONTINUATION OF EO-1 AND EO-2 AND

1

IS MOTIVATED BY THE SAME ANTI-MUSLIM ANIMUS.

2

Refugee Ban 3.0, like its precursors, discriminates against Muslim refugees. Refugee

3 Ban 3.0 was enacted the day after the refugee ban provision of EO-2 expired and is clearly 4 intended to continue the policies that EO-1 and EO-2 originally put in place.66 It consists of two

5 main provisions: first, a provision that suspends refugee admissions from eleven countries, the

6 overwhelming majority of which are Muslim; and second, a provision that suspends the

7 “follow-to-join” process permitting a spouse or child to be reunited with a refugee already

8 admitted to the United States, which in operation today tends largely to be used by Muslim

9 refugees. Each of these steps furthers the stated anti-Muslim policies of the Trump

10 administration and reflects the discriminatory animus evidenced in EO-1 and EO-2.

11

Refugee Ban 3.0 suspends refugee admissions from eleven countries that comprise the

12 majority of the Muslim refugees entering the United States. As the Complaint alleges, the

13 eleven countries affected by the suspension include nine countries with a population that is over

14 85% Muslim (Egypt, Iran, Iraq, Libya, Mali, Somalia, Sudan, Syria, and Yemen), and two 15 other countries (North Korea and South Sudan).67 In the last two fiscal years, the nine Muslim16 majority countries accounted for 80% of the Muslim immigrants to the United States,68 and 17 over 80% of the refugees resettled from those countries have been Muslim.69 By contrast, the

18 refugees admitted from countries not targeted by Refugee Ban 3.0 are 70% Christian and only 19 16% Muslim.70 The suspension thus operates to shift the composition of refugees admitted to

20 the United States from mostly Muslim to mostly Christian, nearly as efficiently as possible, by

21 using countries as a proxy for religion.

22

23

24 66 (Cmpl. ¶ 94); section I(C) supra.
67 (Cmpl. ¶ 103-104.) Many of these countries have been repeatedly targeted by the previous Executive Orders; for

25 example, six of these Muslim-majority countries were included in the travel bans of both EO-1 and EO-2 (Syria,

Sudan, Iran, Libya, Somalia, and Yemen). (Cmpl. ¶ 79); EO-2 § 2(c).
26 68 (Cmpl. ¶ 106)
69 (Cmpl. ¶ 105)
27 70 (Cmpl. ¶ 111); (Declaration of Casey Smith in Support of Plaintiff’s Motion for Preliminary Injunction (“Smith
Decl.”), Dkt. No. 44, ¶ 19).

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1

Refugee Ban 3.0 also indefinitely suspends the “follow-to-join” process, whereby the

2 spouse or child of a refugee accepted into the United States is permitted to join them. Memo at

3 3. Although this suspension applies worldwide, it has a disproportionate effect on Muslim

4 refugees: Follow-to-join is generally available only to family members of refugees admitted 5 within the last two years.71 Over the last two fiscal years, most refugees admitted to the United 6 States have been Muslim.72 Even prior to the recent increase in the number of Muslim refugees

7 admitted to the United States, Iraq and Somalia—two predominantly Muslim countries targeted

8 by the refugee and travel bans—were the nationalities most represented in the follow-to-join

9 process. Memo Addendum at 1.

10

Understood in context, therefore, Refugee Ban 3.0 is plainly the President’s

11 implementation of a longstanding pledge to prevent the entry of Muslims to the U.S.—

12 including specifically by restricting the flow of Muslim refugees—on the basis of an invidious

13 and false belief that equates Islam and violence. It plainly embodies the same anti-Muslim

14 animus that was expressly indicated in the predecessor orders that gave rise to Refugee Ban 3.0

15 in the first place. This Court should not allow it to be implemented.

16

CONCLUSION

17

For the foregoing reasons, amici urge this Court to grant Plaintiffs’ motion for a

18 Preliminary Injunction.

19

20

21

22

23

24

25

26

27

71 8 C.F.R. § 207.7(d). 72 (Smith Decl. ¶ 21.)

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 16
4825-5264-3672v.2 0050033-001543

Davis Wright Tremaine LLP
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Case 2:17-cv-00178-JLR Document 71 Filed 12/06/17 Page 22 of 23

1

DATED this 6th day of December, 2017.

2

Muslim Advocates

3

By: /s/ Sirine Shebaya

Johnathan J. Smith, pro hac vice

4

Sirine Shebaya, pro hac vice

Matthew W. Callahan, pro hac vice

5

P.O. Box 66408

Washington, DC 20035

6

Telephone: (202) 897-2622

Fax: (202) 508-1007

7

E-mail: johnathan@muslimadvocates.org

E-mail: sirine@muslimadvocates.org

8

E-mail: matthew@muslimadvocates.org

9

The Roderick & Solange MacArthur Justice

10

Center

11

By: /s/ Amir H. Ali

Amir H. Ali, pro hac vice

12

718 7th Street NW

Washington, DC 20001

13

Telephone: (205) 869-3434

Fax: (206) 689-3435

14

E-mail: amir.ali@macarthurjustice.org

15

Aziz Huq

16

Attorney For Muslim Advocates

17

By: /s/ Aziz Huq

Aziz Huq, pro hac vice

18

1111 E. 60th Street

Chicago, IL 60622

19

Telephone: (773) 702-9566

Fax: (773) 702-9566

20

E-mail: huq@uchicago.edu

21

Davis Wright Tremaine LLP

22

Attorneys for Muslim Advocates and The

Roderick & Solange MacArthur Justice Center 23

By: /s/ Joseph P. Hoag

24

Joseph P. Hoag, WSBA #41971

1201 Third Avenue, Suite 2200

25

Seattle, WA 98101-3045

Telephone: (206) 757-8080

26

Fax: (206) 757-7080

E-mail: josephhoag@dwt.com 27

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 17
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Case 2:17-cv-00178-JLR Document 71 Filed 12/06/17 Page 23 of 23

1

CERTIFICATE OF SERVICE

2

I hereby certify that on December 6, 2017, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to those

4 attorneys of record registered on the CM/ECF system. All other parties (if any) shall be served in

5 accordance with the Federal Rules of Civil Procedure.

6

Dated this 6th date of December, 2017.

7

/s/ Matthew W. Callahan

8

Matthew W. Callahan

9

10

11

12

13

14

15

16

17

18

19

20

21

22

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24

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27

BRIEF OF AMICI CURIAE MUSLIM ADVOCATES AND THE MACARTHUR JUSTICE CENTER - CASE NO. 2:17-CV-01707-JLR - 18
4825-5264-3672v.2 0050033-001543

Davis Wright Tremaine LLP
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 Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 1 of 34

The Honorable James L. Robart 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 JOHN DOE, et al.,

Civil Action No. 2:17-cv-00178JLR

11

Plaintiffs,

12

v.

13 DONALD TRUMP, et al.,

14

Defendants.

15 JEWISH FAMILY SERVICE OF
16 SEATTLE, et al.,

17

Plaintiffs,

18

v.

19 DONALD TRUMP, et al.,

20

Defendants.

Civil Action No. 2:17-cv-01707JLR
DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND RESPONSE TO SUPPLEMENTAL STATEMENTS FILED IN BOTH CASES

21

22

23

24

25

26

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 2 of 34

1

TABLE OF CONTENTS

2 INTRODUCTION ....................................................................................................................... 1
3
BACKGROUND ......................................................................................................................... 3 4
5 STANDARD OF REVIEW ......................................................................................................... 5

6 ARGUMENT ............................................................................................................................... 5

7 I.

PLAINTIFFS’ CHALLENGES ARE NOT JUSTICIABLE........................................... 5

8

A. The Individual Plaintiffs Lack Article III Standing ............................................. 5

9

B. The Organizational Plaintiffs Lack Article III Standing...................................... 8

10

C. Plaintiffs’ Claims Are Barred By Principles Of Nonreviewability ................... 10

11

1. Plaintiffs’ Statutory Claims Are Not Reviewable.................................. 10

12

2. Plaintiffs’ Establishment Clause Claim Is Likewise Not

13

Reviewable............................................................................................. 12

14

D. Plaintiffs Cannot Otherwise Proceed Under The APA...................................... 14

15 II. PLAINTIFFS’ CLAIMS ARE NOT LIKELY TO SUCCEED ON THE MERITS ..... 15

16

A. The Joint Memorandum’s SAO Provision Does Not Violate The APA Or

INA .................................................................................................................... 16 17

18

1. The Government May Temporarily Prioritize Admission Resources While Conducting A Threat Analysis .................................. 16

19

2. Plaintiffs Cannot Show An APA Procedural Violation ......................... 18

20 3. The Joint Memorandum’s SAO Provision Is Neither Arbitrary Nor

21

Capricious .............................................................................................. 20

22

4. The Joint Memorandum’s SAO Provision Is Consistent With The

INA ........................................................................................................ 22 23

24

B. The Joint Memorandum Does Not Violate the Establishment Clause .............. 24

25

1. The Joint Memorandum Is Valid Under Mandel ................................... 24

26

2. Plaintiffs’ Claims Fail Even Apart From The Mandel Standard ........... 25

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - i Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 3 of 34

1 III. THE REMAINING FACTORS WEIGH AGAINST INJUNCTIVE RELIEF ............. 27 2 IV. A GLOBAL INJUNCTION WOULD BE INAPPROPRIATE..................................... 28 3 CONCLUSION.......................................................................................................................... 29 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - ii Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 4 of 34

1

INTRODUCTION

2

Plaintiffs ask the Court to preliminarily enjoin two provisions of a Joint Memorandum

3 issued by multiple Cabinet Secretaries regarding the operation of the U.S. Refugee Admissions 4 Program (USRAP).1 First, Plaintiffs challenge the joint determination by the Secretaries of State

5 and Homeland Security and Director of National Intelligence that a further review is needed of

6 eleven countries of origin for which certain refugee applicants are currently subject to Security

7 Advisory Opinions (SAOs). During this review (scheduled to last 90 days), the agencies will

8 “temporarily prioritize refugee applications from other non-SAO countries,” but will also consider

9 for admission those from SAO countries on a case-by-case basis. Joint Mem. at 2; Joint Mem.

10 Addendum at 3-4. Second, Plaintiffs seek to enjoin a provision regarding following-to-join

11 refugees. Such refugee applicants are not currently subject to the same screening and vetting

12 procedures as other refugee applicants. To ensure the security and welfare of the United States,

13 the Secretaries directed their agencies to implement screening procedures for following-to-join

14 refugees that are similar to those already used for principal refugees. During this implementation

15 period, while the Departments of Homeland Security and State and their vetting partners make

16 the necessary operational changes, following-to-join refugees processed at most locations will not

17 be admitted to the United States. Admissions will resume once the procedures are in place.

18

As a preliminary matter, the Court should not even consider Plaintiffs’ motion at this time.

19 In two orders issued simultaneously on December 4, 2017, the Supreme Court stayed injunctions

20 against enforcement of the “Presidential Proclamation Enhancing Vetting Capabilities for

21 Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” 22 (hereafter “Proclamation”).2 Lower courts had enjoined enforcement of the Proclamation based

23

24

1 See Joint Memorandum to the President from the Secretary of State, Acting Secretary of

Homeland Security, and Director of National Intelligence (Oct. 23, 2017) (ECF No. 43-1 (Exhibit

25 B)) [hereafter “Joint Mem.”]. Except where otherwise noted, docket numbers refer to pre-

consolidation filings in the Jewish Family Service case, No. 2:17-cv-1707 (JLR).

26

2 See Order, Trump v. IRAP, No. 17A560, 2017 WL 5987435 (U.S. Dec. 4, 2017); Order,

Trump v. Hawaii, No. 17A550, 2017 WL 5987406 (U.S. Dec. 4, 2017).

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 1 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 5 of 34

1 on some of the same claims that Plaintiffs raise with respect to the Joint Memorandum. As the

2 Government will explain more fully in a supplemental brief to be filed on December 11, 2017

3 (pursuant to this Court’s Order), just as the Supreme Court concluded that the Government may

4 enforce the Proclamation, the Court would very likely conclude that the Government may enforce

5 the challenged provisions of the Joint Memorandum as well.

6

Apart from this recent Supreme Court guidance, Plaintiffs’ claims fail because they are

7 not justiciable. Plaintiffs fail to satisfy threshold Article III requirements. Further, based on

8 fundamental principles of non-reviewability, Plaintiffs cannot pursue their statutory claims. The

9 Plaintiffs who are aliens outside the United States lack constitutional rights under the

10 Establishment Clause, whereas the Plaintiffs located in the United States have not alleged

11 cognizable violations of their individual constitutional rights. Moreover, Plaintiffs cannot

12 proceed under the Administrative Procedure Act (APA) because the Joint Memorandum is not

13 final agency action, and the decision to admit refugees is committed to agency discretion.

14

Even if Plaintiffs could overcome these jurisdictional hurdles, their claims fail on the

15 merits. With respect to the SAO provision (and not the following-to-join provision), Plaintiffs

16 argue that the Government lacks authority to implement that provision, that the provision violates

17 the APA because it needed to undergo notice-and-comment rulemaking and is arbitrary and

18 capricious, and that the provision conflicts with the Immigration and Nationality Act (INA). But

19 Plaintiffs ignore the wide discretion Congress vested in the Government over admission of

20 refugees and misunderstand the INA. Also, notice-and-comment rulemaking was not necessary

21 because the SAO provision is a procedural rule and falls within the APA’s foreign affairs

22 exception, and Plaintiffs cannot show that the Cabinet Secretaries acted arbitrarily and

23 capriciously in deciding to temporarily prioritize resources for non-SAO countries while they

24 “conduct a detailed threat analysis” of SAO countries for 90 days “to determine what additional

25 safeguards, if any, are necessary” to protect national security and the welfare of the United States.

26 Joint Mem. at 2. Plaintiffs also bring an Establishment Clause claim, arguing that both the SAO

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 2 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 6 of 34

1 provision and following-to-join provision are unconstitutional. But that constitutional claim is

2 governed by, and fails under, Kleindienst v. Mandel, 408 U.S. 753 (1972), as the Joint

3 Memorandum’s national-security foundation is plainly “facially legitimate and bona fide.” Id. at

4 770. And because the operative policy here is the Joint Memorandum, the relevant

5 decisionmakers are the Secretaries of State and Homeland Security and the Director of National

6 Intelligence. Plaintiffs have not alleged—much less demonstrated—that these decisionmakers

7 were motivated by animus in deciding to implement the Joint Memorandum.

8

BACKGROUND

9

Section 6(a) of Executive Order No. 13,780, titled Protecting the Nation from Foreign

10 Terrorist Entry into the United States (“EO-2”), directed the Secretaries of State and Homeland

11 Security to suspend travel of refugees and decisions on refugee applications under the USRAP,

12 pending a review of existing procedures. See 82 Fed. Reg. 13,209, 13,215 (Mar. 6, 2017). This

13 suspension was necessary to allow the Secretaries, in consultation with the Director of National

14 Intelligence, to “determine what additional procedures should be used to ensure that individuals

15 seeking admission as refugees do not pose a threat to the security and welfare of the United

16 States.” EO-2 § 6(a). During this suspension period, the agencies identified multiple ways to

17 enhance the refugee vetting process, and began implementing some of those improvements. This

18 review and implementation process proceeded in parallel with, and drew upon, a broader review

19 of the visa admission process also prescribed by EO-2. See Joint Mem. at 1.

20

Section 6(a) also provided that, at the conclusion of the review period, refugee travel and

21 USRAP adjudications would resume for stateless persons and nationals of countries for which the

22 officials “determined that the additional procedures implemented . . . are adequate to ensure”

23 national security and the welfare of the United States. On October 23, 2017, the Secretaries

24 advised the President, through a Joint Memorandum, that the improvements to the USRAP vetting

25 process were sufficient to allow the general resumption of that program, subject to conditions.

26

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 3 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 7 of 34

1

Plaintiffs seek to enjoin two conditions here. They first challenge the Secretaries’

2 determination that further review is needed for eleven countries of origin for which certain refugee

3 applicants are subject to SAOs because those countries were found, as of 2015, to pose an elevated

4 national-security risk to the United States. See Joint Mem. at 2; Joint Mem. Addendum at 3-4.

5 During this 90-day review period, the agencies will “temporarily prioritize refugee applications

6 from other non-SAO countries,” for whom processing may not require as many resources. Joint

7 Mem. at 2; Joint Mem. Addendum at 3-4. Applicants from the eleven countries may still be

8 considered for admission on a case-by-case basis. Joint Mem. at 2; Joint Mem. Addendum at 3.

9

Plaintiffs also challenge the Joint Memorandum’s provision that addresses the different

10 screening procedures currently applied to most “following-to-join” refugee applicants, eligible

11 family members of a “principal” refugee who has already resettled in the United States. See Joint

12 Mem. at 2-3. As the Joint Memorandum explains, most following-to-join refugee applicants do

13 not currently undergo the same security procedures as principal refugees or accompanying

14 derivative refugees (who are typically processed at the same time and location as the principal).

15 See Joint Mem. at 2-3 & n.1 (explaining these divergent procedures); see also Doe v. Trump, No.

16 2:17-cv-00178 (W.D. Wash.), ECF Nos. 51 at 6, 51–1 ¶¶ 3, 12-15. The Secretaries determined

17 that it is necessary to “implement adequate screening mechanisms for following-to-join refugees

18 that are similar to the processes employed for principal refugees, in order to ensure the security

19 and welfare of the United States.” Joint Mem. at 3; see also Joint Mem. Addendum at 4

20 (describing some of the additional security measures to be implemented). These officials further

21 determined that following-to-join refugees should not be admitted to the United States until the

22 additional screening procedures are in place. Joint Mem. at 3. The agencies are working

23 expeditiously to implement the additional screening procedures. See Joint Mem. Addendum at 4.

24

25

26

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 4 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 8 of 34

1 Once these procedures are in place, admissions of following-to-join refugees will resume 2 worldwide. See Joint Mem. at 3.3

3

Following receipt of the Joint Memorandum, on October 24 the President issued Executive

4 Order No. 13,815, Resuming the United States Refugee Admissions Program with Enhanced

5 Vetting Capabilities, 82 Fed. Reg. 50,055 (Oct. 24, 2017). The President acknowledged the

6 Secretaries’ joint determination that the USRAP may resume and that they will apply “special

7 measures” to certain categories of refugee applicants, and therefore the worldwide suspension

8 directed by EO-2 is no longer required. See id. §§ 2(a), (c). Going forward, the President directed

9 the Secretaries of State and Homeland Security to exercise their statutory authority to “continue

10 to assess and address any risks posed by particular refugees,” id. § 3(a), including by terminating

11 actions taken to address these risks when appropriate, id. § 3(a)(ii).

12

Plaintiffs now move to enjoin enforcement of the Joint Memorandum, claiming that the

13 SAO provision violates the APA and is ultra vires, and that the SAO and following-to-join

14 provisions violate the First Amendment’s Establishment Clause.

15

STANDARD OF REVIEW

16

Plaintiffs must show that they are “likely to succeed on the merits,” that they are likely to

17 “suffer irreparable harm in the absence of preliminary relief,” that the “balance of equities” tips

18 in their favor, and that “an injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S.

19 7, 20 (2008).

20

ARGUMENT

21 I. PLAINTIFFS’ CHALLENGES ARE NOT JUSTICIABLE

22

A. The Individual Plaintiffs Lack Article III Standing

23

To satisfy Article III’s standing requirements, “a plaintiff must show (1) it has suffered an

24 ‘injury in fact’[;] . . . (2) the injury is fairly traceable to the challenged action of the defendant;

25 3 As noted below, following-to-join refugee applicants processed at resettlement support
26 centers in Kenya and Thailand are unaffected by the implementation period, as adequate review

mechanisms are already in place in those countries.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 5 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 9 of 34

1 and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a

2 favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S.

3 167, 180-81 (2000). The related doctrine of ripeness rejects as nonjusticiable claims that “rest[]

4 upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’”

5 Texas v. United States, 523 U.S. 296, 300 (1998) (citation omitted).

6

Plaintiffs’ challenges to the Joint Memorandum are premature. With respect to the

7 following-to-join provision, only two of the individual Plaintiffs—Afkab Hussein and John Doe

8 7—describe family members who are awaiting travel as following-to-join refugees. But

9 Hussein’s challenge fails at the outset, because his family members appear to be located in Kenya.

10 See Decl. of Afkab Mohamed Hussein in Support of Pls.’ Mot., ECF No. 48 ¶¶ 3, 10-11. As the

11 Government explained in Doe v. Trump, Kenya is one of two countries in which screening

12 procedures are already in place to ensure that following-to-join and principal refugees receive

13 comparable scrutiny. See Decl. of Jennifer B. Higgins, No. 2:17-cv-00178 (W.D. Wash.), ECF

14 No. 51–1 ¶ 11 (explaining that the Government is issuing travel authorizations for following-to-

15 join refugees who have been processed by resettlement support centers in Kenya and Thailand,

16 subject to other restrictions on refugee admissions). Hussein’s family members are apparently

17 unaffected by the following-to-join implementation period, and Hussein thus lacks standing to

18 challenge it. As for John Doe 7, his son has been waiting to travel since November 2016, months

19 before the first refugee-related executive order took effect. Decl. of John Doe #7, ECF No. 58 ¶

20 4. It would be speculative to infer that the following-to-join implementation period is the source

21 of any further delay in John Doe 7’s son’s travel, and “speculation is not enough to sustain Article

22 III standing,” Finkelman v. NFL, 810 F.3d 187, 200 (3d Cir. 2016).

23

With respect to the SAO provision, Plaintiffs’ claims are again speculative. Even if one

24 or more of the identified refugee applicants were on the brink of traveling to the United States, it

25 is not obvious that the SAO provision would stand in their way, given its allowance for case-by-

26

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 6 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 10 of 34

1 case admission. See Joint Mem. at 2.4 Moreover, it is doubtful that these applicants are on the

2 brink of travel such that the 90-day SAO review period will have any concrete impact on them.

3 Afkab Hussein, for example, merely states that his wife and son have completed “several stages”

4 of the following-to-join screening process. ECF No. 48 ¶ 17. John Doe 1 applied for admission

5 through the Direct Access Program in 2014 and claims he is in the “end stage of processing,” but

6 he recently had problems with his passport. Decl. of John Doe #1 in Supp. of Pls.’ Mot., ECF

7 No. 52 ¶¶ 2, 15-16. John Doe 2 was still awaiting security checks as of earlier this year, while

8 Jane Doe 5 has been awaiting such checks since 2016. Compare Decl. of John Doe #2 in Supp.

9 of Pls.’ Mot., ECF No. 53 ¶ 9, with Decl. of Jane Doe #5 in Supp. of Pls.’ Mot., ECF No. 56 ¶ 7.

10 Jane Doe 4 only completed her International Organization for Migration and U.S. Citizenship and

11 Immigration Services (“USCIS”) interviews in September. Decl. of Jane Doe #4 in Supp. of Pls.’

12 Mot., ECF No. 55 ¶ 5. And as noted above, John Doe 7’s son has been waiting to travel since 13 November 2016. ECF No. 58 ¶ 4.5 With nothing more than speculation that the SAO provision

14 may adversely affect them (as opposed to the many known and incommensurable delays that are

15

16

17

18

19

4 For instance, Joseph Doe’s contention that his children should be exempt from the SAO

20 provision misses the mark. See Doe Pls.’ Notice Joining the Mot. for Prelim. Inj. in Jewish Family Service of Seattle v. Trump, Doe v. Trump, No. 2:17-cv-00178JLR (W.D. Wash.), ECF No. 62

21 (“Doe Notice”). The Joint Memorandum continues to allow admission of SAO nationals during

the 90-day review period on a case-by-case basis. Joint Mem. at 2. Joseph Doe has not shown 22 that his children cannot qualify for this exception.

23

5 The Doe Plaintiffs have named an additional party, Jeffrey Doe, who joins the Jewish Family Service Plaintiffs in challenging the SAO provision. See Doe Notice at 4. Jeffrey Doe

24 has not submitted a declaration, but the Doe Plaintiffs allege that Jeffrey’s parents and siblings applied for refugee status back in 2005 and received an initial approval letter from USCIS in 2006.

25 See Third Am. Compl. ¶ 89, Doe v. Trump, No. 2:17-cv-00178JLR (W.D. Wash.), ECF No. 42.

The family members have been assured by the Episcopal Diocese of Olympia since September 26 2015, and their most recent medical examinations have expired. In light of these allegations, there

is no reason to believe Jeffrey Doe’s family members are on the brink of travel.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 7 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 11 of 34

1 part and parcel of the ordinary refugee admissions process), Plaintiffs have not alleged an injury 2 that is fairly traceable to the Joint Memorandum and ripe for judicial redress.6

3

B. The Organizational Plaintiffs Lack Article III Standing

4

The organizational Plaintiffs, Jewish Family Service of Seattle (JFS-S) and Jewish Family

5 Services of Silicon Valley (JFS-SV), allege that they have been injured by the Joint Memorandum

6 because the challenged provisions force them to “divert significant resources away from [their]

7 core mission” and may lead to a loss of funding should the organizations fail to resettle as many

8 clients as they had anticipated. Mot. for Prelim. Inj. at 12, ECF No. 42 (“Pls.’ Br.”); see also Pls.’

9 Notice Joining the Mot. for Prelim. Inj. in Doe v. Trump at 3, ECF No. 70 (“JFS Notice”) (similar).

10

In support of these allegations, Plaintiffs cite Havens Realty Corp. v. Coleman, 455 U.S.

11 363 (1982). But Havens Realty involved a narrow type of injury in which the plaintiff

12 organization itself had a statutory right to truthful housing information, see id. at 373, and the

13 defendants’ “racially discriminatory steering practices” made it impossible for the organization

14 to fulfill its mission, id. at 379. By its own terms, Havens Realty does not satisfy Article III’s

15 requirement of an injury in fact any time there is “a setback to the organization’s abstract social

16 interests,” id. See La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d

17 1083, 1088 (9th Cir. 2010) (“An organization suing on its own behalf can establish injury when

18 it suffered ‘both a diversion of its resources and a frustration of its mission.’ It cannot manufacture

19 the injury by . . . simply choosing to spend money fixing a problem that otherwise would not

20 affect the organization at all.” (citations omitted)); see also Nat’l Ass’n of Home Builders v. EPA,

21 667 F.3d 6, 12 (D.C. Cir. 2011) (rejecting plaintiff’s theory of organizational standing based on

22 allocation of resources to regulatory comments, congressional testimony, and litigation).

23

The organizational Plaintiffs’ allegations concerning diversion of resources are the types

24 of abstract or self-inflicted harms that do not suffice for standing under Havens Realty and its

25

26

6 Several of the Plaintiffs describe a kind of stigmatic injury associated with what they

perceive as anti-Muslim sentiment. This misguided theory is discussed in Part I.C.2, infra.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 8 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 progeny or Article III. Plaintiffs have not shown that the Joint Memorandum impairs their core

2 mission. The challenged provisions do not suspend refugee admissions; on the contrary,

3 Executive Order No. 13,815 largely resumed the USRAP, subject to conditions for applicants of

4 special concern. Although those conditions may temporarily alter which individuals are resettled

5 as refugees, those conditions do not limit or otherwise restrict the overall number of individuals

6 who may be resettled as refugees. Moreover, the Government has long used nationality-based

7 distinctions in implementing the USRAP and prioritizing certain applicants. See Part II.A.1, infra.

8

Thus, nothing in the Joint Memorandum prevents JFS-S and JFS-SV from fulfilling their

9 missions. Rather, they may continue to do so by aiding the resettlement of refugees. Indeed,

10 these organizations already fulfill their missions by representing such clients who are unaffected

11 by the challenged provisions. See Decl. of Rabbi Will Berkovitz, ECF No. 50 ¶¶ 24, 26 (79 of

12 133 JFS-S clients are from non-SAO countries, and only 2% of JFS-S resettlements in fiscal year

13 2016 were following-to-join refugees); Decl. of Mindy Berkowitz, ECF No. 51 ¶ 32 (19 of 42

14 JFS-SV clients are from non-SAO countries). These organizations do not explain how policies

15 that may temporally alter which individuals are resettled as refugees—but do not suspend the

16 USRAP—impair the organizations’ missions in any meaningful way. Nor do they explain why

17 they are likely to suffer financial losses when nothing in the Joint Memorandum prevents them

18 from assisting with resettling refugees who are unaffected by the Joint Memorandum. Assuming

19 arguendo that the organizations have a protected interest in the admission of refugees generally,

20 they cite nothing giving them an interest in the admission of particular refugees, and they therefore 21 do not plausibly allege that the Joint Memorandum has injured them.7

22

23

24

25 7 Apart from their defective claims of injury in their own right, JFS-S and JFS-SV purport
26 to represent the interests of their third-party clients. Pls.’ Br. at 13. But third-party standing is

unavailable where, as here, the third party has itself suffered no injury.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 9 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1

C. Plaintiffs’ Claims Are Barred By Principles Of Nonreviewability

2

1. Plaintiffs’ Statutory Claims Are Not Reviewable

3

Plaintiffs’ statutory claims, which concern only the Joint Memorandum’s SAO provision

4 (not the following-to-join provision), are not subject to judicial review. The Supreme Court has

5 long recognized that “the power to . . . exclude aliens” is a “fundamental sovereign attribute

6 exercised by the Government’s political departments largely immune from judicial control.”

7 Fiallo v. Bell, 430 U.S. 787, 792 (1977) (citation omitted). “[I]t is not within the province of any

8 court, unless expressly authorized by law, to review the determination of the political branch of

9 the Government to exclude a given alien.” United States ex rel. Knauff v. Shaughnessy, 338 U.S.

10 537, 543 (1950) (emphasis added)). Courts have distilled from these longstanding principles that

11 the denial or revocation of a visa for an alien abroad “is not subject to judicial review . . . unless

12 Congress says otherwise.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999);

13 see also Doan v. INS, 160 F.3d 508, 509 (8th Cir. 1998) (“Administrative decisions excluding

14 aliens are not subject to judicial review unless there is a clear grant of authority by statute.”).

15 Courts refer to this rule as the “doctrine of consular nonreviewability,” Saavedra Bruno, 197 F.3d

16 at 1159, but the short-hand label merely reflects the context in which the principle most often

17 arises—in challenges to decisions by consular officials adjudicating visa applications. The

18 principle underlying the doctrine applies regardless of the manner in which the Executive Branch

19 denies entry to an alien abroad, including a refugee applicant. See Haitian Refugee Ctr., Inc. v.

20 Baker, 953 F.2d 1498, 1506 (11th Cir. 1992) (per curiam). It would make no sense to bar review

21 of consular or immigration officers’ case-specific determinations while permitting review of

22 Cabinet Secretaries’ determinations (such as the Joint Memorandum’s SAO and following-to-join

23 provisions) that are grounded in sensitive national-security judgments and that are applied by

24 lower-level officials in reviewing individual visa or refugee applications.

25

Plaintiffs have identified no statute that authorizes judicial review here. The statute

26 authorizing refugee admissions—8 U.S.C. § 1157—says nothing about judicial review. It simply

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 10 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 provides, in relevant part, that the “Attorney General may, in the Attorney General’s discretion

2 . . . admit any refugee who is not firmly resettled in any foreign country, is determined to be of

3 special humanitarian concern to the United States, and is admissible . . . as an immigrant.” 8 4 U.S.C. § 1157(c)(1);8 see also Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1506 (11th Cir.

5 1992) (per curiam) (“Contrary to the extensive procedures provided for with regard to aliens

6 within the United States, 8 U.S.C. § 1157, which applies to refugees seeking admission from

7 outside the United States, makes no provision for judicial review.”).

8

Nor is the APA any help to Plaintiffs here. The APA does not apply “to the extent that

9 . . . statutes preclude judicial review,” 5 U.S.C. § 701(a)(1), a determination that turns not only on

10 the statute’s express language but also on the “structure of the statutory scheme, its objectives, its

11 legislative history, and the nature of the administrative action involved,” Block v. Cmty. Nutrition

12 Inst., 467 U.S. 340, 345 (1984). Moreover, Section 702 of the APA includes a proviso that

13 preserves “other limitations on judicial review” that predated the APA. See Saavedra Bruno, 197

14 F.3d at 1158. Here, the conclusion is “unmistakable” from history that “the immigration laws

15 ‘preclude judicial review’ of [] consular visa decisions,” id. at 1160, and the same is true of

16 refugee determinations, see Haitian Refugee Ctr., 953 F.2d at 1506. At a minimum, the general

17 rule of “nonreviewability . . . represents one of the ‘limitations on judicial review’ unaffected by

18 § 702’s opening clause[.]” Saavedra Bruno, 197 F.3d at 1160.

19

Indeed, when the Supreme Court held that aliens physically present in the United States—

20 but not aliens abroad—could seek review of their exclusion orders under the APA, see Brownell

21 v. Tom We Shung, 352 U.S. 180, 184-86 (1956), Congress responded by abrogating that ruling.

22 See Act of Sept. 26, 1961, Pub. L. No. 87-301, § 5(a), 75 Stat. 650, 651-53; Saavedra Bruno, 197

23 F.3d at 1157-62 (recounting history). The House Report accompanying the abrogating statute

24 explained that APA suits would “give recognition to a fallacious doctrine that an alien has a ‘right’

25 to enter this country which he may litigate in the courts of the United States against the U.S.

26

8 This discretion now rests with the Secretary of Homeland Security. See 6 U.S.C. § 557.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 11 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 Government as a defendant.” H.R. Rep. No. 87-1086, at 33 (1961). Because an alien present in

2 the United States cannot invoke the APA to obtain review of an exclusion order, then a fortiori

3 neither can aliens abroad or U.S. persons acting on their behalf. And because Congress has

4 generally foreclosed judicial review of visa revocations, see 8 U.S.C. § 1201(i), it is implausible

5 that Congress would permit review of Executive decisions to restrict entry in the first instance.

6 Significantly, Plaintiffs have identified no precedent holding that policies excluding or prioritizing

7 admission for particular categories of refugees are judicially reviewable.

8

2. Plaintiffs’ Establishment Clause Claim Is Likewise Not Reviewable

9

The Supreme Court has twice engaged in limited review of constitutional claims involving

10 the exclusion of an alien abroad, but only when a U.S. citizen alleged a violation of that citizen’s

11 own constitutional rights. In Kleindienst v. Mandel, the Court reviewed a claim that the denial of

12 a waiver of visa-ineligibility to a Belgian national violated U.S. citizens’ First Amendment rights

13 to receive information. 408 U.S. at 756-59, 762-70. As the Court explained, the alien could not

14 seek review because he “had no constitutional right of entry to this country.” Id. at 762. The

15 Court addressed only the claim of U.S. citizens that the alien’s exclusion violated their own rights,

16 and then concluded that when the Executive exercises its authority to exclude an alien “on the

17 basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise

18 of that discretion” nor balance it against constitutional claims of others. Id. at 770. In Kerry v.

19 Din, the Court rejected a claim by a U.S. citizen that the refusal of a visa to her husband violated

20 her own due-process rights. 135 S. Ct. 2128, 2131 (2015) (opinion of Scalia, J.); id. at 2139

21 (Kennedy, J., concurring in the judgment). Limited review was available in each case only 22 because the plaintiffs asserted violations of their own constitutional rights as U.S. citizens.9

23

The individual Plaintiffs’ claimed constitutional injuries are not cognizable. Of the eleven

24 named Plaintiffs here, four (John Does 1–2, Jane Does 4–5) are prospective refugees located

25 9 Although the Ninth Circuit previously suggested in dicta that states might have standing
26 to assert “potential claims regarding possible due process rights” of various groups including

refugees, Washington v. Trump, 847 F.3d 1151, 1166 (9th Cir. 2017) (per curiam), cert. denied

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 12 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 overseas who cannot assert constitutional claims. Mandel, 408 U.S. at 762 (“It is clear that . . .

2 an unadmitted and nonresident alien[] ha[s] no constitutional right of entry to this country as a

3 nonimmigrant or otherwise.”). Though the remaining Plaintiffs may reside stateside, the Joint

4 Memorandum concerns the processing of refugees located abroad, not U.S. persons. In McGowan

5 v. Maryland, 366 U.S. 420, 429-30 (1961), the Supreme Court held that individuals who are

6 indirectly injured by alleged religious discrimination against others generally may not sue,

7 because they have not suffered violations of their own rights. The Court concluded that the

8 plaintiffs, employees of a store subject to a State’s Sunday-closing law, lacked standing to

9 challenge that law on free-exercise grounds because they “d[id] not allege any infringement of

10 their own religious freedoms.” Id. at 429. Similarly, in Elk Grove Unified School District v.

11 Newdow, 542 U.S. 1, 15-18 & n.8 (2004), abrogated in part on other grounds by Lexmark Int’l,

12 Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014), the Court held that a non-custodial

13 parent could not challenge recitation of the Pledge of Allegiance at his daughter’s school because

14 his “standing derive[d] entirely from his relationship with his daughter,” not from a violation of

15 his own rights. Likewise here, in challenging the application of the Joint Memorandum to family

16 members overseas, Plaintiffs are not asserting violations of their own rights. They are instead

17 seeking to advance the interests of third parties who have not entered the United States and who

18 themselves have no right to entry under our Constitution. Because Plaintiffs are not asserting any

19 violations of their own constitutional rights, Plaintiffs cannot benefit from the limited review

20 afforded in Mandel and the Din concurrence.

21

The stateside Plaintiffs also claim that the Joint Memorandum contains an anti-Muslim

22 sentiment that results in stigmatization. But the Joint Memorandum says nothing about religion,

23

24 sub nom. Golden v. Washington, No. 17-5424, 2017 WL 3224674 (Nov. 13, 2017) (mem.), that passing observation cannot be squared with Mandel’s demarcation between a constitutional claim

25 by an alien abroad (unreviewable) and a constitutional claim by a U.S. person (potentially

reviewable, provided the person alleges a violation of his/her individual rights). See also Trump 26 v. IRAP, 137 S. Ct. 2080, 2088 (2017) (“An unadmitted and nonresident alien has no constitutional

right of entry to this country.” (alterations omitted) (quoting Mandel, 408 U.S. at 762)).

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 13 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 and it certainly does not single out Plaintiffs or other U.S. persons similarly situated to them.

2 While a plaintiff may suffer a “spiritual” injury from the violation of his or her own rights when

3 he or she is “subjected to unwelcome religious exercises” or “forced to assume special burdens to

4 avoid them,” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc.,

5 454 U.S. 464, 486 n.22 (1982), Plaintiffs allege no such requirements or pressures here. In

6 analogous cases arising under the Equal Protection Clause, the Supreme Court has “ma[de] clear”

7 that “the stigmatizing injury often caused by [invidious] discrimination . . . accords a basis for

8 standing only to ‘those persons who are personally denied equal treatment’ by the challenged

9 discriminatory conduct.” Allen v. Wright, 468 U.S. 737, 755 (1984) (emphasis added) (citation

10 omitted), abrogated in part on other grounds by Lexmark Int’l, 134 S. Ct. 1377. The same rule

11 applies to Establishment Clause claims: “the psychological consequence presumably produced

12 by observation of conduct with which one disagrees” is not the type of “personal injury” that

13 supports standing to sue, “even though the disagreement is phrased in [Establishment Clause]

14 terms.” Valley Forge, 454 U.S. at 485-86; see also In re Navy Chaplaincy, 534 F.3d 756, 764

15 (D.C. Cir. 2008) (an Establishment Clause plaintiff may not “re-characterize[]” an abstract injury

16 flowing from “government action” directed against others as a personal injury from “a

17 governmental message [concerning] religion” directed at the plaintiff). Since no Plaintiff has

18 alleged a cognizable violation of his or her own constitutional rights, the doctrine of

19 nonreviewability controls, and the Court should decline to consider Plaintiffs’ claims.

20

D. Plaintiffs Cannot Otherwise Proceed Under The APA

21

Plaintiffs also cannot proceed under the APA because the challenged provisions are not

22 final agency action. Finality is a prerequisite to judicial review under the APA. See 5 U.S.C.

23 § 704. Two conditions must be satisfied before agency action will be deemed sufficiently final:

24 “First, the action must mark the consummation of the agency’s decisionmaking process . . . . And

25 second, the action must be one by which rights or obligations have been determined, or from

26

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1 which legal consequences will flow.” Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs,

2 543 F.3d 586, 591 (9th Cir. 2008) (citation omitted).

3

Even if Plaintiffs could show that the Joint Memorandum satisfies the first requirement

4 for finality, they cannot establish the second requirement because neither the SAO provision nor

5 the following-to-join implementation period determine rights or obligations or prescribe legal

6 consequences. The provisions do not deprive Plaintiffs or their family members of the opportunity

7 to obtain refugee status. At most, the provisions may delay their admission if they are otherwise

8 eligible. But a processing delay by itself does not alter a refugee’s “legal situation,” and thus

9 these provisions are not final agency action. See Int’l Bhd. of Teamsters v. U.S. Dep’t of Transp.,

10 861 F.3d 944, 952 (9th Cir. 2017) (issuance of pilot program report was not final agency action;

11 though it was the “final step in completing the pilot program,” clearing the way for permitting of

12 certain carriers, it “did not change the legal situation,” as agency retained discretion over

13 whether/when to issue permits).

14

Finally, the admission of refugees is committed to agency discretion by law. See 8 U.S.C.

15 § 1157(c)(1) (“[T]he [Secretary of Homeland Security] may, in the [Secretary’s] discretion and

16 pursuant to such regulations as the [Secretary] may prescribe, admit any refugee . . . .” (emphasis

17 added)); Haig v. Agee, 453 U.S. 280, 294 n.26 (1981) (“‘may’ expressly recognizes substantial

18 discretion”); see also Part II.A.1, infra. For that separate reason, Plaintiffs’ APA claims are

19 foreclosed. See 5 U.S.C. § 701(a) (“This chapter applies . . . except to the extent that . . . (2)

20 agency action is committed to agency discretion by law.”).

21 II. PLAINTIFFS’ CLAIMS ARE NOT LIKELY TO SUCCEED ON THE MERITS

22

While Plaintiffs’ motion challenges both provisions of the Joint Memorandum, they press

23 four claims against only the SAO provision, and not the following-to-join provision. Specifically,

24 they argue that the Government lacks authority to implement the SAO provision, that the

25 provision violates the APA because it needed to undergo notice-and-comment rulemaking and is

26 arbitrary and capricious, and that the provision conflicts with the INA. Plaintiffs also bring an

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 15 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 Establishment Clause claim, arguing that both the SAO provision and following-to-join provision 2 are unconstitutional. Each argument fails on the merits.10

3

A. The Joint Memorandum’s SAO Provision Does Not Violate The APA Or INA

4

1. The Government May Temporarily Prioritize Admission Resources

While Conducting A Threat Analysis 5
Contrary to Plaintiffs’ suggestion, the SAO provision plainly lies within the Government’s

6 discretion over refugee processing and prioritization. DHS is responsible for “[e]stablishing and

7 administering rules . . . governing the granting of visas or other forms of permission, including

8 parole, to enter the United States to individuals who are not a citizen or an alien lawfully admitted

9 for permanent residence in the United States.” 6 U.S.C. § 202(4). Authority over entry into the

10 United States necessarily encompasses authority to restrict entry. See Stephenson v. Shalala, 87

11 F.3d 350, 354 (9th Cir. 1996) (“Normally, we defer to an executive agency’s expert interpretation

12 of its enabling legislation when the agency’s view is reasonable and consistent with the statute’s

13 plain language, whether or not we would have made the same decision were we standing in the

14 agency’s shoes.”). Further, the INA expressly provides that the Secretary of Homeland Security

15 “may, in the [Secretary’s] discretion and pursuant to such regulations as the [Secretary] may

16 prescribe, admit any refugee.” 8 U.S.C. § 1157(c)(1) (emphasis added). Congress plainly vested

17 “discretion” in the Secretary to admit refugees. See Alaka v. Attorney Gen. of U.S., 456 F.3d 88,

18 97 (3d Cir. 2006) (“Congress knows how to specify discretion and has done so repeatedly in other

19 provisions of the INA.”) (citation omitted). And the statute provides that refugees “may” be

20 admitted—not that they must—and does not demand that the Government make a decision on a

21 specific timeframe. See Haig, 453 U.S. at 294 n.26 (“‘may’ expressly recognizes substantial

22 discretion”). Refugee resettlement is thus an act of discretion, not an entitlement. See I.N.S. v.

23 Stevic, 467 U.S. 407, 426 (1984) (recounting legislative history of Refugee Act of 1980,

24

25

10 To the extent Plaintiffs cross-reference statutory and due process arguments concerning

the following-to-join provision as raised by plaintiffs in the related case of Doe, et al. v. Trump, 26 et al., No. 2:17-cv-00178 (W.D. Wash.), the Government likewise incorporates by reference its

prior response to those arguments, see ECF No. 51 at 12-21.

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1 explaining “[i]t was plainly recognized, however, that merely because an individual or group of

2 refugees comes within the definition will not guarantee resettlement in the United States.”

3 (citation omitted)); cf. 8 U.S.C. § 1201(h) (“Nothing in this chapter shall be construed to entitle

4 any alien, to whom a visa or other documentation has been issued, to be admitted [to] the United

5 States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible under

6 this chapter, or any other provision of law.”). The discretion to decide who “may” be admitted

7 logically includes the ability to temporarily prioritize processing of applications from non-SAO

8 countries while assessing, for “the security and welfare of the United States,” whether additional

9 safeguards are necessary for applicants from SAO countries. Joint Mem. at 2.

10

Indeed, the Government routinely grants preferences on the basis of nationality. The

11 refugee program employs a priority system to determine which individuals are of special

12 humanitarian concern for purposes of access to the program. The Government regularly relies on

13 nationality to make priority designations, such as when it created a program for at-risk children 14 from certain Central American countries.11 Indeed, the Priority 2 and Priority 3 designations

15 illustrate the many ways in which nationality is considered in refugee processing and 16 prioritization.12 Plaintiffs’ argument would mean that the Government lacks the discretion to 17 make such distinctions, contrary to the agencies’ longstanding implementation of the USRAP.13

18

19

11 See USCIS, In-Country Refugee/Parole Processing for Minors in Honduras, El

20 Salvador and Guatemala (Central American Minors – CAM) (Aug. 16, 2017), https://www.uscis.gov/CAM.

21

12 See Report to Congress from the President, Proposed Refugee Admissions for Fiscal

Year 2018, at 10-11, 13 (2017), https://www.state.gov/documents/organization/274857.pdf.

22

13 Plaintiffs apparently read Section 1157(c)(1) to require the agency to promulgate a

23

regulation each time it exercises its discretion. See Pls.’ Br. at 19. But the INA simply says that the Government may prescribe regulations, not that it must do so each time it exercises its

24 discretion. Indeed, the preferences reflected in the Central America Minors program and Priority 2 and Priority 3 designations are not memorialized in regulations. The notion that an agency must

25 exercise its congressionally delegated powers through APA rulemaking is belied by the vast body

of agency guidance that is promulgated informally. See Andrew J. Wistrich, The Evolving 26 Temporality of Lawmaking, 44 Conn. L. Rev. 737, 788-89 (2012) (“The volume of formal

legislative rules promulgated by administrative agencies is dwarfed by the even larger amount of

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 17 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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2. Plaintiffs Cannot Show An APA Procedural Violation 1
The notice-and-comment procedures of the APA do not apply to the Joint Memorandum’s 2
SAO provision for two separate reasons. First, the APA explicitly exempts “rules of agency 3
organization, procedure, or practice” from its procedural requirements. 5 U.S.C. § 553(b)(3)(A). 4
Unlike legislative (or substantive) rules, which “create law” by, for example, establishing or 5
altering substantive standards, procedural rules involve “technical regulation of the form of 6
agency action and proceedings.” S. Cal. Edison Co. v. FERC, 770 F.2d 779, 783 (9th Cir. 1985). 7
The procedural rule exemption “covers agency actions that do not themselves alter the rights or 8
interests of parties, although [they] may alter the manner in which the parties present themselves 9
or their viewpoints to the agency.” JEM Broad. Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) 10
(citation omitted). In addition, “[a] procedural rule does not become substantive merely because 11
it has a substantive impact,” such as “by denying parties the opportunity to appeal if they fail to 12
comply with certain procedures.” United States v. Gonzales & Gonzales Bonds & Ins. Agency, 13
Inc., 728 F. Supp. 2d 1077, 1084 (N.D. Cal. 2010) (citing Sequoia Orange Co. v. Yeutter, 973 14
F.2d 752, 757 (9th Cir. 1992)). As long as a rule does not change substantive standards, it may 15
qualify as procedural. See, e.g., James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 317 16
(D.C. Cir. 2000) (concluding rule was procedural where it “did not alter the substantive criteria 17
by which [the agency] would approve or deny proposed labels,” but rather, “simply changed the 18
procedures [the agency] would follow in applying those substantive standards”); Gonzales, 728 19
F. Supp. 2d at 1084 (“[C]hanges in the timing, requirements or manner in which an application or 20
petition is made are generally considered procedural changes.”). 21
The SAO provision is a procedural rule. It does not change the substantive criteria for 22
determining whether an applicant can be admitted to the United States as a refugee. Instead, it 23
prioritizes on a temporary basis applications from non-SAO countries while the agencies “conduct 24
a detailed threat analysis” “to determine what additional safeguards, if any, are necessary to ensure 25

26 informal regulations, guidelines, policy statements, letter rulings, and the like. Most agencies

issue such materials, and their quantity is staggering.” (footnotes omitted)).

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1 that the admission of refugees from these countries of concern does not pose a threat to the security

2 and welfare of the United States.” Joint Mem. at 2. Even after the review is complete, the same

3 substantive criteria for refugee admissions will apply as before, but potentially subject to

4 additional procedures identified during the review. See 8 U.S.C. §§ 1157(c), 1182(a).

5

Similar agency decisions to suspend the processing of applications while the agency

6 considers or implements changes to rules or processes have been held to be procedural in nature

7 and thus exempt from notice-and-comment rulemaking. E.g., Waste Mgmt., Inc. v. U.S. EPA.,

8 669 F. Supp. 536, 538-40 (D.D.C. 1987) (deferring consideration of applications for ocean

9 incineration permits until the agency promulgated new rules on the topic); Neighborhood TV Co.

10 v. FCC, 742 F.2d 629, 636-38 (D.D.C. 1984) (deciding to “freeze” processing of certain

11 applications for television translator licenses). As in those cases, the Joint Memorandum does not

12 change the substantive criteria by which applications would ultimately be assessed but at most

13 merely alters the agencies’ “method of operations” or “change[s their] procedures.” Waste Mgmt.,

14 669 F. Supp. at 540; see also Buckeye Cablevision, Inc. v. United States, 438 F.2d 948, 953 (6th

15 Cir. 1971) (upholding processing freeze adopted without notice and comment as a procedural

16 rule); Kessler v. FCC, 326 F.2d 673, 681-82 (D.C. Cir. 1963) (same). As such, the SAO provision

17 is a procedural rule exempt from notice-and-comment rulemaking.

18

Second, the SAO provision is exempt from notice-and-comment rulemaking because it

19 falls within the APA’s foreign affairs exception. The APA provides that notice-and-comment

20 procedures do not apply to regulations involving “a military or foreign affairs function of the

21 United States.” 5 U.S.C. § 553(a)(1). “For the exception to apply, the public rulemaking

22 provisions should provoke definitely undesirable international consequences.” Yassini v.

23 Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980).

24

The consequences that would follow from notice-and-comment procedures here have

25 already been held to trigger the exception in an analogous case. In Rajah v. Mukasey, 544 F.3d

26 427, 437 (2d Cir. 2008), the Second Circuit reviewed the National Security Entry-Exit

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 19 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 Registration System, a program devised after September 11th that required registration for certain

2 individuals from specific countries. In doing so, that court held that the Government’s notices

3 that designated the countries whose nationals were subject to the program fell within the APA’s

4 foreign affairs exception, explaining that the “relevance to international relations [was] facially

5 plain” and “at least three definitely undesirable international consequences” were “evident.” Id.

6 The same consequences would result here. First, in “explaining why some of a particular nation’s

7 citizens are regarded as a threat,” notice-and-comment rulemaking “might” result in “sensitive

8 foreign intelligence. . . be[ing] revealed.” Id. Second, “relations with other countries might be

9 impaired” if the Government “were to conduct and resolve a public debate over why some citizens

10 of particular countries were a potential danger.” Id. And third, “the process would be slow and

11 cumbersome, diminishing” the Government’s ability to understand and protect against “a

12 potential attack by foreign terrorists.” Id. Thus, the foreign affairs exception applies. See also

13 Yassini, 618 F.2d at 1361 (holding that INS regulation directed at Iranian nationals “fell within

14 the foreign affairs . . . exception[] to the notice and comment requirements of the APA”).

15

3. The Joint Memorandum’s SAO Provision Is Neither Arbitrary Nor

Capricious

16

Plaintiffs’ argument that the SAO provision is arbitrary and capricious likewise fails.

17

Review under the APA’s arbitrary and capricious standard is “narrow,” Arrington v. Daniels, 516

18

F.3d 1106, 1112-13 (9th Cir. 2008), and “highly deferential,” Crickon v. Thomas, 579 F.3d 978,

19

982 (9th Cir. 2009). A court must “presum[e] the agency action to be valid and affirm[] . . . if a

20

reasonable basis exists for [the agency’s] decision.” Id. (citation omitted). A reasonable basis

21

exists so long as “the agency considered the relevant factors and articulated a rational connection

22

between the facts found and the choices made.” Id. (citation omitted). The agency’s decision

23

“need only be a reasonable, not the best or most reasonable, decision.” River Runners for

24

Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (citation omitted). A court, moreover,

25

may not “substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of the United

26

States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 20 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1

Recognizing that “more than 300 persons who entered the United States as refugees are

2 currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation,”

3 EO-2 § 1(h), the agencies conducted an interagency review to identify multiple ways to enhance

4 the refugee vetting process and began implementing those improvements. Joint Mem. Addendum

5 at 1. In the Joint Memorandum, the officials advised the President that the improvements to the

6 USRAP vetting process are sufficient to allow the general resumption of that program, but that

7 they “continue to have concerns” about the admission of refugees from SAO countries, which

8 were “previously identified as posing a higher risk to the United States.” Joint Mem. at 2. To

9 address these concerns, the officials decided to “conduct a detailed threat analysis” of the SAO

10 countries “to determine what additional safeguards, if any, are necessary to ensure that the

11 admission of refugees from these countries of concern does not pose a threat to the security and

12 welfare of the United States.” Id. “This review will be tailored to each SAO country, and

13 decisions may be made for each country independently.” Joint Mem. Addendum at 3. While

14 performing this review, the agencies will temporarily prioritize refugee applications from non-

15 SAO countries, but will also consider for admission those from SAO countries on a case-by-case

16 basis. Joint Mem. at 2; Joint Mem. Addendum at 3-4.

17

Plaintiffs challenge the decision to temporarily prioritize non-SAO countries by

18 characterizing the Joint Memorandum as raising “unspecified concerns” and suggesting that the

19 Cabinet Secretaries have had enough time to conduct a review. Pls.’ Br. at 18 (citation omitted).

20 But their argument ignores that the Cabinet Secretaries’ national security judgment is entitled to

21 extreme deference, see Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 734 (D.C. Cir. 2007)

22 (judicial review “in an area at the intersection of national security, foreign policy, and

23 administrative law[] is extremely deferential”); that the agencies performed a worldwide review

24 of the USRAP and implemented improvements to the vetting process; and that this review was

25 the basis for the SAO provision. Joint Mem. Addendum at 1. Moreover, the Joint Memorandum

26 provides at least as much specificity as the SAO list, and thus finding the SAO provision to be

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 21 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 arbitrary and capricious could cast doubt on the SAO list itself, despite that the Government has

2 used such a list since the September 11th attacks. The Cabinet Secretaries’ decision to temporarily

3 prioritize refugee applications from non-SAO countries while they conduct this review is neither

4 arbitrary nor capricious. Joint Mem. at 2; Addendum at 3-4; see Neighborhood TV Co., 742 F.2d

5 at 639 (concluding agency’s decision to “freeze” processing of certain applications for licenses

6 while it engaged in rulemaking was reasonable because it “ensure[d] that . . . interim licensing

7 did not frustrate the ends of the rules ultimately adopted”); Waste Mgmt., Inc., 669 F. Supp. at

8 542-43 (“An agency in the process of writing new regulations on a topic as sensitive as ocean

9 incineration of hazardous waste cannot be faulted for maintaining the status quo [by not issuing

10 new operating permits] until it is satisfied that the incineration can proceed as safely as possible.”).

11

4. The Joint Memorandum’s SAO Provision Is Consistent With The INA

12

Plaintiffs argue that the SAO provision “fundamentally conflicts” with the INA because

13 it “rewrite[s]” the definition of “refugee” found in 8 U.S.C. § 1101(a)(42), and “impermissibly

14 alters admissibility standards” set out in 8 U.S.C. § 1182(a). Pls.’ Br. at 21. Section 1101(a)(42)

15 simply defines the term “refugee,” and Section 1182(a) states, in relevant part, that “aliens who

16 are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to

17 be admitted to the United States,” 8 U.S.C. § 1182(a). There is no conflict: Congress has set the

18 minimum required to gain entry as a refugee, but has still vested the Secretary with complete

19 “discretion” in deciding whether “any refugee” “may” be admitted. 8 U.S.C. § 1157(c)(1); see

20 also Part II.A.1, supra. There is nothing improper about the Cabinet Secretaries exercising that

21 discretion to temporarily prioritize admissions from non-SAO countries while reviewing whether

22 additional safeguards are necessary for those from countries found to “pose elevated potential

23 risks to national security.” Joint Mem. Addendum at 1. And though Plaintiffs apparently fault

24 the SAO provision for allowing admission of refugees from SAO countries on a case-by-case

25 basis, Pls.’ Br. at 21, the Government’s use of its discretion to provide such a waiver is a virtue

26 of the Joint Memorandum. If the agencies have the greater authority to temporarily prioritize

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 22 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 admissions from non-SAO countries (and they do), see Part II.A.1, supra, that necessarily

2 includes the lesser authority to provide for case-by-case exceptions. Indeed, waiver provisions

3 are routinely included in Presidential entry restrictions. See, e.g., Proclamation No. 8693, § 4, 76

4 Fed. Reg. 44,751 (July 24, 2011); Proclamation No. 8342, § 2, 74 Fed. Reg. 4093 (Jan. 21, 2009);

5 Proclamation No. 6958, § 2, 61 Fed. Reg. 60,007 (Nov. 22, 1996).

6

Plaintiffs’ contrary theory—that the Executive Branch is precluded from acting whenever

7 an INA provision addresses the same topic—is ill-suited to the arena of national security and

8 foreign affairs, which involve delicate balancing in the face of changing circumstances, such that

9 the Executive must be permitted to act quickly and flexibly. See Zemel v. Rusk, 381 U.S. 1, 17

10 (1965) (discussing the “changeable and explosive nature of contemporary international

11 relations”); Jama v. ICE, 543 U.S. 335, 348 (2005). In this setting, courts typically apply the

12 opposite presumption: courts will not assume Congress’s intent to foreclose the President’s

13 authority over national security and foreign affairs unless Congress has specifically expressed that

14 intent. See Jama, 543 U.S. at 348 (“To infer an absolute rule . . . where Congress has not clearly

15 set it forth would run counter to our customary policy of deference to the President in matters of

16 foreign affairs.”); Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988) (“[U]nless Congress

17 specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the

18 authority of the Executive in military and national security affairs.”). Plaintiffs’ interpretation of

19 the INA effectively eliminates the discretion Congress expressly provided the Executive Branch.

20

B. The Joint Memorandum Does Not Violate the Establishment Clause

21

The Court should not even consider Plaintiffs’ Establishment Clause challenge at this time

22 given the Supreme Court’s December 4, 2017, orders allowing the Proclamation to take full effect.

23 As the Government will explain in its forthcoming supplemental brief, the Supreme Court has

24 determined that plaintiffs are not likely to succeed on their Establishment Clause challenge to the

25 Proclamation, and Plaintiffs’ Establishment Clause claims here are even weaker because they

26 challenge decisions by the Secretaries, whose integrity has not been questioned.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 23 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1

However, if this Court is inclined to reach Plaintiffs’ Establishment Clause claims now, then

2 it should deny their request for injunctive relief.

3

1. The Joint Memorandum Is Valid Under Mandel

4

The Supreme Court has made clear that, “when the Executive exercises” its authority to

5 exclude aliens from the country “on the basis of a facially legitimate and bona fide reason, the

6 courts will neither look behind the exercise of that discretion, nor test it by balancing its

7 justification against the” asserted constitutional rights of U.S. citizens. Mandel, 408 U.S. at 770.

8 Mandel involved a First Amendment speech claim, but courts have applied its test to other

9 constitutional claims as well. See, e.g., Fiallo, 430 U.S. at 792-96 (equal protection); Rajah,

10 544 F.3d at 438 (claims alleging discrimination based on “religion, ethnicity, gender, and race”);

11 Washington v. Trump, 858 F.3d 1168, 1179-82 (9th Cir. 2017) (Bybee, J., dissenting from denial

12 of reconsideration en banc) (collecting cases). Mandel’s rule reflects that the Constitution

13 “exclusively” allocates power over the admission of aliens to the “political branches,” Mandel,

14 408 U.S. at 765 (citation omitted), and that aliens abroad have no constitutional rights at all 15 regarding entry into the country. See Fiallo, 430 U.S. at 792-96.14

16

Mandel compels rejecting Plaintiffs’ Establishment Clause claim because the Joint

17 Memorandum provides “facially legitimate and bona fide reason[s].” 408 U.S. at 770. For the

18 following-to-join provision, the Secretaries of State and Homeland Security and the Director of

19 National Intelligence determined that implementation of “adequate screening mechanisms for

20 following-to-join refugees that are similar to the processes employed for principal refugees” is

21 necessary “to ensure the security and welfare of the United States.” Joint Mem. at 3. And for the

22

23

14 Contrary to Plaintiffs’ assertion (Pls.’ Br. at 14 n.16), the Ninth Circuit has not rejected Mandel’s application to Plaintiffs’ Establishment Clause claim. See Washington, 847 F.3d at

24 1168 (per curiam) (expressly “reserv[ing] consideration” of Establishment Clause challenge). Moreover, the Supreme Court applied Mandel in Fiallo v. Bell, 430 U.S. 787, 792-96 (1977),

25 where it rejected a claim that a statute unconstitutionally discriminated against certain aliens based

on their sex and the legitimacy of their children. In doing so, the Court held that it could “see no 26 reason to review the broad congressional policy choice at issue [there] under a more exacting

standard than was applied in Kleindienst v. Mandel.” Id. at 795. Mandel likewise applies here.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 24 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 SAO provision, the Joint Memorandum explained that after review of the USRAP’s vetting

2 procedures, the Cabinet Secretaries “continue to have concerns” about the admission of refugees

3 from SAO countries, which were “previously identified as posing a higher risk to the United

4 States.” Joint Mem. at 2. Accordingly, those officials decided to “conduct a detailed threat

5 analysis” of the SAO countries “to determine what additional safeguards, if any, are necessary to

6 ensure that the admission of refugees from these countries of concern does not pose a threat to the

7 security and welfare of the United States.” Id.

8

Under Mandel’s rational-basis test, see Sessions v. Morales-Santana, 137 S. Ct. 1678,

9 1693 (2017), it is not for Plaintiffs or the Court to second-guess the national-security

10 determinations of these Executive Branch officials. See, e.g., Reno v. Am.-Arab Anti-

11 Discrimination Comm., 525 U.S. 471, 491 (1999) (courts are generally “ill equipped to determine

12 the[] authenticity and utterly unable to assess the[] adequacy” of the Executive’s “reasons for

13 deeming nationals of a particular country a special threat”). Because the Joint Memorandum

14 provides a facially legitimate and bona fide reason for imposing the conditions Plaintiffs

15 challenge, Plaintiffs’ constitutional claims fail.

16

2. Plaintiffs’ Claims Fail Even Apart From The Mandel Standard

17

Plaintiffs’ claims also fail without regard to Mandel because the Joint Memorandum is

18 valid under domestic Establishment Clause precedent. The Establishment Clause requires the

19 government to “‘pursue a course of neutrality toward religion,’ favoring neither one religion over

20 others nor religious adherents collectively over nonadherents.” Bd. of Educ. of Kiryas Joel Vill.

21 Sch. Dist. v. Grumet, 512 U.S. 687, 696 (1994) (internal citation omitted); see Church of the

22 Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993). The Joint Memorandum

23 fully comports with that principle. It does not draw “explicit and deliberate distinctions” based

24 on religion. Larson v. Valente, 456 U.S. 228, 246 n.23 (1982). To the contrary, it is entirely

25 neutral in terms of religion. The Joint Memorandum also was not motivated by a religious

26 purpose. Even in the domestic context, a court deciding whether official action violates the

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 25 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 Establishment Clause because of an improper religious purpose looks only to “the ‘text, legislative

2 history, and implementation of the statute,’ or comparable official act.” McCreary County v.

3 ACLU of Ky., 545 U.S. 844, 862 (2005). The court is not to engage in “judicial psychoanalysis

4 of a drafter’s heart of hearts.” Id. Rather, it is only an “official objective” of favoring or

5 disfavoring religion that implicates the Clause. Id. There is no basis for invalidating the Joint

6 Memorandum under that standard either. The Joint Memorandum’s text does not refer to or draw

7 any distinction based on religion. And its “operation,” Lukumi, 508 U.S. at 535, confirms that it

8 is religion-neutral: it applies regardless of one’s religion.

9

Plaintiffs nevertheless argue that the Joint Memorandum “target[s] . . . primarily majority-

10 Muslim countries.” Pls.’ Br. at 14, 17. But the following-to-join provision applies worldwide,

11 without regard to nationality or religion. And the list of eleven current SAO countries was not

12 selected based on the religious beliefs of the countries’ nationals; rather, the countries were

13 identified in 2015 through interagency consultations as countries that “pose elevated potential

14 risks to national security.” Joint Mem. Addendum at 1; cf. Rajah, 544 F.3d at 439 (holding that

15 a program regulating aliens from certain countries survived rational-basis review and was not

16 motivated by an improper animus toward Muslims even though all of the selected countries,

17 except North Korea, were predominantly Muslim).

18

Plaintiffs also rely on past judicial determinations regarding previous Executive Orders

19 that are not at issue here, as well as campaign-trail statements or other remarks that do not address

20 the Joint Memorandum. See Pls.’ Br. at 14-15. Because none of those decisions or statements

21 address the Joint Memorandum, they are not relevant to the Government’s purpose in issuing the

22 Joint Memorandum. Moreover, the relevant decision here is set forth in the Joint Memorandum,

23 which was issued by the Secretaries of State and Homeland Security and the Director of National

24 Intelligence. As the relevant decisionmakers, therefore, it is those officials’ purpose and intent

25 that are relevant to the Establishment Clause analysis. See, e.g., Vill. of Arlington Heights v.

26 Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977) (examining the “decisionmaker’s purposes”

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 26 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 in assessing equal protection claim); Modrovich v. Allegheny County, 385 F.3d 397, 411-12 (3d

2 Cir. 2004) (concluding that “statements made by other County officials” who were not “the

3 decision-maker for the County with respect to the Plaque” were not relevant to the Establishment

4 Clause purpose analysis). Plaintiffs have not alleged, let alone demonstrated, that the relevant 5 officials here were motivated by a religious purpose or harbored anti-Muslim animus.15

6

Even if the Court were to associate the Cabinet Secretaries’ actions here with past

7 decisions or statements by other officials (and it should not), the conclusion is the same: the Joint

8 Memorandum rests on sound constitutional footing. In the context of EO-2’s temporary

9 suspension of the refugee program, the district court in IRAP v. Trump, 241 F. Supp. 3d 539, 565

10 (D. Md. 2017), aff’d in part and vacated in part, 857 F.3d 554 (4th Cir. 2017), declined to enjoin

11 that provision, holding that there was insufficient evidence of animus connected to the refugee 12 program specifically.16 Plaintiffs fail to point to anything in the interim to change that conclusion.

13 Moreover, the President in EO-2 expressly disavowed any intent to benefit one religion over 14 another, see EO-2 § 1(b)(iv). Plaintiffs’ Establishment Clause claim fails.17

15 III. THE REMAINING FACTORS WEIGH AGAINST INJUNCTIVE RELIEF

16

Apart from their inability to demonstrate a likelihood of success on the merits, Plaintiffs

17 have not shown that “irreparable injury is likely in the absence of an injunction.” Winter, 555

18 U.S. at 22 (emphasis omitted). They have not established that the Joint Memorandum has caused

19 them an injury at all, let alone an irreparable one. Refugees from SAO countries may still qualify

20

21

15 Past actions cannot “forever taint” future government efforts. McCreary, 545 U.S. at

874. The “specific sequence of events” leading to the issuance of the Joint Memorandum— 22 especially the extensive, multi-agency process and decisions by the Secretaries of State and

23

Homeland Security and Director of National Intelligence—severs any connection between past executive orders’ supposed religious purpose and the Joint Memorandum. Id. at 866.

24

16 Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017), vacated as moot, 874 F.3d 1112 (9th

Cir. 2017), did not address whether EO-2’s refugee provision violated the Establishment Clause.

25

17 Plaintiffs add that the Joint Memorandum “violates the equal protection component of

the Due Process Clause.” Pls.’ Br. at 17 n.17. Issues averred in a perfunctory manner are waived, 26 see, e.g., Daily v. Astrue, No. CV-12-00389-JLQ, 2013 WL 5372897, at *5 (E.D. Wash. Sept. 25,

2013). In any event, Plaintiffs cannot show an equal protection violation, see Part I.C.2, supra.

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 27 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 for admission on a case-by-case basis during the review period, while the following-to-join

2 provision simply prescribes an implementation period to bring screening procedures for

3 following-to-join and principal refugees into parity. At most these provisions might delay the

4 entry of some refugee applicants, but such delay does not constitute irreparable harm. After all,

5 processing times for refugees can vary widely and on average are quite lengthy. See U.S. Dep’t

6 of State, U.S. Refugee Admissions Program, https://www.state.gov/j/prm/ra/admissions

7 /index.htm. Because Plaintiffs have not shown that the challenged provisions will irreparably

8 harm them, they are not entitled to the extraordinary remedy of preliminary injunctive relief.

9

Conversely, an injunction would cause direct, irreparable harm to the Government and the

10 public interest. “[A]ny time a State is enjoined by a court from effectuating statutes enacted by

11 representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 133 S. Ct.

12 1, 3 (2012) (Roberts, C.J., in chambers) (citation omitted). This principle extends naturally to the

13 national-security judgments of Cabinet Secretaries. “It is ‘obvious and unarguable’ that no

14 governmental interest is more compelling than the security of the Nation.” Haig, 453 U.S. at 307

15 (citations omitted). These officials have jointly determined that, with certain exceptions,

16 admitting refugees from SAO countries without conducting a further review of those countries

17 and admitting following-to-join refugee applicants who have not been vetted through screening

18 processes similar to those employed for principal refugees would not be in the nation’s best

19 interest. This Court should not second-guess the Secretaries’ judgment, particularly in light of

20 the Supreme Court’s orders staying injunctions against the Proclamation. These stay orders

21 suggest that a majority of the Justices have concluded that, in this immigration and national-

22 security context, the balance of equities favors the Government.

23 IV. A GLOBAL INJUNCTION WOULD BE INAPPROPRIATE

24

Even if some relief were appropriate (and it is not), the Court should tailor any remedy to

25 address only the alleged injuries of Plaintiffs who have made an adequate showing to satisfy

26 Article III’s justiciability requirements. Article III requires that “a plaintiff must demonstrate

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 28 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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1 standing . . . for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137

2 S. Ct. 1645, 1650 (2017). The remedy sought therefore must “be limited to the inadequacy that

3 produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U.S. 343, 357

4 (1996). Equitable principles likewise require that injunctions “be no more burdensome to the

5 defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health

6 Ctr., Inc., 512 U.S. 753, 765 (1994) (citation omitted). Any injunction the Court enters should be

7 limited to relieving whatever irreparable injury the Court concludes one or more named Plaintiffs 8 have suffered or imminently will suffer as a consequence of the challenged provisions.18

9

CONCLUSION

10

The Court should deny Plaintiffs’ Motion for Preliminary Injunction.

11 12 DATED: December 7, 2017 13 14 15 16 17

Respectfully submitted,
CHAD A. READLER Principal Deputy Assistant Attorney General
JENNIFER D. RICKETTS Director, Federal Programs Branch
JOHN R. TYLER Assistant Director, Federal Programs Branch

18

/s/ Joseph C. Dugan

MICHELLE R. BENNETT

19

DANIEL SCHWEI

20

KEVIN SNELL

JOSEPH C. DUGAN

21

Trial Attorneys

U.S. Department of Justice

22

Civil Division, Federal Programs Branch

23

20 Massachusetts Avenue, NW

24

18 The Jewish Family Service Plaintiffs attempt to justify a “nationwide injunction” by

contending that they “hail from all over the country.” JFS Notice at 3. But Plaintiffs collectively

25 reside in just five states. In any event, Plaintiffs’ proposed nationwide injunction is tantamount

to an award of classwide injunctive relief, but no class has been certified here. An “injunction 26 must be limited to apply only to the individual plaintiffs unless the district judge certifies a class

of plaintiffs.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983).

DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 29 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

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Washington, DC 20530

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Tel: (202) 514-3259

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Fax: (202) 616-8470 Email: joseph.dugan@usdoj.gov

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DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 30 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 77 Filed 12/07/17 Page 34 of 34

1

CERTIFICATE OF SERVICE

2 I certify that on December 7, 2017, a copy of the foregoing document was electronically
3 filed with the Clerk of the Court using the CM/ECF system, which will send notification of such
4 filing to all counsel of record.
5 DATED this 7th day of December, 2017.
6

7

/s/ Joseph C. Dugan JOSEPH C. DUGAN

8

9

10

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DEFENDANTS’ OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 31 Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-1707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

 
 Case 2:17-cv-00178-JLR Document 78 Filed 12/11/17 Page 1 of 6

The Honorable James L. Robart 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 JOHN DOE, et al.,

Civil Action No. 2:17-cv-00178JLR

11

Plaintiffs,

12

v.

13 DONALD TRUMP, et al.,

14

Defendants.

15 JEWISH FAMILY SERVICE OF
16 SEATTLE, et al.,

17

Plaintiffs,

18

v.

19 DONALD TRUMP, et al.,

20

Defendants.

Civil Action No. 2:17-cv-01707JLR
DEFENDANTS’ SUPPLEMENTAL BRIEF CONCERNING SUPREME COURT STAY ORDERS
(RELATING TO BOTH CASES)

21

22

23

24

25

26

SUPPLEMENTAL BRIEF CONCERNING SUPREME COURT STAY ORDERS Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 78 Filed 12/11/17 Page 2 of 6

1

On December 5, 2017, this Court directed all parties to submit supplemental briefs

2 addressing “what impact, if any, the Supreme Court’s December 4, 2017, orders have concerning

3 the two pending motions for preliminary injunction.” ECF No. 68 at 2. Those Supreme Court

4 orders, entered in Trump v. Hawaii, No. 17A550, 2017 WL 5987406 (U.S. Dec. 4, 2017), and

5 Trump v. IRAP, No. 17A560, 2017 WL 5987435 (U.S. Dec. 4, 2017), stayed in full injunctions

6 that district courts had entered against enforcement of portions of Presidential Proclamation No.

7 9645, titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into

8 the United States by Terrorists or Other Public-Safety Threats.” See 82 Fed. Reg. 45,161 (Sept.

9 24, 2017) (hereafter “Proclamation”). Consequently, the Proclamation is now fully enforceable.

10

Although the Proclamation does not involve the refugee-related policies at issue in this

11 case, the legal determinations underpinning the stay orders logically extend to the policies

12 challenged in these consolidated cases and counsel against Plaintiffs’ requested relief. In deciding

13 whether to stay an injunction, the Supreme Court considers the same factors that govern the

14 issuance of a preliminary injunction. See Nken v. Holder, 556 U.S. 418, 434 (2009). Accordingly,

15 when the Supreme Court granted the Government’s stay applications in IRAP and Hawaii, the

16 Court necessarily determined that the Government had demonstrated a likelihood of success on

17 the merits and that the Government’s national-security and foreign-policy interests outweighed

18 the plaintiffs’ interests.

19

Here, the legal claims and equitable interests that Plaintiffs rely on in their challenges to

20 the refugee policies overlap with those at issue in IRAP and Hawaii. In fact, several of Plaintiffs’

21 arguments are even weaker here. For example, the Supreme Court stayed the injunctions in IRAP

22 and Hawaii despite the plaintiffs’ claim that the President had made statements purportedly

23 showing that the Proclamation’s entry restrictions were motivated by religious animus in violation

24 of the Establishment Clause. Plaintiffs here, however, have not even attempted to allege any

25 animus associated with the relevant decisionmakers for the Joint Memorandum’s Security

26 Advisory Opinion (“SAO”) provision and following-to-join provision—i.e., the Secretaries of

SUPPLEMENTAL BRIEF CONCERNING SUPREME COURT STAY ORDERS - 1 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 78 Filed 12/11/17 Page 3 of 6

1 State and Homeland Security and the Director of National Intelligence. Plaintiffs’ Establishment

2 Clause claim is on even weaker footing than the claims in IRAP and Hawaii. And the Government

3 has already explained in detail why Plaintiffs’ claims that do not overlap with those in IRAP or

4 Hawaii lack any merit. See ECF Nos. 51 & 77.

5

In terms of the equitable balance, moreover, the Government’s national-security interests

6 relating to the entry of refugees are every bit as weighty as its interests regarding the entry of other

7 aliens from abroad. Yet Plaintiffs’ interests here are significantly weaker than those of the

8 plaintiffs in IRAP and Hawaii. The provisions of the Joint Memorandum that Plaintiffs challenge

9 are temporary. The SAO provision calls for a 90-day review and reprioritization period, see ECF

10 No. 46–2 at 2, and more than half of that period has already elapsed. The following-to-join

11 provision establishes an implementation period to bring screening mechanisms for principal and

12 following-to-join refugees into alignment. As soon as these mechanisms are in place, following-

13 to-join refugee processing will resume worldwide. See id. at 3. The agencies are working “as

14 expeditiously as possible” to implement these mechanisms, ECF No. 51–1 ¶ 16, and the State

15 Department currently anticipates that the following-to-join implementation period will conclude

16 and that consular officials will resume actively processing following-to-join refugee applications 17 at almost all locations by February 1, 2018.1 Moreover, the ordinary processing time for refugee

18 applicants is significant and can vary, such that the challenged provisions may cause at most a

19 limited interim delay for some applicants. Indeed, given that the review and implementation

20 requirements under the challenged provisions will likely be completed in under two months,

21 Plaintiffs’ claims might very well be moot before this Court could rule on the pending motions.

22

23

24

1 As set forth in the Declaration of Jennifer B. Higgins, ECF No. 51–1 ¶ 11, the

Government is currently issuing travel authorizations to following-to-join refugee applicants

25 “with approved Forms I-730 who have had their Forms I-730 processed by a[ resettlement support

center] in Thailand or Kenya” (subject to other applicable restrictions on refugee admissions), as 26 security procedures in those locations are already aligned with the procedures employed for

principal refugees.

SUPPLEMENTAL BRIEF CONCERNING SUPREME COURT STAY ORDERS - 2 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 78 Filed 12/11/17 Page 4 of 6

1

The Supreme Court’s determination that the Government’s interests predominate over the

2 IRAP and Hawaii plaintiffs’ interests, at least for the length of time necessary for resolution of

3 the issues by the courts of appeals and the Supreme Court, likewise means that the Government’s

4 interests in the secure vetting of potential refugees predominate over Plaintiffs’ interests during

5 the temporary period these refugee policies are in effect. As in IRAP and Hawaii, the Government

6 and the public would be irreparably harmed by being forced to admit refugee applicants for which

7 the Government currently lacks sufficient information to assess the risk that they pose to the

8 United States. In short, the Supreme Court’s stay orders counsel against relief as to the refugee

9 policies, because on all of the relevant factors the Government is in at least the same position, if

10 not a stronger position, as in IRAP and Hawaii. Accordingly, this Court should deny Plaintiffs’

11 motions for preliminary injunctive relief.

12

In addition, the Court should consider staying further proceedings in these cases pending

13 completion of all appellate proceedings in IRAP and Hawaii. Given the significant overlap

14 between the Plaintiffs’ challenges here and the legal claims at issue in IRAP and Hawaii, staying

15 further proceedings—including postponement of the December 21, 2017, argument—pending

16 further guidance from the appellate courts makes eminent sense, particularly in light of the

17 Supreme Court’s expectation that appellate proceedings will be conducted “with appropriate

18 dispatch,” Trump v. Hawaii, 2017 WL 5987406, at *1; see also Washington v. Trump, No. C17-

19 0141JLR, 2017 WL 2172020, at *2-3 (W.D. Wash. May 17, 2017) (staying proceedings pending

20 resolution of appeal involving overlapping legal questions). Thus, the Supreme Court’s recent

21 orders warrant denying Plaintiffs’ motions, or at a minimum staying consideration of those

22 motions and any further proceedings in these cases pending completion of the appeals in IRAP

23 and Hawaii.

24 25 DATED: December 11, 2017
26

Respectfully submitted,
CHAD A. READLER Principal Deputy Assistant Attorney General

SUPPLEMENTAL BRIEF CONCERNING SUPREME COURT STAY ORDERS - 3 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 78 Filed 12/11/17 Page 5 of 6

1

JENNIFER D. RICKETTS

2

Director, Federal Programs Branch

3

JOHN R. TYLER

Assistant Director, Federal Programs Branch

4

/s/ Joseph C. Dugan

5

MICHELLE R. BENNETT

6

DANIEL SCHWEI

KEVIN SNELL

7

JOSEPH C. DUGAN

Trial Attorneys

8

U.S. Department of Justice

Civil Division, Federal Programs Branch

9

20 Massachusetts Avenue, NW

10

Washington, DC 20530

Tel: (202) 514-3259

11

Fax: (202) 616-8470

Email: joseph.dugan@usdoj.gov 12

13

Attorneys for Defendants

14

15

16

17

18

19

20

21

22

23

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25

26

SUPPLEMENTAL BRIEF CONCERNING SUPREME COURT STAY ORDERS - 4 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 78 Filed 12/11/17 Page 6 of 6

1

CERTIFICATE OF SERVICE

2 I certify that on December 11, 2017, a copy of the foregoing document was electronically
3 filed with the Clerk of the Court using the CM/ECF system, which will send notification of such
4 filing to all counsel of record.
5 DATED this 11th day of December, 2017.
6

7

/s/ Joseph C. Dugan JOSEPH C. DUGAN

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

SUPPLEMENTAL BRIEF CONCERNING SUPREME COURT STAY ORDERS - 5 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

 
 Case 2:17-cv-00178-JLR Document 79 Filed 12/13/17 Page 1 of 19

1

THE HONORABLE JAMES L. ROBART

2

3

4

5

6

7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 JOHN DOES, et al.,

10

Plaintiffs,

11

v.

12 DONALD TRUMP, et al.,

13

Defendants.

14 JEWISH FAMILY SERVICE, et al.,
15 Plaintiffs,
16 v.
17 DONALD TRUMP, et al.,
18 Defendants.
19

CASE NO. C17-0178JLR JEWISH FAMILY SERVICE PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (RELATING TO CASE NO. C17-1707JLR)
CASE NO. C17-1707JLR

20

21

22

23

24

25

26

PLAINTIFFS’ REPLY (No. 17-cv-01707-JLR)
137902465.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 79 Filed 12/13/17 Page 2 of 19

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES .......................................................................................................... ii

3 I. PLAINTIFFS’ CLAIMS ARE JUSTICIABLE ...................................................................2

4

A. The Plaintiffs Have Standing ...................................................................................2

5

B. This Court Has Jurisdiction To Review Plaintiffs’ Claims .....................................4

6 II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ......................................5

7
8
9 III.
10

A. The Memorandum Violates the Administrative Procedure Act and the Immigration and Nationality Act .............................................................................5
B. Plaintiffs Are Likely To Succeed on Their Establishment Clause Claim................9
THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH IN FAVOR OF A NATIONWIDE INJUNCTION ................................................................12

11 CONCLUSION..............................................................................................................................12

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ REPLY (No. 17-cv-01707-JLR)
137902465.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 79 Filed 12/13/17 Page 3 of 19

1

TABLE OF AUTHORITIES 2

CASES 3

Abbott Laboratories v. Gardner,

4

387 U.S. 136 (1967).............................................................................................................5

5 Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987)...................................................6
6

Already, LLC v. Nike, Inc.,

7

568 U.S. 85, 92 (2013) ........................................................................................................1

8 Agricultural Retailers Ass’n v. U.S. Department of Labor, 837 F.3d 60 (D.C. Cir. 2016) ...............................................................................................8
9

Aquavella v. Richardson,

10

437 F.2d 397 (2d Cir. 1971).................................................................................................2

11 Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) .............................................................................................8
12

Bennett v. Spear,

13

520 U.S. 154 (1997).............................................................................................................5

14 Catholic League for Religious & Civil Rights v. City & County of San Francisco, 624 F.3d 1043 (9th Cir. 2010) .............................................................................................2
15

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

16

508 U.S. 520 (1993)...........................................................................................................11

17 Environmental Defense Fund v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983) .............................................................................................9
18

Franklin v. Massachusetts,

19

505 U.S. 788 (1992).............................................................................................................5

20 Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477 (2010)...........................................................................................................11
21

Haitian Refugee Center, Inc. v. Baker,

22

953 F.2d 1498 (11th Cir. 1992) ...........................................................................................4

23 Hawai’i v. Trump (Hawai’i II),

859 F.3d 741 (9th Cir. 2017), vacated as moot, No. 16-1540, 2017 WL 4782860

24

(U.S. Oct. 24, 2017) ...................................................................................................2, 4, 12

25 Hawai’i v. Trump (Hawaii III), 871 F.3d 646 (9th Cir. 2017) ...........................................................................................3, 6
26

PLAINTIFFS’ REPLY (No. 17-cv-01707-JLR) –ii
137902465.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 79 Filed 12/13/17 Page 4 of 19

1 Hawai’i v. Trump, 241 F. Supp. 3d 1119 (D. Haw. 2017) ...............................................................................12
2

Hemp Industries Ass’n v. DEA.,

3

333 F.3d 1082 (9th Cir. 2003) .............................................................................................8

4 Hernandez-Cruz v. Holder, 651 F.3d 1094 (9th Cir. 2011) .............................................................................................7
5

Ill. Public Telecommunications Ass’n v. FCC,

6

117 F.3d 555 (D.C. Cir. 1997) .............................................................................................8

7 International Brotherhood of Teamsters v. U.S. Department of Transportation,

861 F.3d 944 (9th Cir. 2017) ...............................................................................................6 8

IRAP v. Trump,

9

241 F. Supp. 3d 539 (D. Md. 2017) ...................................................................................12

10 IRAP v. Trump (IRAP II),

857 F.3d 554 (4th Cir. 2017), vacated, No. 16-1436, 2017 WL 4518553 (U.S.

11

Oct. 10, 2017) ............................................................................................................2, 4, 12

12 IRAP v. Trump (IRAP III), Nos. TDC-17-0361 et al., 2017 WL 4674314 (D. Md. Oct. 17, 2017)..........................2, 10
13

Jean v. Nelson,

14

711 F.2d 1455 (11th Cir. 1983), aff’d, 472 U.S. 846 (1985) ...............................................9

15 Kleindienst v. Mandel, 408 U.S. 753 (1972)...........................................................................................................10
16

Leiva-Perez v. Holder,

17

640 F.3d 962 (9th Cir. 2011) .............................................................................................10

18 McGowan v. Maryland, 366 U.S. 420 (1961)...........................................................................................................10
19

McLouth Steel Products Corp. v. Thomas,

20

838 F.2d 1317 (D.C. Cir. 1988) ...........................................................................................8

21 Neighborhood TV Co. v. FCC, 742 F.2d 629 (D.C. Cir. 1984) .............................................................................................9
22

Oregon Natural Desert Ass’n v. U.S. Forest Service,

23

465 F.3d 977 (9th Cir. 2006) ...............................................................................................6

24 Oregon v. Ashcroft,

368 F.3d 1118 (9th Cir. 2004), aff’d sub nom.,

25

Gonzales v. Oregon, 546 U.S. 243 (2006) ...........................................................................6

26

PLAINTIFFS’ REPLY (No. 17-cv-01707-JLR) –iii
137902465.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 79 Filed 12/13/17 Page 5 of 19

1 Oregon Wild v. Bureau of Land Management, 2015 WL 1190131 (D. Or. 2015).........................................................................................7
2

Patel v. Reno,

3

134 F.3d 929 (9th Cir. 1997) ...........................................................................................4, 5

4 Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008).................................................................................................9
5

Retailers Ass’n v. U.S. Department of Labor,

6

837 F.3d 60 (D.C. Cir. 2016) ...............................................................................................8

7 Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).............................................................................................................4
8

Saavedra Bruno v. Albright,

9

197 F.3d 1153 (D.C. Cir. 1999) ...........................................................................................5

10 Washington v. Trump,

847 F.3d 1151 (9th Cir. 2017), cert. denied sub nom., Golden v. Washington, No.

11

17-5424, 2017 WL 3224674 (U.S. Nov. 13, 2017) ...................................................1, 4, 10

12 Washington v. Trump,

No. 17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3 2017), stay pending

13

appeal denied, 847 F.3d 1151 (9th Cir.), amended and superseded by 858 F.3d

1151 (9th Cir.), cert. denied sub nom., Golden v. Washington, No. 17-5424, 2017

14

WL 3224674 (U.S. Nov. 13, 2017)....................................................................................12

15 Waste Management, Inc. v. EPA, 669 F. Supp. 536 (D.D.C. 1987) ..........................................................................................9
16

Yassini v. Crosland,

17

618 F.2d 1356 (9th Cir. 1980) .............................................................................................9

18

STATUTES

19 8 U.S.C. §1157(c)(1)........................................................................................................................6

20 8 U.S.C. § 1157(a)(3).......................................................................................................................7

21

REGULATIONS

22 8 C.F.R. § 207.5 (2017) ...................................................................................................................7

23

OTHER AUTHORITIES

24 Proposed Refugee Admissions for Fiscal Year 2018 Report to the Congress, https://www.state.gov/j/prm/releases/docsforcongress/274613.htm ...................................7
25

26

PLAINTIFFS’ REPLY (No. 17-cv-01707-JLR) –iv
137902465.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 79 Filed 12/13/17 Page 6 of 19

1

Defendants’ response to Plaintiffs’ motion obfuscates a key fact: the Memorandum

2 orders a suspension of nearly half of the USRAP—a suspension just like those ordered under the

3 first and second Executive Orders banning refugees (“EO-1” and “EO-2”), but now undeniably

4 targeting Muslims. This is not merely a change of procedure; it prevents the resettlement of the

5 vast majority of Muslim refugees to the United States, while favoring and prioritizing Christian

6 refugees—just as the Administration has promised on multiple occasions. See Pls.’ Mot. for

7 Prelim. Inj., ECF 42, at 1-4 (“PI”). While Defendants seek to minimize the suspension’s

8 irreparable harm to Plaintiffs by characterizing it as a temporary pause, such attempts are belied

9 by the Memorandum and its context—that this is but the latest attempt in what has amounted to

10 nearly a year-long suspension of refugee resettlement to the United States. The consequences for

11 Plaintiffs are perilously severe.1

12

Defendants do not dispute several notable issues. They do not dispute that their ban on

13 refugees subject to the Security Advisory Opinion (“SAO”) list targets people from 11 countries,

14 9 of which are Muslim-majority, accounting for 80 percent of Muslim refugee admissions to the

15 United States. See PI at 8-9. Nor do they dispute that the ban on follow-to-join (“FTJ”)

16 beneficiaries primarily affects Muslims. See id. Finally, Defendants have not submitted any

17 evidence to counter Plaintiffs’ affidavits, including two expert affidavits, that demonstrate that

18 the bans inflict irreparable harms on Plaintiffs and lack national security or other valid

19 justification.

20

21
1 In their latest filing, Defendants seek to delay resolution of this motion based on the Supreme Court’s stay
22 orders and on vague assertions, couched in terms of “might” and “almost” about progress of the reviews under the
Memorandum. Defs’ Supp. Br., ECF 78, at 2. But the Supreme Court stay orders do not justify staying this motion
23 as Plaintiffs have explained, ECF 73 & 76, and Defendants have not met their burden of showing that it is
“absolutely clear” that the alleged wrongful behavior could not reasonably be expected to recur, as is required of a
24 defendant claiming mootness by voluntary cessation. Already, LLC v. Nike, Inc., 568 U.S. 85, 92 (2013) (describing
the defendants burden as “formidable”); see Washington v. Trump, 847 F.3d 1151, 1165-66 (9th Cir. 2017)
25 (rejecting argument that challenge to EO-1 by lawful permanent residents is moot because of White House counsel’s
guidance published after the order), cert. denied sub nom., Golden v. Washington, No. 17-5424, 2017 WL 3224674
26 (U.S. Nov. 13, 2017). Defendants’ assertion that Plaintiffs’ claims are moot should be rejected. Given the ongoing
irreparable harm to the Plaintiffs, see infra, Plaintiffs ask the Court to resolve this motion as soon as practicable.

CERTIFICATE OF SERVICE (No. 17-cv-01707-JLR) –1
137902465.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 79 Filed 12/13/17 Page 7 of 19

1 I. 2 3

PLAINTIFFS’ CLAIMS ARE JUSTICIABLE A. The Plaintiffs Have Standing Ignoring overwhelming evidence of harm to individual Plaintiffs and clients of

4 organizational Plaintiffs, PI at 10-12, Defendants argue that any harm to Plaintiffs is merely

5 “speculative” because banned refugees may be eligible for a case-by-case waiver, and because

6 “it is doubtful that these applicants are on the brink of travel such that the 90-day SAO review 7 period will have any concrete impact on them.” Defs. Opp. Br., ECF 77, at 6-8 (“Br.”).2

8 Defendants’ argument that the discretionary waiver undermines ripeness, however, has been

9 resoundingly rejected by courts reviewing prior Executive Orders (“EOs”). See Hawai’i v.

10 Trump (Hawai’i II), 859 F.3d 741, 768 (9th Cir. 2017) (holding that plaintiffs “will face

11 substantial hardship if we were to first require that they try to obtain a waiver before we will

12 consider their case”), vacated as moot, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017);

13 IRAP v. Trump (IRAP III), Nos. TDC-17-0361, et al., 2017 WL 4674314, at *16 (D. Md. Oct. 17,

14 2017) (same). The Ninth Circuit also held that a plaintiff had standing to challenge EO-2’s 90-

15 day suspension of travel where EO-2 stalled the visa process for his family member, without

16 considering whether the family member was on the brink of travel during the suspension period.

17 See Hawai’i II, 859 F.3d at 762-63; see also IRAP v Trump (IRAP II), 857 F.3d 554, 583 (4th

18 Cir. 2017) (holding that condemnation injury, along with prolonged separation from family

19 members, constitutes imminent injury where “[a] ninety-day pause on issuing visas would seem

20 to necessarily inject at least some delay into any pending application’s timeline”), vacated, No. 21 16-1436, 2017 WL 4518553 (U.S. Oct. 10, 2017).3 Here, Defendants have not articulated a clear

22 end to the suspension period. See supra n.1.

23

2 Defendants do not otherwise challenge the showing of harm to individual Plaintiffs. Moreover, for the
24 individual Plaintiffs who are here in the United States, the condemnation harm to them flowing from the

Establishment Clause violation exists now and is ripe. See Catholic League for Religious & Civil Rights v. City &
25 Cty. of S.F., 624 F.3d 1043, 1053 (9th Cir. 2010) (en banc) (holding that a finding of unconstitutionality of a

government act would redress injury from condemnation of religion).

26

3 See also Aquavella v. Richardson, 437 F.2d 397, 403-05 (2d Cir. 1971) (holding that APA and due

process challenges to agency’s temporary suspension of payments pending an audit was ripe for review where

PLAINTIFFS’ REPLY (No. 17-cv-01707-JLR) –2
137902465.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 79 Filed 12/13/17 Page 8 of 19

1

In addition, contrary to Defendants’ unsupported assertions, a number of individual

2 Plaintiffs and clients of organizational Plaintiffs are on the brink of travel. The State Department

3 confirmed in October that Doe #1 would be scheduled for travel, for example, but the SAO ban

4 came down while he was arranging his paperwork and now the International Organization for

5 Migration (“IOM”)—which works with the U.S. government to arrange refugee travel— has told

6 him that it would not assist him with his paperwork since he cannot travel because of the ban.

7 See Doe 1 Supp. Decl. ¶ 10; Poellot Decl. ¶ 3 (State Department confirmed in October that Doe 1

8 would be scheduled for travel); Burman Supp. Decl. Exs. S, T (IOM handles the final stage for

9 refugees prior to travel). A number of clients assured by JFS-S and JFS-SV are similarly at the

10 stage of arranging travel but have had their travel suspended because of the ban. See JFS-S Supp.

11 Decl. ¶ 10; JFS-SV Supp. Decl. ¶¶ 5-6.4 Such delays are particularly harmful to refugees because

12 their security and medical checks expire and must be redone, all while they remain in perilous

13 circumstances. JFS-S Supp. Decl. ¶ 8; see also Hawai’i v. Trump (Hawai’i III), 871 F.3d 646,

14 664 (9th Cir. 2017) (“Refugees have only a narrow window of time to complete their travel, as

15 certain security and medical checks expire and must then be re-initiated. Even short delays may

16 prolong a refugee’s admittance.”).

17

Defendants also attempt to dismiss evidence of the harms to organizational Plaintiffs—

18 including diversion of resources, hampering of their operations, and frustration of their core

19 missions, see PI at 12-13—by claiming, without any evidence, that JFS-S and JFS-SV may

20 continue to fulfill their missions “by representing such clients who are unaffected by the

21 challenged provisions.” Br. at 9. But neither organization expects to make up the deficits in

22 refugee arrivals caused by the SAO ban by receiving “unaffected refugees,” Br. at 9, and the

23 current figures do not bear Defendants’ claim out. Burman Supp. Decl. ¶ 14; JFS-S Supp. Decl.

24
appellant presented legal questions and “[w]ithout judicial intervention at this stage, appellant [was] at the mercy of
25 the [agency which] [could] insulate the allegedly illegal suspension from review”).
4 Doe 4’s case was expedited because of her dire situation, which means the possibility of travel as soon as
26 six months from referral to the USRAP—or, in Doe 4’s case, now. Doe 4 Decl. ¶ 5 (stating that she was referred to
the USRAP in June 2017); Norland Decl. ¶ 4.

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1 ¶ 3; JFS-SV Supp. Decl. ¶ 2. Each organization, moreover, has devoted resources specifically to

2 serving Muslim and Arabic-speaking refugees because those refugees represent a large

3 percentage of their clients. JFS-S Supp. Decl. ¶¶ 5-7; JFS-SV Supp. Decl. ¶¶ 3-4. Such resources

4 are squandered even if the organizational Plaintiffs are able to meet their projected resettlement

5 numbers only by assisting favored refugees. JFS-S Supp. Decl. ¶¶ 6-7; JFS-SV Supp. Decl. ¶ 4.

6 The harms to the organizational Plaintiffs are concrete, irreparable, and directly traceable to the 7 refugee ban.5

8

B. This Court Has Jurisdiction To Review Plaintiffs’ Claims

9

Defendants argue that the Memorandum is immune from judicial review, Br. at 10-14,

10 but every court of appeals to consider this plea for unlimited deference has emphatically rejected

11 it. See Hawai’i II, 859 F.3d at 768-69; IRAP II, 857 F.3d at 587-88; see also Washington v.

12 Trump, 847 F.3d 1151, 1161-64 (9th Cir. 2017), cert. denied sub nom., Golden v. Washington,

13 No. 17-5424, 2017 WL 3224674 (U.S. Nov. 13, 2017). This is because challenges to generalized

14 immigration policies—like those at issue here—are, unlike many challenges to individual

15 decisions on admissions, subject to review. See, e.g., Sale v. Haitian Ctrs. Council, Inc. 509 U.S.

16 155 (1993) (reviewing on the merits a statutory claim challenging an EO that blocked entry of

17 Haitians, over the government’s insistence that consular nonreviewability barred review); id.,

18 U.S. Br. 13-18 (No. 92-344); Oral Arg. Tr., 1993 WL 754941, at *16-22 (arguing that the 19 doctrine barred review);6 see also Hawai’i II, 859 F.3d at 768-69 (holding that consular

20 nonreviewability does not bar statutory and constitutional review of EO-2); Patel v. Reno, 134

21 F.3d 929, 931-32 (9th Cir. 1997) (holding that consular nonreviewability does not apply to a

22 consular officer’s decision to suspend visa applications). Defendants do not cite a single case that

23

24

5 Defendants’ only challenge to third-party standing for the organizational Plaintiffs’ clients is its assertion

that the clients have suffered no injury. Br. at 9 n.7. This is wrong, see supra § I.A., and, therefore, JFS-S and JFS-
25 SV have standing to represent both their own interests as well as the third-party interests of their clients.
6 For this reason, Defendant’s reliance on Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498 (11th Cir.
26 1992) is misplaced. Br. at 10-11. Though Haitian Refugee Center applied the doctrine of consular nonreviewability

to an immigration policy, the Court in Sale addressed a successor EO on the merits. Sale, 509 U.S. at 187-89.

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1 endorses their novel and sweeping “principle” of nonreviewability, Br. at 10, and rely only on

2 cases addressing individual visa denials by consular officials abroad. Br. at 10-11. Indeed, the

3 case on which Defendants rely most heavily, Saavedra Bruno v. Albright, repeatedly

4 characterizes the doctrine as applying only to “a consular official’s decision to issue or withhold

5 a visa.” 197 F.3d 1153, 1159 (D.C. Cir. 1999) (emphasis added); see id. at 1160, 1162.

6 II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS

7

A. The Memorandum Violates the Administrative Procedure Act and the

8

Immigration and Nationality Act

Defendants repeatedly misconstrue Plaintiffs’ statutory claims. Plaintiffs are not arguing 9

that they (or their family members or clients) are “entitled” to admission as refugees. Cf. Br. at 10

16. Plaintiffs are therefore not seeking review of a decision committed to agency discretion. See 11

Patel, 134 F.3d at 931-32 (holding that challenges to suspension of visa processing are 12

justiciable even where challenges to decisions to grant or deny a visa are not). Rather, Plaintiffs 13

challenge as unlawful the government’s categorical suspension of processing and admission for 14

individuals from SAO countries and through the FTJ process without justifying why such a 15
suspension is necessary.7 Though Defendants urge this Court to abdicate its review of these 16

statutory violations, such questions of law are reviewable and the Administrative Procedures Act 17
(“APA”) erects a barrier to such runaway agency action.8 18

1. As a preliminary matter, the Memorandum constitutes final agency action. Defendants 19

concede the first requirement for finality, Br. at 15, and dispute only that the SAO suspension 20

determines “rights or obligations” or results in “legal consequences.” Bennett v. Spear, 520 U.S. 21

154, 178 (1997) (citation omitted); Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) 22

23
7 Plaintiffs’ statutory claims are not limited to the Memorandum’s SAO provisions, see PI at 22-23,
24 notwithstanding Defendants’ repeated statements to the contrary, see, e.g., Br. at 10.
8 Defendants argue that Plaintiffs “have identified no statute that authorizes judicial review,” Br. at 10, but
25 that is wrong. It is “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent” that
“courts [should] restrict access to judicial review” under the APA. Abbott Labs. v. Gardner, 387 U.S. 136, 141
26 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Defendants have not identified any
reason to restrict judicial review here other than consular nonreviewability, which as explained, does not apply.

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1 (explaining that “the core question is whether…the result of that [challenged agency] process is

2 one that will directly affect the parties”). Here, Plaintiffs are directly affected. See § III.

3 Plaintiffs’ imminent, cognizable harms have a “direct and immediate effect on the day-to-day

4 operation[]” of their lives. Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir.

5 2006) (citations omitted) (finding final agency action where agency expected immediate

6 compliance with its terms). Defendants’ attempt to characterize the SAO suspension as a mere

7 “processing delay,” Br. at 15, grossly misrepresents reality. JFS-S Supp. Decl. ¶ 8 (explaining

8 cascading effects of even a short delay in processing); Hawai’i III, 871 F.3d at 664 (same).9

9

2. The SAO suspension is ultra vires and Defendants still have not pointed to any

10 authority that permits the agencies to suspend nearly half of this congressionally enacted refugee

11 resettlement program. Defendants’ baldly assert that “[t]he discretion to decide who ‘may’ be

12 admitted logically includes” the ability to suspend admission of all nationals of SAO countries,

13 Br. at 17, relying exclusively on 8 U.S.C. §1157(c)(1). But the clear terms of § 1157(c)(1) grant

14 authority to “admit any refugee” only in “[the Secretary’s] discretion and pursuant to such

15 regulations as [she] may prescribe.” The SAO ban was not imposed pursuant to new or existing

16 regulation, which, as the Plaintiffs explain, is reason alone to enjoin it. See infra § II.A.4.10

17

Defendants’ observation that the “Government routinely grants preferences on the basis

18 of nationality” under the Refugee Act, Br. at 17, supports rather than undermines Plaintiffs’

19 argument. Such preferences are granted either pursuant to a Presidential determination required

20

21

9 Defendants cite International Brotherhood of Teamsters v. U.S. Department of Transportation to support

this argument, but the SAO suspension is a far cry from a mere “report detailing [an agency’s] findings” found not
22 to be final agency action in that case. 861 F.3d 944, 949 (9th Cir. 2017). Unlike the Teamsters report, the

Memorandum “commands immediate implementation,” Oregon v. Ashcroft, 368 F.3d 1118, 1147 (9th Cir. 2004),
23 aff’d sub nom., Gonzales v. Oregon, 546 U.S. 243 (2006), and is final agency action.
10 In any event, even if it were, the SAO suspension would conflict with the text and purpose of the
24 Refugee Act. See PI at 21-22. Defendants do not cite any authority in support of their argument that the Refugee Act

simply sets “the minimum required to gain entry as a refugee,” thus permitting the Executive to layer atop whatever
25 additional requirements it deems proper in its sole and unreviewable discretion. Br. at 22. Such a position is

untenable and if accepted, would permit, for example, the Executive to expressly exclude Muslims and favor
26 Christians. See also Abourezk v. Reagan, 785 F.2d 1043, 1051 (D.C. Cir. 1986) (Secretary of State did not have

unfettered discretion to exclude people given explicit inadmissibility criteria in INA), aff’d, 484 U.S. 1 (1987).

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1 by the Refugee Act, 8 U.S.C. § 1157(a)(3) (requiring the President to allocate refugee admissions

2 after appropriate consultation with Congress), as is the case with the Priority 2 designations—

3 including the Central American Minors program—and Priority 3 designations,11 or pursuant to a

4 duly issued regulation that permits the Secretary to prioritize certain refugee admissions based on

5 appropriate criteria, including “reuniting families, close association with the United States,

6 compelling humanitarian concerns, and public interest factors,” 8 C.F.R. § 207.5 (2017). While

7 § 207.5 may permit the agency to preference certain admissions based on these criteria, this

8 authority—on which Defendants did not base their actions—does not encompass the categorical

9 suspension at issue here.

10

3. The SAO suspension is also arbitrary and capricious because it rests entirely on the

11 circular assertions that the Secretaries have unspecified “concerns” about nationals from SAO

12 countries because they are already subject to heightened vetting. Mem. at 2; see, e.g., Or. Wild v.

13 Bureau of Land Mgmt., 2015 WL 1190131, *12 (D. Or. 2015) (finding agency’s “circular

14 reasoning” was arbitrary and capricious). Contrary to Defendants’ repeated recitation of

15 “national security” concerns in opposing Plaintiffs’ motion, the Memorandum itself never asserts

16 that the “concerns” relate to national security; nor for that matter, does it claim that the existing

17 procedures for SAO countries are inadequate or that new procedures are necessary.12 This Court

18 cannot even consider such a post hoc justification, even setting aside its lack of support. See

19 Hernandez-Cruz v. Holder, 651 F.3d 1094, 1109 (9th Cir. 2011) (“[W]e can neither ‘accept

20 appellate counsel’s post hoc rationalizations for agency action’ nor ‘supply a reasoned basis for

21 the agency’s action that the agency itself has not given.’ Instead our review is limited to ‘[t]he

22 grounds upon which . . . the record discloses that [the agency’s] action was based.’”) (second and

23 third alterations in original) (citations omitted). The SAO ban is arbitrary and capricious because

24 Defendants failed to provide an explanation as to why, after reviewing the USRAP procedures

25
11 See U.S. Dep’t of State, Proposed Refugee Admissions for FY 2018, at 7 (Oct. 4, 2017) (report to
26 Congress), (noting that § 207(a)(3) of the INA grants authority to determine the USRAP priority system).
12 Indeed, such a claim would be belied by the availability of case-by-case waivers.

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1 since January 27, 2017, a drastic shift from the pre-existing SAO process to a categorical

2 suspension of admission of refugees from these countries is justified. See PI at 18; see also

3 Arrington v. Daniels, 516 F.3d 1106, 1114 (9th Cir. 2008) (finding agency action arbitrary and

4 capricious where “agency fail[ed] to provide an explanation for its actions”); Ill. Pub.

5 Telecomms. Ass’n v. FCC, 117 F.3d 555, 564 (D.C. Cir. 1997) (“[T]he FCC’s ipse dixit

6 conclusion . . . epitomizes arbitrary and capricious decisionmaking.”).

7

4. Finally, the Memorandum violates the APA’s procedural requirements because it did

8 not go through notice-and-comment rulemaking. The SAO suspension is a legislative (or

9 “substantive”) rule: it alters the substantive rights of refugees from SAO countries, and without

10 it, the agencies would have no basis for categorically suspending refugee admissions. See Hemp

11 Indus. Ass’n v. DEA, 333 F.3d 1082, 1087-88 (9th Cir. 2003) (in assessing whether a rule is

12 legislative, courts look to whether the agency would have the authority for undertaking the

13 challenged action in the absence of the policy); see also Agric. Retailers Ass’n v. U.S. Dep’t of

14 Labor, 837 F.3d 60, 65 (D.C. Cir. 2016) (considering the “practical effect” of agency action to 15 determine whether it is substantive or procedural).13 Defendants’ argue that the SAO suspension

16 is a procedural rule because “[i]t does not change the substantive criteria for determining”

17 admission. Br. at 19. But that disregards that nationals of SAO countries who would otherwise

18 meet the INA’s definition of “refugee” are now barred unless they can meet an additional,

19 agency-created requirement showing their admission would “fulfill critical foreign policy

20 interests,” Mem. at 2—a consideration that Congress deliberately excluded from the INA’s

21 definition. See PI at 22.

22

Defendants’ arguments conflate the agencies’ suspension of refugee processing with the

23 procedural changes purportedly under review. See Br. at 19. But courts have found that the

24

25

13 That the Memorandum references the possibility of “case-by-case” admission of SAO-country refugees

does not exempt it from notice-and-comment rulemaking: even if a rule does not mechanically dictate the result in
26 each case, it is still substantive if it “focus[es] attention on specific factors to the implicit exclusion of others.”

McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1322 (D.C. Cir. 1988) (citation omitted).

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1 suspension of a regulatory program without notice and comment violates the APA. See Envtl.

2 Def. Fund v. Gorsuch, 713 F.2d 802, 804, 814-17 (D.C. Cir. 1983) (rejecting agency’s

3 characterization of suspension as “statement of agency policy” in holding that it was subject to 4 notice and comment).14

5

Defendants’ claim that the foreign affairs exception to rulemaking applies rests entirely

6 on Rajah v. Mukasey, Br. at 19-20, but Rajah is inapposite. 544 F.3d 427 (2d Cir. 2008). Here,

7 Plaintiffs are not seeking rulemaking on whether particular countries should be on the SAO list,

8 and so Rajah and Defendants’ concerns about “relations with other countries [being] impaired,”

9 Br. at 20 (internal citations omitted), are misplaced. Rather, the rulemaking would concern

10 whether and how the USRAP should be suspended while the agencies conduct a review. It is far

11 from evident that such routine rulemaking would “provoke definitely undesirable international

12 consequences,” Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980), and Defendants

13 proffered no basis or evidence to believe it would. Cf. id. at 1360-61 (applying exception after

14 examining affidavits of the Attorney General and Deputy Secretary of State establishing

15 directive’s relationship to the Iran hostage crisis); see also Jean v. Nelson, 711 F.2d 1455, 1477

16 (11th Cir. 1983) (holding that a rule directing detention of Haitians at the border was not within

17 the exception given lack of evidence of consequences), aff’d, 472 U.S. 846 (1985).

18

B. Plaintiffs Are Likely To Succeed on Their Establishment Clause Claim

19

In opposing the Establishment Clause claim, Defendants do not dispute Plaintiffs’

20 evidence that the Administration has suspended refugee admissions from countries that account

21 for 80 percent of the Muslim refugees entering the country and from the FTJ process, which

22 primarily affects Muslims, see PI at 8-9; that it is instead processing applications from countries

23

24

14 The cases that Defendants cite are readily distinguishable. In both, the courts focused on the fact that the

delay caused by a suspension did not itself undermine the interests at stake, and in both, the delay itself was related
25 to the agencies’ ongoing efforts to promulgate rules subject to notice-and-comment rulemaking. See Waste Mgmt.,

Inc. v. EPA, 669 F. Supp. 536, 539-40 (D.D.C. 1987); Neighborhood TV Co. v. FCC, 742 F.2d 629, 636-38 (D.C.
26 Cir. 1984). And unlike the challengers in Waste Management and Neighborhood TV, Plaintiffs’ interest—to flee

perilous situations and find refuge in the United States—are clearly undermined by any delay. See § III.

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1 whose refugees have been 70 percent Christian, id. at 8; and that the President promised

2 precisely this Muslim ban, id. at 2-4. Nor do Defendants contest Plaintiffs’ evidence that there is

3 no national security justification for banning this thoroughly vetted population. See Nat. Sec.

4 Decl., ECF 46; Nowrasteh Decl., ECF 47. Instead, Defendants argue that this Court cannot

5 review the claim, Br. at 12-14; that even if it could, its review is limited, id. at 24-25; and that,

6 regardless of the level of review, it should turn a blind eye to the mounting evidence of this

7 Administration’s anti-Muslim bias, which the agencies have faithfully implemented in various 8 iterations of the EOs, Br. at 25-27. Each of these arguments fails.15

9

First, U.S.-based Plaintiffs have standing to raise their own Establishment Clause claims

10 due to the personal economic and separation injuries, as well as stigma, resulting from the

11 refugee ban. PI at 10-13; see also IRAP III, 2017 WL 4674314, at *14-16 (finding standing to

12 assert Establishment Clause claim based on marginalization and separation from relatives due to

13 EO-3). Defendants’ reliance on McGowan v. Maryland, 366 U.S. 420 (1961) misreads that case:

14 although the Court held that Free Exercise claims cannot be brought by plaintiffs whose own

15 religious liberty is not affected, it held that the same plaintiffs could bring an Establishment

16 Clause claim based on concrete injury—in that case, economic—caused by government action

17 establishing religion. Id. at 430-31. McGowan supports Plaintiffs’ standing here.

18

Second, based on Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), this Court should

19 not apply the limited “facially legitimate and bona fide” standard of review from Kleindienst v.

20 Mandel, 408 U.S. 753, 770 (1972) to this case. Although the Washington Court did not reach the

21 Establishment Clause claim, in deciding the Due Process claim, it unequivocally rejected the

22 applicability of Mandel to challenges to executive policy like this. See Washington, 847 F.3d at

23 1162-63. Defendants cannot relitigate that holding before this Court.

24

25

15 Defendants’ argument that the Supreme Court’s stay orders in IRAP and Hawaii precludes this claim, Br.

at 23, is astonishing given that the Court said nothing about the basis of its decision and that stay applicants do not
26 need to show that they are more likely than not to prevail on the merits. See Leiva-Perez v. Holder, 640 F.3d 962,

966-68 (9th Cir. 2011).

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1

Finally, regardless of whether the Mandel standard applies, Plaintiffs prevail on their

2 Establishment Clause claim when the refugee ban is reviewed in its full context and reality. See

3 PI at 13-17, n.16 (listing courts that have held EO-1 and EO-2 invalid even under Mandel due to

4 bad faith). Defendants dismiss the relevance of “past judicial determinations regarding previous

5 Executive Orders” and “campaign-trail statements” and argue that “[p]ast actions cannot ‘forever

6 taint’ future government efforts.” Br. at 26, 27 n.15. But the anti-Muslim animus driving the

7 refugee ban is not limited to the past. Since inauguration and even after Plaintiffs filed their

8 motion, the President has repeatedly made his discriminatory intent against Muslims (particularly

9 Muslim immigrants) clear.16 That the most recent refugee ban was issued by Executive agencies

10 instead of the President does not cure this taint because these agencies are not independent; they

11 serve the President’s policy agenda. See Art. II, § 1; Free Enters. Fund v. Pub. Co. Accounting

12 Oversight Bd., 561 U.S. 477, 483 (2010) (explaining that Article II provides for executive

13 officers to assist the President in discharging his duties and that the President has the authority to

14 remove those officers unless they belong to independent agencies specially created by

15 Congress).17 Indeed the agencies have faithfully done so throughout the year by implementing

16 the EOs.18 In light of the overwhelming and unrebutted evidence of animus and its disparate

17 impact on Muslims, the facial neutrality of the refugee ban does not save it from

18 unconstitutionality. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

19 534 (1993) (holding that a facially neutral law violates the Free Exercise Clause, drawing on

20

21

16 See Burman Supp. Decl. Exs. A-I (re-tweeting a leader of a British anti-Islam political party, including a
22 video captioned “Muslim migrant beats up Dutch boys on crutches!” even though the person depicted is neither

Muslim nor an immigrant); id. Exs. Q-S (advocating shooting Muslims with pig’s blood); id. Ex. N (claiming that
23 assimilation has been “very hard” for Muslims); id. Exs. O-P (calling for a travel ban that is not “politically

correct”). The President’s tweets are official statements according to the government. Id. Ex. J.

24

17 The involvement of President’s advisors in the work of the agencies confirms this. See, e.g., Burman

Supp. Decl. Exs. K-L (describing Presidents’ advisors’ anti-Muslim views and their involvement in agency decision-
25 making); Burman Decl. Ex. VV, ECF 43-5 (describing the anti-Muslim views of the White House senior advisor at

DHS who was appointed to implement EOs).

26

18 See Burman Supp. Decl. Exs. B, E (Deputy Press Secretary stating that President has addressed his

perceived threats from Muslims through EOs).

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1 Establishment Clause and Equal Protection Clause principles that “extend[] beyond facial

2 discrimination”).19

3 III. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH IN

4

FAVOR OF A NATIONWIDE INJUNCTION

Multiple district and appellate courts have rejected the idea that abstract harm to the 5

government can outweigh the concrete, irreparable harms that Plaintiffs face, instead finding that 6

enjoining an unconstitutional and illegal executive action would promote the public interest. See 7

e.g., Hawai’i II, 859 F.3d at 784 (“The public interest is served by ‘curtailing unlawful executive 8

action.’”) (citation omitted). As this Court and others have done for prior EOs, this Court should 9

issue a nationwide injunction that sets aside the unlawful agency action in its entirety. See IRAP 10

II, 857 F.3d at 605 (affirming nationwide injunction because Plaintiffs are dispersed across the 11

United States, immigration laws should be enforced uniformly, and a limited injunction would 12

not cure the Establishment Clause injury); Hawai’i II, 859 F.3d at 788 (affirming nationwide 13

injunction because it is appropriate in the immigration context); Washington v. Trump, No. C1714

0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3 2017) (entering nationwide temporary 15

restraining order), stay pending appeal denied, 847 F.3d 1151 (9th Cir.), amended and 16

superseded by, 858 F.3d 1151 (9th Cir.), cert. denied sub nom., Golden v. Washington, No. 1717
5424, 2017 WL 3224674 (U.S. Nov. 13, 2017).20 18

CONCLUSION 19

For the above reasons and those set forth in Plaintiffs’ opening brief, the Court should 20

enter a preliminary injunction blocking the enforcement of the suspension of USRAP for 21

nationals (and stateless persons) of SAO countries and the suspension of the FTJ process. 22

23

19 Defendants’ argument that the District of Maryland declined to enjoin the refugee provision of EO-2, Br.

at 27 (citing IRAP v. Trump, 241 F. Supp. 3d 539, 565 (D. Md. 2017)), misses the mark. The Court held only that
24 the record was insufficiently developed. Also, EO-2 suspended the entire USRAP, whereas this refugee ban targets

Muslim refugees. Defendants also fail to mention that the District of Hawaii did enjoin the refugee provision of EO-
25 2 based on the Establishment Clause. Hawai’i v. Trump, 241 F. Supp. 3d 1119, 1140 (D. Haw. 2017).
20 To the extent the Court adopts a bona fide relationship standard from a prior Supreme Court stay,
26 Plaintiffs request that the Court clarify that all Plaintiffs here would have bona fide relationships based on their ties

with family or organizations in the United States providing them with client services. See PI at 24 n.27.

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1 Respectfully submitted,

2 /s/ Lauren Watts Staniar

3 David Burman, WSBA No. 10611 Lauren Watts Staniar, WSBA No. 48741

4 Tyler Roberts, WSBA No. 52688

Perkins Coie LLP 5 1201 Third Avenue, Suite 4900

6

Seattle, WA 98101-3099 Telephone: (206) 359.8000

7 Facsimile: (206) 359.9000 dburman@perkinscoie.com

8 lstaniar@perkinscoie.com

troberts@perkinscoie.com 9

10 Mariko Hirose, Pro Hac Vice Deepa Alagesan, Pro Hac Vice
11 Linda Evarts, Pro Hac Vice Kathryn C. Meyer, Pro Hac Vice
12 International Refugee Assistance Project
40 Rector Street, 9th Floor 13 New York, NY 10006
14 Tel: (646) 459-3044 mhirose@refugeerights.org
15 dalagesan@refugeerights.org levarts@refugeerights.org
16 kmeyer@refugeerights.org

17 Elizabeth Sweet, Pro Hac Vice

18 Mark Hetfield, Pro Hac Vice HIAS, Inc.

19 1300 Spring Street, Suite 500

Silver Spring, MD 20910 20 Tel: 301-844-7300

21

liz.sweet@hias.org mark.hetfield@hias.org

22

23

24

25

26

PLAINTIFFS’ REPLY (No. 17-cv-01707-JLR) –13
137902465.1

DATED: December 13, 2017
Justin B. Cox, Pro Hac Vice National Immigration Law Center PO Box 170208 Atlanta, GA 30317 Tel: (678) 279-5441 Fax: (213) 639-3911 cox@nilc.org
Karen C. Tumlin, Pro Hac Vice Melissa S. Keaney, Pro Hac Vice Esther H. Sung, Pro Hac Vice National Immigration Law Center 3450 Wilshire Blvd, #108-62 Los Angeles, CA 90010 Tel: (213) 639-3900 Fax: (213) 639-3911 tumlin@nilc.org keaney@nilc.org sung@nilc.org
Lauren E. Aguiar, Pro Hac Vice Mollie M. Kornreich, Pro Hac Vice Abigail E. Davis, Pro Hac Vice Four Times Square New York, NY 10036 Tel: (212) 735-3000 Fax: (212) 735-2000 lauren.aguiar@probonolaw.com mollie.kornreich@probonolaw.com abigail.sheehan@probonolaw.com
Counsel for Plaintiffs Jewish Family Service, et al.
Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 79 Filed 12/13/17 Page 19 of 19

1

CERTIFICATE OF SERVICE

2

I hereby certify that on December 13, 2017, I electronically filed the foregoing document

3 with the Clerk of the Court using the CM/ECF system which will send notification of such filing

4 to all of the registered CM/ECF users for this case.

5

I hereby declare under penalty of perjury of the laws of the State of Washington that the

6 foregoing is true and correct.

7 DATED this 13th day of December, 2017.
8

9

/s/ Lauren Watts Staniar

10

Lauren Watts Staniar, WSBA No. 48741

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

CERTIFICATE OF SERVICE (No. 17-cv-01707-JLR) –1
137902465.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 Case 2:17-cv-00178-JLR Document 41 Filed 11/02/17 Page 1 of 7 Case 2:17-cv-00178-JLR Document 40 Filed 11/02/17 Page 1 of 7

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 John Doe, Jack Doe, Jason Doe, Joseph Doe

10

and James Doe, individually, and on behalf of all others similarly situated; the Episcopal

11 Diocese of Olympia, and the Council on American Islamic Relations-Washington,

12

Plaintiffs, 13

v. 14

Donald Trump, President ofThe United States; 15 U.S. Department of State; Rex Tillerson,

16 Secretary of State; U.S. Department of Homeland Security; John Kelly, Secretary of

17 Homeland Security; U.S. Customs and Border

Protection; Kevin McAleenan, Acting 18 Commissioner ofU.S. Customs and Border

19

Protection; and Michele James, Field Director of the Seattle Field Office ofU.S. Customs and

20 Border Protection,1

No. 2:17-cv-00178-JLR
STIPULATION AND [i'ROPOSJ!:Y] ORDER TO LIFT STAY OF PROCEEDINGS AND PERMIT PLAINTIFFS TO FILE A THIRD AMENDED COMPLAINT
NOTING DATE: NOVEMBER 2, 2017

21

Defendants.

22
Plaintiffs and Defendants, through their respective undersigned counsel, hereby state the
23
24 following:

25
26 1 John Kelly is no longer Secretary of Homeland Security. The appropriate change will be made if Plaintiffs are allowed to file a Third Amended Complaint.

STIPULATION TO LIFT STAY AND FILE A THIRD AMENDED COMPLAINT (2:17-cv-00178-ILR)- I

KELLER ROHRBACK L,L,P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101·3052
TELEPHONE: (206) 623-1900 FACSIMILE: ('206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs 13ranch
20 Massachusetts Avenue, NW Washington, DC 20530 Tcl:(202) 305-8902

Case 2:17-cv-00178-JLR Document 41 Filed 11/02/17 Page 2 of 7 Case 2:17-cv-00178-JLR Document 40 Filed 11/02/17 Page 2 of 7

1

1. Plaintiffs currently have pending a Second Amended Class Action Complaint for

2 Declaratory and Injunctive Relief contesting Executive Order 13,780, titled "Protecting the

3 Nation from Foreign Terrorist Entry into the United States" ("E0-2"), see 82 Fed. Reg. 13,209

4 (Mar. 6, 2017), which this Court previously stayed on May 30, 2017, pursuant to a stipulation of
5
the parties. ECF No. 34. 6

7

2. In a joint status report to the Court dated July 14, 2017, the parties agreed that in

8 light of the proceedings in the Supreme Court in two other cases challenging E0-2, the stay of

9 the case should remain in place. The parties also agreed that "should circumstances change such

10 that lifting the stay is warranted, any party may move to lift the stay." ECF No. 38.

11

3. On October 10,2017, the Supreme Court dismissed !RAP as moot and directed

12 the Fourth Circuit to vacate its opinion because there was no longer a live controversy as the
13
only section ofE0-2 enjoined in!RAP had "expired by its own terms on September 24, 2017."
14

15 Trump v.IRAP, _ S. Ct._, No. 16-1436,2017 WL 4518553 (U.S. Oct. 10, 2017). Similarly, on

16 October 24,2017, the Supreme Court dismissed Hawaii as moot and directed the Ninth Circuit

17 to vacate its opinion as the "provisions of the Order have 'expired by [their] own tenus."' Trump
18 v. Hawaii,_ S. Ct.__, No. 16-1540, 2017 WL 4782860, at *1 (U.S. Oct. 24, 2017).
19 4. On September 24, 2017, the President issued a Presidential Proclamation titled
20 "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United
21 22 States by Terrorists or Other Public-Safety Threats." 82 Fed. Reg. 45,161 (Sept. 27, 2017)
23 ("Proclamation").

24

5. On October 17, 2017, the District Courts of Hawaii and Maryland issued orders

25 preliminarily enjoining certain provisions of the Proclamation nationwide. Hawaii v. Trump,_

26 F. Supp. 3d___, No. 17-00050, 2017 WL 4639560 (D. Haw. Oct. 17, 2017) (granting TRO); Int'l

STIPULATION TO LIFT STAY AND FILE A THIRD AMENDED COMPLAINT (2:17-cv-00178-JLR)- 2

KEJ~LER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: {206) 623-1900 FACSIMILE:: ('206) 623-3384

U.S. DEPARTMENT 01< JUSTICE Civil Division, Federal Progrnms Branch
20 Massachusetts Avenue, NW Washington, lJC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 41 Filed 11/02/17 Page 3 of 7 Case 2:17-cv-00178-JLR Document 40 Filed 11/02/17 Page 3 of 7

1 Refugee Assistance Project v. Trump,_ F. Supp. 3d_, Nos. 18-0361, 17-2921, 17-2629 (D.

2 Md. Oct. 17, 2017) (granting preliminary injunction); see Hawaii v. Trump, No. 1: 17-cv-00050-

3 DKW-KSC, ECF No. 390 (D. Haw. Oct. 20, 2017) (converting TRO into preliminary

4 injunction).
5
6.
6

On October 23, 2017, the Secretary of State, Acting Secretary of Homeland

7 Security, and Director ofNational Intelligence issued a Memorandum to the President titled

8 "Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities"

9 ("October 23 Agency Memo"). On October 24, 2017, the President issued Executive Order

10 13,815, titled "Resuming the United States Refugee Admissions Program with Enhanced Vetting
11 Capabilities." 82 Fed. Reg. 50,055 (Oct. 27, 2017) ("October 24 Executive Order").
12 7. Plaintiffs seek to lift the stay of the proceedings in this case to amend their
13 complaint to add allegations regarding the Proclamation, the October 24 Executive Order, and
14
15 the October 23 Agency Memo. Plaintiffs also intend to file a motion for a preliminary injunction

16 challenging the portions of the October 23 Agency Memo relating to the derivative refugee

17 admissions process.

18

8. Plaintiffs will not seek to enjoin the Proclamation at this time due to the already

19 pending challenges in Hawaii and !RAP.
20
9. The parties have agreed to briefPlaintiffs' forthcoming motion for a preliminary 21

22 injunction on the schedule proposed below.

23

Accordingly, IT IS HEREBY STIPULATED AND AGREED, by and between Plaintiffs

24 and Defendants, subject to the Court's approval, that:

25

26

STIPULATION TO LIFT STAY AND FILE A THIRD AMENDED COMPLAINT (2:17-cv-00178-JLR)- 3

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: ('206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Ji'ederal l'rograms Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 41 Filed 11/02/17 Page 4 of 7 Case 2:17-cv-00178-JLR Document 40 Filed 11/02/17 Page 4 of 7

1

A. The stay of the proceedings shall be lifted to allow Plaintiffs to file an amended

2 complaint addressing the Proclamation, the October 24 Executive Order, and the October 23

3 Agency Memo.
4 B. As Defendants have not yet filed a responsive pleading to Plaintiffs' Second
5 Amended Complaint and do not oppose allowing Plaintiffs to file an amended complaint,
6
7 Plaintiffs shall be granted leave to file a third amended complaint.

8

c. Plaintiffs shall be allowed to file a motion for a preliminary injunction

9 challenging the portions of the October 23 Agency Memo relating to the derivative refugee

10 admissions process.

11

D. The schedule for amending the complaint and briefmg of the motion for a

12 preliminary injunction will be as follows:
13

1. Plaintiffs shall file their Third Amended Complaint and Motion for a

14

Preliminary Injunction by 5 p.m. PT on Monday, November 6, 2017;

15

2. Defendants' deadline to respond to the Third Amended Complaint will be

16

extended until after Plaintiffs' preliminary injunction motion is resolved

with the parties to confer at a later date upon a schedule;

17

3. Defendants shall file a response to the Motion for a Preliminary Injunction

18

by 5 p.m. PTon Wednesday, November 16, 2017;

19

4.

Plaintiffs shall file a reply briefby 5 p.m. PT on Wednesday, November 22,

20

2017;and

21

5. Argument shall be heard at the Court's convenience dming the week of

December 4, but in no event sooner than November 29.

22

23
DATED this 2nd day ofNovember, 2017. 24

25

26

STIPULATION TO LIFT STAY AND FILE A THIRD AMENDED COMPLAINT (2:17-cv-00178-JLR)- 4

KELLER ROHRBACK L.L.P.
1201 Third Avenue, SL!IIe 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: {'206) 623-3384

U.S. DEPARTMENT 01<' JUSTICE Civil mvision, Federal Programs Branch
20 Mnssachusctts Avenue, NW Washington, DC 20530 Tc"(202) 305-8902

Case 2:17-cv-00178-JLR Document 41 Filed 11/02/17 Page 5 of 7 Case 2:17 -cv-00178-JLR Document 40 Filed 11/02/17 Page 5 of 7

1 Presented by:

2

KELLER ROHRBACK L.L.P.

CHAD A READLER

3

By: /s/ Lynn Lincoln Sarka

Acting Assistant Attorney General

By: /s/ Tana Lin

4

By: /s/ Amy Williams-Derry

By: /s/ Derek W. Loeser

5

By: /s/ Alison S. Gaffuey

6

Lynn Lincoln Sarka, WSBA # 16569

JENNIFER D. RICKETTS Director, Federal Programs Branch
JOHN R. TYLER Assistant Director, Federal Programs

7

Tana Lin, WSBA # 35271 Amy Williams-Derry, WSBA #28711

Branch

8

Derek W. Loeser, WSBA # 24274 Alison S. Gaffuey, WSBA #45565

9

1201 Third Avenue, Suite 3200 Seattle, WA 98101

10

Telephone: (206) 623-1900

Facsimile: (206) 623-3384

11

Email: lsarko@kellerrohrback.com

tlin@kellerrohrback.com

/s/ Michelle R Bennett
MICHELLE R. BENNETT Senior Trial Counsel U.S. Department ofJustice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530

12

awilliarn-derry@kellerrohrback.com Tel: (202) 305-8902

dloeser@,kellem>hrback.com

Fax: (202) 616-8470

13

agaffuey(iil,kcllerrohrback.com

Email: mjch,;lle. bennett@ld§_ggi.ggy

14

By: /s/ Laurie B. Ashton

Attorneys.for Defendants

15

Lamie B. Ashton (Pro Hac Vice)

31 01 North Central Avenue, Suite 1400

16

Phoenix, Arizona 85012-2600

Telephone: (602) 248-0088

17

Facsimile: (602) 248-2822

Email: lashtoll?ciJ.kellerrohrback.com 18

19

By: /s/ Alison Chase

20

Alison Chase (Pro Hac Vice) 801 Garden Street, Suite 301

21

Santa Barbara, CA 93101 Telephone: (805) 456-1496

22

Facsimile: (805) 456-1497

Email: !l9h.<!§.e(i4kellen:ohrback.com

23 Attorneys.for Plaintiffs/Cooperating

24

Attorneys.for the American Civil

Liberties Union O.fWashington

25

Foundation

26

STIPULATION TO LIFT STAY AND FILE A THIRD AMENDED COMPLAINT (2:17-cv-00178-JLR)- 5

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101.3052
TELEPHONE: (206) 623·1900 FACSIMILE: {'206) 623-3384

U,S. DEPARTMENT OF JUSTICE Civil Division, Federal Prognms Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

Case 2:17-cv-00178-JLR Document 41 Filed 11/02/17 Page 6 of 7 Case 2:17-cv-00178-JLR Document 40 Filed 11/02/17 Page 6 of 7

1 AMERICAN CIVIL LIBERTIES UNION OF

WASHINGTON FOUNDATION

2

By: lsi Emily Chiang

3

Emily Chiang, WSBA # 50517

901 Fifth AvenlJe, Sllite 630

4

Seattle, Washington 98164

Telephone: (206) 624-2184

5

Email: QQ.bjan,g@J!!J],!_:FAQKg

6

1R~9L@l!9J.P-WJbQ.tg

7

Attornev for Plaintiffs

8

9 ORDER

10 PURSUANT TO STIPULATION, IT IS SO ORDEREpJ..Ql<u~+ ~t1-\ -\tl-e.. ntai\11'\ Cl(\

11

19(\ ~1'1\0~Xt~' 'N\'1> 1-HY' f?o (' lA p>e.l\ mil'lo..r~ \ "1\u.('lt::t'-.'tv-. .5;httl\ be.. h-d cl ~>(\ 0\a~, 'Ue.e.e<~ li,~Cl1'1-,o-..lr \''5o~.&'\ (?.s:l.).

12 13

Date: '.),~1) ~o\RM-~'2(\)\'/

~~ By: ' ( \

JAMES IL· ROBART

14

United ~ tales District Jlidge

15

16

17

18

19

20

21

22

23

24

25

26

STIPULATION TO LIFT STAY AND FILE A THIRD AMENDED COMPLAINT (2:17-cv-00178-JLR)- 6

KELLER ROHRBACK L.i..P.
1201 Thlrd Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: ('206} 623-33B4

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW Washington, DC 20530 Tcl:(202) 305-8902

Case 2:17-cv-00178-JLR Document 41 Filed 11/02/17 Page 7 of 7 Case 2:17-cv-00178-JLR Document 40 Filed 11/02/17 Page 7 of 7

1

CERTIFICATE OF SERVICE

2

I hereby certify that, on November 2, 2017, a copy of the foregoing document was

3 electronically filed with the Clerk of the Court using the CMIECF system which will send
4 notification of such filing to all counsel of record.
5 DATED this 2nd day ofNovember, 2017.
6 KELLER ROHRBACK L.L.P.
7

8

9

By: Is/ Tana Lin

10

Tana Lin, WSBA # 35271
1201 Third Avenue, Suite 3200

11

Seattle, WA 98101 Telephone: (206) 623-1900

12

Facsimile: (206) 623-3384

Email: tlin@kellerrohrback.com

13 Attorney for Plaintiffs/Cooperating

14

Attorney for the American Civil

Liberties Union Of Washington

15

Foundation

16

17

18

19

20

21

22

23

24

25

26

STIPUI.ATIONTO Lll'T STAY AND FILE A THIRD AMENDED COMPLAINT (2: 17-cv-00178-JI.R) - 7

KELLER ROHRBACK L,L,ll,
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623·1900 FACSIMILE: {'206) 623-3384

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massaclmsetts Avenue, NW Washington, DC 20530 Tel:(202) 305-8902

 
 Case 2:17-cv-00178-JLR Document 91 Filed 12/21/17 Page 1 of 3

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 JOHN DOE, et al.,

10

Plaintiffs,

11 v.
12 DONALD TRUMP, in his official capacity as
13 President of the United States, et al.,

14

Defendants.

CASE NO. C17-0178JLR
SECOND SUPPLEMENTAL DECLARATION OF JOSEPH DOE IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
(RELATING TO CASE NO. C:17-0178JLR)

15 JEWISH FAMILY SERVICES, et al.,
16 Plaintiffs,
17
v. 18

19 DONALD TRUMP, et al.,

20

Defendants.

CASE NO. C17-1707JLR

21

22

23 I, “Joseph Doe,” do hereby declare and state: 24

25

26
SECOND SUPPLEMENTAL

AMERICAN CIVIL LIBERTIES UNION

DECLARATION OF JOSEPH

OF WASHINGTON FOUNDATION

DOE IN SUPPORT OF MOTION FOR PRELIMINARY

901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

INJUNCTION

(2:17-cv-00178-JLR) - 1

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 91 Filed 12/21/17 Page 2 of 3

1

1. I have personal knowledge of the matters contained herein and, where I do not

2 have direct knowledge, I believe them to be true and correct based upon the information

3 available to me.
4 2. In order to get the required medical examinations to be cleared for travel to the
5 United States, my family has to travel to Nairobi to go to the IOM (International Organization
6
7 for Migration) health clinic. This is a journey of nearly 500 miles one way from where they live.

8

3. They have to travel by bus, and the trip is risky because the roads are not great

9 and accidents are common. And my wife has to travel by herself with three young children.

10

4. Once they get to Nairobi, they need to stay in a hotel for a few days, because they

11 are given a window of several days when they will be seen but don’t know exactly which day
12 they will be seen at the clinic. The clinic is for migrants and refugees, and there is always a long
13
wait as many families are waiting for their examinations. The clinic calls them the night before 14

15 to tell them to arrive at 7:00am the next morning. So they have to be ready and waiting in

16 Nairobi.

17

5. Paying for their lodging and transportation is expensive, and I send them extra

18 money to cover it. They also have to pay the taxi fare to IOM from the hotel.
19 6. They have had two rounds of medical examinations so far. The medical
20 clearances expire after six months, and their first round of clearances expired in early August
21
22 2017. They are now in danger of having their second medical clearances expire. Their clearances

23 will expire in late February 2018.

24

25

26
SECOND SUPPLEMENTAL

AMERICAN CIVIL LIBERTIES UNION

DECLARATION OF JOSEPH

OF WASHINGTON FOUNDATION

DOE IN SUPPORT OF MOTION FOR PRELIMINARY

901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

INJUNCTION

(2:17-cv-00178-JLR) - 2

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

Case 2:17-cv-00178-JLR Document 91 Filed 12/21/17 Page 3 of 3

1 EXECUTED this 20th day of December, 2017, at
2

3

4

5

Joseph Doe

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26
SECOND SUPPLEMENTAL

AMERICAN CIVIL LIBERTIES UNION

DECLARATION OF JOSEPH

OF WASHINGTON FOUNDATION

DOE IN SUPPORT OF MOTION FOR PRELIMINARY

901 Fifth Avenue, Suite 630 Seattle, Washington 98164 TELEPHONE: (206) 624-2184

INJUNCTION

(2:17-cv-00178-JLR) - 3

KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052
TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384

 
 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 1 of 65

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

JOHN DOE, et al.,

CASE NO. C17-0178JLR

10
v. 11

Plaintiffs,

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND

12

DONALD TRUMP, et al.,

ORDER ISSUING A PRELIMINARY INJUNCTION

13

Defendants.

(RELATING TO BOTH CASES)

14

JEWISH FAMILY SERVICES, et

CASE NO. C17-1707JLR

15

al.,

Plaintiffs,

16

v.

17

DONALD TRUMP, et al.,

Defendants. 18

19

I. INTRODUCTION

20

The work of this court, and more broadly of the federal Judiciary, is to resolve

21 disputes between parties; that is what the court endeavors to do today in ruling on the two

22 motions before it. Plaintiffs in both cases are refugees, who find themselves in dire

ORDER - 1

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 2 of 65

1 circumstances, their family members who yearn to be reunited with them, and

2 humanitarian organizations whose fundamental mission is to help these vulnerable

3 refugees resettle in the United States. Plaintiffs in both cases present compelling

4 circumstances of irreparable harm inflicted by the federal agencies’ action at issue here.

5 Nevertheless, the fundamental question the court must resolve is did the federal agencies

6 act within their legal authority? If so, the court does not intervene, but leaves the

7 decision to the other two branches of government—Congress and the Executive. Today,

8 however, the court intervenes and preliminarily enjoins the federal agencies’ action. It

9 does so because, at this early stage in the proceedings, Plaintiffs show that they are likely

10 to succeed on their claims that the agencies exceeded their statutory authority and also

11 that they meet the other qualifying factors necessary for preliminary injunctive relief.

12

One further note: This is an area of rapidly developing law with related cases

13 presently on appeal and decisions anticipated shortly.1 Plaintiffs, however, seek a

14 decision now and are entitled to one given the facts in this case. In deciding these

15 motions, the court must rely on the precedent currently available to it. The court

16 understands that appellate courts may issue additional guidance in the days to come. If

17 the parties believe that the court should revisit any portion of today’s decision on the

18 basis of subsequent authority, they should raise this to the court’s attention through

19 appropriate motions. The court now turns to the motions at hand.

20 //

21

1 Indeed, one such decision was issued last night. See Hawaii v. Trump, No. 17-17168,

22

2017 WL 6547095 (9th Cir. Dec. 22, 2017) (“Hawaii III”). The court has reviewed that opinion and incorporated it into this decision.

ORDER - 2

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 3 of 65

1

Before the court are two motions seeking to preliminarily enjoin certain aspects of

2 Executive Order No. 13,815 (“EO-4”), § 3(a), 82 Fed. Reg. 50,055 (Oct. 27, 2017), and

3 its accompanying memorandum to Defendant Donald Trump, President of the United

4 States, from Defendants Rex Tillerson, Secretary of the Department of State (“DOS”),

5 Elaine Duke, Acting Secretary of the Department of Homeland Security (“DHS”), and

6 Daniel Coats, Director of National Intelligence (“DNI”) (Lin Decl. (Dkt. # 46) ¶ 3, Ex. B

7 (attaching a copy of the memorandum) (hereinafter, “Agency Memo”)). Plaintiffs John

8 Doe, Jack Doe, Jason Doe, Joseph Doe, James Doe, Jeffrey Doe, the Episcopal Diocese

9 of Olympia, and the Council on American Islamic Relations-Washington (collectively,

10 “Doe Plaintiffs”) filed the first motion for a preliminary injunction in Doe, et al. v.

11 Trump, et al., No. C17-0178JLR (W.D. Wash.) (“the Doe Case”). (See Doe PI Mot.

12 (Dkt. # 45).) Shortly after Doe Plaintiffs filed their motion, Plaintiffs Jewish Family

13 Service of Seattle (“JFS-S”), Jewish Family Services of Silicon Valley (“JFS-SV”), Allen

14 Vaught, Afkab Mohamed Hussein, John Does 1-3 and 7, and Jane Does 4-6 (collectively,

15 “JFS Plaintiffs”) filed a separate action in JFS-S, et al. v. Trump, et al., No. C17-

16 1707JLR (W.D. Wash.) (“the JFS Case”) and a second motion for a preliminary

17 injunction. (See JFS Compl. (17-1707 Dkt. # 1); JFS PI Mot. (17-1707 Dkt. # 42).)2

18 Recognizing that both cases and motions for preliminary injunction concerned EO-4 and

19 the Agency Memo, the court consolidated the cases. (See OSC re: Consol. (Dkt. # 52);

20

21

2 References to docket numbers in this order refer to filings the Doe Case, unless the

22

docket number is preceded by “17-1707.” Docket numbers preceded by “17-1707” refer to entries in the JFS Case.

ORDER - 3

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 4 of 65

1 Stip. Re: Consol. (Dkt. # 60); Consol. Order (Dkt. # 61).) Following consolidation, Doe

2 Plaintiffs joined JFS Plaintiffs’ motion, and JFS Plaintiffs joined Doe Plaintiffs’ motion.

3 (Doe Joinder (Dkt. #62); JFS Joinder (17-1707 Dkt. # 70).)

4

In addition to the parties’ briefing (see Doe PI Mot.; JFS PI Mot.; Doe Resp. (Dkt.

5 # 51); JFS Resp. (Dkt. # 77); Doe Reply (Dkt. # 54); JFS Reply (Dkt. # 79); Doe Joinder;

6 JFS Joinder ; Doe Supp. Br. (Dkt. # 76); JFS Supp. Br. (Dkt. # 73); Def. Supp. Br. (Dkt.

7 # 78)), the court has considered the relevant portions of the record, and the applicable

8 law. Further, the court heard oral argument on December 21, 2017. Being fully advised,

9 the court (1) GRANTS Doe Plaintiffs’ motion for a preliminary injunction, and (2)

10 GRANTS JFS Plaintiffs’ motion for a preliminary injunction except for those refugees

11 who lack a bona fide relationship with a person or entity in the United States.3 See

12 Trump v. Int’l Refugee Assistance Project, --- U.S. ---, 137 S. Ct. 2080, 2089 (2017)

13 (“IRAP”).

14 //

15 //

16

3 In accordance with Federal Rules of Civil Procedure 52(a) and 65(d), this order shall 17 constitute the court’s findings of fact and conclusions of law setting forth the grounds for issuing

the preliminary injunction contained herein. See Fed. R. Civ. P. 52(a); Fed. R. Civ. P. 65(d); see

18 also A.H.R. v. Wash. State Health Care Auth., No. C15-5701JLR, 2016 WL 98513, at *1 n.4

(W.D. Wash. Jan. 7, 2016). Although the court has not labeled paragraphs specifically as

19 findings of fact or conclusions of law, such labels are not necessary. The nature of the findings

and conclusions that follow is apparent. See Tri–Tron Int’l v. A.A. Velto, 525 F.2d 432, 435-36

20 (9th Cir. 1975) (“We look at a finding or a conclusion in its true light, regardless of the label that the district court may have placed on it. . . . [T]he findings are sufficient if they permit a clear

21

understanding of the basis for the decision of the trial court, irrespective of their mere form or arrangement.”) (internal citations omitted); In re Bubble Up Del., Inc., 684 F.2d 1259, 1262 (9th

22

Cir. 1982) (“The fact that a court labels determinations ‘Findings of Fact’ does not make them so if they are in reality conclusions of law.”).

ORDER - 4

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 5 of 65

1

II. BACKGROUND

2 A. The President’s Executive Orders on Immigration and Refugees

3

1. EO-1

4

One week after his inauguration, President Trump issued Executive Order No.

5 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017) (“EO-1”). In addition to suspending the entry

6 of aliens from seven majority-Muslim countries for 90 days, EO-1 suspended the United 7 States Refugee Admission Program (“USRAP”) for 120 days and banned the entry of 8 Syrian refugees indefinitely. Id. §§ 3(c), 5(a), 5(c). During the 120-day suspension of 9 USRAP, EO-1 directed the Secretaries of DOS and DHS and the DNI to conduct a 10 security review of USRAP. Id. § 5(a). In this period, refugees could be admitted on a 11 case-by-case basis only if their admission was “in the national interest,” which was 12 defined to include when a person is “a religious minority in his country of nationality

13 facing religious persecution.” Id. § 5(e). EO-1 further directed that when USRAP

14 resumed, DOS was to “prioritize refugee claims made by individuals on the basis of

15 religious-based persecution, provided that the religion of the individual is a minority

16 religion in the individual’s country of nationality.” Id. § 5(b).

17

On February 3, 2017, this court issued a nationwide temporary restraining order

18 (“TRO”) enjoining EO-1, including the suspension of USRAP. Washington v. Trump,

19 No. C17-0141JLR, 2017 WL 462040, at *1 (W.D. Wash. Feb. 3, 2017), stay pending 20 appeal denied, 847 F.3d 1151 (9th Cir. 2017), appeal dismissed, No. 17-35105, 2017 WL 21 3774041 (9th Cir. Mar. 8, 2017). On appeal, the Ninth Circuit interpreted the court’s 22 TRO to be a preliminary injunction and declined the Government’s request to stay this

ORDER - 5

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 6 of 65

1 court’s order. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), appeal dismissed,

2 No. 17-35105, 2017 WL 3774041 (9th Cir. Mar. 8, 2017).

3

2. EO-2

4

After the Ninth Circuit’s ruling, President Trump abandoned his efforts to defend

5 EO-1, and issued Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017)

6 (“EO-2”). EO-2 expressly revoked EO-1. EO-2 § 13. EO-2 was similar to EO-1 except

7 that it omitted the explicit preference for religious minorities and the indefinite

8 suspension of Syrian refugees. EO-2 directed another review of USRAP and restarted the

9 120-day suspension of USRAP during the new review period, subject to case-by-case

10 waivers. Id. §§ 6(a), (c). EO-2 stated that the suspension of USRAP was necessary to

11 allow the agencies to “determine what additional procedures should be used to ensure

12 that individuals seeking admission as refugees do not pose a threat to the security and

13 welfare of the United States.” Id. § 6(a). EO-2 also stated that at the conclusion of the

14 review period, USRAP adjudications would resume for stateless persons and nationals of

15 countries for which the agencies “determined that the additional procedures implemented

16 . . . [we]re adequate to ensure the security and welfare of the United States.” Id.

17

Before EO-2 could take effect, a federal district court in Hawaii issued a TRO,

18 holding that EO-2 violated the Establishment Clause. See, e.g., Hawaii v. Trump, 245 F.

19 Supp. 3d 1227, 1230 (D. Haw. 2017), hearing en banc denied sub nom. Hawaii v. Trump,

20 864 F.3d 994 (9th Cir. 2017), aff’d in part, vacated in part, remanded sub nom. Hawaii v.

21 Trump, 859 F.3d 741 (9th Cir. 2017), cert. granted sub nom. Trump v. Int’l Refugee

22 Assistance Project, --- U.S. ---, 137 S. Ct. 2080 (2017), and cert. granted, judgment

ORDER - 6

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 7 of 65

1 vacated, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017), and vacated, 874 F.3d

2 1112 (9th Cir. 2017), and appeal dismissed as moot sub nom. Hawaii v. Trump, 874 F.3d

3 1112 (9th Cir. 2017). The Ninth Circuit upheld the district court’s decision on the ground

4 that President Trump failed to invoke the proper authority to suspend refugee admissions.

5 Hawaii v. Trump, 859 F.3d 741, 776 (9th Cir. 2017), cert. granted sub nom. Trump v.

6 Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017), and cert. granted, judgment

7 vacated, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017), and vacated, 874 F.3d

8 1112 (9th Cir. 2017) (“Hawaii I”). In addition, a federal district court in Maryland and

9 the Fourth Circuit Court of Appeals both concluded that EO-2 likely violated the

10 Establishment Clause. Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539,

11 544 (D. Md. 2017), aff’d in part, vacated in part, 857 F.3d 554 (4th Cir. 2017) (en banc),

12 as amended (May 31, 2017), as amended (June 15, 2017), cert. granted, --- U.S. ---, 137

13 S. Ct. 2080 (2017), and vacated and remanded sub nom. Trump v. Int’l Refugee

14 Assistance Project, --- U.S. ---, 138 S. Ct. 353 (2017). Pending appeals from both the

15 Ninth and Fourth Circuit Courts of Appeal, the Supreme Court stayed the preliminary

16 injunctions issued by the Maryland and Hawaii district courts—except for foreign

17 nationals and refugees who had a “credible claim of a bona fide relationship with a

18 person or entity in the United States.” IRAP, 137 S. Ct. at 2088-89.

19

3. EO-3

20

While review of EO-2 was pending before the Supreme Court, President Trump

21 replaced those portions of EO-2 that relate to immigrants (and not refugees), with a

22 Presidential Proclamation. See Proclamation No 9,645, 82 Fed. Reg. 45,161 (Sept. 27,

ORDER - 7

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 8 of 65

1 2017) (“EO-3”). EO-2’s refugee ban was still in effect at the time President Trump

2 issued EO-3. Federal district judges in Hawaii and Maryland issued preliminarily

3 injunctions blocking implementation of portions of EO-3. See Int’l Refugee Assistance

4 Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *1 (D. Md. Oct. 17,

5 2017), appeal docketed, No. 17-2231 (4th Cir. Oct. 20, 2017), and appeal docketed, No.

6 17-2240 (4th Cir. Oct. 23, 2017); Hawaii v. Trump, No. CV 17-00050 DKW-KSC, 2017

7 WL 4639560, at *1 (D. Haw. Oct. 17, 2017), appeal docketed, No. 17168 (9th Cir. Oct.

8 24, 2017). The Ninth Circuit affirmed the Hawaii district court’s ruling in large part, but

9 narrowed the scope of the injunction to give relief only to those with a credible bona fide

10 relationship with the United States, pursuant to the Supreme Court’s decision in IRAP,

11 137 S. Ct. at 2088. See Hawaii III, 2017 WL 6547095 at * 26. The ruling from the

12 Maryland federal district court remains on appeal. The Supreme Court has stayed both

13 preliminary injunctions pending further appeals. See Trump v. Int’l Refugee Assistance

14 Project, No. 17A560, 2017 WL 5987435, at *1 (U.S. Dec. 4, 2017); Trump v. Hawaii,

15 No. 17A550, 2017 WL 5987406, at *1 (U.S. Dec. 4, 2017).

16

4. EO-4 and the Agency Memo

17

On October 24, 2017, the same day that EO-2’s 120-day refugee ban expired,

18 President Trump issued Executive Order 13,815, 82 Fed. Reg. 50,055 (Oct. 27, 2017)

19 (“EO-4”). EO-4 stated that continued suspension of refugee admission was not

20 necessary, EO-4 § 3(a), and that the Administration had improved USRAP vetting

21 processes so that they were “generally adequate to ensure the security and welfare of the

22 United States,” id. § 2(a). Nevertheless, EO-4 directed a continuing risk assessment as to

ORDER - 8

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 9 of 65

1 “[c]ertain [c]ategories of [r]efugees.” Id. §§ 3(a)(i)-(ii). The Secretaries of DOS and

2 DHS and the DNI outlined the risk assessment and the EO-4 categories of refugees in the

3 Agency Memo, which was dated October 23, 2017, but released on October 24, 2017.4

4 (See Lin Decl. ¶ 3, Ex. B (attaching Agency Memo); see also Burman Decl. ¶ 3, Ex. B

5 (attaching Agency Memo).)

6

Plaintiffs seek to preliminarily enjoin certain provisions of the Agency Memo that

7 (1) indefinitely suspend “following-to-join” (“FTJ”) derivative refugees from entering the

8 United States, and (2) suspend for at least 90-days the entry of refugees who are

9 “nationals of, and stateless persons who last habitually resided in, 11 particular countries

10 previously identified as posing a higher risk to the United States through their designation

11 on the Security Advisory Opinion (“SAO”) list.” (Agency Memo at 2-3; see generally

12 Doe PI Mot.; JFS PI Mot.)

13

a. The FTJ Provisions

14

The Agency Memo indefinitely suspends the FTJ process for refugees.5 (Agency

15 Memo at 2-3.) Approximately 2,500 refugees in the United States are able to reunite

16

4 An addendum is attached to the Agency Memo, entitled “Addendum to Section 6(a) 17 Memorandum,” which refers to the review of USRAP directed by Section 6(a) of EO-2

(“Agency Memo Addendum”). (See Burman Decl. (17-1707 Dkt. # 43) ¶ 3, Ex. B.)

18

5 Under the INA, subject to numerical limits set annually by the President, the Secretary

19 of DHS may admit “any refugee who is not firmly resettled in any foreign country, is determined

to be of special humanitarian concern to the United States, and is admissible (except as otherwise

20 provided under ([8 U.S.C. § 1157(c)(3)]) as an immigrant.” 8 U.S.C. § 1157(c)(1). Refugees admitted under this provision are referred to as “principal refugees.” See 8 C.F.R. § 207.7(a).

21

“Derivative refugees” are the spouses and unmarried minor children of an admitted principal refugee. See id. When derivative refugees travel to join the principal refugee more than four

22

months after the principal refugee’s admission, they are FTJ derivative refugees, rather than “accompanying” derivative refugees. See id.

ORDER - 9

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 10 of 65

1 with their immediate family members annually through the FTJ process. (Id. at 2 n.1.)

2 The Agency Memo states that most FTJ refugee applicants do not currently undergo the

3 same security procedures as the principal refugee who has already resettled in the United

4 States. (Id. at 2-3.) The Secretaries of DOS and DHS and the DNI determined that FTJ

5 refugees should not be admitted to the United States until additional screening procedures

6 are in place. (Id. at 3.) Although the Agency Memo does not exempt Kenya and

7 Thailand from its application, Defendants state that FTJ refugees processed at

8 resettlement centers in those two countries are not affected by the Agency Memo because

9 “adequate review mechanisms are already in place in those countries.” (JFS Resp. at 5,

10 n.3; see also Doe Resp. at 5; Higgins Decl. (Dkt. # 51-1) ¶ 11).) At oral argument,

11 Defendants clarified that during the Agency Memo’s indefinite FTJ suspension, the

12 Government was not just barring entry of FTJ refugees, but had completely stopped

13 processing FTJ refugee applications—except for FTJ refugees who are processed in

14 Thailand or Kenya.

15

b. The SAO Provisions

16

The Agency Memo also suspends for at least 90 days refugee admission of

17 nationals of 11 countries on the SAO list, as well as stateless persons who last resided in

18 those countries. (See Agency Memo at 2.) The Agency Memo does not identify the

19 countries, but Plaintiffs assert that the countries are Egypt, Iran, Iraq, Libya, Mali,

20 Somalia, Sudan, Syria, and Yemen, as well as North Korea and South Sudan.6 (See JFS

21 6 At oral argument, Defendants declined to confirm this list of the 11 SAO countries on
22 the basis that it was “law enforcement sensitive information.” However, Defendants conceded

ORDER - 10

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 11 of 65

1 PI Mot. at 7; see also Smith Decl. (17-1707 Dkt. # 44) ¶ 5.) Countries on the SAO list

2 “have been assessed by the U.S. government to pose elevated potential risks to national

3 security.” (Agency Memo Addendum at 1.) The SAO list for refugees was established

4 after September 11, 2001, and has changed over the years. (Id.) The most recent list was

5 updated in 2015. (Id.) USRAP already requires additional screening and procedures for

6 refugees from countries on the SAO list. (Id.) USRAP subjects these refugees to

7 additional vetting through SAOs, which are “DOS-initiated biographic check[s]

8 conducted by the Federal Bureau of Investigation and intelligence community partners.”

9 (Id. at 1 n.1.)

10

The Agency Memo requires the agencies to “conduct a review and analysis” of

11 USRAP for refugees from SAO countries for an additional 90 days—notwithstanding the

12 agencies’ review of USRAP pursuant to EO-1 and EO-2. (See Agency Memo at 2.) Like

13 President Trump’s prior EOs, the Agency Memo suspends refugee admission from SAO

14 countries unless resettlement “would fulfill critical foreign policy interests, without

15 compromising national security and the welfare of the United States,” a determination

16 made on a “case-by-case basis” (Id.) In addition, the Agency Memo diverts resources

17 dedicated to processing refugees who are citizens of (or stateless persons who last resided

18 in) SAO countries and reallocates those resources to processing refugee applicants from

19 non-SAO countries. (Id.) During oral argument, Defendants acknowledged that this

20 would impact the pace of processing for SAO refugees. Thus, even if the SAO

21

22

that the court could “rely on Plaintiffs’ allegations for purposes of addressing the issues” presented in these motions.

ORDER - 11

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 12 of 65

1 suspension is lifted after 90-days, it will have a long-term effect. “Refugees have only a

2 narrow window of time to complete their travel, as certain security and medical checks

3 expire and must then be re-initiated.” Hawaii v. Trump, 871 F.3d 646, 664 (9th Cir.

4 2017) (“Hawaii II”). “Even short delays may prolong a refugee’s admittance.” Id.

5 B. Facts Pertaining to Specific Plaintiffs

6

1. Joseph Doe

7

Joseph Doe is a plaintiff in the Doe Case. (See Doe TAC (Dkt. # 42) ¶¶ 54-71.)

8 He is from Somalia, was first admitted to the United States in 2014 as a refugee, and

9 became a lawful permanent resident in 2016. (Joseph Decl. (Dkt. # 47) ¶¶ 2, 9, 11.)

10 Joseph fled Somalia with his family as a young child; he and his family eventually ended

11 up in a refugee camp in Kenya, where Joseph grew up, married, and began his own

12 family. (Id. ¶¶ 3-8.) Joseph’s wife and children were unable to come to the United States

13 with Joseph, remaining in Kenya. (Id. ¶¶ 8-9.) Joseph filed an I-730 petition to bring his 14 wife and children to the United States as FTJ refugees. (Id. ¶ 10.) Joseph’s wife and 15 children have completed their final interviews, security and medical clearances, received 16 a formal assurance from a refugee resettlement agency, and are on the brink of travel. 17 (Id. ¶ 12; Joseph Supp. Decl. (Dkt. # 56) ¶¶ 3-5.) Yet, Joseph’s family has not received 18 permission from DHS to travel. (Joseph Supp. Decl. ¶ 7.) Joseph’s two youngest

19 children were born in Kenya and have never been to Somalia. (Id. ¶ 9.) Nevertheless, 20 they are considered to be Somali citizens due to Joseph’s nationality. (Id.) Somalia is an 21 SAO country. (Smith Decl. ¶ 5.) Thus, the United States embassy in Somalia informed 22 Joseph that although his wife and oldest step-son, who are both Kenyan citizens, could

ORDER - 12

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 13 of 65

1 obtain permission to travel to the United States, his 4-year-old and 5-year-old sons cannot

2 because they are considered Somali citizens. (See Joseph Supp. Decl. ¶ 10.)

3

2. John Doe 7

4

John Doe 7 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 20.) JFS Plaintiffs

5 base their joinder in the Doe motion for preliminary injunction on facts pertaining to Doe

6 7. (JFS Joinder at 1-2.) Doe 7 is an Iraqi national, who was admitted as a refugee to the

7 United States in 2014, along with his wife and two children. (Doe 7 Decl. (17-1707 Dkt.

8 # 58) ¶ 2.) He filed an I-720 petition for his 19-year-old son from his first marriage to

9 join him as an FTJ refugee, which the Government approved. (Id. ¶¶ 3-4.) His son has

10 completed his interview and fingerprinting and received a formal assurance from JFS-S

11 in November 2016. (Id. ¶ 4.) Since that time, Doe 7’s son has been waiting to travel to

12 the United States. (Id.)

13

3. Afkab Mohamed Hussein

14

Afkab Mohamed Hussein is a plaintiff in the JFS Case. (See JFS Compl. ¶ 12.)

15 He is a Somali national, who was admitted to the United States as a refugee in September

16 2015. (Hussein Decl. (17-1707 Dkt. # 48) ¶ 1.) His wife, who was pregnant with their

17 son at the time, did not travel with Mr. Hussein to the United States. (See id. ¶ 6.) Mr.

18 Hussein filed I-720 petitions for his wife and son to join him in the United States as FTJ

19 refugees, which the Government approved in June 2016. (Id. ¶¶ 10, 16.) His wife and

20 son were both born in Kenya but are considered Somali citizens. (See id. ¶¶ 11-12.)

21 //

22 //

ORDER - 13

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 14 of 65

1

4. John Doe 1

2

John Doe 1 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 13.) Doe 1 is an Iraqi

3 former interpreter for the United States military. (Doe 1 Decl. (17-1707 Dkt. # 52) ¶¶ 1,

4 3.)7 Doe 1 and his family were in extreme danger in Iraq due to his work for the United

5 States military. (See id. ¶¶ 3-8.) As a result, in 2014, he fled Iraq for Cairo, Egypt

6 without his family. (Id. ¶¶ 8-9.) In September 2014, he applied for refugee status in the

7 United States. (Id. ¶ 12.) He is currently “in the end stage of processing for refugee

8 admissions.” (Id. ¶ 15.) He was conditionally approved for resettlement in the United

9 States in December 2015, and has received an assurance of sponsorship from a 10 resettlement agency. (Id.) In early October 2017, the International Organization for 11 Migration (“IOM”) told Doe 1 to “get ready to travel to the United States.” (Id. ¶ 16.)

12 While he was updating his passport to travel, EO-4 and the Agency Memo went into

13 effect, preventing him from traveling. (See id.)

14

5. John Does 2 and 3

15

John Doe 2 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 15.) John Doe 2 is an

16 Iraqi former interpreter for the United States Army. (Doe 2 Decl. (17-1707 Dkt. # 53)

17 ¶¶ 1, 3.) In 2010, he came to the United States to complete his PhD. (Id. ¶ 5.) Upon

18 graduation, he travelled back to Mosul, Iraq without his wife and children who remained

19 in the United States. (Id.) While he was in Mosul, ISIS seized control of the city, and he

20 7 (See also Vaught Decl. (17-1707 Dkt. # 49) ¶¶ 1-24 (describing the declarant’s work

21

with Doe 1 as an interpreter while the declarant was serving in Falluja, Iraq with the United States Army Reserve’s Civil Affairs and Psychological Operations Command, his distress in

22

having to leave Doe 1 behind in Iraq, his efforts to assist Doe 1 to resettle in the United States, and his objections to EO-4 and the Agency Memo).)

ORDER - 14

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 15 of 65

1 has been unable to rejoin his family in the United States ever since. (Id. ¶ 6.) In 2015, he

2 applied for admission to the United States as a refugee. (Id. ¶¶ 7-8.) He is currently “in

3 the end stage of processing for refugee admissions.” (Id. ¶ 9; see also id. ¶ 12.) He was

4 “awaiting security checks and travel booking” when he was informed of the restrictions

5 on refugees that apply to Iraqi nationals in EO-1, EO-2, and EO-4. (Id.) He has been

6 stranded in Iraq and separated from his family for three years. (Id. ¶ 11.) One of his

7 children is now married to a lawful permanent resident, and he has two granddaughters

8 who are United States citizens. (Id. ¶ 5.)

9

John Doe 3 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 16.) He is a lawful

10 permanent resident of the United States and the son-in-law of Doe 2. (Doe 3 Decl.

11 (17-1707 Dkt. # 54) ¶ 1.) He is worried about Doe 2’s safety. Doe 2’s family in the

12 United States, which consists of his wife, five children, two sons-in-law, and two

13 granddaughters, miss him dearly, rely on him, and want to be reunited with him. (Id.

14 ¶¶ 2, 4-5.)

15

6. Jane Doe 4

16

Jane Doe 4 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 17.) Doe 4 is an

17 Egyptian, who has applied for refugee status in the United States. (Doe 4 Decl. (17-1707

18 Dkt. # 55) ¶¶ 1-2.) She is a transgender woman who faces extreme harassment and

19 persecution in Egypt because of her gender identity. (Id. ¶ 3; see also id. ¶ 6.) Until the

20 recent restrictions on refugee admissions to the United States, USRAP was processing

21 her refugee application on an expedited basis. (Id. ¶ 5.)

22 //

ORDER - 15

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 16 of 65

1

7. Jane Does 5 and 6

2

Jane Doe 5 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 18.) She is an Iraqi

3 national and waiting to travel to the United States as a refugee. (Doe 5 Decl. (17-1707

4 Dkt. # 56) ¶¶ 2-3.) She hopes to live with her sister who resides in Castle Creek, Utah.

5 (Id. ¶ 2.) Her mother, father, another sister, and a brother also live in the United States.

6 (Id. ¶ 8.) In Iraq, Doe 5 works as an interpreter and administrator for American

7 companies. (Id. ¶ 3.) As a result of her work, she faces danger, threats, and harassment

8 in Iraq. (Id. ¶¶ 3-5) In November 2015, Doe 5 was kidnapped by Iraqi militants who

9 raped her multiple times and held her for about a month. (Id. ¶ 4.) When they released

10 her, they told her they would kill her if she continued to work with the Americans. (Id.)

11 She applied for refugee status in 2012. (Id. ¶ 7.) She has completed multiple stages of

12 the refugee admissions process and has been awaiting security checks and travel booking

13 since 2016. (Id.)

14

Jane Doe 6 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 19.) She is a United

15 States citizen and the sister of Doe 5. (Doe 6 Decl. (17-1707 Dkt. # 57) ¶ 1.) She fears for

16 her sister’s safety in Iraq and misses her deeply. (See id. ¶¶ 2, 4-6.)

17

All of the individual Plaintiffs have been injured by prolonged separation from

18 their family members. (See, e.g., Hussein Decl. ¶¶ 6, 18; Doe 2 Decl. ¶¶ 5, 10; Doe 3

19 Decl. ¶ 4; Doe 5 Decl. ¶ 8; Doe 6 Decl. ¶¶ 6-7; Doe 7 Decl. ¶¶ 5-7.) Those individual

20 Plaintiffs stranded abroad in perilous circumstances are injured by their inability to travel

21 to safety in the United States. (See, e.g., Doe 1 Decl. ¶¶ 3-11; Doe 2 Decl. ¶¶ 5-10; Doe 4

22 Decl. ¶ 7; Doe 5 Decl. ¶ 9.)

ORDER - 16

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 17 of 65

1

8. The Organizational Plaintiffs

2

JFS Plaintiffs argue in conjunction with their motion for preliminary injunction

3 that EO-4 and the Agency Memo also harm the organizational Plaintiffs—JFS-S and

4 JFS-SV.8 (JFS PI Mot. at 12-13.) These agencies provide services to and help resettle

5 refugees in response to the moral, religious, and cultural commands of their religion.

6 (JFS-S Decl. (17-1707 Dkt. # 50) ¶¶ 2-8, 15-16; JFS-SV Decl. (17-1707 Dkt. # 51) ¶¶ 11-

7 18.) Due to the anticipated reduction in refugees from Muslim countries as a result of

8 EO-4 and the Agency Memo, these organizations anticipate that they will need to lay-off

9 employees, reduce services, divert resources to address fears raised by EO-4 and the

10 Agency Memo, cancel established programs, and lose relationships and goodwill with

11 volunteers and community partners who these organizations have cultivated relationships

12 with over the years. (See JFS-S Decl. ¶¶ 30-34; JFS-SV Decl. ¶¶ 27-35.) Further, the

13 agencies state that because they hire staff and volunteers and design programs to be

14 culturally and linguistically relevant to the communities they serve, they cannot simply

15 divert the lost resources to refugees who hail from other parts of the world and who are

16 unaffected by EO-4 and the Agency Memo. (JFS-SV Supp. Decl. (Dkt. # 82) ¶¶ 2-4;

17 JFS-S Supp. Decl. (Dkt. # 81) ¶¶ 3-6.) Indeed, the agencies will be forced to replace

18 staff, build new community relationships, and redesign programs. (JFS-SV Supp. Decl.

19 ¶ 4; JFS-S Supp. Decl. ¶¶ 6-7.)

20 //

21

8 Doe Plaintiffs did not assert harm to organizational Plaintiffs Episcopal Diocese of

22

Olympia or the Council on American-Islamic Relations-Washington in support of their motion for a preliminary injunction. (See generally Doe PI Mot.)

ORDER - 17

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 18 of 65

1

III. ANALYSIS

2

Doe Plaintiffs assert that they are entitled to a preliminary injunction because they

3 are likely to succeed on four claims: (1) the Agency Memo’s indefinite ban on FTJ

4 refugees is contrary to the INA (Doe PI Mot. at 9-12); (2) the Agency Memo’s indefinite

5 ban on FTJ refugees deprives Plaintiffs of due process under the Fifth Amendment (id. at

6 12-14); (3) the Agency Memo violates the Administrative Procedures Act’s (“APA”), 5

7 U.S.C. § 553(b), requirement for notice and comment rulemaking (id. at 14-15); and (4)

8 the Agency Memo violates the APA, 5 U.S.C. § 706(2)(A), because it is arbitrary and

9 capricious (id at 14-18).

10

JFS Plaintiffs assert that they are entitled to a preliminary injunction because they

11 are likely to succeed on four claims: (1) the Agency Memo’s SOA provisions violate the

12 Establishment Clause (JFS PI Mot. at 13-17); (2) the Agency Memo’s SAO provisions

13 violate the APA, 5 U.S.C. § 706(2)(A), because they are arbitrary and capricious (id. at

14 17-18); (3) the Agency Memo violates the APA, 5 U.S.C. § 706(2)(C), because it is ultra

15 vires and contrary to the INA (id. at 19-22); and (4) the Agency Memo violates the APA

16 because the agency failed to engage in required notice and comment rulemaking (id. at

17 20).9

18

Defendants oppose both Doe Plaintiffs’ and JFS Plaintiffs’ substantive arguments

19 that they are likely to prevail on these claims. (Doe Resp. at 12-21; JFS Resp. at 15-28.)

20

21

9 JFS Plaintiffs also assert that the FTJ provisions of the Agency Memo violate the APA,

22

the INA, and the Due Process Clause of the Fifth Amendment (JFS PI Mot. at 22-23), and they filed a formal notice of joinder in Doe Plaintiffs’ motion (see JFS Joinder.)

ORDER - 18

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 19 of 65

1 In addition, Defendants oppose both motions on a variety of justiciability grounds. (Doe

2 Resp. at 7-12; JFS Resp. at 5-15.) The court addresses Defendants’ justicaibility issues

3 first, and then addresses the substance of the Doe and JFS motions for preliminary

4 injunctions. In addressing the substance of Plaintiffs’ motions, the court turns to the

5 statutory issues first. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,

6 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that

7 courts avoid reaching constitutional questions in advance of the necessity of deciding

8 them.”). Because the court ultimately concludes that Plaintiffs show a likelihood of

9 success on the merits of their statutory claims, the court does not reach either JFS

10 Plaintiffs’ Establishment Clause claim or Doe Plaintiffs’ due process claim. See

11 Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)

12 (“[I]f a case can be decided on either of two grounds, one involving a constitutional

13 question, the other a question of statutory construction or general law, the Court will

14 decide only the latter.”).

15 A. Justiciability

16

Defendants challenge the justiciability of both motions for preliminary injunction

17 on four grounds: (1) Plaintiffs lack Article III standing (Doe Resp. at 7-8; JFS Resp. at

18 5-9); (2) Plaintiffs’ claims are barred by principles of nonreviewability (Doe Resp. at 8-

19 11; JFS Resp. at 10-14); (3) Plaintiffs fail to identify any final agency action (Doe Resp.

20 at 11-12; JFS Resp. at 14-15), and (4) Plaintiffs’ claims concerning the SAO provisions

21 are unreviewable under 5 U.S.C. § 701(a) (JFS Resp. at 15). In addition to these issues,

22 //

ORDER - 19

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 20 of 65

1 the court also addresses statutory standing because both Doe Plaintiffs and JFS Plaintiffs

2 raise statutory claims.10

3

1. Article III Standing

4

To satisfy Article III standing, “a plaintiff must show (1) [he or she] has suffered

5 an ‘injury in fact’[;] . . . (2) the injury is fairly traceable to the challenged action of the

6 defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be

7 redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

8 (TOC), Inc., 528 U.S. 167, 180-81 (2000) (internal citation omitted). At this preliminary

9 stage of the litigation, Plaintiffs may rely on the allegations in their complaint and

10 whatever other evidence they submit in support of their preliminary injunction motions to

11 meet their burden. Hawaii I, 859 F.3d at 762; Washington, 847 F.3d at 1159. Defendants

12 challenge the standing of both the individual and organizational Plaintiffs. (JFS Resp. at

13 6-7; Doe Resp. at 7.)

14

a. Individual Plaintiffs

15

Plaintiffs allege in their complaints that the SAO and FTJ provisions of the

16 Agency Memo extend the separation of citizens and lawful residents in the United States

17 from their family members abroad. (See generally Doe TAC; JFS Compl.) Plaintiffs

18 provide numerous declarations supporting those allegations, which the court has detailed

19 above. See supra § II.B.1-7. Prolonged separation from a family member is an injury in

20

21

10 The court does not reach Doe Plaintiffs’ due process claim or JFS Plaintiffs’

22

Establishment Clause claim. Thus, the court addresses only whether Plaintiffs have standing to challenge the Agency Memo based on their APA and INA claims.

ORDER - 20

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 21 of 65
1 fact sufficient to establish Article III standing.11 See Hawaii I, 859 F.3d at 763 (holding 2 that a citizen had Article III standing to challenge EO-2 because EO-2 prolonged the 3 separation of the citizen and his family from reunification with his mother-in-law by 4 stalling her visa application); see also Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 5 2013) (“The right to live with and not be separated from one’s immediate family is ‘a 6 right that ranks high among the interests of the individual.’”) (quoting Landon v. 7 Plascenia, 459 U.S. 21, 34-35 (1982)); Leiva-Perez v. Holder, 640 F.3d 962, 969-70 (9th 8 Cir. 2011) (recognizing that “important [irreparable harm] factors include separation 9 from family members” (internal quotation marks omitted)); Legal Assistance for 10 Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469, 471-73 (D.C. Cir. 1995), 11 vacated on other grounds, 519 U.S. 1 (1996) (holding that U.S. resident sponsors had 12 standing to challenge DOS’s refusal to process visa applications because the prolonged 13 separation of immediate family members resulted in injury to the sponsors); IRAP, 137 S. 14 Ct. at 2089 (“An American individual . . . that has a bone fide relationship with a 15 particular person seeking to enter the country as a refugee can legitimately claim concrete 16 hardship if that person is excluded.”); Int’l Refugee Assistance Project v. Trump, No. CV 17 TDC-17-0361, 2017 WL 4674314, at *12 (D. Md. Oct. 17, 2017) (citizens and lawful 18 permanent residents established “injury in fact” for purposes of Article III standing 19 because EO-3’s “indefinite ban on the issuance of immigrant and nonimmigrant visas for 20 // 21
11 At oral argument, Defendants conceded that separation from “one’s loved ones” can 22 constitute such harm.
ORDER - 21

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 22 of 65

1 nationals of the Designated Countries has imposed an actual, imminent injury on [the

2 plaintiffs] by prolonging their separation from family members.”).

3

Nevertheless, Defendants argue that none of the individual Plaintiffs have

4 demonstrated that suspension of FTJ refugee processing has caused them harm. First,

5 Defendants argue that Joseph fails to show any injury because his wife and children are

6 from Kenya, and Kenya is one of two countries in which the Government is continuing to

7 process FTJ refugee applications because screening procedures are already in place to

8 ensure appropriate FTJ scrutiny. (Doe Resp. at 2, 6-7; Higgins Decl. ¶ 11 (explaining

9 that in Kenya and Thailand “the security vetting received for a Form I-730 beneficiary is

10 the same as the screening received for principal refugee applicants,” and therefore the

11 Government is continuing to issue travel authorization to approve FTJ refugees who are

12 processed in those locations).) However, as noted above, two of Joseph’s children are

13 considered Somali citizens and are, therefore, subject to the Agency Memo’s SAO

14 provisions. (See Joseph Supp. Decl. ¶ 9.) Accordingly, the processing of their FTJ

15 refugee applications remain on hold. (See id. ¶ 10.)

16

Defendants also argue that Mr. Hussein’s family is in Kenya, and thus he has no

17 standing to challenge the FTJ provisions of the Agency Memo. (JFS Resp. at 6 (citing

18 Higgins Decl. ¶ 11).) However, Mr. Hussein’s family members are also Somali

19 nationals, and therefore subject to the SAO provisions. (See Hussein Decl. ¶¶ 10-11.)

20 Because both Joseph’s and Mr. Hussein’s FTJ refugee applications for their family

21 members are subject to the Agency Memo’s SAO provisions, Joseph and Mr. Hussein

22 have standing to challenge the Agency Memo. Indeed, during the December 21, 2017,

ORDER - 22

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 23 of 65

1 hearing on Plaintiffs’ motions, Defendants withdrew their argument that Joseph lacked

2 standing.

3

In any event, Doe 7 also has an approved FTJ refugee application for his 19-year

4 old son to come to the United States. (Doe 7 Decl. ¶ 4) Doe 7’s son is an Iraqi national

5 (id. ¶ 3), and so Doe 7’s FTJ application and the processing of his son’s FTJ refugee

6 status are subject to both the FTJ and SAO provisions of the Agency Memo (id. ¶¶ 3-10).

7 Accordingly, the court concludes that Doe 7 has standing. One party with standing is

8 sufficient to fulfill Article III’s case-or-controversy requirement. Rumsfeld v. Forum for

9 Acad. & Institutional Rights, Inc., 547 U.S. 47, 52, n.2 (2006).

10

Nevertheless, Defendants argue that it is speculative to infer that the Agency

11 Memo’s FTJ and SAO provisions are the source of any delay in the processing of Doe 7’s

12 FTJ refugee application as opposed to any other number of factors that might delay a

13 refugee’s application. (JFS Resp. at 6.) Whether Doe 7’s son’s application has other

14 hurdles to cross, however, does not diminish the fact that the SAO and FTJ provisions of

15 the Agency Memo add two more. Removing these hurdles would speed the resolution of

16 any others that may exist since processing of these applications is not presently

17 proceeding at all. (See Agency Memo.) In any event, the evidence before the court is

18 that Doe 7’s FTJ application for his son has been approved, his son has completed his

19 interview and fingerprinting, has received an assurance from a refugee resettlement

20 agency in the United States, and is waiting to travel. (Doe 7 Decl. ¶ 4.) At this stage of

21 the proceedings, this is sufficient to establish harm for purposes of Article III standing

22 with respect to both the SAO and FTJ provisions.

ORDER - 23

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 24 of 65

1

Defendants also argue that the individual Plaintiffs have no standing to challenge

2 the SAO provisions because the Agency Memo provides for exceptions on a case-by-case

3 basis. (JFS Resp. at 6-7.) Defendants argue that Plaintiffs cannot demonstrate harm until

4 they demonstrate that they “cannot qualify for this exemption.” (See id. at 7 n.4.) In

5 Hawaii I, the Ninth Circuit rejected a virtually identical argument when it concluded that

6 EO-2’s discretionary waiver did not undermine Article III standing. 859 F.3d at 768.

7 Indeed, the Ninth Circuit stated that the plaintiffs would “face substantial hardship if [the

8 court] were to first require that they try to obtain a waiver before [the court] . . .

9 consider[ed] their case.” Id.; see also Hawaii III, 2017 WL 6547095, at *6 (“[EO-3’s]

10 waiver provisions are not a sufficient safety valve and do not mitigate the substantial

11 hardships Plaintiffs have already suffered and will continue to suffer due to [EO-3].”)

12 (internal quotation marks omitted); Int’l Refugee Assistance Project v. Trump, 2017 WL

13 4674314, at *16 (stating in the context of analyzing the ripeness of challenges to EO-3

14 that “the waiver process itself presents an additional hurdle not faced by other visa

15 applicants which would delay reunification, thus creating a harm not contingent on future

16 events”).

17

Finally, Defendants parse the various individual Plaintiffs’ declarations and argue

18 “it is doubtful that these applicants are on the brink of travel such that the 90-day SAO

19 review period will have any concrete impact on them.” (JFS Resp. at 7.) Whether

20 Defendants are on the brink of travel or not, however, their separation from their family

21 members will be prolonged as a result of the SAO provisions. The Agency Memo

22 specifically states that, during the 90-day review, DOS and DHS will “take resources that

ORDER - 24

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 25 of 65

1 may have been dedicated to processing nationals of, or stateless persons who last

2 habitually resided in, SAO countries and . . . reallocate them to process applicants from

3 non-SAO countries for whom the processing may not be as resource intensive.” (Agency

4 Memo at 2.) Indeed, Defendants conceded that during the suspension the Government is

5 redirecting “processing resources” away from SAO countries and that refugee

6 applications will not be processed at the same pace. Thus, even assuming refugee

7 applications from SAO countries are processed at all during the review period, they will

8 undoubtedly be slowed by this resource diversion, prolonging the individual Plaintiffs’

9 separation from their family members.

10

In sum, the court concludes that the individual Plaintiffs have sufficiently

11 demonstrated harm due to the SAO provisions and that at least one individual Plaintiff—

12 Doe 7—has sufficiently alleged harm due to the FTJ provisions. The court concludes

13 that the final two aspects of Article III standing—causation and redressability—are also

14 satisfied. These Plaintiffs’ injuries are traceable to EO-4 and its accompanying Agency

15 Memo, and, if Plaintiffs prevail, a decision enjoining portions of the Agency Memo

16 would redress those injuries.

17

b. Organizational Plaintiffs

18

Plaintiffs assert that JFS-S and JFS-SV have standing as organizational Plaintiffs

19 because the Agency Memo has caused them to divert resources away from their core

20 mission of resettling refugees. (See JFS PI Mot. at 12; see generally JFS-S Decl.;

21 JFS-SV Decl.) This is ordinarily sufficient to demonstrate harm underpinning Article III

22 standing. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (diversion of

ORDER - 25

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 26 of 65

1 resources confers Article III standing); Fair Hous. Council of San Fernando Valley v.

2 Roomate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012) (“[A]n organization has ‘direct

3 standing to sue [when] it showed a drain on its resources from both a diversion of its

4 resources and frustration of its mission.’”) (second alteration in original) (quoting Fair

5 Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)).

6

Defendants argue that JFS-S and JFS-SV have not shown that the Agency Memo

7 impairs their core mission because EO-4 largely resumes USRAP, “subject to conditions

8 for applicants of special concern.” (JFS Resp. at 9.) Further, Defendants contend that,

9 although the Agency Memo may temporarily alter the composition of refugees entering

10 the country, it does not alter the overall number of refugees entering the country. (Id.)

11 Thus, according to Defendants, the organizational mission of the agencies is not

12 impaired. (Id.)

13

JFS-S and JFS-SV, however, cannot make up the deficits in the arrival of FTJ

14 refugees and refugees from SAO countries by receiving and serving other refugees. Each

15 organization devoted significant resources to serving Muslim and Arabic-speaking

16 refugees because these refugees represent a large percentage of their clients, including by

17 hiring staff and designing programs specifically devoted to serving these clients. (JFS-S

18 Supp. Decl. ¶¶ 5-7; JFS-SV Supp. Decl. ¶¶ 3-4.) Yet, the effect of the Agency Memo is

19 likely to be a significant reduction in the admission of Muslim refugees into the United

20 States. Over 40% of all refugees resettled in the United States within the last two fiscal

21 years came from one of the SAO countries. (Smith Decl. ¶ 15.) Of that group, 99%

22 came from one of the nine Muslim-majority SAO countries, and over 80% identified as

ORDER - 26

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 27 of 65

1 Muslim. (Id. ¶¶ 15, 17.) The Agency Memo’s FTJ provisions are also likely to have a

2 disproportionate effect on Muslim refugees because it is generally available only to

3 refugees admitted in the last two years, 8 C.F.R. § 207.7(d), which is the period of time

4 when the admission of Muslim refugees reached a record high. (Burman Decl. ¶ 41, Ex.

5 NN.) The resources JFS-S and JFS-SV devoted to Muslim and Arabic-speaking refugees

6 cannot simply be shifted to serving other refugees from other parts of the world; instead

7 these resources are wasted, and the agencies’ organizational purpose is thereby frustrated.

8 (See JFS-S Supp. Decl. ¶¶ 6-7; JFS-SV Supp. Decl. ¶ 4); see, e.g., El Rescate Legal

9 Servs., Inc. v. Exec. Office of Immigration Rev., 959 F.2d 742, 748 (9th Cir.1992) (legal

10 services organizations “established to assist Central American refugee clients, most of

11 whom [we]re unable to understand English,” who were seeking asylum and the

12 withholding of deportation, had standing to challenge government policy of not providing

13 full translation of those proceedings).12 Accordingly, the court concludes that both JFS-S

14 and JFS-SV have standing as organizational plaintiffs.

15

JFS-S and JFS-SV also assert third-party standing because they have a close

16 relationship to the individual Plaintiffs whose claims they raise and these individual

17 Plaintiffs are unable to protect their interests on their own. (JFS PI Mot. at 13 (citing

18

19

12 The El Rescate court expounded on the issue of organizational standing immediately

after declaring the issue moot, 959 F.2d at 748, and so this portion of the decision is arguably

20 dicta. However, at least one subsequent Ninth Circuit panel described this part of El Rascate as a holding. See Fair Hous. of Marin, 285 F.3d at 904-05 (“This Court . . . held that “[t]he

21

allegation that the [the government’s] policy frustrates these goals [of helping refugees obtain asylum and withhold deportation] and requires the organizations to expend resources in

22

representing clients they otherwise would spend in other ways is enough to establish standing.”) (second and fourth alterations in original) (emphasis added).

ORDER - 27

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 28 of 65

1 Powers v. Ohio, 499 U.S. 400, 410-11 (1991)).) Defendants’ only response is that the

2 organization’s clients have suffered no injury. (JFS Resp. at 9, n.7.) The court, however,

3 concludes otherwise. See supra § III.A.1.a. Accordingly, the court also concludes based

4 on the record presented at this point in the proceedings that JFS-S and JFS-SV have third-

5 party standing.

6

2. Statutory Standing

7

Although Defendants do not raise this issue, because the various individual

8 Plaintiffs, as well as JFS-S and JFS-SV, assert a statutory claim under the INA, the court

9 “must also determine whether they meet the requirement of having interests that ‘fall

10 within the zone of interests protected by the law invoked.’” Hawaii I, 859 F.3d at 766

11 (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., --- U.S. ---, 134 S. Ct.

12 1377, 1388 (2014)). The “‘zone of interests’ test is ‘not meant to be especially

13 demanding,’ and a court should deny standing only ‘if the plaintiff’s interests are so

14 marginally related to or inconsistent with the purposes implicit in the statute that it cannot

15 reasonably be assumed that Congress intended to permit the suit.’” Cetacean Cmty. v.

16 Bush, 386 F.3d 1169, 1177 (9th Cir. 2004) (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S.

17 388, 399 (1987)). The “benefit of any doubt goes to the plaintiff.” Match-E-Be-Nash-

18 She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012).

19

In Hawaii I, the Ninth Circuit had “little trouble concluding that [the citizen

20 plaintiff] [wa]s within the zone of interests of the INA to challenge EO2 based on [his

21 INA] statutory claim,” because “[h]e assert[ed] that the travel ban prevents his mother-in-

22 law from reuniting with his family.” 859 F.3d at 766 (citing Legal Assistance for

ORDER - 28

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 29 of 65

1 Vietnamese Asylum Seekers, 43 F.3d at 471-72 (“The INA authorizes the immigration of

2 family members of the United States citizens and permanent resident aliens. In originally

3 enacting the INA, Congress implemented the underlying intention of our immigration

4 laws regarding preservation of the family unit. Given the nature and purpose of the

5 statute, the resident appellants fall well within the zone of interest Congress intended to

6 protect.”) (internal quotation marks, citations, and alterations omitted)). Does 3 and 6, a

7 lawful permanent resident and a citizen, respectively, both claim that the Agency Memo

8 prevents reuniting with their family members. See supra §§ II.B.5, 7. The court finds no

9 legitimate basis for distinguishing the present situation from that of the plaintiff in

10 Hawaii I. Accordingly, the court concludes that Does 3 and 6 fall within the zone of

11 interest of the INA and the Refugee Act of 1980.

12

JFS-S and JFS-SV Plaintiffs also fall within the zone of interest of the INA and

13 the Refugee Act of 1980. In Hawaii I, the Ninth Circuit held that the States’ “interest in

14 effectuating its refugee resettlement policies and programs also falls within the zone of

15 interests protected by the INA.” 859 F.3d at 766. The Ninth Circuit noted that INA

16 provisions concerning refugees “were amended to provide a ‘systematic procedure’ for

17 the admission of refugees into the United States, as well as ‘uniform provisions for the

18 effective resettlement and absorption of those refugees admitted.’” Id. at 766-67 (quoting

19 Refugee Act of 1980, Pub. L. No. 96-212, § 101, 94 Stat. 102 (1980)). Making

20 provisions for the resettlement and absorption of refugees into the United States is the

21 core mission of both JFS-S and JFS-SV. (JFS-S Decl. ¶¶ 2-7, 15-16, 30, 34; JFS-SV

22 Decl. ¶¶ 11, 18, 36-37.) Thus, these organizations’ interests in effectuating refugee

ORDER - 29

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 30 of 65

1 resettlement and absorption falls within the zone of interest protected by the INA and the

2 Refugee Act of 1980.13

3

3. Nonreviewability

4

Like they have in other cases involving the President’s various EOs on

5 immigration, Defendants assert that the “doctrine of consular nonreviewability” applies

6 to bar the court’s review of Doe and JFS Plaintiffs’ statutory claims. (See Doe Resp. at

7 8-10; JFS Resp. at 12-13.) Courts have traditionally applied the doctrine of consular

8 nonreviewability to bar challenges to decisions by consular officials adjudicating

9 individual visa applications. See Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971

10 (9th Cir. 1986) (“[I]t has been consistently held that the consular official’s decision to

11 issue or withhold a visa is not subject either to administrative or judicial review.”).

12 Defendants rely on out-of-circuit authority to argue for a significant expansion of the

13 doctrine and support their position by stating that “[t]he principle underlying that doctrine

14 applies regardless of the manner in which the Executive Branch denies entry to an alien

15 abroad, including a refugee applicant.” (See Doe Resp. at 8 (citing Haitian Refugee Ctr.,

16 Inc. v. Baker, 953 F.2d 1498, 1506 (11th Cir. 1992).)14

17

18

13 The court does not decide if Plaintiffs who are located abroad have statutory standing

under the INA because “[i]f one party to an action has standing, a court need not decide the

19 standing issue as to other parties when it makes no difference to the merits of the case.” See

Legal Assistance for Vietnamese Asylum Seekers, 45 F.3d at 472 (declining to decide if refugees

20 in Hong Kong or the organizational plaintiff had standing because the court had already found that the family members of refugees in the United States were within the zone of interest of the

21 INA).

14 In Baker, the Eleventh Circuit relied in part on the doctrine of consular 22 nonreviewability to preclude review of an Executive Order and agency guidelines that were

ORDER - 30

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 31 of 65

1

But the Ninth Circuit has already rejected Defendants’ position. Just as in

2 Hawaii I, individual Plaintiffs here “do not seek review of an individual consular

3 officer’s decision to grant or to deny a visa pursuant to valid regulations, which could

4 implicate the consular nonreviewability doctrine,” but rather the government’s

5 “promulgation of sweeping immigration policy.” 859 F.3d at 768. “Courts can and do

6 review both constitutional and statutory ‘challenges to the substance and implementation

7 of immigration policy.’” Id. (quoting Washington, 847 F.3d at 1163; see Hawaii III,

8 2017 WL 6547095, at *6-*7 (concluding that the doctrine of consular nonreviewability

9 did not apply to bar the court’s review of EO-3); see also Sale v. Haitian Ctrs. Council,

10 Inc., 509 U.S. 155 (1993) (without discussing consular nonreviewabilty, but over the

11 Government’s objections that the doctrine applied and barred review, reviewing the

12 merits of a statutory claim challenging an EO that blocked the entry of Haitians); Sale v.

13 Haitian Ctrs. Council, Inc., 1993 WL 754941 (U.S.), 16-22 (U.S. Oral. Arg., 1993)

14 (arguing that the doctrine bars review). Thus, the court rejects Defendants’ assertion that

15 this doctrine bars judicial review of EO-4 and the Agency Memo.15

16 promulgated thereunder, which provided for the interdiction and return of Haitians on the high
17 seas who were deemed to be economic rather than political refugees. 953 F.2d at 1507.

18

15 In Hawaii I, the Ninth Circuit declined to apply Mandel’s “facially legitimate and bona

fide” standard in the context of a statutory challenge to EO-2. 859 F.3d at 769 n.9. The court

19 recognizes that the Supreme Court vacated Hawaii following the expiration of EO-2. See

Hawaii v. Trump, 874 F.3d 1112, 1112 (9th Cir. 2017) (“In view of the Supreme Court order

20 dated October 24, 2017, the court's opinion filed June 12, 2017, is vacated and the appeal is dismissed as moot.”). But Hawaii I, 859 F.3d at 769 n.9, remains persuasive authority despite

21

the Supreme Court’s vacatur. See Orhorhaghe v. INS, 38 F.3d 488, 493 n.4 (9th Cir. 1994) (following as persuasive authority a decision vacated by the Supreme Court as moot). Hawaii I

22

is closely analogous and related to the issues presently before this court, and as a district court within the Ninth Circuit, this court is unwilling to ignore it or depart from its reasoning.

ORDER - 31

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 32 of 65

1

4. Final Agency Action

2

Finality is a prerequisite to judicial review of agency action. See 5 U.S.C. § 704.

3 To be final, the agency action first “must mark the consummation of the agency’s

4 decisionmaking process—it must not be of a merely tentative or interlocutory nature.”

5 Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 (9th Cir.

6 2008). Second, the action “must be one by which rights or obligations have been

7 determined, or from which consequences will flow.” Id.

8

Defendants do not contest the first requirement. (See JFS Resp. at 14-15; Doe

9 Resp. at 11-12.) But Defendants contend that, even if Plaintiffs could show the first

10 requirement, they cannot show the second requirement “because the implementation

11 period does not determine any rights or obligations or prescribe any legal consequences.”

12 (JFS Resp. at 14-15; Doe Resp. at 11.) Indeed, according to Defendants, a processing 13 //

14

15

Nevertheless, during oral argument, Defendants argued that the Supreme Court’s decision in Fiallo v. Bell, 430 U.S. 787 (1977), trumped the Ninth Circuit’s rulings in both Hawaii I, 859

16

F.3d at 769 n.9, and Washington, 847 F.3d at 1161-64, concerning the applicability of the Mandel standard. However, Fiallo is distinguishable. In Fiallo, the Supreme Court was not

considering a challenge to agency action that was alleged to be ultra vires or outside of the 17 agency’s statutory authority under the INA. Rather, Fiallo involved an action to enjoin

provisions of the INA itself as constitutionally invalid. 430 U.S. at 788 (“This case brings before

18 us a constitutional challenge to §§ 101(b)(1)(D) and 101(b)(2) of the Immigration and

Nationality Act of 1952.”). In that context, the Supreme Court noted the “limited scope of

19 judicial inquiry into immigration legislation” and emphasized “‘over no conceivable subject is

the legislative power of Congress more complete than it is over’ the admission of aliens.” Id. at

20 792 (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909) (emphasis added)). Accordingly, the Court limited its review of the statutory provision at issue to the “facially

21

legitimate and bona fide” standard found in Mandel. Id. at 795 (citing Mandel, 408 U.S. at 770). Because the issues before this court involve a statutory challenge to agency action in the form of

22

the Agency Memo, and not a constitutional challenge to any provision of the INA, Fiallo is not applicable here.

ORDER - 32

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 33 of 65

1 delay alone does not alter the family’s “legal situation,” and thus the FTJ implementation

2 program is not a final agency action subject to judicial review.16 (Id.)

3

To the contrary, whether the Agency Memo produces a “suspension” or an

4 indefinite delay, the Agency Memo has significant real-world impacts on Plaintiffs’

5 various situations. See Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (explaining

6 that “the core question is whether . . . the result of that [challenged agency] process is one

7 that will directly affect the parties.”). Under similar circumstances involving EO-3, the

8 district court in Maryland stated: “As for Defendants’ claim that the agency action to

9 date is not ‘final,’ [EO-3] is already in effect as to certain individuals and is being

10 enforced by federal agencies.” Int’l Refugee Assistance Project v. Trump, 2017 WL

11 4674314, at *18. The same is true here. As discussed above, the individual Plaintiffs are

12 subject to the Agency Memo’s provisions, and the effect of those provisions is to prolong

13 the separation of family members in some cases and prevent escape from perilous

14

15

16 The cases Defendants rely upon are readily distinguishable. In Fairbanks, the Ninth

16

Circuit held that the Army Corps of Engineers’ determination that certain municipal property contained wetlands subject to regulation under the Clean Water Act was only “a bare statement

of the agency’s opinion” that neither required the municipality to do or to forebear from 17 anything. 543 F.3d at 594. As such, the Corps’ opinion did not determine any of the

municipality’s rights or obligations or result in any legal consequences. Id. at 595. Defendants’

18 reliance on International Brotherhood of Teamsters v. U.S. Department of Transportation, 861

F.3d 944, 952 (9th Cir. 2017), is also misplaced. In that case, an agency’s report on a pilot

19 program involving Mexico-domiciled trucking companies’ long-haul operations in the United

States had no legal consequences, but was merely the last step in completing a pilot program to

20 clear the way for Mexico-domiciled carriers. Id. As such, the report “did not change the legal situation” and was not, therefore, final agency action. Id. In contrast to the opinion and report in

21

the cases cited by Defendants, the Agency Memo’s FTJ and SAO provisions are presently being implemented by USCIS. (See Higgins Decl. ¶¶ 11-16.) Those requirements have concrete

22

impacts upon Plaintiffs by delaying the reunification of families or the departure from dangerous circumstances. See supra §§ II.B.1-7.

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1 circumstances in others. See supra § IIB.1-7. And, as the Ninth Circuit in Hawaii II

2 noted, even short delays can have cascading effects that prolong a refugee’s processing

3 and ultimate admission. 871 F.3d at 644 (“Refugees have only a narrow window of time

4 to complete their travel, as certain security and medical checks expire and must then be

5 re-initiated. Even short delays may prolong a refugee’s admittance.”); (see also JFS-S

6 Supp. Decl. ¶ 8 (explaining the cascading effects of even a short delay in processing).)

7 Based on the foregoing record and authorities, the court concludes that the Agency Memo

8 represents final agency action.

9

5. Agency Discretion

10

Defendants argue in two conclusory sentences that the court is stripped of

11 jurisdiction to review Plaintiffs’ statutory challenges to the Agency Memo’s SAO

12 provisions under 5 U.S.C. § 701(a). (See JFS Resp. at 15.) Specifically, Defendants

13 argue that 8 U.S.C. § 1157(c)(1) commits the admission of refugees to the Secretary’s

14 discretion, whereas 5 U.S.C. § 701(a) prohibits APA review of agency action that “is

15 committed to agency discretion by law.” The court rejects Defendants’ argument. There

16 is a “strong presumption that Congress intends judicial review of administrative action.”

17 Helgeson v. Bureau of Indian Affairs, 153 F.3d 1000, 1003 (9th Cir. 1998). Section

18 701(a) overcomes this presumption only in “rare instances where statutes are drawn in

19 such broad terms that in a given case there is no law to apply, thereby leaving the court

20 with no meaningful standard against which to judge the agency’s exercise of discretion.”

21 Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011). “[T]he mere

22 fact that a statute contains discretionary language does not make agency action

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1 unreviewable.” Id. Indeed, section 701(a)(2) has “never been thought to put exercises of

2 discretion beyond judicial review.” ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1071 (9th

3 Cir. 2015).

4

ASSE International, Inc. v. Kerry presents an analogous situation. See 803 F.3d. at

5 1069-72. In that case, although the authorizing statute gave the DOS complete discretion

6 in determining whether to create certain exchange programs, the Ninth Circuit found that

7 the DOS’s regulations “provide more than an ample basis in law for [the court] to review

8 its decision under the APA.” Id. at 1070. These regulations created the program, provide

9 who is eligible to become a sponsor, and “establish[ed] a comprehensive scheme for

10 administering an exchange program.” Id. Because these regulations “have the force of

11 law” and carry “real consequences for [those] failing to abide by them,” the Ninth Circuit

12 concluded that judicial review was not prevented by the discretionary language in the

13 authorizing statute. Id. at 1070-71.

14

Defendants have similarly failed to rebut the strong presumption of judicial

15 reviewability. Although 8 U.S.C. § 1157(c)(1) contains discretionary language, the

16 subsequent regulations promulgated by DHS provide the “meaningful standard” by which

17 the court can review Defendants’ exercise of discretion. See 8 C.F.R. § 207; Pinnacle

18 Armor, Inc., 648 F.3d at 719. Like the regulations in ASSE International, the regulations

19 governing the admission of refugees implement the Refugee Act of 1980, detail

20 eligibility to apply for refugee status, and lay out “a comprehensive scheme” for the

21 refugee program. See 803 F.3d at 1070; 8 C.F.R. §§ 207.1-9. These regulations are

22 binding, and failure to abide by these regulations results in “real consequences.” See 803

ORDER - 35

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 36 of 65

1 F.3d at 1070; 8 U.S.C. § 1157(c)(1). Thus, as in ASSE International, the regulations

2 provide a “meaningful standard” and “more than an ample basis in law” against which to

3 judge the Defendants’ decisions under the APA. See also Hawaii III, 2017 WL 6547095,

4 at *8 (concluding that 5 U.S.C. § 701(a)(2) did not apply to bar review of EO-3 “where,

5 as here, a court is tasked with reviewing whether an executive action has exceeded

6 statutory authority”).

7

Nor does 8 U.S.C. § 1252(a)(2)(B)(ii) strip the court of jurisdiction over this

8 action.17 Section 1252(a)(2)(B)(ii) states that no court shall have jurisdiction to review:

9

Any other decisions or action of the Attorney General or Secretary of

Homeland Security the authority for which is specified under this subchapter

10

to be in the discretion of the Attorney General or the Secretary of Homeland

Security[.]

11

Section 1157(c)(1) specifies that the admission of refugees is within the Secretary’s

12

discretion. Were Plaintiffs challenging a denial of refugee admission, section

13

1252(a)(2)(B)(ii) may well bar judicial review. Instead, Plaintiffs are challenging the

14

failure to act on refugee applications. And while section 1157(c)(1) grants the Secretary

15

discretion in deciding the outcome of a refugee application, it does not specify that the

16

Secretary has discretion to suspend adjudicating such applications. See 8 U.S.C.

17

§ 1157(c)(1). In other words, the Secretary may have discretion over what the decision

18

will be, but not over whether a decision will be made. See 5 U.S.C. § 555(b) (“With due

19

20

21

17 Defendants do not mention 8 U.S.C. § 1252(a)(2)(B)(ii) in their discussion of jurisdiction stripping, focusing instead only on 5 U.S.C. § 701(a). (See JFS Resp. at 15.)

22

However, because section 1252(a)(2)(B)(ii) implicates the court’s subject matter jurisdiction, the court addresses the issue.

ORDER - 36

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 37 of 65

1 regard for the convenience and necessity of the parties or their representatives and within

2 a reasonable time, each agency shall proceed to conclude a matter presented to it.”

3 (emphasis added)). Thus, neither section 1157(c)(1) nor any other statute provides the

4 “specified” discretionary authority to suspend adjudicating refugee status that would

5 trigger section 1252(a)(2)(B)(ii)’s bar on judicial review.18 See Spencer Enters., Inc. v.

6 United States, 345 F.3d 683, 690 (9th Cir. 2003).

7

Alternatively, section 1252(a)(2)(B)(ii) does not divest this court of jurisdiction

8 because it applies only to acts that are “matters of pure discretion, rather than discretion

9 guided by legal standards.” See Spencer, 345 F.3d at 690. The decision regarding

10 refugee admission, however, is guided by a series of eligibility requirements set out in

11 sections 1157(c)(1) and 1101(a)(42). See 8 U.S.C. §§ 1101(a)(42), 1157(c)(1).

12 Moreover, section 1157(c)(1) requires the Secretary to adhere to all adopted regulations,

13 and as discussed above, the Secretary has promulgated such regulations that provide

14 specific standards limiting its discretion. For these reasons, it is not certain that the

15 Secretary’s obligations with respect to processing refugee applications are discretionary

16 within the meaning of section 1252(a)(2)(B)(ii), as construed in Spencer.

17 //

18 //

19

20

18 Many district courts have adopted this reasoning in the analogous context of

immigration status adjustments. See, e.g., Asmai v. Johnson, 182 F. Supp. 3d 1086, 1091-92

21

(E.D. Cal. 2016); see also Hong Wang v. Chertoff, 550 F. Supp. 2d 1253, 1256-57 (W.D. Wash. 2012) (collecting cases). When the statute grants discretion only as to the ultimate decision but

22

not as to the timing of when that decision is made, jurisdiction is not barred by section 1252(a)(2)(B)(ii). See, e.g., Dong v. Chertoff, 513 F. Supp. 2d 1158, 1165 (N.D. Cal. 2007).

ORDER - 37

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1

In sum, neither 5 U.S.C. § 701(a) nor 8 U.S.C. § 1252(a)(2)(B)(ii) bar the court

2 from hearing this matter. Having disposed of Defendants’ justiciability arguments, the

3 court now turns to the substance of Plaintiffs’ motions for preliminary injunction.

4 B. Motions for Preliminary Injunction

5

Doe Plaintiffs seek to enjoin both the SAO and FTJ provisions of the Agency

6 Memo to the extent those provisions indefinitely suspend the processing of FTJ refugee

7 applications or prohibit the entry of FTJ refugees into the United States. (See generally

8 Doe PI Mot.; Doe Reply; see also Doe TAC.) The JFS Plaintiffs join in this motion.

9 (See JFS Joinder; JFS PI Mot. at 22-23.) In the JFS Case, Plaintiffs also seek to enjoin

10 the SAO provisions of the Agency Memo to the extent those provisions suspend the

11 admission of refugees or inhibit the processing of refugee applications from those SAO

12 countries for 90 days. (See generally JFS PI Mot.; JFS Reply; see also JFS Compl.) Doe

13 Plaintiffs join in this motion as well. (See Doe Joinder.)

14

The court also clarifies what Plaintiffs in both cases do not seek. Plaintiffs do not

15 seek to enjoin the agencies’ efforts to implement screening mechanisms for FTJ refugees

16 that are similar to or aligned with the processes employed for principal refugees.

17 Plaintiffs do not seek to enjoin the agencies from conducting their 90-day “detailed threat

18 analysis and review” of the SAO countries to determine what additional safeguards the

19 agencies believe are necessary with respect to the admission of refugees from those

20 countries. And finally, Plaintiffs do not seek a guarantee of immediate admission into the

21 United States for the refugees at issue. (See Doe Reply at 9.) Rather, as indicated above,

22 they seek an order preliminarily enjoining those provisions of the Agency Memo that (1)

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Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 39 of 65

1 prohibit the admission of refugees from SAO countries and impede the processing of

2 their refugee applications for 90-days, and (2) indefinitely prohibit the admission of FTJ

3 refugees and indefinitely suspend the processing of their refugee applications. With

4 those clarifications, the court now considers their motions.

5

1. Standard

6

“A preliminary injunction is ‘an extraordinary remedy that may only be awarded

7 upon a clear showing that the plaintiff is entitled to such relief.’” Feldman v. Ariz. Sec’y

8 of State’s Office, 843 F.3d 366, 375 (9th Cir. 2016) (quoting Winter v. Nat. Res. Def.

9 Council, 555 U.S. 7, 22 (2008)). To obtain such relief, “[a] plaintiff . . . must establish

10 that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the

11 absence of preliminary relief, that the balance of equities tips in his favor, and that an

12 injunction is in the public interest.” Winter, 555 U.S. at 20. A plaintiff must make a

13 clear showing as to each of these elements.19 Feldman, 843 F.3d at 375.

14

2. Notice and Comment Rulemaking under the APA

15

Plaintiffs assert that the court should set aside the Agency Memo as it relates to

16 both the indefinite FTJ suspension and the 90-day SAO suspension because it represents

17 a “legislative rule” for which notice and comment rulemaking under the APA is required.

18 (Doe PI Mot. at 14-15; JFS PI Mot. at 19-20.) “Under the APA, a federal administrative

19 19 In the Ninth Circuit, “‘if a plaintiff can only show that there are ‘serious questions

20 going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s

21

favor,’ and the other two Winter factors are satisfied.” Feldman, 843 F.3d at 375 (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1282, 1291 (9th Cir. 2013)). Here, because the

22

court concludes that Plaintiffs meet the Winter standard for issuing a preliminary injunction, there is no need for the court to consider the alternate standard.

ORDER - 39

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 40 of 65

1 agency is required to follow prescribed notice-and-comment procedures before

2 promulgating substantive rules.” Colwell v. Dep’t of Health & Human Servs., 558 F.3d

3 1112, 1124 (9th Cir. 2009); see 5 U.S.C. § 553. Courts require agencies to engage in

4 notice and comment rulemaking when implementing policy changes with substantive

5 consequences for refugees and other immigrants. See, e.g., Texas v. United States, 809

6 F.3d 134, 171-78 (5th Cir. 2015) (as revised), aff’d by an equally divided

7 court, --- U.S. ---, 136 S. Ct. 2271 (2016) (holding that plaintiffs were likely to succeed

8 on the merits of their APA claim that notice and comment rulemaking required for

9 immigration policy granting deferred action status to certain undocumented immigrants);

10 Zhang v. Slattery, 55 F.3d 732, 744-47 (2d Cir. 1995), superseded by statute on other

11 grounds, 8 U.S.C § 1101(a)(42) (finding notice and comment rulemaking is required for

12 the agency’s interim rule recognizing fear of coercive family practices as basis for

13 refugee status).

14

Defendants do not deny that the Agency Memo represents a rule; rather, they

15 argue the Agency Memo is exempt from APA rulemaking procedures because it

16 represents a procedural—not substantive—rule for which a notice and comment period is

17 not required. (Doe Resp. at 16; JFS Resp. at 18-19); see 5 U.S.C. § 553(b)(3)(A) (stating

18 that APA rulemaking “does not apply . . . to interpretive rules, general statements of

19 policy, or rules of agency organization, procedure, or practice”). Defendants argue that

20 the Agency Memo does not change the substantive criteria for determining whether a

21 refugee applicant can be admitted to the United States, it merely suspends the admission

22 of refugees from SAO countries for 90 days and the admission of FTJ refugees until such

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Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 41 of 65

1 time as the agencies can align the screening procedures for FTJ refugees with the

2 screening procedures employed for principal refugees. (Doe Resp. at 17; JFS Resp. at

3 18-19.)

4

The court need not accept an agency’s characterization of its own rule. Hemp

5 Indust. Ass’n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003); see also Reno-Sparks Indian

6 Colony v. U.S. E.P.A., 336 F.3d 899, 909 (9th Cir. 2003) (“The agency is not entitled to

7 deference [concerning its decision not to engage in rulemaking] because complying with

8 the notice and comment provisions when required by the APA is not a matter of agency

9 choice.”) (internal quotation marks omitted). Further, the exceptions to APA rulemaking

10 must be “narrowly construed and only reluctantly countenanced.” Alcaraz v. Block, 746

11 F.2d 593, 612 (9th Cir. 1984). At times, distinguishing between rules that require APA

12 rulemaking and those that do not is challenging. Stoddard Lumber Co. v. Marshall, 627

13 F.2d 984, 987 (9th Cir. 1980) (noting that distinguishing between such rules “has proved

14 to be quite difficult”). There are, however, guideposts as described in the authority relied

15 upon by Defendants. (See JFS Resp. at 19; Does Resp. at 17-19.) Whether a rule is

16 “substantive” or “procedural” requires a court to make “legal conclusions that depend

17 upon their settings for definition.” Neighborhood Television, Inc. v. FCC, 742 F.2d 629,

18 637 (D.C. Cir. 1984); Brown Exp., Inc. v. United States, 607 F.2d 695, 701 (5th Cir.

19 1979). To determine the nature of a rule, the court must look at the rule’s effect on those

20 interests ultimately at stake in the agency proceeding. Neighborhood Television, 742

21 F.2d at 637. If a rule does not substantially affect or jeopardize those ultimate interests,

22 //

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1 then it is procedural and not substantive. Waste Mgmt., Inc. v. U.S.E.P.A., 669 F. Supp.

2 536, 539 (D.D.C. 1987). In short, context matters.

3

In their response to Plaintiffs’ motion, Defendants rely on two thirty-plus-year-old

4 decisions out of the District of Columbia—neither of which is analogous to the

5 facts-at-hand. (Doe Resp. at 17-18.) In Waste Management, 669 F. Supp. at 538-40, the

6 court held that the agency issued a procedural rule when it decided to defer consideration

7 of applications for ocean incineration permits until the agency promulgated new rules on

8 the topic. In Neighborhood Television, 742 F.2d at 636-38, the court determined that an

9 agency’s decision to “freeze” processing of certain applications for television translator

10 licenses was also a procedural rule. The status sought by Plaintiffs here—refugee

11 status—is far-afield from either an ocean incineration permit or a television translator

12 license. Further, in both cases, the courts focused on the fact that the delay caused by a

13 suspension did not by itself undermine the interests at stake, and in both situations, the

14 delay itself was related to the agencies’ ongoing notice and comment rulemaking efforts.

15 See Waste Mgmt., 669 F. Supp. at 539-40; Neighborhood Television, 742 F.2d at 636-38.

16 Unlike the challengers’ interests in those cases, Plaintiffs’ interests—to reunite with

17 family members or to flee perilous situations and find refuge in the United States—are

18 undermined by any delay. Hawaii II, 871 F.3d at 644 (“Refugees have only a narrow

19 window of time to complete their travel, as certain security and medical checks expire

20 and must then be re-initiated. Even short delays may prolong a refugee’s admittance.”);

21 (see also JFS-S Supp. Decl. ¶ 8 (explaining the cascading effects of even a short delay in

22 processing).)

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1

Further, 8 C.F.R. part 207, the regulations implementing the Refugee Act of 1980,

2 and subsequent amendments outlining procedures for the FTJ program, were subject to

3 notice and comment before they were codified. See Aliens and Nationality; Refugee and

4 Asylum Procedures, 46 Fed. Reg. 45,116 (Sept. 10, 1981) (to be codified at 8 C.F.R. pt.

5 207); Procedures for Filing a Derivative Petition (Form I-730) for a Spouse and

6 Unmarried Children of a Refugee/Asylee, 63 Fed. Reg. 3792 (Jan. 27, 1988) (to be

7 codified at 8 C.F.R. § 207.7). Where the original rule was adopted after a notice and

8 comment period, courts have generally found the decision to alter those rules to be

9 substantive, and therefore subject to APA rulemaking procedures as well. See, e.g.,

10 Sequoia Orange Co. v. Yeutter, 973 F.2d 752, 757 (9th Cir. 1992) (ruling that the

11 decision to alter voting procedures was subject to APA rulemaking requirement because

12 the original voting procedures were adopted after notice and comment); Arlington Oil

13 Mills, Inc. v. Knebel, 543 F2d 1092, 1100 (5th Cir. 1976).

14

In addition, “[w]hen a policy acts as a substantive rule and alters an existing

15 regulatory scheme,” the agency “must adopt that policy according to procedures set forth

16 in the APA.” Mt. Diablo Hosp. Dist. v. Bowen, 860 F.2d 951, 956 (9th Cir. 1988). The

17 Agency Memo indefinitely suspends the entire FTJ refugee program, and it suspends the

18 admission of all refugees (with limited exceptions) from the 11 SAO countries. As

19 discussed above, the regulatory scheme for processing principal and derivative refugees,

20 such as FTJ refugees, is set forth in detail in 8 C.F.R. part 207. The court has little

21 //

22 //

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1 difficulty in concluding that such changes “alter” that “existing regulatory scheme.”20

2 See Mt. Diablo, 860 F.2d at 956.

3

Defendants also assert that the SAO provisions are exempt from rulemaking

4 because they fall within the APA’s foreign affairs exception. (JFS Resp. at 19-20); see 5

5 U.S.C. § 553(a)(1) (“This section applies . . . except to the extent that there is involved

6 . . . a . . . foreign affairs function of the United States.”). The Ninth Circuit cautions that

7 the “foreign affairs exception would become distended if applied to INS actions

8 generally, even though immigration matters typically implicate foreign affairs.” Yassini

9 v. Crosland, 618 F.2d 1356, 1360 (9th Cir. 1980). Indeed, “[f]or the exception to apply,

10 the public rulemaking provisions should provoke definitely undesirable international

11 consequences.” Id. Although the Ninth Circuit cautioned that a rule of law “that would

12 inhibit the flexibility of the political branches should be adopted with only the greatest of

13 caution,” nevertheless “[r]eview of decisions involving aliens . . . remains available.” Id.

14

Defendants rely on Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008), in which

15 the Second Circuit reviewed the National Security Entry-Exit Registration System, a

16 program devised after September 11, 2001, that required registration for certain

17 individuals from specific countries. (See JFS Resp. at 19-20.) The Second Circuit found

18 that rulemaking was not required due to the foreign affairs exception. Rajah, 544 F.3d at

19 437. The Second Circuit was concerned that in explaining why some of a particular

20

21

20 In addition, those refugees who fall within the SAO provisions of the Agency Memo

and who would otherwise meet the definition of “refugee” are now barred from admission for at

22

least 90 days unless they can demonstrate the additional, agency-created requirement that their admission would “fulfill critical foreign policy interests.” (Agency Memo at 2.)

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1 nation’s citizens were regarded as a threat, (1) sensitive foreign intelligence might be

2 revealed, (2) relations with other countries might be impaired, and (3) the process would

3 be slow and diminish the Government’s ability to protect against a potential terrorist

4 attack. Id.

5

The court agrees with Plaintiffs, however, that Rajah is inapposite for a number of

6 reasons. (See JFS Reply at 9.) First, Plaintiffs do not seek rulemaking on whether

7 particular countries should be on the SAO list, but rather on whether and how the USRAP

8 should be suspended while the review is conducted. (See id.) Second, it is not evident

9 that such rulemaking would “provoke definitively undesirable international

10 consequences,” see Yassini, 618 F.2d at 1360 n.4, and Defendants proffer no evidence

11 that it would (see generally Dkt.). The court is simply unwilling to apply the exception

12 without some evidence to support its application. Compare Yassini, 618 F.2d at 1360-61

13 (applying the exception only after examining the affidavits of the Attorney General and

14 Deputy Secretary of State establishing the directive’s relationship to the Iran hostage

15 crisis); with Jean v. Nelson, 711 F.2d 1455, 1477 (11th Cir. 1983) (holding that a rule

16 directing the detention of Haitians at the border was not within the exception given the

17 lack of evidence of any consequences), aff’d, 472 U.S. 846 (1985).

18

Finally, when the Rajah and Yassini courts applied the foreign affairs exception,

19 they were grappling with agency directives issued in response to dire national

20 emergencies—the September 11 attack and the Iranian hostage crisis. See Rajah, 544

21 F.3d at 433; Yassini, 618 F.2d at 1361. Although not determinative, the circumstances in

22 which the courts applied the exception provides context for their decisions. Here,

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Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 46 of 65

1 Defendants offer no evidence that the agencies issued the SAO suspension in response to

2 a national security or foreign affairs crisis. Indeed, all the Agency Memo states to justify

3 the 90-day suspension of refugees from SAO countries (with limited exceptions) is that

4 the Secretaries of DOS and DHS and the DNI “continue” to have unspecified “concerns”

5 regarding their admission. (Agency Memo at 2.)21 Thus, the exigent factual

6 circumstances under which the agency directives were issued in Yassini and Rajah is

7 another distinguishing factor that diminishes the applicability of those cases here.

8

For the foregoing reasons, the court agrees with Plaintiffs that the foreign affairs

9 exception to rulemaking is inapplicable to the SAO provisions and that the agencies

10 should have engaged in APA rulemaking before issuing both the SAO and FTJ

11 provisions at issue in the Agency Memo. Accordingly, the court concludes that Plaintiffs

12 have demonstrated that they are likely to succeed on the merits of their claim that the

13 agencies violated the APA’s rulemaking requirement.22

14 //

15 //

16 //

17

21 The court notes that the only evidence in the record is to the contrary—that operating

USRAP in SAO countries does not pose a significant risk to the country. (Joint Decl. Former

18 Nat’l Sec. Officers (17-1707 Dkt. # 46) ¶ 12 (“During the four decades from 1975 to the end of

2015, over three million refugees have been admitted to the United States. Despite this number,

19 only three refugees have killed people in terrorist attacks on U.S. soil during this period. None

of these refugees were from the [SAO] countries.”).) Instead, the evidence before the court is

20 that the SAO provisions of the Agency Memo undermine the country’s national security and foreign policy interests, “rather than making us safer.” (Id. ¶ 14.)

21

22 Concluding that Plaintiffs are likely to succeed on the merits of this statutory claim is

22

sufficient to fulfill this requirement for preliminary relief. Nevertheless, the court also considers a second statutory claim.

ORDER - 46

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1

3. INA Challenges

2

Plaintiffs also argue that the Agency Memo violates the INA. The Doe Plaintiffs

3 argue that the FTJ provisions of the Agency Memo violate 8 U.S.C. § 1157(c)(2)(A) of

4 the INA by indefinitely suspending the processing of FTJ derivative refugee applications

5 and indefinitely barring their entry into the country. (Doe PI Mot. at 9-12.) The JFS

6 Plaintiffs argue that the SAO provisions of the Agency Memo are ultra vires under the

7 APA because they suspend the processing of refugee applications from SAO countries

8 and bar the entry of refugees from those countries (with limited exceptions) for at least 90

9 days in violation of 8 U.S.C. § 1157(c)(1) of the INA. (JFS PI Mot. at 19, 21-22.)

10

The APA provides a right of action for plaintiffs who challenge administrative

11 actions that violate a federal statute. Any “person . . . adversely affected or aggrieved by

12 agency action within the meaning of a relevant statute, is entitled to judicial review

13 thereof.” 5 U.S.C. § 702; see also Cetacean Cmty., 386 F.3d at 1176-77 (“[T]he end

14 result is the same whether the underlying statute grants standing directly or whether the

15 APA provides the gloss that grants standing. In both cases, the plaintiff can bring suit to

16 challenge the administrative action in question. In the first case, the substantive statute

17 grants statutory standing directly to the plaintiff. In the second case, the substantive

18 statute is enforced through Section 10(a) of the APA.”); Hernandez-Avalos v. I.N.S., 50

19 F.3d 842, 846 (10th Cir. 1995) (“[A] plaintiff who lacks a private right of action under

20 the underlying statute can bring suit under the APA to enforce the statute.”). The court

21 has already determined that Plaintiffs in both cases fall within the zone of interest

22 protected by the Refugee Act of 1980 and the INA. See supra § III.A.2. Because 5

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1 U.S.C. § 702 applies, Plaintiffs in both the Doe Case and the JFS Case can bring their

2 INA statutory challenges under the APA. Under 5 U.S.C. § 706(2)(C), a “reviewing

3 court shall . . . hold unlawful and set aside agency action . . . found to be . . . in excess of

4 statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C.

5 § 706(2)(C); see also Texas, 809 F.3d at 178. The court will address whether Plaintiffs

6 have demonstrated that they are likely to succeed on each claim.

7

a. FTJ Provisions

8

Doe Plaintiffs argue that the suspension of processing FTJ refugee applications

9 and the indefinite bar on their entry into the United States violates the INA. (See Doe PI

10 Mot. at 9-12.) Specifically, Plaintiffs argue that the award of FTJ refugee status in 8

11 U.S.C. § 1157(c)(2)(A) is not up to the Secretary’s discretion. Instead, this section of the

12 INA contains indisputably mandatory language:

13

A spouse or child . . . of any refugee who qualifies for admission under

paragraph (1) shall, if not otherwise entitled to admission under paragraph

14

(1) and if not a person described in the second sentence of section

1101(a)(42) of this title, be entitled to the same admission status as such

15

refugee if accompanying, or following to join, such refugee and if the spouse

or child is admissible . . . as an immigrant under this chapter.

16 8 U.S.C. § 1157(c)(2)(A) (emphasis added). Doe Plaintiffs contrast the use of the word

17 “shall” with permissive language Congress utilized in the same section concerning

18 principal refugees, which states in pertinent part that the Secretary “may, in the

19 [Secretary’s] discretion . . . admit any refugee.” 8 U.S.C. § 1157(c)(1).23 The Supreme

20

21

23 The statute refers to the “Attorney General,” but the statutory references to the

22

Attorney General in this provision are now deemed to refer to the Secretary of DHS. 6 U.S.C. § 557; see Durable Mfg. Co. v. U.S. Dep’t of Labor, 548 F.3d 497, 499 n.1 (7th Cir. 2009)

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1 Court has observed that Congress’s use of “may” contrasts with its use of “a mandatory

2 ‘shall’ in the very same section” and has interpreted Congress’s use of “shall” under such

3 circumstances “to impose discretionless obligations.” Lopez v. Davis, 531 U.S. 230, 241

4 (2001). Plaintiffs assert that the remaining language Congress used in Section

5 1157(c)(2)(A)—that FTJ refugees are “entitled to the same admission status” as the

6 principal refugee—only reinforces Congress’s intent to abrogate the agency’s discretion

7 in this instance. (Doe PI Mot. at 11.) The court agrees.

8

Defendants argue that 8 U.S.C. § 1157(c)(2)(A) does not guarantee admission into

9 the United States because FTJ refugees must still be found to be otherwise admissible

10 under the chapter. (Doe Resp. at 12-13.) Indeed, Defendants argue that 8 U.S.C.

11 § 1157(c)(2)(A) conditions FTJ refugee status on admissibility, which is not ultimately

12 adjudicated until an individual appears at a port to seek entry to the United States. (Id. at

13 13 (citing 8 U.S.C. § 1201(h) (“Nothing in this chapter shall be construed to entitle any

14 alien, to whom a visa or other documentation has been issued, to be admitted [to] the

15 United States, if, upon arrival at a port of entry in the United States, he [or she] is found

16 to be inadmissible under this chapter, or any other provision of law.”) and 8 C.F.R.

17 207.7(d) (explaining that approval of an I-730 Petition for a FTJ refugee can be

18 “revoked” prior to entry)).) However, in Spencer, the Ninth Circuit held that the word

19 “shall” in 8 U.S.C. § 1153(b)(5) indicated a nondiscretionary statutory duty to grant a

20

21 (“Under 6 U.S.C. § 557, references in federal law to any agency or officer whose functions have

22

been transferred to DHS shall be deemed to refer to the Secretary of DHS or other official or component to which the functions were transferred.”).

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1 type of visa under the immigrant investor program. 345 F.3d at 691. Further, the

2 application of statutory eligibility requirements did not render the agency’s determination

3 a discretionary one. Id. Accordingly, the court rejects Defendants’ argument.

4

Defendants also respond that Plaintiffs’ argument lacks merit because the Agency

5 Memo does not “rescind” anything, but only suspends the admission of FTJ refugees

6 until such time as security or screening procedures are reinforced. (JFS Resp. at 12.)

7 However, Defendants cite no authority for the proposition that the Secretary can

8 indefinitely suspend a nondiscretionary statutory duty, and so the court rejects this

9 argument, too.

10

Further, Defendants mischaracterize Plaintiffs’ claim as “seeking to compel their

11 immediate admission” or “suggest[ing] . . . that [8 U.S.C. §] 1157(c)(2)(A) requires their

12 admission now.” (Doe Resp. at 13-14.) As noted above, Plaintiffs do not claim that they

13 or their family members are entitled to immediate admission into the United States;

14 rather, Plaintiffs claim that Defendants are not entitled to, and do not have the statutory

15 authority to, indefinitely suspend FTJ refugee processing at will. By using mandatory

16 language in 8 U.S.C. § 1157(c)(2)(A), Congress created an entitlement for spouses and

17 children of principal refugees to “the same refugee status” as the principal refugee—

18 assuming the spouse and children are otherwise admissible. Nothing in the statute

19 authorizes the Secretary to stop, terminate, or suspend the ability of otherwise qualified

20 applicants from seeking and obtaining that entitlement.

21

Based on the foregoing authorities and analysis, the court concludes that Plaintiffs

22 have demonstrated that they are likely to succeed on the merits of their claim that the

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1 Agency Memo’s FTJ provisions of the Agency Memo at issue here violate 8 U.S.C.

2 § 1157(c)(2)(A) of the INA and, therefore, also violate 5 U.S.C. § 706(2)(C) of the APA.

3

b. SAO Provisions

4

JFS Plaintiffs argue that the 90-day suspension of processing for refugees

5 applications (with limited exceptions) from SAO countries and the bar to entry into the

6 United States violates the INA. (See JFS PI Mot. at 19, 21-22.) Despite suspending over

7 40 percent of all refugees currently admitted under USRAP,24 the Agency Memo itself

8 provides no statutory basis for the 90-day SAO suspension. (See Agency Memo at 2.) In

9 their briefing and argument to the court, Defendants point to two INA provisions as

10 underpinning the suspension—6 U.S.C. § 202(4) and 8 U.S.C. § 1157(c)(1).25 (See JFS

11 Resp. at 16.) The court addresses each of these statutory grounds and finds neither to

12 confer the necessary authority. See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374

13 (1986) (“[A]n agency literally has no power to act . . . unless and until Congress confers

14 power upon it.”).

15

Section 202(4) of Title 6 states that the Secretary of DHS is responsible for

16 “[e]stablishing and administering rules . . . governing the granting of visas or other forms

17 of permission, including parole, to enter the United States to individuals who are not a

18 citizen or an alien lawfully admitted for permanent residence in the United States.” (JFS

19 Resp. at 16 (quoting 6 U.S.C. § 202(4)).) Without citation to legal authority, Defendants

20 24 (See Smith Decl. ¶ 15 (“Out of the 138,710 refugees resettled in the United States in
21 Fiscal Years 2016 and 2017, 60,309, or 43.5%, were from one of the 11 SAO countries.”).)
25 Defendants rely on no other statutory grounds for the SAO provisions in the Agency 22 Memo. (See JFS Resp. at 16-17.)

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1 assert that the authority granted in 6 U.S.C. § 202(4) over entry into the United States

2 “necessarily encompasses authority to restrict entry.” (JFS Resp. at 16.) They assert that

3 this is all that the SAO provisions do—restrict entry for all refugees from SAO countries.

4

Defendants also rely on 8 U.S.C. § 1157(c)(1), which states:

5

[The Secretary] may, in the [Secretary’s] discretion and pursuant to such

regulations as the [Secretary] may prescribe, admit any refugee who is not

6

firmly resettled in any foreign country, is determined to be of special

humanitarian concern to the United States, and is admissible . . . as an

7

immigrant under this chapter.

8 8 U.S.C. § 1157(c).26 Defendants argue that the permissive language in this section

9 invests the Secretary with the discretion to admit any refugee and thus implicitly also

10 confers the discretion to exclude any refugee without time limitation.

11

But taking Defendants’ position to its logical end, the court would be required to

12 conclude that these two statutory provisions provide the Secretary with the authority to

13 exclude all refugees, and indeed—in the case of 6 U.S.C. § 202(4)—all immigrants from

14 admission to the country. When the court asked in oral argument for Defendants to

15 provide some limiting principle that would avoid this result, they could not. This cannot

16 be what Congress intended when it drafted these two provisions.

17

Congress’s stated purpose in passing the Refugee Act of 1980 was as follows:

18

The objectives of this Act are to provide a permanent and systematic

procedure for the admission to this country of refugees of special

19

humanitarian concern to the United States and to provide comprehensive and

uniform provisions for the effective resettlement and absorption of those

20

refugees who are admitted.

21 26 See supra note 21.
22

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1 Refugee Act of 1980, Pub. L. No. 96-212 § 101(b), 94 Stat. 102. Defendants’

2 interpretation of 6 U.S.C. § 202(4) and 8 U.S.C. § 1157(c) is untenable in light of this

3 stated purpose. Defendants’ interpretation would allow either provision to swallow

4 whole the remainder of the Refugee Act of 1980. See Abourezk v. Reagan, 785 F.2d

5 1043, 1057-58 (D.C. Cir. 1986), aff'd, 484 U.S. 1 (1987) (finding “persuasive” the

6 plaintiff’s argument that the government’s statutory interpretation violated provisions of

7 the INA “because it effectively swallow[ed] up” another provision, thereby “nullif[ying]

8 the contours of existing inadmissibility grounds and “evad[ing] the limitations of

9 Congress”).

10

Although it involved different INA provisions, the Fifth Circuit recently dealt with

11 a similar overreach of statutory interpretation by the Government. In Texas, several

12 states challenged the DHS Secretary’s creation of the “Deferred Action for Parents of

13 Americans and Lawful Permanent Residents” (“DAPA”) program. 809 F.3d at 146. In

14 striking down DAPA as “an unreasonable interpretation that is ‘manifestly contrary’ to

15 the INA,” the Fifth Circuit held that the Government’s “interpretation of [the INA]

16 statutory provisions that the Secretary advance[d, which] would allow him to grant lawful

17 presence and work authorization to any illegal alien in the United States,” was “an

18 untenable position in light of the INA’s intricate system of immigration classifications

19 and employment eligibility.” 809 F.3d at 184. Likewise, Defendants’ broad

20 interpretation of both 6 U.S.C. § 202(4) and 8 U.S.C. § 1157(c)(1), which they argue

21 allows them to exclude all refugees of certain national origins, and by extension would

22 allow them to exclude all refugees, is untenable because it allows the DHS Secretary to

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1 simply ignore the “permanent and systematic procedure” for refugee admission and

2 resettlement that Congress established in the Refugee Act of 1980. See Refugee Act of

3 1980, Pub. L. No. 96-212 § 101, 94 Stat. 102; see also Hawaii III, 2017 WL 6547095, at

4 *11-13 (concluding that EO-3 “conflicts with the statutory framework of the INA by

5 indefinitely nullifying Congress’s considered judgments on matters of immigration”).

6

Plaintiffs also argue that the SAO provisions conflict with the INA and Refugee

7 Act of 1980 in additional ways. First, Plaintiffs assert that the SAO provisions run

8 roughshod over the Refugee Act’s definition of “refugee.” (JFS PI Mot. at 21.) In 8

9 U.S.C. § 1101(a)(42), Congress set forth the specific statutory elements that individuals

10 must satisfy to be admitted as a refugee.27 Id. Congress also specified criteria as to who

11 would be excluded from the definition. Id. By either prohibiting refugees from SAO

12 countries from participating in USRAP or by grafting on the additional requirement that

13 refugees from SAO countries must also “fulfill critical foreign policy interests” to

14 qualify, the agencies impermissibly redefine the term “refugee.” They either add to the

15

16

27 In defining a refugee, Congress set forth specific criteria including that (1) the person

must be outside his or her country of nationality or outside any country in which he or she last 17 habitually resided, (2) the person must be unable or unwilling to return to, or unable or unwilling

to avail himself or herself of the protection of, that country, (3) this inability or unwillingness

18 must be due to persecution or a well-founded fear of persecution, and (4) the persecution must be

on account of race, religion, nationality, membership in a particular social group, or political

19 opinion. Id. In addition, Congress has specified that a person who has been forced to abort a

pregnancy or to undergo involuntary sterilization, or been persecuted for their refusal to do these

20 things or for other resistance to a coercive population control program, is deemed to have met some of the qualifications for refugee status listed above. Id. Finally, Congress specified criteria

21

that would exclude a person from refugee status. Specifically, the term “does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person

22

on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id.

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1 criteria that Congress delineates to exclude one from refugee status or add an element to

2 Congress’s carefully-crafted definition. Either way, the Agency Memo impermissibly

3 conflicts with this provision.

4

Second, the nation-based SAO suspension impermissibly alters the admissibility

5 standards set by Congress in 8 U.S.C. § 1182(a). An individual refugee may enter the

6 country only if she is not subject to one of the inadmissibility bars. See 8 U.S.C.

7 § 1157(c)(1) (“[The Secretary] may . . . admit any refugee who . . . is admissible . . . as

8 an immigrant under this chapter.”). Section 1182(a) contains a long list of detailed

9 inadmissibility bars, including on “criminal,” “security,” “terrorist,” and “foreign

10 policy” grounds. See 8 U.S.C. § 1182. The INA “emphatically did not commit the

11 decision to exclude an alien to standardless agency discretion; the statute lists

12 [numerous] distinctly delineated categories that conspicuously provide standards to

13 guide the Executive in its exercise of exclusion power.” Abourezk, 785 F.2d at 1051.

14 Defendants cannot alter the contours of admissibility as sculpted by Congress or evade

15 these congressional limitations by creating a new and separate inadmissibility ground

16 that does not exist in the INA.28

17

28 Defendants’ observation that the “Government routinely grants preferences on the 18 basis of nationality” under the Refugee Act (JFS Resp. at 17 (italics in original)) supports rather

than undermines Plaintiffs. Such preferences are granted either pursuant to a Presidential

19 determination required by the Refugee Act, 8 U.S.C. § 1157(a)(3) (requiring the President to

allocate refugee admissions after appropriate consultation with Congress), as is the case with the

20 Priority 2 designations—including the Central American Minors program—and Priority 3 designations, see U.S. Dep’t of State, Proposed Refugee Admissions for FY 2018, at 7 (Oct. 4,

21 2017) (report to Congress), (noting that section 207(a)(3) of the INA grants authority to determine the USRAP priority system), or pursuant to a duly issued regulation that permits the

22

Secretary to prioritize certain refugee admissions based on appropriate criteria, including “reuniting families, close association with the United States, compelling humanitarian concerns, and public

ORDER - 55

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1

Based on the foregoing authorities and analysis, the court concludes that Plaintiffs

2 have demonstrated that they are likely to succeed on the merits of their claim that the

3 Agency Memo’s SAO provisions at issue here violate the INA and, therefore, also 5

4 U.S.C. § 706(2)(C) of the APA.29

5

4. Irreparable Harm

6

To qualify for a preliminary injunction, Plaintiffs must show that they are “likely

7 to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20.

8 The individual Plaintiffs argue that the suspensions in the Agency Memo will prolong the

9 separation of their family members and that this is an irreparable harm. They are correct.

10 This Circuit has repeatedly found that “separation from family members” is an

11 irreparable harm. Leiva-Perez v. Holder, 640 F.3d 962, 969-70 (9th Cir. 2011) (quoting

12 Andreiu v. Ashcroft, 253 F.3d 477, 484 (9th Cir. 2001) (en banc). The related Executive

13 Order litigation has reaffirmed this holding. See Hawaii I, 859 F.3d at 782-83

14 (“prolonged separation from family members” is irreparable harm); Washington, 847

15 F.3d at 1169 (identifying “separated families” as an irreparable harm); see also Int’l

16 Refugee Assistance Project, 857 F.3d at 583-84.

17

Defendants respond that the Agency Memo “would at most delay the entry of

18 Plaintiff’s family members.” (Doe Resp. at 21; JFS Resp. at 30-31.) According to

19
interest factors,” 8 C.F.R. § 207.5 (2017). Although section 207.5 may permit the agency to
20 preference certain admissions based on these criteria, this authority—on which Defendants did not base their actions—does not encompass the categorical suspension at issue here.

21

29 Because the court concludes that Plaintiffs are likely to succeed on two of their

22

statutory claims, it does not consider Plaintiffs’ third statutory claim or Plaintiffs’ constitutional claims.

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1 Defendants, “[s]uch delay alone does not amount to irreparable harm, as processing times

2 for refugees can vary widely and on average are quite lengthy.” (Id.) Defendants do not

3 distinguish delayed unification from prolonged separation, nor do they cite any authority

4 that delay is not irreparable harm. (See Doe Resp.; JFS Resp.) Further, the Ninth Circuit

5 has at least implicitly rejected the notion that delay is not irreparable harm. See Hawaii I,

6 859 F.3d at 768 (holding that the plaintiffs “will face substantial hardship if we were to

7 first require that they try to obtain a waiver before we will consider their case”). No

8 matter which synonym one uses, the court finds that the Agency Memo causes irreparable

9 harm to individual Plaintiffs whose separation from their family members is prolonged.

10

The organizational Plaintiffs also suffer irreparable harm from the Agency Memo.

11 JFS-S and JFS-SV have dedicated significant resources to helping refugees from the SAO

12 countries. (JFS PI Mot. at 12-13.) Due to the Agency Memo’s suspension of refugees,

13 the organizations claim that they will need to lay-off employees, reduce services, cancel

14 established programs, lose institutional knowledge, and ultimately lose goodwill with

15 volunteers and community partners. (See id.) “Evidence of threatened loss of . . .

16 goodwill certainly supports a finding of the possibility of irreparable harm.” Stuhlberg

17 Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 841 (9th Cir. 2001); see

18 also Rent-A-Ctr. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th

19 Cir. 1991).

20

Defendants recycle their “delay” argument to claim that the organizations have not

21 suffered irreparable harm. (See JFS Resp. at 30-31.) This argument is similarly

22 unavailing here. Moreover, the indefinite duration of the “delay” in admitting refugees

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1 leaves the organizations unable to operate or plan effectively, further deteriorating

2 goodwill and adding to their harms. Defendants also argue that the organizations are not

3 irreparably harmed because “these organizations already fulfill their missions by

4 representing such clients who are unaffected by the challenged provisions.” (Id. at 12.)

5 The evidence before the court, however, is that JFS-S and JFS-SV are not able to simply

6 shift resources to “unaffected” refugees. Rather, these organizations have built programs

7 specifically to serve Muslim and Arabic-speaking refugees. (JFS-S Supp. Decl. ¶¶ 6-7;

8 JFS-SV Supp. Decl. ¶ 4.) Throughout the time it will take JFS-S and JFS-SV to

9 adequately build programs to service other populations, the organizations will suffer

10 irreparable harm. See Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718,

11 739 (S.D. Ind. 2016), aff’d, 838 F.3d 902 (7th Cir. 2016) (“Although the funding denied

12 to [the agency] could be reimbursed, [the agency] has presented evidence that, in the

13 interim, its organizational objectives would be irreparably damaged by its inability to

14 provide adequate social services to its clients.”); see also Hawaii I, 859 F.3d at 782-83

15 (finding the “State’s inability to assist in refugee resettlement” was an irreparable harm).

16 Further, as explained above, any sudden shift in the organizations’ priorities will threaten

17 their relationships and goodwill with community partners. In short, the Agency Memo

18 threatens the organizational Plaintiffs’ mission, services, and goodwill, and therefore

19 causes them irreparable harm.

20

Based on the foregoing, the court concludes that Plaintiffs are likely to suffer

21 irreparable harm in the absence of preliminary relief.

22 //

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1

5. Public Interest and Balancing the Equities

2

The balancing of the equities and the public interest inquiries are distinct. See

3 Winter, 555 U.S. at 20. In weighing equities, a court “must balance the competing claims

4 of injury and must consider the effect on each party of the granting or withholding of the

5 requested relief.” Id. at 24 (internal citation omitted). Conversely, when determining the

6 public interest, a court “primarily addresses impact on non-parties rather than parties.”

7 League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752

8 F.3d 755, 766 (9th Cir. 2014). That said, “[t]hese factors may merge where the

9 Government is a party” because the Government purports to be acting in the public

10 interest. See Colo. River Indian Tribes v. Dep’t of Interior, No. ED CV14-02504 JAK

11 (SPx), 2015 WL 12661945, at *34 (C.D. Cal. June 11, 2015); see also Hawaii, 241 F.

12 Supp. 3d at 1139-40 (combining the balance of equities and public interest analyses).

13 Here, the Defendant’s sole argument for the balancing of equities and public interest

14 factors is the Government’s weighty interest in national security. (See Doe Resp. at 24;

15 JFS Resp. at 28.) The court, therefore, considers these factors together.

16

The court agrees that the Government has a “compelling” interest in national

17 security. Haig v. Agee, 453 U.S. 280, 307 (1981); see also Hawaii I, 859 F.3d at 78

18 (“National security is undoubtedly a paramount public interest.”). Defendants, however,

19 do not point to any specific national security threat that the Agency Memo curtails. At

20 most, the Agency Memo expresses general “concerns” with admitting FTJ refugees and

21 refugees from SAO countries. (See Agency Memo at 2-3.) Further, Defendants have not

22 put forth evidence of how a preliminary injunction might cause specific injury or harm in

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1 this instance or how the recent preliminary injunction of EO-1’s or EO-2’s suspensions of

2 all or portions of USRAP caused any harm or injury. (See generally Dkt.)

3

On the other hand, former national security officials—many of whom held “the

4 most senior responsibility within the U.S. Government for overseeing the refugee

5 resettlement process”—expressed that they are “unaware of any national security threat

6 that would justify” the Agency Memo. (Joint Decl. Former Nat’l Sec. Officers ¶¶ 4, 7.)

7 In fact, the former officials detailed concretely how the Agency Memo will harm the

8 United States’ national security and foreign policy interests. (Id. at ¶¶ 14-15.) Enjoining

9 portions of the Agency Memo will simply restore refuge procedures and programs to the

10 position they were in prior to its issuance, which already includes “the most thorough

11 vetting of any travelers to the United States. (Id. ¶ 8); see Hawaii I, 859 F.3d at 783

12 (noting this same effect of enjoining portions of EO-2).

13

In any event, national security, although undoubtedly “a paramount public

14 interest,” see Hawaii I, 859 F.3d at 784, does not always override all other public

15 interests, see IRAP, 137 S. Ct. at 2088-89. Moreover, the agencies must exercise national

16 security authority lawfully. “[C]urtailing unlawful executive action” also serves the

17 public interest. Texas, 809 F.3d at 187; see also Hawaii I, 859 F.3d at 784. Further,

18 suspending the FTJ refugees program and the processing of refugee applications (with

19 limited exceptions) from SAO countries hinders Plaintiffs’ ability to reunite with their

20 families while increasing refugees’ exposure to perilous circumstances abroad, and its

21 also disrupts and hinders JFS-S’s and JFS-SV’s ability to resettle and serve refugees. See

22 supra § II.B. Thus, “[t]he public interest in uniting families and supporting humanitarian

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1 efforts in refugee resettlement support the conclusion that the public interest is served by

2 preliminarily enjoining [portions of the agency Memo] and maintaining the status quo.”

3 See Hawaii I, 859 F.3d at 784 (citing Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1094

4 (9th Cir. 2005) (“Public policy supports recognition and maintenance of a family unit.

5 The [INA] was intended to keep families together. It should be construed in favor of

6 family units and the acceptance of responsibility by family members.”)). Further, the

7 INA should be construed in accordance with its “humane purpose . . . to reunite

8 families.” Kaliski v. Dist. Dir. of Immigration & Naturalization Serv., 620 F.2d 214, 217

9 (9th Cir. 1980). In Hawaii I, the Ninth Circuit concluded that, because a preliminary

10 injunction of EO-2 would serve the foregoing interests, it was in the public interest. 859

11 F.3d at 784-85. Likewise, this court concludes that Plaintiffs have demonstrated that a

12 preliminary injunction of the FTJ and SAO suspensions here is in the public interest.

13

Nevertheless, the court’s analysis would not be complete without considering the

14 Supreme Court’s recent decision in IRAP, 137 S. Ct. 2080, and the court will tailor any

15 preliminary injunction it issues to the confines of that ruling.30 When evaluating whether

16

30 The court recognizes that the Supreme Court recently stayed two preliminary 17 injunctions relating to EO-3, pending appeals in the Fourth Circuit and Ninth Circuit,

respectively. See Trump v. Int’l Refugee Assistance Project, No. 17A560, 2017 WL 5987435, at

18 *1 (U.S. Dec. 4, 2017); Trump v. Hawaii, No. 17A550, 2017 WL 5987406, at *1 (U.S. Dec. 4,

2017). The Court’s rulings, however, do not provide any analysis or explanation why it stayed

19 the injunctions. On December 5, 2017, this court ordered the parties “to provide supplemental

briefing concerning what impact, if any, the Supreme Court’s December 4, 2017, orders have

20 concerning the two pending motions for preliminary injunction.” (Supp. Br. Order (Dkt. # 68) at 2; see also Doe Supp. Brief; JFS Supp. Brief; Def. Supp. Brief.) After considering the parties’

21

supplemental briefs and the Supreme Court’s December 4, 2017, rulings, this court will still rely on IRAP, 137 S. Ct. 2080 (2017), the only reasoned opinion from the Supreme Court on a related

22

matter to date. Nothing in the December 4, 2017, rulings expressly undermines, let alone mentions, IRAP. Moreover, the December 4, 2017, rulings dealt exclusively with immigrants—

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1 to issue a stay of the EO-2 preliminary injunctions, the Supreme Court determined that

2 the balance of equities favored “foreign nationals who have a credible claim of a bona

3 fide relationship with a person or entity in the United States.” Id. at 2088. The Court

4 recognized that the Government’s interest in protecting national security was at its apex

5 when considering the admission of foreign nationals with no connection to the United

6 States. Id. However, the Supreme Court found that the balance of equities was different

7 when considering the admission of aliens who had a credible claim of a bona fide

8 relationship with a person or entity within the United States. Id. With respect to these

9 individuals, the Supreme Court upheld the lower courts’ injunctions against enforcement

10 of EO-2. Id. The Court also specifically extended this balancing of equities to refugees:

11 “[a]n American individual or entity that has a bona fide relationship with a particular

12 person seeking to enter the country as a refugee can legitimately claim concrete hardship

13 if that person is excluded.” Id. at 2089.

14

By statutory definition, as Defendants conceded at oral argument, all FTJ refugees

15 have a bona fide relationship with a person in the United States. See 18 U.S.C. § 1157(c).

16 Thus, a preliminary injunction will be applicable to all FTJ refugees. The same,

17 however, is not true for all refugees from SAO countries. These refugees are not

18 necessarily in a relationship with a United States person or organization. The IRAP Court

19 held that for “refugees who lack any such connection to the United States . . . the balance

20

21 not refugees or the INA provisions currently at issue. It is simply impossible to say how the

22

Court considered the equities in the December 4, 2017, rulings, and whether the Court’s analysis applies here.

ORDER - 62

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 63 of 65

1 tips in favor of the Government’s compelling need to provide for the Nation’s security.”

2 137 S. Ct. at 2089. Thus, any preliminary injunction concerning refugees from SAO

3 countries will apply only to individuals with a bona fide relationship to a person or entity

4 within the United States.31 See id.

5

For the reasons stated above and with the noted limitations based on the Supreme

6 Court’s decision in IRAP, the court finds that the balance of equities and the public

7 interest factors weigh in favor of enjoining the FTJ and SAO provisions in the Agency

8 Memo at issue here.

9

6. Scope of the Injunction

10

Defendants argue that any preliminary injunction should apply to the individual

11 Plaintiffs in this action only. (Doe Resp. at 22-23; JFS Resp. at 28-29.) An injunction is

12 not necessarily overbroad by extending benefits or protection to persons other than the

13 prevailing parties—even in the absence of a certified class—if such breadth is necessary

14 to give the prevailing parties the relief to which they are entitled. Hawaii I, 859 F.3d at

15 788. “Narrowing the injunction to apply to only Plaintiffs would not cure the statutory

16 violation identified, which in all applications would violate provisions of the INA.” Id.

17 In addition, partial implementation of the challenged provisions in the Agency Memo

18

19

31 With respect to a “bona fide relationship” with an American organization, the Supreme

Court held that for such a relationship to exist, it “must be formal, documented, and formed in

20 the ordinary course, rather than for the purpose of evading [the Executive Order at issue].” See IRAP, 137 S. Ct. at 2088. The Ninth Circuit has interpreted this language to include refugee

21

applicants covered by a formal assurance from a refugee resettlement agency. See Hawaii II, 871 F.3d at 658. Thus, those refugees from SAO countries who have a formal assurance from

22

JFS-S, JFS-SV, or some other refugee resettlement agency or humanitarian organization, would be covered by the preliminary injunction.

ORDER - 63

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 64 of 65

1 would undermine uniform enforcement of the nation’s immigration laws. See Texas, 809

2 F.3d at 155 (issuing nationwide injunction concerning the DAPA program because

3 “partial implementation of the Executive Order ‘would undermine the constitutional

4 imperative of ‘a uniform Rule of Naturalization’ and Congress’s instruction that ‘the

5 immigration laws of the United States should be enforced vigorously and uniformly’”)

6 (footnotes omitted) (quoting U.S. CONST, art. I, § 8, cl. 4 and Immigration and Reform

7 Control Act of 1986, Pub. L. No. 99-603, § 115(1), 100 Stat. 3359, 3384); see also

8 Hawaii III, 2017 WL 6547095, at *25 (holding that the “the district court did not abuse

9 its discretion by granting a nationwide injunction” with respect to EO-3).

10

Accordingly, the court issues a nationwide preliminary injunction32 as follows:

11 1. Defendants and their officers, agents, servants, employees, attorneys, and all

12 members and persons acting in concert or participation with them from the date of this

13 Order, are enjoined and restrained from enforcing those provisions of the Agency Memo

14 that suspend the processing of FTJ refugee applications or suspend the admission of FTJ

15 refugees into the United States. This portion of the preliminary injunction does not apply

16 to Defendants’ efforts to implement “additional security measures” or align “the

17 screening mechanisms for [FTJ] refugees” with “processes employed for principal

18 refugees” as described in the Agency Memo.

19 //

20 32 The preliminary injunction does not apply to the President. See Hawaii I, 859 F.3d at

21

788 (holding that the court lacked jurisdiction to enjoin the President). However, the preliminary injunction runs against all other Defendants. See id. (“Injunctive relief . . . may run against all

22

other executive officials, including the Secretary of Homeland Security and the Secretary of State.”).

ORDER - 64

Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 65 of 65

1 2. Defendants and their officers, agents, servants, employees, attorneys, and all

2 members and persons acting in concert or participation with them from the date of this

3 Order, are enjoined and restrained from enforcing those provisions of the Agency Memo

4 that suspend or inhibit, including through the diversion of resources, the processing of

5 refugee applications or the admission into the United States of refugees from SAO

6 countries. However, this portion of the preliminary injunction only applies to FTJ

7 refugees or other refugees with a bona fide relationship to a person or entity within the

8 United States. See IRAP, 137 S. Ct. at 2088 89. Further, this portion of the preliminary

9 injunction does not apply to Defendants’ efforts to conduct a detailed threat assessment

10 for each SAO country.

11

IV. CONCLUSION

12

Based on the foregoing analysis, the court GRANTS Plaintiffs’ motion in the Doe

13 Case (Dkt. # 45), and GRANTS Plaintiffs’ motion in the JFS Case (17-1707 Dkt. # 42)

14 except for those refugees who lack a bona fide relationship with a person or entity in the

15 United States.

16

Dated this 23rd day of December, 2017.

17

A

18

JAMES L. ROBART

19

United States District Judge

20

21

22

ORDER - 65

 
 Case 2:17-cv-00178-JLR Document 93 Filed 12/27/17 Page 1 of 9

The Honorable James L. Robart 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 JOHN DOE, et al.,

Civil Action No. 2:17-cv-00178JLR

11

Plaintiffs,

12

v.

13 DONALD TRUMP, et al.,

14

Defendants.

15 JEWISH FAMILY SERVICE OF
16 SEATTLE, et al.,

17

Plaintiffs,

18

v.

19 DONALD TRUMP, et al.,

20

Defendants.

Civil Action No. 2:17-cv-01707JLR
DEFENDANTS’ MOTION FOR RECONSIDERATION CONCERNING THE SCOPE OF THE PRELIMINARY INJUNCTION
(RELATING TO BOTH CASES)

21

NOTE ON MOTION CALENDAR:

December 27, 2017

22

23

24

25

26

DEFS.’ MOT. FOR RECONSIDERATION CONCERNING SCOPE OF PRELIM. INJ. Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 93 Filed 12/27/17 Page 2 of 9

1

INTRODUCTION

2

Pursuant to Federal Rule of Civil Procedure 59(e) and Local Civil Rule 7(h), Defendants

3 respectfully move this Court to reconsider the scope of its preliminary injunction entered on 4 December 23, 2017.1 In a footnote, this Court observed that the Ninth Circuit has interpreted the

5 Supreme Court’s “bona fide relationship” (BFR) standard as encompassing “refugee applicants

6 covered by a formal assurance from a refugee resettlement agency.” Doe v. Trump, Nos. C17-

7 0178JLR & C17-1707JLR, 2017 WL 6551491, at *25 n.31 (W.D. Wash. Dec. 23, 2017). While

8 it is true that, earlier this fall, the Ninth Circuit affirmed a district court order that recognized

9 formal assurance as a BFR, the Supreme Court then stayed the Ninth Circuit’s judgment. Because

10 the Supreme Court’s stay order strongly indicates that the Court disagreed with the lower courts’

11 analysis, because that analysis is inconsistent with the Supreme Court’s own discussion of what

12 constitutes a BFR, and because the analysis also cannot be squared with the role of a resettlement

13 agency under the U.S. Refugee Admissions Program (USRAP), this Court should modify the

14 preliminary injunction to exclude formal assurance by a refugee resettlement agency as a means

15 of establishing a BFR.

16

STANDARD OF REVIEW

17

“Motions to reconsider are generally left to the discretion of the trial court.” Singleton v.

18 Kernan, No. 16-cv-02462-BAS-NLS, 2017 WL 4922849, at *2 (S.D. Cal. Oct. 31, 2017); see also

19 Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (“A district court

20 has considerable discretion when considering a motion to amend a judgment under Rule 59(e).”).

21 Such motions may be appropriate where “the district court is presented with newly discovered

22 evidence, committed clear error, or if there is an intervening change in the controlling law.” 389

23 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999); see also Nat’l Ctr. for Mfg.

24

25

1 In filing this motion for reconsideration challenging the scope of the preliminary

injunction only, Defendants do not concede that the preliminary injunction was properly entered. 26 Defendants preserve all prior arguments concerning the merits and the propriety of the injunction.

Defendants are presently exploring their options for further review.

DEFS.’ MOT. FOR RECONSIDERATION CONCERNING SCOPE OF PRELIM. INJ. - 1 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 93 Filed 12/27/17 Page 3 of 9

1 Scis. v. Dep’t of Def., 199 F.3d 507, 511 (D.C. Cir. 2000) (motion for reconsideration was

2 correctly granted “based upon what the court found to be clear errors of law”); Hamby v. Walker,

3 No. 3:14-cv-00089-TMB, 2015 WL 12516788, at *1 (D. Alaska Sept. 2, 2015) (motion for

4 reconsideration may be granted where court “misconceived a princip[le] of law that directly bears

5 on the litigated issue”).

6

ARGUMENT

7

This Court should modify its preliminary injunction to exclude from coverage refugee

8 applicants who seek to establish a BFR on the sole ground that they have received a formal

9 assurance from a resettlement agency. The Supreme Court has signaled that resettlement

10 assurance, without more, does not give rise to a BFR. Moreover, the assurance transaction, which

11 reflects an agreement between a resettlement agency and the federal government, is far removed

12 from the types of relationships that the Supreme Court has recognized as BFRs.

13 I. The Supreme Court’s Stay Orders Counsel in Favor of Modification

14

Three times, the Supreme Court has cast significant doubt on lower court rulings that

15 would recognize formal assurance by a refugee resettlement agency as a BFR.

16

On March 15, 2017, the United States District Court for the District of Hawaii partially

17 enjoined implementation of Executive Order No. 13,780 (commonly referred to as EO-2). See

18 Hawaii v. Trump, 241 F. Supp. 3d 1119 (D. Haw. 2017). The Ninth Circuit largely affirmed the

19 district court’s injunction, though on different legal grounds, Hawaii v. Trump, 859 F.3d 741 (9th

20 Cir. 2017) (per curiam), and the Government sought Supreme Court review. On June 26, 2017,

21 the Supreme Court granted certiorari in the Hawaii case and in a parallel case litigated in the

22 Fourth Circuit. The Supreme Court also stayed in part the lower court rulings, holding that the

23 challenged sections of EO-2 could take effect as against all foreign nationals except those who

24 “have a credible claim of a bona fide relationship with a person or entity in the United States.”

25 Trump v. IRAP, 137 S. Ct. 2080, 2088 (2017) (per curiam); see also id. at 2089 (extending the

26 “bona fide relationship” standard to the portion of the Hawaii injunction addressing the USRAP).

DEFS.’ MOT. FOR RECONSIDERATION CONCERNING SCOPE OF PRELIM. INJ. - 2 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 93 Filed 12/27/17 Page 4 of 9

1

Shortly after the Supreme Court’s ruling, the Hawaii plaintiffs filed an emergency motion

2 in district court to clarify the scope of the preliminary injunction, which the court denied. Hawaii

3 v. Trump, 258 F. Supp. 3d 1188, 1189 (D. Haw. 2017) (observing that any clarification concerning

4 the Supreme Court’s modification of the injunction “should be more appropriately sought in the

5 Supreme Court”). The Ninth Circuit dismissed the plaintiffs’ subsequent appeal. Hawaii v.

6 Trump, 863 F.3d 1102, 1104 (9th Cir. 2017) (noting that “although the district court may not have

7 the authority to clarify an order of the Supreme Court, it does possess the ability to interpret and

8 enforce the Supreme Court’s order, as well as the authority to enjoin against . . . a party’s violation

9 of the Supreme Court’s order”). The plaintiffs then moved in the district court for enforcement

10 or modification of the injunction, citing, as relevant here, the Government’s position that formal

11 assurance by a resettlement agency is not by itself sufficient to establish a qualifying relationship

12 with an entity in the United States. The district court sided with the plaintiffs, and in a July 13,

13 2017, order, the court modified the injunction to provide, inter alia, that defendants were enjoined

14 from enforcing EO-2 “to exclude refugees who . . . have a formal assurance from an agency within

15 the United States that the agency will provide, or ensure the provision of, reception and placement

16 services to that refugee.” Hawaii v. Trump, 263 F. Supp. 3d 1049, 2017 WL 2989048, at *10 (D.

17 Haw. 2017).

18

The Government sought immediate review in the Supreme Court. While declining the

19 Government’s request to clarify its June 26 order, the Supreme Court stayed the district court’s

20 order “modifying the preliminary injunction with respect to refugees covered by a formal

21 assurance . . . pending resolution of the Government’s appeal to the Court of Appeals for the Ninth

22 Circuit.” Trump v. Hawaii, 138 S. Ct. 34, 34 (2017) (mem.). Despite that stay order, the Ninth

23 Circuit affirmed the district court’s modified injunction on September 7, 2017. In so doing, the

24 appellate court emphasized the “narrow standard” that governed its review: “We cannot say that

25 the district court clearly erred in its factual findings or ultimately abused its discretion in holding

26

DEFS.’ MOT. FOR RECONSIDERATION CONCERNING SCOPE OF PRELIM. INJ. - 3 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 93 Filed 12/27/17 Page 5 of 9

1 that the written assurance an agency submits . . . meets the requirements set out by the Court.”

2 Hawaii v. Trump, 871 F.3d 646, 659, 662-63 (9th Cir. 2017).

3

The Supreme Court disagreed. In back-to-back orders dated September 11, 2017, and

4 September 12, 2017, the Court first stayed the Ninth Circuit’s mandate “with respect to refugees

5 covered by a formal assurance” pending response by the plaintiffs, and then stayed the mandate

6 “pending further order of this Court.” See Trump v. Hawaii, 138 S. Ct. 1 (2017) (mem.); Trump

7 v. Hawaii, 138 S. Ct. 49 (2017) (mem.). The Supreme Court ultimately vacated the Ninth

8 Circuit’s judgment in Hawaii regarding EO-2 and remanded the case for dismissal on mootness

9 grounds. See Trump v. Hawaii, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017) (mem.).

10 However, the Court’s three stay orders together cast significant doubt on the lower courts’

11 conclusion that mere coverage by a formal assurance qualifies a refugee as having a BFR. The

12 Court’s decision to stay an injunction is guided by essentially the same factors that inform the

13 issuance of a preliminary injunction. See Nken v. Holder, 556 U.S. 418, 434 (2009). Thus, when

14 the Court stayed the Hawaii courts’ modification of the injunction to encompass resettlement

15 assurance as a BFR, it necessarily found that the Government was “likely to succeed on the

16 merits” and would be “irreparably injured absent a stay.” Id. at 434 (citation omitted). Given that

17 procedural history, and given the Ninth Circuit’s narrow ruling in its September 7 opinion, this

18 Court should reconsider its ruling that “refugees from SAO countries who have a formal assurance

19 from . . . some . . . refugee resettlement agency or humanitarian organization[] would be covered

20 by the preliminary injunction,” Doe, 2017 WL 6551491, at *25 n.31. See IRAP v. Trump, No.

21 TDC-17-0361, 2017 WL 4674314, at *39 (D. Md. Oct. 17, 2017) (“Pursuant to the Supreme

22 Court’s stay of the Ninth Circuit’s determination that a refugee with a formal sponsorship

23 assurance . . . has a bona fide connection to the United States, the Court concludes that clients of

24

25

26

DEFS.’ MOT. FOR RECONSIDERATION CONCERNING SCOPE OF PRELIM. INJ. - 4 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 93 Filed 12/27/17 Page 6 of 9

1 IRAP and HIAS . . . are not covered by the injunction absent a separate bona fide relationship 2 . . . .”), stay granted, No. 17A560, 2017 WL 5987435 (U.S. Dec. 4, 2017) (mem.).2

3 II. Formal Assurance by a Resettlement Agency Does Not Give Rise to a BFR

4

In its June 26 order, the Supreme Court held that EO-2 could be enforced against all

5 refugee applicants other than “an individual seeking admission as a refugee who can credibly

6 claim a bona fide relationship with a person or entity in the United States.” IRAP, 137 S. Ct. at

7 2089. Yet the resettlement assurance transaction typically does not directly involve the refugee

8 applicant. Instead, it reflects an agreement between one of the nine resettlement agencies and the

9 federal government—a promise to provide services for the refugee when he or she arrives in this

10 country, notwithstanding that the agency typically does not have pre-arrival contact with the 11 refugee.3 An interpretation of the BFR standard that would encompass such an attenuated,

12 indirect link between an agency and the refugee would read the “relationship with” language out

13 of the Supreme Court’s order. That cannot have been the Court’s intent, particularly given its

14 awareness of the substantial national-security interests at stake in the refugee admissions context.

15 See id. (“[W]hen it comes to refugees who lack any [bona fide] connection to the United States

16 . . . the balance tips in favor of the Government’s compelling need to provide for the Nation’s

17 security.”).

18

Moreover, there is no need for this Court to speculate about the Supreme Court’s intent,

19 because the Supreme Court provided clear examples in its June 26 order of the types of

20 relationships that may qualify as BFRs. “For individuals,” the Court wrote, “a close familial

21

22

2 Indeed, the Ninth Circuit itself very recently recognized that the BFR standard

23

encompasses close familial relationships and relationships with entities to the extent such relationships are “formal, documented, and formed in the ordinary course of business, rather than

24 for the purpose of evading [Proclamation No. 9645].” Hawaii v. Trump, No. 17-17168, 2017 WL 6554184, at *25 (9th Cir. Dec. 22, 2017). The court said nothing about resettlement assurance.

25

3 In the Hawaii litigation, the Government filed a Declaration by Lawrence E. Bartlett,

Director of the Office of Admissions, Bureau of Population, Refugees, and Migration (“PRM”) 26 at the State Department. This Declaration, attached hereto as Exhibit A for the Court’s

convenience, provides a helpful overview of the USRAP and resettlement assurance.

DEFS.’ MOT. FOR RECONSIDERATION CONCERNING SCOPE OF PRELIM. INJ. - 5 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 93 Filed 12/27/17 Page 7 of 9

1 relationship is required.” Id. at 2088. “As for entities, the relationship must be formal,

2 documented, and formed in the ordinary course,” such as a relationship between a foreign student

3 and an American university, or between a foreign worker and an American employer, or between

4 a foreign lecturer and an American audience. Id. Unlike these types of relationships, refugees do

5 not have any freestanding connection to resettlement agencies, apart from the refugee admissions

6 process itself, by virtue of the agencies’ assurance agreement with the federal government.

7

Nor can the exclusion of an assured refugee plausibly be thought to ‘burden’ a resettlement

8 agency in the relevant sense. See id. at 2087-88. Loss of a future opportunity to perform

9 resettlement services for which the government has contracted if a refugee is admitted does not

10 establish any existing, formal relationship with that refugee. As an entity that performs services

11 on behalf of the government in carrying out a governmental program, a resettlement agency has

12 no legally cognizable interest in that program’s application to the persons whom the program

13 exists to benefit. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990); accord Air Courier

14 Conference of Am. v. Am. Postal Workers Union, AFL-CIO, 498 U.S. 517, 524-25 (1991).

15 Further, any harm (economic or otherwise) that a resettlement agency might ostensibly experience

16 if a refugee for whom it has agreed to provide services does not arrive does not flow from any

17 independent, preexisting relationship with the refugee formed in the ordinary course. Rather, it

18 exists solely as a result of the agency’s contracts with the federal government. And the mere fact

19 that a U.S. person may suffer an injury due to a refugee’s inability to enter the country does not

20 suffice under the Supreme Court’s BFR standard. In balancing the equities, the Court required

21 an injury to specific types of relationships, not any injury simpliciter.

22

In short, the extension of the preliminary injunction to refugee applicants whose sole

23 connection to a U.S. entity is through the roundabout refugee assurance process is incompatible

24 with the Supreme Court’s express and implied guidance about what constitutes a BFR.

25

CONCLUSION

26

The Court should grant Defendants’ motion for reconsideration.

DEFS.’ MOT. FOR RECONSIDERATION CONCERNING SCOPE OF PRELIM. INJ. - 6 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 93 Filed 12/27/17 Page 8 of 9

DATED: December 27, 2017 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JENNIFER D. RICKETTS Director, Federal Programs Branch
JOHN R. TYLER Assistant Director, Federal Programs Branch
/s/ Joseph C. Dugan MICHELLE R. BENNETT DANIEL SCHWEI KEVIN SNELL JOSEPH C. DUGAN Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: (202) 514-3259 Fax: (202) 616-8470 Email: joseph.dugan@usdoj.gov
Attorneys for Defendants

DEFS.’ MOT. FOR RECONSIDERATION CONCERNING SCOPE OF PRELIM. INJ. - 7 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 93 Filed 12/27/17 Page 9 of 9

1

CERTIFICATE OF SERVICE

2 I certify that on December 27, 2017, a copy of the foregoing document was electronically
3 filed with the Clerk of the Court using the CM/ECF system, which will send notification of such
4 filing to all counsel of record.
5 DATED this 27th day of December, 2017.
6

7

/s/ Joseph C. Dugan JOSEPH C. DUGAN

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

DEFS.’ MOT. FOR RECONSIDERATION CONCERNING SCOPE OF PRELIM. INJ. - 8 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 93-1 Filed 12/27/17 Page 1 of 64
Exhibit A

Case 1:17-Ccav-s0e020:5107--DcvK-W00-1K7S8C-JLDRocDumoceunmt 3e0n1t -913-1FileFdile0d7/1023//2177/17PaPgeag1eo2f 6o3f 64 PageID #: 5656
Bartlett Declaration

Case 1:17-Ccav-s0e020:5107--DcvK-W00-1K7S8C-JLDRocDumoceunmt 3e0n1t -913-1FileFdile0d7/1023//2177/17PaPgeag2eo3f 6o3f 64 PageID #: 5657

Case 1:17-Ccav-s0e020:5107--DcvK-W00-1K7S8C-JLDRocDumoceunmt 3e0n1t -913-1FileFdile0d7/1023//2177/17PaPgeag3eo4f 6o3f 64 PageID #: 5658

Case 1:17-Ccav-s0e020:5107--DcvK-W00-1K7S8C-JLDRocDumoceunmt 3e0n1t -913-1FileFdile0d7/1023//2177/17PaPgeag4eo5f 6o3f 64 PageID #: 5659

Case 1:17-Ccav-s0e020:5107--DcvK-W00-1K7S8C-JLDRocDumoceunmt 3e0n1t -913-1FileFdile0d7/1023//2177/17PaPgeag5eo6f 6o3f 64 PageID #: 5660

Case 1:17-Ccav-s0e020:5107--DcvK-W00-1K7S8C-JLDRocDumoceunmt 3e0n1t -913-1FileFdile0d7/1023//2177/17PaPgeag6eo7f 6o3f 64 PageID #: 5661

Case 1:17-Ccav-s0e020:5107--DcvK-W00-1K7S8C-JLDRocDumoceunmt 3e0n1t -913-1FileFdile0d7/1023//2177/17PaPgeag7eo8f 6o3f 64 PageID #: 5662

Case 1:17-Ccav-s0e020:5107--DcvK-W00-1K7S8C-JLDRocDumoceunmt 3e0n1t -913-1FileFdile0d7/1023//2177/17PaPgeag8eo9f 6o3f 64 PageID #: 5663

Case 1:17C-cavs-e0020:1570-cDvK-0W0-1K7S8C-JLRDocDuomceunmte3n0t19-31-1FilFeidle0d71/023/2/177/17PaPgaeg9e o1f06o3f 64PageID #:

5664

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

U.S. Department of State Award Provisions
Mandatory Award Provisions:
1. Purpose/Scope of Award:
a. Purpose: Name of Recipient (Recipient Acronym), type of organization – non-profit, educational, foreign organization, etc., (hereinafter referred to as the "Recipient") is hereby awarded a Cooperative Agreement to support “Resettlement Support Center Name of Region.” The Recipient shall:
i. Assist persons seeking or suggested for admission to the United States under the United States Refugee Admissions Program (hereinafter referred to as "applicants") to complete applications for consideration;
ii. Assist the U.S. Government (“Government”) in the processing of such applications;
iii. Conduct Cultural Orientation for approved applicants; and
iv. Collect information from applicants that will enable resettlement agencies to make decisions regarding appropriate placement.
b. The Recipient shall carry out the Agreement in accordance with its proposal dated Date, and any revisions to which both parties agree to in writing. The above-mentioned proposal is hereby incorporated by reference (Attachment A) and made an integral part of the Agreement.
c. The recipient agrees to:
i. Assist, as requested, in obtaining and maintaining statistical and other information needed for the U.S. government to determine both the status of the program and the appropriate pool of applicants to be interviewed by government officials for possible admission to the United States. All information collected on individual cases must be recorded in the Worldwide Refugee Admissions Processing System (WRAPS), maintained by the Refugee Processing Center (RPC) in Arlington, Virginia. All sharing of individual information is subject to the Privacy Act, 5 U.S.C. 552a, Section 222(f) of the I.N.A., 8 U.S.C. 1202(f), and the State Department’s Bureau of Population, Refugees and Migration’s (“PRM” or “Bureau”) "Guidelines for the Treatment of Refugee Records " revised November 19, 2013 and attached hereto as Attachment B;
ii. Interview, through interpreters if required, applicants to determine their family composition, flight history and to obtain other relevant information needed (l) by the U.S. government to determine their eligibility for admission to the United States as refugees or
Page 2 of XX
Bartlett Declaration Attachment 1

Case 1:17C-acsve-020:01570-c-Dv-K0W01-7K8S-CJLRDoDcuomcuemnte3n0t 19-31-1 FiFleilded071/20/32/71/717 PPagaege1011ofo6f 364 PageID

#: 5665

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

immigrants, and (2) by resettlement agencies in the United States to arrange appropriate placement for those who are approved for admission;
iii. Correspond, as necessary, with persons in the United States and other countries, with the offices of the United Nations High Commissioner for Refugees (UNHCR), and with other referring agencies, to obtain additional information relating to the applicants' qualifications for admission to the United States;
iv. Verify, to the extent possible, information provided by and about applicants, making written records of all communications relating to such verification efforts and ensuring accuracy of information recorded in WRAPS and case file;
v. Compile per WRAPS Standard Operating Procedures (SOPs), available at www.wrapsnet.org, for each applicant, files, and records that accurately document all relevant information obtained from the applicant and others, and that include all correspondence received or sent and records of all communications concerning the applicant;
vi. Perform such other information-gathering tasks as may be requested by appropriate Government officials to assist them in determining the admissibility of applicants;
vii. After this process of gathering and verifying information is complete, provide personnel to accompany United States government officials to the site at which the admissibility of the applicant, based on the file and face-to-face interviews, will be determined by such officials;
viii. Inform all applicants at the time the application process is initiated, and on other occasions as appropriate, of the importance of providing complete, accurate, and truthful information in connection with their applications for admission;
ix. Establish and document systems and procedures to mitigate and prevent fraudulent activities per the “RSC Program Integrity Guidelines” (Attachment C);
x. If the applicant is approved for admission as a refugee under the United States Refugee Admissions Program, complete out-processing requirements for the case, including arranging medical exams, obtaining sponsorship assurances, and requesting or obtaining travel;
xi. Provide Cultural Orientation, with appropriate language interpretation if needed, to approved refugees ages 15 and above in accordance with guidelines developed in conjunction with the Bureau by the Cultural Orientation Technical Assistance provider and described in the publication “Welcome to the United States--A Guidebook for Refugees” (Fourth Edition, 2012). Recipient must ensure that 95% of eligible refugees departing have received orientation prior to departure. The cultural orientation training will at a minimum address the following subjects:

Page 3 of XX

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#: 5666

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

• Role of the Resettlement Agency • Rights and Responsibilities of Refugees • Transit • Early Employment Priority • Work plus English Study • Public Assistance Benefits • Cultural Adjustment • Education • Health Care • Housing
Additional orientation materials are available from the Cultural Orientation Resource Exchange at www.COResourceExchange.org.
a. CWS: age 15 and over in all locations; children entering the URM program; and children age 6-14 in Chad, Rwanda and Kenya.
b. HIAS: age 15 and over.
c. IRC: age 15 and over in all locations; children entering the URM program; and children age 8-14 in Thailand and Malaysia.
d. ICMC: age 15 and over; and children age 8-14 in Turkey.
xii. Subject to the Freedom of Information Act, 5 U.S.C. 552, the Privacy Act, 5 U.S.C. 552a, Section 222(f) of the I.N.A., 8 U.S.C. 1202(f), the Department's access to information regulations, 5 FAM 480 (including 22 C.F.R. Part 171), and the Bureau's "Guidelines for the Treatment of Refugee Records " revised November 19, 2013 and attached hereto as Attachment B, respond to inquiries from applicants, the public, the Congress, and other Government agencies who have a particular interest in applicants on whom files are maintained;
xiii. Establish standard operating procedures (SOPs) for completion of items (i) through (xi), ensuring compliance with the USRAP Overseas Processing Manual, WRAPS processing SOPs, and PRM Program Announcements; and
xiv. Undertake such other functions that may be requested by the Bureau in furtherance of the goals of the United States Refugee Admissions Program.
For CWS only:
xv. Conduct English as a Second Language education for Congolese refugees in certain locations who have been approved for resettlement to the U.S. ESL courses will be conducted with technical assistance from the Center for Applied Linguistics.

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#: 5667

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

xvi. Manage the Africa Regional Deployment Unit to provide resettlement referral support to UNHCR in the region. Priorities for deployments will be established in consultation with PRM.

2. Grants Officer Contact Information:

Name Grants Officer Office of the Comptroller Bureau of Population, Refugees, and Migration United States Department of State 2201 C Street, NW, 8th Floor, SA-9 Washington, DC 20520 emailXXX@state.gov Phone 202-453-92XX Fax 202-453-9395

3. Grants Officer Representative (GOR):

Name Program Officer Office of Admissions Bureau of Population, Refugees, and Migration United States Department of State 2201 C Street, NW, 8th Floor, SA-9 Washington, DC 20520 GOREmail@state.gov Phone 202-453-9XXX Fax 202-453-93XX

4. Authorized Budget Summary:

All expenditures paid with funds provided by this Agreement must be incurred for authorized activities, which take place during this period, unless otherwise stipulated.

Payment of funds under this Agreement will not be disbursed until the DOS has been assured that the Recipient’s financial management system will provide effective control over and accountability for all Federal funds in accordance with 2 CFR 200.300 – 200.303.

Budget Categories

Amount

1. Personnel

$

2. Fringe Benefits

$

3. Travel

$

Page 5 of XX

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#: 5668

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

4. Equipment

$

5. Supplies

$

6. Contractual

$

7. Construction

$

8. Other Direct Costs

$

9. Total Direct Costs (lines 1-8)

$ 0

10. Indirect Costs (reflect provisional, pre-

$

determined rate and allocation base)

11. Total Costs (lines 9-10)

$ 0

12. Recipient Share

$

5. Payment Method:
Payments under this award will be made through the U.S. Department of Health and Human Services Payment Management System (PMS). The Payment Management System instructions are available under the PMS website and can be accessed at the following address: http://www.dpm.psc.gov/. Recipients should request funds based on immediate disbursement requirements and disburse funds as soon as possible to minimize the Federal cash on hand in accordance with the policies established by the U.S. Treasury Department and mandated by the OMB Circulars.
6. Reporting and Monitoring:
Copies of the reports required herein shall be submitted with one copy to the Office of the Comptroller, Bureau of Population, Refugees, and Migration, Washington, D.C., one copy to the Office of Admissions, Bureau of Population, Refugees and Migration (“PRM/A”), Washington, D.C., and one copy to the Refugee Coordinator. Reports should not be shared with other entities without the written approval of PRM. The Recipient must submit required program, financial, and inventory reports to the Bureau's Office of the Comptroller through the GrantSolutions grants management System at www.grantsolutions.gov. The Recipient must submit required reports to the Office of the Comptroller using the Grant Notes functionality for this agreement number. The subject line of the Grant Note transmitting the report must include the Report Type and Reporting Period. The subject line of the electronic mail transmissions to the admissions office and Refugee Coordinator must include the following information: Organization Name, Agreement Number, Report Type, and Reporting Period.
The Recipient is required to submit quarterly program and financial reports based on the schedule outlined below. A final certified financial report and program report must be submitted
Page 6 of XX

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#: 5669

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

to the Grants and Program Officers/GO and GOR within 90 days after the award period end date. The first page of the Performance Progress Report Form (SF PPR) must be submitted with all program reports. The Federal Financial Report (FFR SF-425/SF-425a) must be submitted for all financial reports. These forms can be accessed at: https://www.statebuy.state.gov . Failure to comply with these reporting requirements may jeopardize the Recipient's eligibility for future Agreements.

The Recipient entity must submit performance reports using OMB-approved government-wide standard information collections when providing performance information. As appropriate in accordance with above mentioned information collections, these reports will contain, for each Federal award, brief information on the following unless other collections are approved by OMB:

1. A comparison of actual accomplishments to the objectives of the Federal award established for the period. Where the accomplishments of the Federal award can be quantified, a computation of the cost (for example, related to units of accomplishment) may be required if that information will be useful. Where performance trend data and analysis would be informative to the Federal awarding agency program, the Federal awarding agency should include this as a performance reporting requirement.

2. The reasons why established goals were not met, if appropriate.

3. Additional pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs.

Program Progress Report Schedule and Requirements:

Quarter Start Date October 1, 2016 January 1, 2017 April 1, 2017 July 1, 2017

Quarter End Date December 31, 2016 March 31, 2017 June 30, 2017 September 30, 2017

Report Due Date January 31, 2017 April 30, 2017 July 31, 2017 December 31, 2017

The final report should cover activities carried out during the full period of the agreement.

Each report should address the objectives set forth in Section 1.c. and the extent to which they were accomplished. The Performance Progress Report (SF-PPR) is a standard, government-wide performance reporting format available at: https://www.statebuy.state.gov/fa/Pages/Forms.aspx. Recipients must submit the signed SF-PPR cover page with each program report. Each program report will follow the template provided by the PRM/A Program Officer. In addition, reference this template as being attached in block 10 of the SF-PPR. This template is designed to ease the reporting requirements while ensuring that all required elements are addressed.

Should the Recipient implement this project through the award of $15,000 or more to a subrecipient(s), the Recipient must include the activities of each organization in the program reports. These reports shall include the full name of each sub-recipient, the amount of funding

Page 7 of XX

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#: 5670

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

authorized, a description of the activities performed, and a brief assessment of how the activities were carried out.
Each report should also note any changes made or anticipated with regard to staffing requirements, security arrangements, or other aspects of the funded program. Should any change or anticipated change affect the use of funds or the rate of expenditure, special mention should be highlighted in the report.
In addition to the regular reports described above, the Recipient shall promptly inform the Bureau, in writing, should any special circumstance be encountered that is likely to delay or prevent the Recipient from meeting the objectives set forth in Section 1.c.
Federal Financial Report Schedule and Requirements:
Financial reports shall be submitted within thirty (30) days following the end of each calendar year quarter (January 30th, April 30th, July 30th, and October 30th) during the validity period. A preliminary final financial report covering the entire period of the agreement shall be submitted within ninety (90) days after the expiration date of this agreement. This preliminary final report shall include the total charges for each budget category reflected in Section 5 including charges for post-performance activities such as audits and evaluations. Should the Recipient have awarded $15,000 or more to a sub-recipient for the implementation of a portion of this project, the reports shall identify the name and amount of funds given to each subrecipient organization.
Should the funds provided under this cooperative agreement reimburse the Recipient for only a portion of the total costs of this project with additional costs being covered from other Federal or private resources, the financial reports required by the Bureau must reflect the costs to be charged to the Bureau's cooperative agreement and those costs to be charged to other financial resources for the total cost of the project.
Reports reflecting expenditures for the Recipient’s overseas and United States offices shall be completed in two parts: 1) in accordance with the Federal Financial Report (FFR SF-425) and submitted electronically in the Department of Health and Human Services’ Payment Management System; and 2) in accordance with the items of expenditure categories set forth under Section 5 reflecting separately the costs being charged to this agreement and those charged to other sources. The quarterly line item expenditure reports must be transmitted as a Grant Note through www.grantsolutions.gov.
Expenses to be charged against this agreement must be for actual costs incurred for authorized activities that are adequately documented and that can be confirmed through an audit. Expenses based on an average or prorated share of costs that do not represent individually identified costs or those that cannot be specifically confirmed through an audit shall not be charged to or reported under this agreement.

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#: 5671

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

Should the Recipient receive refunds or rebates after the reporting period, these must be returned with a revised preliminary final financial report within thirty (30) days of the receipt of such refunds or rebates.
For the Recipient that has an approved USG indirect cost rate: A final financial report, including any allowable post performance charges for an audit and/or an evaluation, shall be submitted within sixty (60) days from the date the Recipient countersigns an indirect cost rate agreement with its cognizant government agency that establishes final rates applicable to the validity period of this agreement. This final financial report shall have the authorized charges detailed by the time period covered by each different indirect cost rate in effect during the validity period of this agreement.
Reporting of Foreign Taxes:
The Recipient must annually submit a report on or before November 17 for each foreign country on the amount of foreign tax charged, as of September 30 of the same year, by a foreign government on commodity purchase transactions valued at $500 or more financed with U.S. foreign assistance funds under this agreement during the prior U.S. fiscal year. In addition to the amount of foreign tax charged, the report must reflect the amount reimbursed by the foreign government. This report must be submitted even if the Recipient did not pay any taxes during the reporting period.
The Recipient must include this reporting requirement in all applicable subcontracts, sub-grants and other sub-agreements.
The report must contain: (1) contractor/grantee name; (2) contact name with phone, fax and email; (3) agreement number(s) if reporting by agreement(s); (4) amount of foreign taxes assessed for each foreign government; and (5) amount of any foreign taxes reimbursed by each foreign government.
For purposes of this term and condition: (1) “Agreement” includes any Bureau funded grant or cooperative agreement; (2) "Commodity" means any material, article, supplies, goods, or equipment; (3) "Foreign government" includes any foreign governmental entity; and (4) "Foreign taxes" means value-added taxes and custom duties assessed by a foreign government on a commodity. It does not include foreign sales taxes.
Inventory Report:
A report shall be submitted within thirty (30) days prior to the expiration of this agreement listing all items and purchase price of all non-expendable tangible personal property having a useful life of more than one year and having a current per unit fair market value of $5,000 or more per unit which were purchased with funds provided under this agreement. This report must

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#: 5672

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

include the following information for each item purchased: description, date of purchase, serial number, and the country in which the item was used.
This required inventory report shall include any items of non-expendable tangible personal property that were purchased under a previous Bureau funding arrangement that continue to be used in activities funded under this agreement.
The required inventory report shall also include the Recipient’s specific recommendations for the disposition of each item of non-expendable tangible personal property. In certain circumstances, the proposed disposition may include a recommendation to retain specified items for continued use in other Bureau funded activities or similar activities carried out by the Recipient. If such property is no longer required for authorized activities, a recommendation for final disposition, e.g., sale, donation or disposal, shall be specified.
7. Pre-Award Costs:
The Department of State hereby agrees to reimburse the recipient for costs incurred and considered allowable within the amounts of the Authorized Budget – Section 5. This pre-award condition applies to costs incurred from October 1, 2016 until the date of the award.
8. Post-Award Compliance:
Department of State (DOS) Standard Terms and Conditions for Federal Assistance Awards (Attachment D) are incorporated by reference and made part of this Notice of Award. Electronic copies containing the complete text are available at: https://www.statebuy.state.gov/fa/Pages/TermsandConditions.aspx.
9. Substantial Involvement:
The Recipient shall carry out its operational and administrative responsibilities hereunder in close coordination with and under the direction of the designated offices of the Bureau and appropriate American Embassy. For the information of the Recipient, responsibilities relevant to this agreement are allocated as follows:
a. Bureau
1. Office of Admissions
Acting as the Grants Officer's representative:
(a) Provides overall policy guidance and program direction.
(b) Reviews and comments on proposed budget for the Recipient.
(c) Reviews and comments on proposed changes or revisions in terms of this agreement.
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#: 5673

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

(d) Periodically visits and evaluates the general performance of the Recipient's operations under this agreement to ensure that the established objectives are being successfully met, maintains contact, including site visits and liaison, with the Recipient, assists the Grants Officer in the review of required Recipient Program and Financial Progress Reports to verify timely and adequate performance, and provides the Bureau regular written reports on whether performance is in compliance with all the terms and conditions of this agreement.
2. Office of the Comptroller
(a) Reviews and negotiates with the Recipient's headquarters the Recipient's budget and any subsequent requests for funding.
(b) Prepares and executes the cooperative agreement, interprets the terms thereof, arranges for payment, works with the Recipient's headquarters for the overall administration of the funded activities, and is the mandatory control point of record for all official communications and contacts with the Recipient that may affect the budget, the project scope, or terms and conditions of the award.
(c) Considers requests for amendments to the cooperative agreement and, upon determination of appropriateness, prepares and executes formal amendments to the cooperative agreement. Only the Grants Officer may amend the cooperative agreement.
b. American Embassy, Embassy City, Refugee Coordinator
Acting as the Bureau's overseas representative:
1. Acts as liaison, as required with the Government of Country of Project, the UNHCR, the International Organization for Migration (IOM), and other appropriate organizations regarding issues involving this program.
2. Monitors and evaluates the general performance of the Recipient's operations under this agreement to ensure that the established objectives are being successfully met, and provides the Bureau reports on whether the performance is in compliance with the terms of this agreement.
3. Analyzes and reports to the Bureau on any proposed budget adjustments, identifying items that may require special consideration and recommending whether the proposed budget or portions thereof be approved or disapproved.
10. Program Income: N/A
11. Cost-Sharing: N/A
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#: 5674

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

12. Sub-recipients: N/A
13. Waiver of Branding and Marking Requirements: N/A
However if a waiver of the DOS or USG branding and marking requirements has been granted, use the following provision: Provision XVII of the Standard Terms and Conditions for U.S. Department of State assistance awards, requires that materials produced under an award must be marked appropriately to [affirmatively] acknowledge the support of the U.S. Department of State. However, the Department has determined that for the purposes of this award, the recipient is not required to publicly display DOS and/or USG branding and marking for materials produced under this award.
14. Additional Bureau/Post Specific Requirements:
Responsibilities of the Recipient
The Recipient shall perform its responsibilities under this agreement in coordination with the Bureau and in a manner consistent with United States law and policy, as well as applicable laws of the countries where activities are performed.
a. Program Management
1. Coordinate with U.S. government agencies, non-governmental organizations and international organizations involved with the refugee admissions program as described in the program proposal (Attachment A).
2. In compliance with the Bureau's policy that all funded activities be implemented in a manner that fully meets the standard of conduct established by the Inter-Agency Standing Committee (IASC) Task Force on Protection from Sexual Exploitation and Abuse in Humanitarian Crises, ensure that the activities conducted with funds provided under this agreement are implemented in accordance with the Recipient’s established code of conduct previously submitted to the Bureau referenced in its proposal (Attachment A).
3. Should any change be made to the Recipient’s code of conduct during the validity period of this agreement, inform the Bureau in writing within thirty (30) days of the changes for consideration of whether the revised code continues to meet the Bureau’s standard of core principles.
4. With regard to religious persecution in particular, the Recipient shall ensure that its personnel take into account in their work the considerations reflected in the International Religious Freedom Act concerning country-specific conditions, the right to freedom of religion, methods of religious persecution practiced in foreign countries, and applicable distinctions within a country between the nature of and treatment of various religious practices and believers.
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#: 5675

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

5. The Recipient is reminded that U.S. Executive Order and U.S. law prohibits transactions with, and the provision of resources and support to, individuals and organizations associated with terrorism. It is the legal responsibility of the Recipient to ensure compliance with these Executive Orders and laws. This provision must be included in all sub-contracts/sub-awards issued under this agreement.
6. The U.S. Government is opposed to prostitution and related activities, which are inherently harmful and dehumanizing, and contribute to the phenomenon of trafficking in persons. None of the funds made available under this agreement may be used to promote, support, or advocate the legalization or practice of prostitution. Nothing in the preceding sentence shall be construed to preclude assistance designed to ameliorate the suffering of, or health risks to, victims while they are being trafficked or after they are out of the situation that resulted from such victims being trafficked. This provision shall be incorporated into all sub-agreements under this agreement. The Recipient does not promote, support, or advocate the legalization or practice of prostitution.
7. Branding and Marking Strategy. The Recipient shall state in all appropriate publications and printed descriptions, including press releases, annual reports and financial statements, that activities conducted under this agreement are financed by the United States Department of State's Bureau of Population, Refugees and Migration. The Recipient shall recognize the Bureau’s funding for activities specified under this cooperative agreement at the project site with a graphic of the U.S. flag accompanied by one of the following two phrases based on the level of funding from PRM:
1) Fully funded with PRM contribution: ‘Gift of the United States Government’ 2) Partially funded with PRM contribution: ‘Funding provided by the United States
Government’
The Recipient shall also comply with the “Style Guidelines for Resettlement Support Centers” dated April 2, 2012, and attached hereto as Attachment E. Exemptions from this requirement may be allowable but must be agreed to in writing by the Bureau.
8. Treat all files on applicants as U.S. Government records: create, maintain, protect, disclose, and dispose of such files and information therein only in accordance with the Freedom of Information Act, 5 U.S.C. 552, the Privacy Act, 5 U.S.C. 552a, Section 222(f) of the I.N.A., 8 U.S.C. 1202(f), other applicable federal records statutes and Department regulations (5 FAM 480, including 22 C.F.R. Part 171), and the Bureau's "Guidelines for the Treatment of Refugee Records " revised November 19, 2013 and attached hereto as Attachment B, and inform all the Recipient personnel with access to such files and information of such laws and guidelines.

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#: 5676

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

9. Make all information and records in its possession pertaining to applicants available upon request to the Bureau, the Refugee Coordinator, and the relevant Department of Homeland Security, U.S. Citizenship and Immigration Services Field Office Director.
10. Instruct all persons in positions funded under this agreement that they have a duty to ensure that all relevant information in their possession bearing on an applicant’s eligibility for admission to the United States, including information bearing on the applicant’s credibility, is made available to the U.S. Government.
11. Activities undertaken by the RSC must consider the needs of potentially vulnerable and underserved groups among the beneficiary population (women; children; lesbian, gay, bisexual, transgender, or intersex (LGBTI) individuals; older persons; the sick; persons with disabilities; and other minorities). Recipient must be able to demonstrate what steps have been taken to meet the specific and unique protection and assistance needs of these vulnerable groups effectively.
12. Accord the Bureau and its authorized representatives the legally enforceable right to examine, audit and copy, at any reasonable time, all records in its possession pertaining to applicants and this agreement.
13. Assist the Bureau, as appropriate, in evaluating the Recipient’s performance under this agreement by facilitating access to all relevant records and to all persons directly involved under this agreement.
b. Staffing
1. The Recipient shall appoint a Director of the Resettlement Support Center (RSC Director) who shall be responsible for the day-to-day supervision of all persons employed by the Recipient in positions funded under this agreement and for the dayto-day management of the Recipient's operations under this agreement.
2. No person shall be assigned to the position of RSC Director or RSC Deputy Director funded under this agreement without prior consultation with and the express written approval of the Bureau.
3. The Recipient shall (1) require any newly appointed RSC Director and any person appointed to any other key staff position funded under this agreement who is in the United States at the time of the appointment to consult with the Bureau prior to assuming his or her duties; and (2) inform the Bureau when the RSC Director or key staff position funded under this agreement are on leave in the United States to determine if consultations with the Bureau are needed. Consultation will be with such offices within the Bureau and the Department of State as the Bureau determines to be appropriate.

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#: 5677

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

4. The Recipient shall maintain and provide, on request, the Bureau and the Refugee Coordinator with current position descriptions for all positions funded under this agreement.
5. The Bureau may request that the Recipient investigate and promptly resolve any performance issue involving any person in a position funded under this agreement; in addition, the Bureau may require the Recipient to remove or reassign any person in any position funded under this agreement when the Bureau determines, after consultation with the Recipient, that the interests of the United States may be compromised unless such action is taken.
6. The Recipient shall ensure that a security background check is performed on each staff member (both locally hired and international) prior to his/her employment under this cooperative agreement. Previously hired employees may be subject to such security background checks at the discretion of the Bureau. Should derogatory information be found in any reports, a copy of such report shall be submitted to the Bureau’s representative (Refugee Coordinator) at the appropriate U.S. Embassy for a final determination of approval for hiring.
7. The Bureau, at its discretion, may require that the RSC Director and/or Deputy Director funded under this agreement obtain a Government security clearance for access to classified information.
c. Non-U.S. based organizations below the audit threshold: N/A
15. Specific Conditions: (Block 19 of the DS-1909 must be checked and Grants Officer will add specific conditions to the agreement that comply with the requirements of 2 CFR 200.207. If the Grants Officer determines that this section does not apply to the agreement, Enter N/A next to the title and delete the text of the provision.)
ALSO:
Effective FY2013, Program Officers must submit documentation with the transmittal package for federal assistance awards with performance in Afghanistan and Five Other Countries for the Prevention of Terrorist Financing (currently in Guatemala, Kenya, Lebanon, Philippines and Ukraine). See GPD-62 Vetting of Afghanistan and Five-Country Pilot Program for the Prevention of Terrorist Financing for guidance on vetting procedures, solicitation requirements, due diligence and the required form. The following provision will be included in federal assistance awards for Afghanistan or that were subject to the Five-Country Pilot Program vetting:
a. Recipient Vetting after Award: Recipients shall advise the Grants Officer of any changes in personnel listed in the DS Form 4184, Risk Analysis Information, and shall provide vetting information on new individuals. The government reserves the right to vet these personnel changes and to terminate assistance awards for convenience based on vetting results.
b. Noncompeting Application Requirements: N/A (for CWS and ICMC)
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#: 5678

Name of Recipient/Country

S-PRMCO-17-CA-1XXX

(Include as follows for HIAS and IRC)
Multi-year applications selected for funding by the Bureau will be funded in 12-month increments based on the proposals submitted in the competing application and as approved by the Bureau. Continued funding requires the submission of a noncompeting continuation application as follows:
Continuation applications must be submitted not later than ninety (90) days from the proposed start date of the award. Late applications will jeopardize continued funding.
Applications must be signed by the Authorized Organization Representative (AOR) at the applicant organization on the submitted SF-424.
Pursuant to U.S. Code, Title 218, Section 1001, stated on OMB Standard Form 424 (SF-424), Department of State is authorized to consolidate the certifications and assurances required by Federal law or regulations for its federal assistance programs. The list of certifications and assurances can be found at: https://www.statebuy.state.gov
Proposal Content, Formatting and Templates: Please refer to the Bureau guidance. You must submit a complete application including:
Signed completed SF-424. Proposal for the continuation period. Budget for the continuation period. Budget narrative. Most recent Negotiated Indirect Cost Rate Agreement (NICRA), if applicable. Information on the amount of unexpended funds to include a statement of the estimated
cumulative total dollar amount taking into consideration the actual expenditures shown on the Financial Status Report. Note that funds are available for expenditure only during the period in which they are awarded.
16. Special Provision for Performance in a Designated Combat Area (SPOT): N/A
17. State Department Leahy Amendment Vetting Requirements: N/A
18. Statutory Deviations: N/A

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#: 5679

Name of Recipient

S-PRMCO-17-CA-1XXX

U.S. Department of State Award Provisions
1. Purpose/Scope of Award:
a. Purpose: Name of Recipient (Recipient Acronym), a non-governmental organization, (hereinafter referred to as the "Recipient") is hereby awarded a Cooperative Agreement to partially support the Recipient’s expenses in administering the FY 2017 Reception and Placement Program as authorized under the applicable provisions of the Migration and Refugee Assistance Act of 1962, as amended, and the Immigration and Nationality Act, as amended (the "INA"). The Recipient shall:
1) arrange for the reception and placement of refugees in the United States and offer appropriate assistance during their initial resettlement in the United States;
2) provide refugees with basic necessities and core services during their initial period of resettlement; and
3) in coordination with publicly supported refugee service and assistance programs, assist refugees in achieving economic self-sufficiency through employment as soon as possible after their arrival in the United States.
b. The Recipient shall carry out the Agreement in accordance with its proposal dated Date, and any revisions to which both parties agree to in writing. The above-mentioned proposal is hereby incorporated by reference (Attachment A) and made an integral part of the Agreement. The period of this agreement shall be from October 1, 2016 through September 30, 2017.
c. Statement of Overall Reception and Placement (R&P) Program Objectives and Indicators: The Recipient agrees to:
1) promote effective resettlement through community involvement including, but not limited to, coordination with ethnic and other community-based, public, and private organizations and through consultation and coordination with state and local public officials involved in assisting refugees;
2) promote refugee placement through agencies that maximize the use of private resources and programs;
3) promote the placement of all refugees in areas conducive to the attainment of economic self-sufficiency;
4) maintain the capability and flexibility to receive and place new caseloads, including refugees with special needs, and to shift program and staff resources to reflect changing refugee populations and arrival patterns;
5) ensure that R&P core services and basic needs support are made available in an appropriate language to refugees through its nationwide network of affiliated offices;

Page 2 of 40
Bartlett Declaration Attachment 2

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#: 5680

Name of Recipient

S-PRMCO-17-CA-1XXX

6) ensure that each refugee receives the following R&P basic needs support and core services according to standards included in the Cooperative Agreement within the specified time frame, and that provision of such services is well-documented in case files: a) Sponsorship assurance; b) Pre-arrival planning; c) Reception; d) Basic needs support for at least 30 days, including the provision of: safe, sanitary, and affordable housing; essential furnishings; appropriate food, food allowances and other basic necessities; necessary clothing; assistance applying for social security cards; assistance in obtaining health screenings and assistance accessing other necessary health and mental health services; assistance in obtaining appropriate benefits, other social services, and English language instruction; assistance with enrollment in employment services; assistance registering children in school; and transportation to job interviews and job training; e) At least two home visits within the first 30 days and a third home visit to permanent housing if the refugee moves from temporary housing within the R&P period; f) Case management, including the development and implementation of individualized service plans during the initial 30-day period; g) Cultural orientation, with appropriate language interpretation as needed; and h) Assistance to refugee minors resettled in non-parental family units, as required: initial placement suitability assessments; orientation to U.S. child welfare requirements; assistance regarding guardianship and legal obligations in caring for the child; regular and personal contact; and follow-up assessments and suitability determinations;
7) ensure effective monitoring of local affiliates performing R&P services in accordance with the Cooperative Agreement;
8) achieve R&P performance outcomes, specifically: a) Refugee is in a safe, stable environment. i. Refugee is picked up at the airport upon arrival with appropriate language interpretation as needed. ii. Refugee is placed in a safe dwelling. iii. Refugee is placed in an affordable dwelling. iv. Refugee has basic necessities. b) Refugee can navigate appropriate and relevant systems. i. Refugee can access/use appropriate transportation. ii. Refugee obtains own food and basic needs. iii. Refugee obtained social security card and other identification as needed. iv. Refugee accesses health care. v. Refugee demonstrates ability to contact emergency services. vi. Refugee children are enrolled in school within 30 days of arrival. vii. Refugee knows where to get assistance to file paperwork to bring family members to the United States. viii. Refugee knows how to ask for interpretation services. c) Refugee family is connected to means of ongoing support for self/family. i. Refugee is connected to or enrolled in eligible services.
Page 3 of 40

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#: 5681

Name of Recipient

S-PRMCO-17-CA-1XXX

ii. Refugee is financially supported (or self-sufficient). iii. Refugee can explain where the household money will come from when the
initial assistance is finished. d) Refugee understands surroundings and situation.
i. Refugee knows his/her address, knows how to make phone call, and how to be contacted.
ii. Refugee understands the effects of moving. iii. Refugee knows the role of the local resettlement agency and expectations
of the local resettlement agency and self. iv. Refugee has a basic understanding of U.S. laws and cultural practices; and 9) ensure that R&P program and performance information is accessible to the public.
d. Statement of Specific Recipient Objectives and Indicators:
1) Ensure sound and timely operations to appropriately prepare and plan for refugee arrival to the United States with the following goals. a) Percentage of non-expedited assurances that are submitted on or before the deadline. Target: 95% b) Percentage of complex medical cases that are selected during allocations. Target: equivalent to overall Agency caseload percentage. c) Percentage of refugees who do not out-migrate from their location of initial placement. Target: 95%
2) Recipient management provides sound oversight and support to maintain a flexible, wellequipped, and knowledgeable affiliate network. a) Percentage of recommendations related to training made by PRM during affiliate monitoring which are resolved within three months of release of the final monitoring report. Target: 100% b) Percentage of affiliates that have been monitored at least once in the previous three fiscal years. Target: 100%
3) Recipient’s affiliates deliver timely and individualized services that promote refugee well-being and self-sufficiency. a) Number and percentage of recommendations related to the provision of core services and basic needs support made by PRM during affiliate monitoring which are resolved within three months of release of the final monitoring report. Target: 100% b) Number of complaints received by PRM related to the provision of core services and basic needs support that PRM determines to be valid. Target: zero (0)
4) Recipient’s affiliates regularly engage, inform, and consult resettlement partners, stakeholders, and communities. a) Percentage of affiliates compliant with quarterly consultation requirements. Target: 90% b) Average number of community engagement events/presentations conducted per affiliate per quarter. Target: one (1)
5) Recipient’s affiliates ensure that refugees are connected to services and oriented to their new communities.
Page 4 of 40

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#: 5682

Name of Recipient

S-PRMCO-17-CA-1XXX

a) Percentage of refugee adults who receive cultural orientation in accordance with the Cooperative Agreement. Target: 95%
b) Number and percentage of recommendations related to refugee understanding of orientation made by PRM during affiliate monitoring which are resolved within three months of release of the final monitoring report. Target: 100%
c) Percentage of refugees connected to ongoing services. Target: 95%
2. Grants Officer Contact Information:
Name Grants Officer Office of the Comptroller Bureau of Population, Refugees, and Migration United States Department of State 2201 C Street, NW, 8th Floor, SA-9 Washington, DC 20520 emailXXX@state.gov Phone 202-453-92XX Fax 202-453-9395
3. Grants Officer Representative (GOR):
Name Program Officer Office of Admissions Bureau of Population, Refugees, and Migration United States Department of State 2201 C Street, NW, 8th Floor, SA-9 Washington, DC 20520 GOREmail@state.gov Phone 202-453-9XXX Fax 202-453-93XX
4. Post-Award Compliance:
Department of State Standard Terms and Conditions (Attachment B) are incorporated by reference and made part of this Notice of Award. Electronic copies containing the complete text are available at: https://statebuy.state.gov, under Resources select Terms and Conditions to access the terms and conditions.
The Recipient and any sub-recipient, in addition to the assurances and certifications made part of the Notice of Award, must comply with all applicable terms and conditions during the project period.
5. Authorized Budget Summary:
Page 5 of 40

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#: 5683

Name of Recipient

S-PRMCO-17-CA-1XXX

All expenditures paid with funds provided by this Agreement must be incurred for authorized activities, which take place during this period, unless otherwise stipulated.

Payment of funds under this Agreement will not be disbursed until the DOS has been assured that the Recipient’s financial management system will provide effective control over and accountability for all Federal funds in accordance with 2 CFR 200.300 – 200.303.

Budget Categories

Amount

1. Personnel

$

2. Fringe Benefits

$

3. Travel

$

4. Equipment

$

5. Supplies

$

6. Contractual

$

7. Construction

$

8. Other Direct Costs

$

9. Total Direct Costs (lines 1-8)

$0

10. Indirect Costs (reflect provisional, pre-

$

determined rate and allocation base)

11. Total Costs (lines 9-10)

$ 0

12. Recipient Share

$

a. Any anticipated purchase of non-expendable equipment, such as computers or vehicles with an acquisition cost of $5,000 or more per unit and were not part of the approved budget (Attachment A to this agreement), requires the prior written approval of the Bureau.

b. If any part of the costs of goods and services charged under this agreement are collected from or reimbursed by the refugees or other sources, such collections shall be paid promptly to the Department or off-set against charges to the agreement; thereby, ensuring that no charges to this agreement results in duplicated reimbursement to the Recipient.

c. Local Offices/Affiliates and Services to Refugees Per Capita Grant

1) The Bureau shall provide the Recipient a fixed per capita grant of $2,075.00 per refugee admitted under Section 207 of the INA who is assigned to the Recipient pursuant to this agreement for a total of up to x,xxx refugees who are expected to arrive in the United States during the period October 1, 2016 through September 30, 2017. It is the intent of the Bureau that the per capita grants shall be spent in their entirety on expenses related to meeting the material needs of refugees and providing services to them, within the parameters of this subsection 5.c.
2) Of the $2,075.00 fixed per capita grant: a) At least $1,125.00 (refugee per capita) is to be provided in its entirety to the affiliate to which the refugee is assigned and is to be used to cover payments made by the affiliate to or on behalf of individual refugees for cash disbursement or for material goods, as needed, to meet the requirements of the program;
Page 6 of 40

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#: 5684

Name of Recipient

S-PRMCO-17-CA-1XXX

i. No less than $925.00 of this $1,125.00 must be spent on behalf of the refugee by the affiliate to which the refugee is assigned during that refugee’s R&P service delivery period;
ii. Up to $200.00 of this $1,125.00 may be spent on behalf of other vulnerable refugees assigned to the same affiliate who have unmet needs during their R&P period;
b) No more than $950.00 (affiliate per capita) may be used to partially cover the actual expenses of the affiliates to which refugees are assigned in providing reception and placement services, including expenses that will lower the client-tostaff ratio, support positions that will coordinate volunteers or develop resources for the R&P program, deliver cultural orientation to refugees, and/or otherwise improve the quality of the R&P services received by refugees.
c) The Recipient will demonstrate through the reporting required under this agreement that the amounts funded for the per capita grants were provided by the Recipient in their entirety to affiliates based on the total number of refugees assigned to the Recipient during the period of October 1, 2016 through September 30, 2017.
3) Payment of the amounts specified in subsection 5.c.2(a) shall be made only for the number of assigned refugees who actually arrive in the United States during the period October 1, 2016 through September 30, 2017, but in no case shall the total payment of refugee per capita funds exceed $xxx,xxx during this period.
4) Payment of the amounts specified in subsection 5.c.2(b) may be made in advance of actual refugee arrivals and shall be for the actual expenses of affiliates up to $xxx.xxx OR shall be made only for the number of assigned refugees who actually arrive in the United States during the period October 1, 2016 through September 30, 2017, whichever is higher. In no case shall the total payment of affiliate per capita funds exceed $xxx,xxx during this period.
5) This agreement may be amended to reflect the actual number of refugee arrivals during the period October 1, 2016 through September 30, 2017 and to adjust the amount of funds accordingly.
d. The funds awarded under this agreement may be used only for the performance of the Recipient's responsibilities authorized herein for the provision of reception and placement services and may not be used to cover expenses of other activities or services that may be provided to refugees during their resettlement. For example, funding provided under this agreement shall not be used to cover any expenses of collecting the IOM Promissory Note.
e. The affiliate per capita funds earned under this agreement must be used in their entirety to cover affiliates expenses and shall not be used to cover national management expenses, as specified in subsection 5.c.2.
f. The refugee per capita funds earned under this agreement must be used in their entirety to cover cash disbursements to refugees and/or purchases of material goods on their behalf at the Recipient’s affiliate for which the refugee is assigned and shall not be used to cover national management expenses, as specified in subsection 5.c.2.
Page 7 of 40

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#: 5685

Name of Recipient

S-PRMCO-17-CA-1XXX

g. In the event that the Recipient's activities related to the performance of its responsibilities under this agreement are also eligible for funding under other federal government grants or agreements, the Bureau and the Recipient shall consult each other and any other federal agency concerned to prevent attribution of the same expenditures to two (2) separate federal funding agreements.
h. National Management. Any unexpended funds available to the Recipient for national management expenses at the end of the validity period of this agreement must be returned to the Bureau and may not be used to cover affiliate expenses or for payments to or on behalf of refugees.
i. Per Capita Funds
1) Any unexpended per capita funds designated for affiliates expenses may be used to continue authorized basic needs support and core services beyond the R&P period for refugees assigned under this agreement, excluding payments to or on behalf of refugees which must be expended by the end of the R&P period.
2) Per capita funds designated for payment to or on behalf of each refugee may be used only to cover direct payments to or on behalf of each refugee and must be expended by the end of their R&P period. A minimum of $925 per capita must be spent on each refugee.
3) Up to $200 per capita of funds designated for payment to or on behalf of refugees may be used only to cover direct payments to or on behalf of any refugee placed at the affiliate that received the per capita.
4) All per capita funds earned under this agreement, however, must be expended no later than three (3) months following September 30, 2017 from which funded and reported as part of the final or interim final financial report for the period October 1, 2016 through September 30, 2017. Funds remaining at the end of the above-specified period shall be returned to the Bureau.
5) Any interest accrued on per capita funds made available under this agreement may be expended only (1) for the Recipient's responsibilities under this agreement; and (2) within the same time period specified in subparagraph 4) above. Interest remaining at the end of such period shall be returned to the Bureau.
6) With the written approval of the Bureau, the Recipient may enter into funding arrangements with other voluntary organizations participating in the Bureau's initial reception and placement program that will ensure that each organization is reimbursed for the actual number of refugees to whom it has provided services required by this agreement.
j. Transportation. Funds awarded under this agreement may not be used for travel outside the fifty (50) United States without the prior written approval of the Bureau. All approved international travel to be paid with funds awarded under this agreement shall be performed on U.S. flag carriers to the extent such service is available in accordance with the provisions of the "Federal Travel Regulations."
6. Payment Method
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#: 5686

Name of Recipient

S-PRMCO-17-CA-1XXX

a. Payments under this award will be made through the U.S. Department of Health and Human Services Payment Management System (PMS). The Payment Management System instructions are available under the PMS website and can be accessed at the following address: http://www.dpm.psc.gov/. Recipients should request funds based on immediate disbursement requirements and disburse funds as soon as possible to minimize the Federal cash on hand in accordance with the policies established by the U.S. Treasury Department and mandated by the OMB Regulations.
b. Requests for reimbursement of National Management Expenses shall be submitted separately from requests for other funds and only in amounts that are required to meet the immediate cash needs of this activity.
c. Requests for payment of the per capita shall be submitted only for those assigned refugees who have actually arrived in the United States.
7. Reporting and Monitoring
The Recipient must submit required program, financial, and inventory reports to the Bureau's Office of the Comptroller through the GrantSolutions grants management System at www.grantsolutions.gov. The Recipient must submit required reports to the Office of the Comptroller using the Grant Notes functionality for this agreement number. The subject line of the Grant Note transmitting the report must include the Report Type and Reporting Period.
The Recipient is required to submit quarterly program and financial reports based on the schedule outlined below. The first page of the Performance Progress Report Form (SF PPR) must be submitted with all program reports. The Federal Financial Report (FFR SF-425/SF425a) must be submitted for all financial reports. These forms can be accessed at: https://www.statebuy.state.gov . Failure to comply with these reporting requirements may jeopardize the Recipient's eligibility for future Agreements.
The Recipient must submit performance reports using OMB-approved government-wide standard information collections when providing performance information. As appropriate in accordance with above mentioned information collections, these reports will contain, for each Federal award, brief information on the following unless other collections are approved by OMB:
a. A comparison of actual accomplishments to the objectives of the Federal award established for the period. Where the accomplishments of the Federal award can be quantified, a computation of the cost (for example, related to units of accomplishment) may be required if that information will be useful. Where performance trend data and analysis would be informative to the Federal awarding agency program, the Federal awarding agency should include this as a performance reporting requirement.
b. The reasons why established goals were not met, if appropriate.

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#: 5687

Name of Recipient

S-PRMCO-17-CA-1XXX

c. Additional pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs.

Program Progress Report Schedule and Requirements:

Quarter Start Date October 1, 2016 January 1, 2017 April 1, 2017 July 1, 2017

Quarter End Date December 31, 2016 March 31, 2017 June 30, 2017 September 30, 2017

Report Due Date January 31, 2017 April 30, 2017 July 31, 2017 December 31, 2017

The final three (3) month report should also contain a brief summary of the activities carried out during the full period of the agreement.

Each report should address the objectives and indicators set forth in Section 1.c. and 1.d. and the extent to which they were accomplished. The Recipient shall include in the Program Progress Report a brief summary of:
1) program activities, such as conferences, workshops, and training or other activities funded through this agreement;
2) the Recipient’s affiliate monitoring activities to include findings and recommendations on each affiliate monitored;
3) a discussion of actions taken to address any identified weaknesses in R&P core service delivery, including follow-up on corrective actions taken as a result of prior Recipient or Bureau monitoring;
4) evidence of final compliance with all prior Recipient or Bureau monitoring findings and recommendations; and
5) the number and percentage of affiliates in compliance with the requirements for community consultations, as well as best practices and issues that prevent adequate resettlement in a given community or result in changes in the Recipient’s placement plans.

The Performance Progress Report (SF-PPR) is a standard, government-wide performance reporting format available at: https://www.statebuy.state.gov/fa/Pages/Forms.aspx. Recipients must submit the signed SF-PPR cover page with each program report.
Annual Report

The Recipient shall submit no later than March 31, 2018, a report to be submitted by the Bureau to Congress pursuant to Section 412(b)(7)(E) of the INA. The report will be considered timely if submitted on or before the due date. Such report shall describe for the period October 1, 2016 through September 30, 2017:
1) the number of refugees placed by county of placement and the total expenditures incurred during the year, including the proportion of such expenditures used for administrative purposes (National Management) and for provision of services (Local Offices/Affiliates and Payments to or on Behalf of Refugees);

Page 10 of 40

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#: 5688

Name of Recipient

S-PRMCO-17-CA-1XXX

2) to the extent the information is available, the Recipient will make its best effort to determine the proportion of refugees placed during the agreement period by the Recipient and who, on September 30, 2017, are receiving publicly funded cash or medical assistance;
3) the Recipient's program to monitor placement of the refugees and the activities of its affiliates;
4) the efforts by the Recipient and its affiliates to coordinate with local social service providers so as to avoid duplication of services;
5) the efforts by the Recipient and its affiliates to notify public welfare offices of refugees who have been offered employment and to provide documentation to public welfare offices to which refugees have applied for cash assistance concerning cash or other resources directly provided to such refugees;
6) the efforts of the Recipient's affiliates to inform appropriate public health agencies of the arrival of refugees known to have medical conditions affecting the public health and requiring treatment; and
7) any complaints received from beneficiaries about provision of services by the Recipient pursuant to this agreement.
R&P Period Reports
A copy of the R&P period report form will be provided to the Recipient. Data from this form will be submitted to the Refugee Processing Center (RPC) no later than the 15th day of the second month following the end of the R&P period, and shall be considered timely if electronically submitted on or before the due date. The report shall be submitted to the RPC at Incoming-Datafiles@wrapsnet.org. The Recipient will retain the reported information for a period of not less than one year from the date of arrival, and will make it available for review by the Bureau upon request.
Federal Financial Report Schedule and Requirements
Financial reports shall be submitted within thirty (30) days following the end of each calendar year quarter (January 30th, April 30th, July 30th, and October 30th) during the validity period. A preliminary final financial report covering the entire period of the agreement shall be submitted within ninety (90) days after the expiration date of this agreement and then updated and submitted on March 31, 2018. This preliminary final report shall include the total charges for each budget category reflected in Section 5 including charges for post-performance activities such as audits and evaluations. Should the Recipient have awarded $15,000 or more to a subrecipient for the implementation of a portion of this project, the reports shall identify the name and amount of funds given to each sub-recipient organization.
Should the funds provided under this cooperative agreement reimburse the Recipient for only a portion of the total costs of this project with additional costs being covered from other Federal or private resources, the financial reports required by the Bureau must reflect the costs to be charged to the Bureau's cooperative agreement and those costs to be charged to other financial resources for the total cost of the project.
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#: 5689

Name of Recipient

S-PRMCO-17-CA-1XXX

Reports reflecting expenditures for the Recipient’s overseas and United States offices shall be completed in accordance with the Federal Financial Report (FFR SF-425) and submitted electronically in the Department of Health and Human Services’ Payment Management System and transmitted as a Grant Note through www.grantsolutions.gov.
Expenses to be charged against this agreement must be for actual costs incurred for authorized activities that are adequately documented and that can be confirmed through an audit. Expenses based on an average or prorated share of costs that do not represent individually identified costs or those that cannot be specifically confirmed through an audit shall not be charged to or reported under this agreement.
Should the Recipient receive refunds or rebates after the reporting period, these must be returned with a revised preliminary final financial report within thirty (30) days of the receipt of such refunds or rebates.
For the Recipient that has an approved USG indirect cost rate: A final financial report, including any allowable post performance charges for an audit and/or an evaluation, shall be submitted within sixty (60) days from the date the Recipient countersigns an indirect cost rate agreement with its cognizant government agency that establishes final rates applicable to the validity period of this agreement. This final financial report shall have the authorized charges detailed by the time period covered by each different indirect cost rate in effect during the validity period of this agreement.
Reconciliation of Claimed Refugee Sponsorships
The Recipient shall reconcile with the RPC within sixty (60) days its claimed arrivals each month. A final summary of the Recipient's claimed arrivals for the period October 1, 2016 through September 30, 2017 must be reconciled with the RPC no later than December 31, 2017.
Inventory Report
A report shall be submitted within thirty (30) days prior to the expiration of this agreement listing all items and purchase price of all non-expendable tangible personal property having a useful life of more than one year and having a current per unit fair market value of $5,000 or more per unit which were purchased with funds provided under this agreement. This report must include the following information for each item purchased: description, date of purchase, serial number, and the country in which the item was used.
This required inventory report shall include any items of non-expendable tangible personal property that were purchased under a previous Bureau funding arrangement that continue to be used in activities funded under this agreement.
The required inventory report shall also include the Recipient’s specific recommendations for the disposition of each item of non-expendable tangible personal property. In certain circumstances, the proposed disposition may include a recommendation to retain specified items for continued use in other Bureau funded activities or similar activities carried out by the Recipient. If such
Page 12 of 40

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#: 5690

Name of Recipient

S-PRMCO-17-CA-1XXX

property is no longer required for authorized activities, a recommendation for final disposition, e.g., sale, donation or disposal, shall be specified.
Quarterly Status Report
The Recipient shall submit calendar quarterly status reports, in the formats attached hereto as Attachment C. The Attachment C reports shall be submitted within thirty (30) days following the end of each calendar year quarter (January 30th) during the validity period and transmitted as a Grant Note through www.grantsolutions.gov. Proposed revisions or adjustments to the report may only be made within the subsequent sixty (60) days following the report deadline for each calendar quarter or ninety (90) days from the end of the calendar quarter. Adjustments to direct costs proposed subsequently to this ninety (90) day period will not be considered for reimbursement under this agreement, except for possible charges for post-performance activities such as audits, evaluations and adjustments for indirect costs.
In recognition of the delay in determining final per capita earnings based on final reconciliation of arrivals, the Recipient may adjust the allocation of expenses between per capita and private resources, but may not increase expenses, during the one hundred twenty (120) day period for submission of the final expenditure report.
A final Attachment C report for expenditures together with a summary report of the previously reported quarterly expenditures shall be due March 31, 2018. This report is to include any proposed revisions or adjustments to direct costs and to include earned income based on the reconciliation of arrivals with the Refugee Processing Center. After this date, no revisions or adjustments of direct expenditures or adjustments of direct costs charges or earned per capita income will be recognized for consideration under this agreement.
For National Management expenses: In addition to the SF-425 required above, a listing of total expenditures by the Items of Expenditure Categories set forth in Attachment C of this agreement reflecting separately the costs being charged to this agreement and those charged to other sources. The quarterly line item expenditure reports must be transmitted as a Grant Note through www.grantsolutions.gov.
For Local Office/Affiliate and Payments to or on Behalf of Refugees expenses: In addition to the SF-425 required above, a reporting of expenditures shall be completed as set forth in Attachment C of this agreement that indicate per capita income earned during the reporting period, expenditures incurred chargeable to per capita funds, and the total amount of non-Federal funds used to augment the per capita funds. This information is to be provided by affiliate noting the affiliate RPC code and city, number of refugees arrived, affiliate expenses per capita expenditure, and per capita expenditures to or on behalf of refugees during the quarter as set forth in Attachment C. The quarterly expenditure reports must be transmitted as a Grant Note through www.grantsolutions.gov.
Availability of Per Capita Funds

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#: 5691

Name of Recipient

S-PRMCO-17-CA-1XXX

A written statement must be submitted on or before December 31, 2017 as a Grant Note through www.grantsolutions.gov reporting the amount of per capita funds and accrued interest unexpended and available as of October 1, 2017. This statement must confirm the amount of those funds that were expended and reported as a part of the quarterly financial reports for the period October 1, 2016 through September 30, 2017.
Should the Recipient have any unexpended per capita funds as of the financial report due on March 31, 2018, such funds must be returned to the Bureau no later than April 30, 2018.
IOM Promissory Note Repayments OR (omit for ECDC)
The Recipient shall submit as a Grant Note through www.grantsolutions.gov quarterly reports of transportation loan repayments indicating amounts repaid and remitted to the International Organization for Migration within thirty (30) days of the end of each reporting period. The reports shall be due on or before January 30, 2017, April 30, 2017, July 31, 2017, and October 31, 2017.
8. Acknowledgement of DOS or USG involvement:
The Recipient shall acknowledge the involvement of the USG, as outlined in the Department of State Standard Terms and Conditions, Attachment B.
9. Waiver of the Publications for Professional Audiences: N/A
10. Pre-Award Costs:
The Department of State hereby agrees to reimburse the recipient for costs incurred and considered allowable within the amounts of the Authorized Budget – Section 5. This pre-award condition applies to costs incurred from October 1, 2016 until the date of the award.
11. Substantial Involvement:
The Recipient shall carry out its operational and administrative responsibilities hereunder in close coordination with and under the direction of the Bureau. For the information of the Recipient, responsibilities relevant to this agreement are allocated as follows:
a. Bureau
1) Office of Admissions
Acting as the Grants Officer's representative:
a) Provides overall policy guidance and program direction.
b) Reviews and comments on proposed budget for the Recipient.
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#: 5692

Name of Recipient

S-PRMCO-17-CA-1XXX

c) Reviews and comments on proposed changes or revisions in terms of this agreement.
d) Monitors and evaluates the general performance of the Recipient's operations under this agreement to ensure that the established responsibilities and objectives are being successfully met, maintains contact, including site visits and liaison, with the Recipient, assists the Grants Officer in the review of required Recipient Program and Financial Progress Reports to verify timely and adequate performance, and provides the Bureau regular written reports on whether performance is in compliance with all the terms and conditions of this agreement.
2) Office of the Comptroller
a) Reviews and negotiates with the Recipient's headquarters the Recipient's budget and any subsequent requests for funding.
b) Prepares and executes the cooperative agreement, interprets the terms thereof, arranges for payment, works with the Recipient's headquarters for the overall administration of the funded activities, and is the mandatory control point of record for all official communications and contacts with the Recipient that may affect the budget, the project scope, or terms and conditions of the award.
c) Considers requests for amendments to the cooperative agreement and, upon determination of appropriateness, prepares and executes formal amendments to the cooperative agreement. Only the Grants Officer may amend the cooperative agreement.
d) Monitors and evaluates the Recipient's performance in providing refugee transportation loan services.
12. Program Income: N/A
13. Cost-Sharing: N/A
14. Sub-recipients: N/A
15. Additional Bureau Specific Requirements:
Responsibilities of the Recipient: The Recipient shall perform its responsibilities under this agreement in coordination with the Bureau and in a manner consistent with United States law and policy.
a. Program Management

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#: 5693

Name of Recipient

S-PRMCO-17-CA-1XXX

1) The Recipient shall provide the core services specified in section 16 below to refugees who are assigned to it under this agreement and who arrive in the United States during the period of this agreement in a manner consistent with United States law and policy.
2) In compliance with the Bureau's policy that all funded activities be implemented in a manner that fully meets the standard of conduct established by the Inter-Agency Standing Committee (IASC) Task Force on Protection from Sexual Exploitation and Abuse in Humanitarian Crises, ensure that the activities conducted with funds provided under this agreement are implemented in accordance with the Recipient’s established code of conduct submitted to the Bureau in its proposal (Attachment A). Should any change be made to the Recipient’s code of conduct during the validity period of this agreement, inform the Bureau in writing within thirty (30) days of the changes for consideration of whether the revised code continues to meet the Bureau’s standard of core principles.
3) The Recipient is reminded that U.S. Executive Order and U.S. law prohibits transactions with, and the provision of resources and support to, individuals and organizations associated with terrorism. It is the legal responsibility of the Recipient to ensure compliance with these Executive Orders and laws. This provision must be included in all sub-contracts/sub-awards issued under this agreement.
4) The U.S. Government is opposed to prostitution and related activities, which are inherently harmful and dehumanizing, and contribute to the phenomenon of trafficking in persons. None of the funds made available under this agreement may be used to promote, support, or advocate the legalization or practice of prostitution. Nothing in the preceding sentence shall be construed to preclude assistance designed to ameliorate the suffering of, or health risks to, victims while they are being trafficked or after they are out of the situation that resulted from such victims being trafficked. This provision shall be incorporated into all sub-agreements under this agreement. The Recipient does not promote, support, or advocate the legalization or practice of prostitution.
5) Branding and Marking Strategy: State in all appropriate publications, electronic and printed descriptions, including press releases, annual reports, and financial statements that reception and placement activities conducted under this agreement are paid for, in part, through financial assistance provided by the Department of State.
6) Accord the Bureau and its authorized representatives the legally enforceable right to examine, audit and copy, at any reasonable time, all records in its possession pertaining to this agreement.
7) Assist the Bureau, as appropriate, in evaluating the Recipient’s performance under this agreement by facilitating access to all relevant records and to all persons directly involved under this agreement.
8) Permit the Bureau to make available to the public the Recipient’s performance outcomes, the Bureau’s monitoring reports on the Recipient and its affiliates, and the Recipient’s final consolidated placement plan, in a manner to be determined by the Bureau.
b. Prior Approval Requirements and Revision of Budget and Program Plans. The Recipient must submit all requests for prior approvals and revisions required under this award in writing to the GO/GOR, before the project period end date indicated on form DS-1909. Final approval is subject to review and acceptance by the GO. The transfer of funds among direct cost categories or programs, functions and activities for which the cumulative amount of such transfers exceeds
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#: 5694

Name of Recipient

S-PRMCO-17-CA-1XXX

or is expected to exceed 10 percent of the total approved budget (see 2 CFR 200.308(e)) requires prior approval by the GO by way of amendment.
16. Specific Conditions: Reception and Placement Program Core Services
a. Definitions
For the purposes of this agreement and the Attachments thereto, which are an integral part of it:
1) "Refugee" means a person admitted to the United States under section 207(c) of the Immigration and Nationality Act, as amended, or a person to whom eligibility for the resettlement assistance available to individuals admitted under section 207(c) has been extended by statute.
2) "Agency" means a public entity or a private nonprofit organization, registered as such with the Internal Revenue Service under 26 U.S.C. 501(c)(3), having a cooperative agreement with the Bureau for reception and placement services.
3) “Affiliate” means: a) a regional office of an Agency, which is part of the corporate structure of the Agency; b) a public entity or a private nonprofit legal entity which has accepted in a written agreement with the Agency responsibility to provide, or ensure the provision of, reception and placement services to certain refugees sponsored by an Agency; or c) a sub-office of an entity referred to in subparagraph 2) “Agency” above that the Recipient proposes for affiliate status in the proposal for the FY 2017 program or during the course of the year, and that the Bureau agrees in writing may serve as an affiliate. A "sub-office" is defined as an office where reception and placement services are provided and refugee case files are maintained during the reception and placement period with management oversight provided by a nearby affiliate office.
4) "Local co-sponsor" means an established community group, such as a congregation or service organization, which has accepted in a written agreement with an Agency responsibility to provide, or ensure the provision of, reception and placement services to certain refugees sponsored by an Agency. Individuals or informal groups may not serve as local co-sponsors. Local co-sponsors differ from volunteers in that they agree in writing to accept responsibility for performing certain services required in this agreement.
5) “Local resettlement agency” means “Affiliate” (see above). 6) "The Refugee Processing Center” (RPC) means the center located at 1401 N. Wilson
Boulevard, Arlington, Virginia 22209, which will manage, on behalf of the Bureau, data processing of refugee cases. 7) "Assurance" means a written commitment, submitted by a Recipient, to provide, or ensure the provision of, the basic needs support and core services specified in subsections 16.3.g.1 through 16.3.g.6 of the cooperative agreement for the refugee(s) named on the assurance form. 8) “Reception and Placement period” (R&P period) means an initial thirty (30)-day period that can be extended up to ninety (90) days after arrival should more than thirty (30) days be required to complete R&P Program requirements.
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#: 5695

Name of Recipient

S-PRMCO-17-CA-1XXX

9) "Employable refugee" means any refugee who is between the ages of 18 and 64 other than a refugee who: a) is required to be in the home to care for a child under one year of age or other fully dependent person (only one adult per household unit may be considered to be in this category); or b) is unable to work for physical or mental health reasons.
10) "Loan Services" means those activities deemed appropriate through consultation with the International Organization for Migration and the Bureau to ensure that maximum efforts are made to conduct required loan activities for refugees signing Promissory Notes executed by IOM for funds advanced by the Bureau to cover transportation costs to the United States.
11) “Appropriate language interpretation/translation” means interpretation/translation which allows for communication with the refugee in his/her native language, if possible, or in a common language in which the refugee is fluent.
b. Performance Standards
The Bureau will evaluate Recipient performance on an ongoing basis and will expect timely Recipient cooperation to remedy any identified weaknesses in affiliate, sub-office, or Recipient performance. The Bureau may find it necessary to restrict placement of cases to affiliate offices for a period of time to allow for corrective action by the national Agency.
The Recipient will permit the Bureau to monitor its affiliates upon advance notice, and, when Bureau on-site or telephonic monitoring results in recommendations for modifications in the operations of an affiliate of the Recipient, respond to the Bureau's recommendations in writing and ensure that required modifications are implemented at the local level within the specified time-frame. If the Recipient fails to comply with this provision, the Recipient may be prohibited by the Bureau from utilizing funds received under this agreement for further resettlement by the affiliate.
The Bureau will evaluate Recipient performance in the following areas:
1) Reception and Placement Program Objectives and Indicators and Recipient Objectives and Indicators as stated in Section 1.c. and 1.d.
2) National Agency Program Management a) Staff training Headquarters shall have in place a formal plan for training new headquarters staff and affiliate directors, and should ensure that each affiliate has a structured training plan for each of its new employees. Headquarters shall also have in place a mechanism for training existing staff at all levels on changes that occur in the R&P Program, as well as local and national legislative changes that affect refugee resettlement. Training for new and existing staff at all levels shall include the national and/or local established code of conduct. b) Communication with Affiliates on Policy Changes
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#: 5696

Name of Recipient

S-PRMCO-17-CA-1XXX

Headquarters shall have in place mechanisms for informing affiliates of policy changes and shifts in expected refugee arrivals. Headquarters shall also have in place mechanisms for informal communications with affiliates on everyday resettlement issues. c) Strategy for Site Selection Headquarters shall have in place a coherent strategy for selecting resettlement sites and placement of individual refugee cases. That strategy should show evidence of adaptability to new circumstances, e.g., influx of new populations, welfare or economic changes in any given location. Such strategy should also provide adequate justification for continued use of a site with poor employment outcomes. d) Corrective Action on Program Deficiencies Headquarters shall maintain records of corrective actions taken and evidence of final compliance by affiliates in response to recommendations made by headquarters and Bureau monitors during on-site and telephonic monitoring reviews. These records should show evidence of follow-up as needed, and should address each recommendation made by the monitors. e) Employment of Refugees Although the Recipient is not required to effect job placement through its own efforts, this agreement requires that the Recipient provide employment orientation and assistance with enrollment in appropriate employment services. Refugee program service providers or other resources available in the community may accomplish job placement. Since employment is recognized as one of the significant elements in successful resettlement, the Recipient will determine the employment status of each employable refugee at the end of the R&P period. f) Out-Migration of Refugees The Bureau will review the Recipient’s out-migration performance as a part of its annual review. g) On-Site Affiliate Monitoring
i. Frequency of Monitoring Headquarters shall maintain records verifying that it conducts on-site monitoring of each affiliate and sub-office in its network at least every three (3) years, unless the office has resettled fewer than twenty-five (25) refugees during the previous fiscal year. Headquarters should perform and document monitoring of a new affiliate or sub-office within twelve months of the date opened in WRAPS. Headquarters should also perform and document monitoring visits to affiliate offices that have experienced a turnover in resettlement directors within one (1) year of the new director’s appointment, which resets the three (3)-year monitoring cycle for that affiliate. Bureau exceptions to these requirements, which should be requested only in exceptional circumstances, should also be documented.
ii. Written Reports Headquarters monitors shall write a formal report for each monitoring visit they conduct. The reports shall include:

Page 19 of 40

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#: 5697

Name of Recipient

S-PRMCO-17-CA-1XXX

(a) a description that quantifies and qualifies how the affiliate coordinates volunteers and develops private resources for Reception and Placement activities;
(b) evidence of the affiliate’s policy on how refugee per capita funds beyond the $925 per person minimum are spent;
(c) a narrative statement describing the affiliate’s R&P program, including quality of housing, local services, and the local resettlement environment;
(d) evidence of a review of the affiliate’s performance and compliance with R&P requirements;
(e) evidence of contacts made by the monitor(s) with state and local refugee program officials, including the state refugee coordinator and state refugee health coordinator;
(f) evidence of compliance with quarterly stakeholders meeting requirements;
(g) evidence of the affiliate’s training for new and existing staff; (h) evidence of the affiliate’s policy on protection from sexual
exploitation and abuse; (i) evidence of the monitor’s review of five percent (5%) (but not
fewer than ten (10) cases, nor more than thirty (30) cases) of all case files for cases which arrived during the preceding twelve (12)month period, including a representative sample of local cosponsor placement, if applicable. The monitoring report must indicate whether the case files contained fully completed and implemented service plans for each member of the family, evidence of timely and compliant delivery of all required services, evidence of compliant documentation of R&P per capita expenditures, and R&P period reports. The report must also indicate whether the case logs presented a complete and accurate picture of the resettlement process; (j) evidence of the monitor’s visit to at least four (4) refugee cases in their homes, and an assessment of the welfare, living conditions, current needs, and the affiliate’s assistance with the provision of basic needs and core services. If fewer than four (4) cases have arrived in the fiscal year being monitored, all arrived cases for that fiscal year shall be included in home visits; and (k) recommendations for any necessary follow-up. h) The following documents shall be available to the Bureau upon request. The documents shall be accurate and complete, be submitted in a timely manner, and adhere to all requirements: i. R&P Period Reports ii. Sponsorship Assurances iii. Affidavits of Relationship iv. Ninety (90)-day follow-up reports for minors coded M2-M3 and M5-M7 v. Quarterly R&P Program Reports vi. Record of affiliates’ local consultations
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#: 5698

Name of Recipient

S-PRMCO-17-CA-1XXX

vii. Annual Report viii. Reconciliation of Claimed Refugee Sponsorships ix. Quarterly Financial Status Reports x. Availability of Funds Statement for Current Fiscal Year xi. Audit Data Collection Form and Reporting Package xii. Staff training plans and reports of training xiii. Policy on the Prevention of Sexual Exploitation and Abuse 3) Bureau Monitoring of Agency Affiliates a) On-Site Monitoring Visits All affiliates and sub-offices are subject to monitoring by the Bureau with advance notice to the Recipient and affiliate. Findings and recommendations will be reported in writing to the Recipient, which will respond to the recommendations in writing before reports become final. Evaluation will be based on affiliate staff interviews, oral and written questionnaires, case file reviews, and refugee home visits. Reviews will include evaluation of: i. affiliate staff understanding of required Reception and Placement
Program services; ii. demonstration of effective coordination with other organizations and
agencies that provide services to refugees; iii. compliance and quality of R&P basic needs support and core service
delivery; iv. presence of all documents in files and degree to which each has been
thoroughly and legibly completed; v. evidence of the affiliate’s training of new and existing staff, volunteers,
and co-sponsors; vi. evidence of the affiliate’s policy on the prevention of sexual exploitation
and abuse; and vii. affiliate R&P performance outcomes. The Bureau will provide an oral overview of its findings and recommendations to the affiliate immediately following the review. b) National Agency Response The responsiveness of the Recipient to the Bureau's monitoring reports, including timeliness of response to the draft report and timely implementation of recommendations will be evaluated.
c. Performance of Core Services by or Under the Direction of the Recipient
1) A written proposal, submitted by the Recipient and incorporated into this agreement as Attachment A, will constitute the basis for the assignment of Reception and Placement responsibility for specific refugees. Subject to any limitations established in this agreement (e.g., the inability of the Recipient to assist refugees of a particular linguistic group), the Bureau may assign a reasonable number of special cases to any participating Recipient. The Recipient shall describe its network of affiliates in its annual proposal, including the proposed service area to be covered by each affiliate. A Recipient may assure and place a case assigned to it under the Agreement only within the approved service area and caseload projections of its approved affiliates as set forth in the proposal.
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#: 5699

Name of Recipient

S-PRMCO-17-CA-1XXX

The Bureau authorizes cases with U.S. ties to be placed within a radius of 100 miles within the same state of the affiliate and cases without U.S. ties to be placed within a radius of 50 miles within the same state of the affiliate. 2) The Bureau will consider approving a larger service area for cases with U.S. ties when the Recipient demonstrates to the satisfaction of the Bureau that the larger area will not impair the quality of service provided to refugees placed in that area. The Recipient will ensure that the affiliate will be able to respond on a same day basis to any urgent needs of the refugees and assist the refugees to resolve the issues. 3) The Recipient may propose to open a new affiliate or sub-office during the validity period. The Recipient must provide a statement of rationale for each proposed new site. The rationale should be accompanied by: a completed abstract; a letter of support from the proposed site’s governing entity; a letter of support from the state refugee coordinator; letters of support from local refugee service agencies; an explanation of the proposed management structure at the new location; a timeline for the opening of the proposed site and implementation of program activities; and a detailed training plan for R&P staff. Each affiliate or sub-office abstract should present information pertaining only to activities of that specific office and should not include data related to activities corresponding to partner agencies (at joint sites), sub-offices, or administering affiliates. Abstracts representing jointly operated affiliates must contain information in all fields regarding only the sponsoring Agency’s activities; it should not reflect a combination of partner Agencies’ information. The Bureau may request additional information. 4) The Recipient must inform the Bureau and the relevant state refugee coordinator in writing of the intended closure of an established affiliate or sub-office at least thirty (30) days in advance of closure. The notification submitted to the Recipient’s designated program officer in the Bureau should include: a plan for completion of services for all active R&P cases; a list of all assured cases that have not arrived to be returned to the RPC for reallocation; a list of all outstanding Affidavits of Relationship (AORs), including pre-case ID numbers, and anchor contact information; a plan for the disposition of all R&P records and case files (to be retained for a period of no less than three years), including a plan to transfer files to the affiliate designated to receive active cases; and a copy of the Recipients’ notice of closure letter to the state refugee coordinator.
As a part of the affiliate closure process, the Bureau must approve in advance the transfer of AORs and current cases from the closing affiliate to any other affiliate. This includes transfers to another affiliate within the Recipient’s network. Upon approval by the Bureau, the affiliate closure plan will be forwarded to the RPC for action.
In the case of planned consolidation of a sub-office operation into an administering affiliate, the Recipient should follow the procedures outlined above and prepare a revised Abstract for submission to the Bureau which reflects the consolidation information.
The Recipient will further ensure that its affiliate provides written notification to all active cases and to persons with AORs on file at the closing site. The closing affiliate should inform filers of AORs that they may express in writing a preference to work with a specific alternate affiliate. If the AOR filer identifies an alternate affiliate, the Recipient will transfer the AOR directly to the appropriate R&P Agency upon approval
Page 22 of 40

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#: 5700

Name of Recipient

S-PRMCO-17-CA-1XXX

by the Bureau. Evidence of such direct transfers should be included in the closure plan submitted to the Bureau. All other outstanding AORs will be transferred to nearby affiliates by RPC, in coordination with the Bureau. 5) A copy of the signed assurance form will be maintained on file at the headquarters of the Recipient for a period of at least one year from the date the refugee enters the United States. 6) With respect to every placement, the Recipient or affiliate will have on staff, or available from within the community of resettlement, persons who can communicate with the refugee in a common language and who can assist with the provision of services in person, as needed. These services will be available to the refugee on a daily basis during the R&P period. 7) The procedures for initial assignment, assurance, and transfer of refugee cases are set forth in the Allocations Handbook, which may be updated during the agreement period and is hereby incorporated by reference. 8) The basic needs support and core services shall be provided to any refugee assigned to the Recipient during the R&P period after the refugee's arrival in the United States, except where a different period of time is stated. 9) The basic needs support and core services shall be provided in accordance with the proposal submitted by the Recipient as approved by the Bureau. Deviations from the proposal involving the addition of affiliates or increases of more than ten percent (10%) in each proposed affiliate’s caseload must be approved in advance in writing by the Bureau. An increase in an affiliate’s caseload does not increase the total number of a Recipient’s proposed and accepted total network capacity for refugee arrivals during the fiscal year. Any increase in a Recipient’s total network capacity for refugee arrivals must be requested by the Recipient in writing and approved in advance in writing by the Bureau. It is understood that caseload may fall short of that in the proposal, and deviations resulting from such shortfall do not require Bureau approval. 10) Faith-based Recipients should take steps to ensure their inherently religious activities, such as religious worship, instruction, or proselytizing, are separate in time or location from the government-funded services that they offer. Also the Recipients may not require refugees to profess a certain faith or participate in religious activities in order to receive services. 11) Recipients shall request prior approval from the Bureau for one or more of the following program or National Management budget related reasons:
a) Change in the scope or the objective of the project or program (even if there is no associated budget revision requiring prior written approval).
b) Change in a key person specified in the application or award document (as specified in the 2 CFR 200).
c) The absence for more than three months, or a twenty-five percent (25%) reduction in time devoted to the project, by the approved project director.
d. Delegation of Functions by the Recipient 1) Unless otherwise provided herein, the responsibilities assumed by the Recipient shall be delegated only to an affiliate designated in the approved proposal, who may re-delegate such responsibilities to a local co-sponsor, provided such co-sponsor is identified on the applicable assurance form submitted to the RPC. When the Recipient relies on an
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#: 5701

Name of Recipient

S-PRMCO-17-CA-1XXX

affiliate or local co-sponsor to provide a service, the Recipient shall remain responsible for ensuring that the service is provided. 2) Any local co-sponsor to whom the Recipient's responsibility for providing core services is re-delegated by an approved affiliate must be located in the affiliate's approved area of geographic responsibility, as designated in the proposal. When the affiliate has an agreement with a local co-sponsor to provide basic needs support or core services, the affiliate shall remain responsible for ensuring that the services are provided. 3) The Recipient, and any affiliate and/or local co-sponsor to which a delegation is made, must carry out its responsibilities in accordance with Title VI of the Civil Rights Act of 1964.
e. Coordination and Consultation with Public Agencies
The Recipient shall: 1) Conduct placement planning, reception, and basic needs and core service activities in
close cooperation and coordination with state and local governments. In each placement location, the affiliate(s) responsible for refugee placement shall convene and conduct quarterly consultations with state and local government officials concerning the sponsorship process and the intended distribution of refugees in such localities before their placement in those localities. Local participation should include, at minimum, representation from the following offices: state refugee coordinator; state refugee health coordinator; local governance (city and/or county, as applicable); local and/or county public health; welfare and social services; public safety; and public education. Consultations may take place in person and simultaneously via teleconference, videoconference, or a combination thereof. The content of the consultations should include year-to-date arrivals and projections through the end of the current federal fiscal year compared to approved placement numbers; a presentation of characteristics of arriving refugee populations including nationality, ethnicity, average family size and composition, language and education background, and medical conditions; a discussion of the participant stakeholders’ abilities to adequately receive and serve the actual and projected caseload; and a discussion about aspects of integration to support refugee participation in civic life. Issues that might prevent adequate resettlement should be discussed. Concerns that might result in changes to the approved placement plan should be raised with the affiliate’s/affiliates’ headquarters immediately, and resolved. Existing procedures and protocols between the Bureau and the resettlement agencies shall be used to make any necessary changes to approved placement plans.
One of these consultations shall take place in preparation of an Agency’s application to participate in the R&P Program the following fiscal year. Agencies will keep a record of their affiliates’ local consultations and report on the number and percentage of their affiliates in compliance with this guidance. Agencies will report to the Bureau in quarterly narrative reports the number and percentage of affiliates in compliance, as well as describe both best practices and issues that prevent adequate resettlement or result in changes in placement plans;

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#: 5702

Name of Recipient

S-PRMCO-17-CA-1XXX

2) Ensure that its affiliates participate in appropriate meetings called by state and local governments in their geographic areas of responsibility to coordinate plans for the placement of refugees;
3) Coordinate with other publicly supported refugee services programs or refugee case management systems; and
4) Inform both the Bureau and the Department of Homeland Security Bureau of Citizenship and Immigration Services of any suspected fraud in any refugee case sponsored by the Recipient. Such reporting is required of the Recipient regardless of whether the applicants are still overseas or whether they have already been admitted into the United States as refugees.
f. Limitation of Responsibility to Perform Core Services
1) The Recipient shall be relieved of its responsibilities under this agreement to the extent they cannot be carried out because (1) the refugee does not remain in the general geographic area where initially placed or (2) the refugee refuses to receive services from or to cooperate with the Recipient, its affiliates, or its local co-sponsors. In cases when non-cooperation by the refugee makes compliance impossible, the Recipient should ensure that the refugee is counseled and that such counseling and result is noted in the case file. Unexpended refugee per capita funds may be retained by the affiliate and returned to Bureau. Any other barriers to full compliance that are beyond the control of the Recipient should be documented in the case notes.
g. Core Services
1) Pre-Arrival Services The responsibilities in paragraphs a), b), c), and d) below may not be delegated; the responsibilities in paragraph e) for training local co-sponsors may be delegated to an affiliate. Training must be provided in person by a representative of the Recipient or its affiliate to any local co-sponsor that has not resettled a refugee who arrived in the United States within the past two (2) years. The Recipient shall: a) Assume responsibility for sponsorship of the refugees assigned to the Recipient under this agreement; b) Arrange the placement of sponsored refugees in accordance with the policies established under Section 412(a)(2) of the INA and this agreement; c) Ensure that its affiliates and local co-sponsors share relevant information with health care providers and/or state and local officials, as needed, in order to plan for the provision of appropriate health services for refugees who have health care requirements; d) Submit sponsorship assurances to the RPC; and e) Train any affiliate or local co-sponsor that has agreed in writing to assist the Recipient in sponsorship and ensure that the affiliate or local co-sponsor understands the overall sponsorship process, the Recipient's role, and the responsibilities of affiliates and local co-sponsors.
2) Case File Preparation and Maintenance
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#: 5703

Name of Recipient

S-PRMCO-17-CA-1XXX

The Recipient shall establish and maintain a case file for each arriving refugee case. This responsibility may be delegated only to an affiliate. It is expected that each case file shall be treated as confidential, in accordance with Immigration and Nationality Act Sec. 222(f). Case files may be retained in electronic or hard copy format. Case files covering minors coded M2 through M7 must be clearly identified and easily segregated. Secure electronic signatures are acceptable. Each case file shall contain evidence of required basic needs support and core service delivery, including:
a) a clearly legible case note log which shows the date, mode, substance, and interpretation utilized in regular affiliate/refugee contact throughout the R&P period and which identifies the person or entity making such contact;
b) a clear plan of action and follow-up (resettlement service plan) for each refugee, including children, based on an assessment of individual needs and which indicates the initial assessment of employability for each refugee, including the reason(s) a person may not be employable;
c) a detailed record of basic needs support and core service delivery; d) a record of cash and in-kind support provided to meet the refugees' basic needs
for at least the initial thirty (30)-day period, including clear acknowledgement by the adult member of the refugee case in receipt of cash and in-kind support and evidence that the amount provided either in cash or documented cash payments on behalf of the refugee case is equal to at least $925 times the number of individuals in that case and reflects the total Bureau R&P per capita amount spent on the refugee case; e) a record of all public assistance applied for and received or denied, indicating type(s) of assistance and start date(s) including a record of all notifications from a state, county, or other local welfare office that the refugee has applied for welfare benefits and a record of all information the Recipient provided to state, county, or other local welfare offices and of all information provided by such offices to the Recipient; f) if appropriate, a copy of the signed co-sponsor agreement; g) evidence that housing was provided in accordance with this agreement; h) evidence that an intake interview as described herein was conducted; i) evidence that orientation as described herein was completed, and documentation of refugee understanding of orientation topics; j) evidence that the affiliate has conducted at least two (2) home visits, which shall include a documented assessment of the welfare, living conditions and any current or expected needs of the refugee(s), and assistance with any basic needs, within (30) thirty days of arrival by affiliate staff, co-sponsor, or other designated representative and an additional home visit to permanent housing if the refugee moves from temporary housing within the R&P period. Cases must be visited the next calendar day after arrival. An additional home visit should occur for all cases within thirty (30) days of arrival; k) documentation of assistance with enrollment in relevant social service programs; l) evidence that the refugee was provided with information on permanent resident alien status and family reunion procedures, and assisted with completing and filing Affidavits of Relationship as appropriate;
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#: 5704

Name of Recipient

S-PRMCO-17-CA-1XXX

m) evidence that the refugee was provided with information on the legal requirement to notify the U.S. Department of Homeland Security of each change of address and new address within 10 (ten) days, and assisted, to comply with this requirement. Authority: Secs. 103, 265 of the Immigration and Nationality Act, as amended by sec.11, Public Law 97-166, 95 Stat. 1617 (8 U.S.C. 1103, 1305);
n) evidence that the legal requirement for males age 18 through 25 to register for the selective service within thirty (30) days of arrival has been completed (as appropriate) and that the refugee was provided with information on the requirement to notify the Selective Service System of each change of address;
o) a legible copy of the transportation letter and I-94 form (or visa for SIVs) for each refugee in the case;
p) a R&P period report, which will be retained by the affiliate for a period of not less than three (3) years from the date of arrival, based upon an interview with the refugee by the affiliate or local co-sponsor from which it can be determined, inter alia: i. that all R&P basic needs support and core services were made available to the refugee in accordance with this agreement; ii. whether the refugee household had income in excess of expenses at the end of the R&P period; iii. that each refugee was enrolled in state-funded or other appropriate social services; iv. the social security number for each refugee in the case;
q) a copy of the assurance form or equivalent documentation; and r) where applicable, copies of suitability determinations for placement of refugee
minors, follow-up evaluation forms, signed statements concerning responsibilities and legal obligations in the state of residence, and a copy of the best interest determination (BID) of the child, if available. 3) Reception Services The Recipient shall ensure that refugees assigned to it are met at the airport of final destination and transported to furnished living quarters and provided culturally appropriate, ready-to-eat food and seasonal clothing as necessary to meet immediate needs. The Recipient shall visit the refugees the next calendar day after arrival to ensure that all immediate basic needs have been met and to provide refugees with basic orientation regarding housing and personal safety matters, including emergency contacts and procedures. These services shall be provided with appropriate language interpretation. 4) Basic Needs Support Upon arrival and for a period of not less than thirty (30) days after arrival, the Recipient shall provide or ensure that the refugees assigned to it are provided the following: a) Decent, safe, and sanitary housing based on federal housing quality standards or local or state standards if local or state standards are higher than federal standards, and the following:
i. All areas and components of the housing (interior and exterior) should be free of visible health and safety hazards and in good repair, including no visible bare wiring, no peeling or flaking interior paint for dwellings built
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#: 5705

Name of Recipient

S-PRMCO-17-CA-1XXX

before 1978, no visible mold, and no detectable dangerous or unsanitary odors. ii. Housing should include identified and accessible emergency escape route(s); fire extinguishers in accessible locations where required; working locks on all windows and outside doors; appropriate number of working smoke detectors; windows in working order; adequate heat, ventilation, lighting, and hot and cold running water in working order; and electrical fixtures in good repair. iii. Housing should provide minimum habitable area for each occupant, including number of bedrooms or sleeping areas. iv. Each residence shall be equipped with stove, oven, refrigerator, sink, flush toilet, and shower or bath in good repair. v. Each residence shall have easily accessible storage or disposal facility for garbage. vi. Each residence shall be free of rodent and insect infestation. vii. In cases of refugees with disabilities, housing should be free of, or permit the removal of, architectural barriers and otherwise accommodate known disabilities, to the extent required by law. viii. To the extent possible, the family should be able to assume payment of rent at the end of the R&P period, based upon projected family income from all sources. The family should be left with sufficient resources for other essential expenses (food, transportation, utilities, etc.) after rent payments are made. b) Furniture and household items that need not be new, but must be clean, in good condition, and functional and include the following: i. Beds (described as bed frame and spring, or equivalent, and mattress) appropriate for age and gender composition of family; one set of sheets for each bed; blanket or blankets for each bed as seasonally appropriate; and one pillow and pillowcase for each person. Only married couples or small children of the same gender may be expected to share beds. ii. One set of drawers, shelves, or other unit appropriate for storage of clothing in addition to a closet, unless the closet has shelving to accommodate clothing, per family. iii. One kitchen table per family and one kitchen chair per person. iv. One couch, or equivalent seating, per family, in addition to kitchen chairs. v. One lamp per room, unless installed lighting is present and adequate, and light bulbs. vi. One place setting of tableware (fork, knife, and spoon) and one place setting of dishes (plate, bowl, and cup or glass) per person. vii. Food preparation utensils to include at least one sauce pan; one frying pan; one baking dish; mixing/serving bowls; one set of kitchen utensils (such as spatula, wooden spoon, knife, serving utensils, etc.); and one can opener per family, and additional items appropriate to family size and composition. viii. One bath towel per person. ix. One alarm clock.
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#: 5706

Name of Recipient

S-PRMCO-17-CA-1XXX

x. Paper, pens, and/or pencils. xi. Cleaning supplies to include: dish soap, bathroom/kitchen cleanser,
sponges or cleaning rags and/or paper towels, laundry detergent, two waste baskets, mop or broom, and trash bags. xii. Toiletries to include: toilet paper, shampoo, soap, one toothbrush per person, toothpaste, and other personal hygiene items as appropriate. These items should be new. xiii. Baby items as needed. c) Food or a food allowance to include: i. Culturally appropriate, ready-to-eat food available on arrival, plus one (1) day’s additional food supplies and staples (including baby food as needed). ii. Within one (1) day of arrival, food or food allowance at least equivalent to the food stamp allocation for the family unit and continued food assistance until receipt of food stamps or until the individual or family is able to provide food for himself, herself, or themselves. d) Appropriate seasonal clothing required for work, school, and everyday use as required for all members of the family, including proper footwear for each member of the family, and diapers for children as necessary. Clothing need not be new, but must be clean, in good condition, and functional. e) An appropriate amount of pocket money for each adult throughout the first thirty (30) days to allow independent spending at the refugee’s discretion. f) Transportation in compliance with local motor safety laws. g) Transportation to job interviews and job training. 5) Services These services shall be provided with appropriate language interpretation: a) Intake Interview An intake interview shall be conducted within five (5) working days of arrival to verify refugee documentation and discuss roles and responsibilities of the Recipient and any other individual or group assisting in sponsorship, as well as the refugee’s role and responsibilities. b) Home visits At least two (2) home visits within thirty (30) days of arrival, which shall include an assessment of the welfare, living conditions and any current or expected needs of the refugee(s), and assistance with any basic needs. Cases must be visited the next calendar day after arrival. An additional home visit should occur for all cases within thirty (30) days of arrival. c) Assistance with the following on the schedule noted: i. Application for social security card(s) within seven (7) working days of arrival. ii. Application for cash and medical assistance, as appropriate, within seven (7) working days of arrival. iii. Application for food stamps, if necessary, within seven (7) working days of arrival.

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#: 5707

Name of Recipient

S-PRMCO-17-CA-1XXX

iv. Enrollment in or application for other services for which each refugee is eligible, as appropriate, within thirty (30) days of arrival.
v. Enrollment in English language programs, as appropriate, within ten (10) working days of arrival.
vi. Enrollment in employment services, as appropriate, within ten (10) working days of arrival.
vii. Meeting school enrollment requirements and registering children for school within thirty (30) days of arrival.
viii. Registration with the selective service within thirty (30) days, as appropriate.
ix. Filing change of address forms with the U.S. Department of Homeland Security and the U.S. Post Office (and Selective Service, as applicable) for all changes of address, including initial and temporary housing, during the R&P period.
x. Completing and filing Affidavits of Relationship, as appropriate and as requested.
d) Resettlement Service Plans These responsibilities must be performed by the affiliate or the affiliate in active collaboration with the local co-sponsor. The Recipient shall: i. Develop and implement during the first thirty (30) days a resettlement service plan with each refugee. For each employable refugee, the principal objective of the service plan shall be assisting the refugee to obtain early employment. The plan for each refugee in the case may be documented on the same form; and ii. Monitor and document implementation of the service plan and progress toward reaching each refugee’s goals throughout the R&P period.
e) Assistance with Access to Health Services These responsibilities must be performed by the affiliate or the affiliate in active collaboration with the local co-sponsor. The Recipient shall: i. Coordinate with state and /or local health care providers to provide medical services to refugees requiring medical care upon arrival; ii. Ensure that refugees with acute health care requirements receive appropriate and timely medical attention; iii. Assist refugees (other than those with Class A conditions, covered below in paragraph d) in obtaining a health screening within thirty (30) days of arrival and other health care services, as needed, during the R&P period; iv. Encourage and assist refugees as soon as possible after arrival to obtain or complete immunizations as required for adjustment to permanent resident alien status one year after arrival; v. Assist refugees in accessing appropriate providers of continued therapy or preventive treatment for health conditions affecting the public health; vi. In the case of a refugee who fails or refuses to receive health screenings, provide additional information and counseling to the refugee, including an explanation of local health regulations and practices, and document the circumstances and action taken in the case file; and
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#: 5708

Name of Recipient

S-PRMCO-17-CA-1XXX

vii. Ensure that its affiliates and local co-sponsors cooperate with state and local public health officials by sharing information needed to locate refugees, including secondary migrants to the degree possible, for the purpose of providing health services to them.
f) Class A Health Conditions These responsibilities may not be delegated beyond an affiliate. The Recipient shall:
i. Advise, encourage, and assist, insofar as possible, refugees with Class A physical disorders affecting the public health (as designated by the Public Health Service) to report within seven (7) days of arrival to the official public health agency in the resettlement area; request the local health provider (by telephone or in person) to give refugees with Class A health conditions an appointment date within seven (7) days of their arrival; and document in the case file the dates of such advice, assistance and requests, including the name of the individual contacted; and
ii. Advise, encourage, and assist, insofar as possible, a refugee who has a Class A mental disorder to receive within thirty (30) days of arrival an initial evaluation by the health care provider who supplied a written commitment prior to the granting of a waiver for admission; request the health care provider to provide a copy of the initial evaluation to Refugee Activity, Division of Quarantine, Centers for Disease Control and Prevention, Atlanta, Georgia 30333; make reasonable efforts to ensure that such refugee receives assistance in seeking medical treatment, education, and training that any previously identified mental disorder may require; and document in the case file the dates of such advice, assistance, and requests, including the name of the individual contacted.
g) Communication with State and Local Welfare Authorities These responsibilities may not be delegated beyond an affiliate. The Recipient shall:
i. Notify the appropriate state, county, or other local welfare office per their local requirements at the time the Recipient, its affiliate, or local cosponsor becomes aware that a refugee receiving welfare benefits has been offered employment or has voluntarily quit a job, and notify the refugee that such information has been provided to the welfare office. Notice of offered employment shall be given whether or not the refugee accepts the offer;
ii. Respond to inquiries from a state, county, or other local welfare office relating to a refugee's application for and receipt of cash or medical assistance, and furnish, upon request of such office or agency, documentation respecting any cash or other resources provided directly by the Recipient, its affiliate, local co-sponsor, or other sources, to the refugee; and
iii. Maintain in the case file required under subsection 16.g.2 above a record of all notifications from a state, county, or other local welfare office that the refugee has applied for welfare benefits and a record of all information provided by the Recipient to state, county, or other local welfare offices and of all information provided by such offices to the Recipient.
h) Orientation
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#: 5709

Name of Recipient

S-PRMCO-17-CA-1XXX

During the initial reception and placement period, the Recipient shall provide or ensure that the refugees assigned to it are provided orientation, with appropriate language interpretation if needed. To the extent practical, written orientation materials in an appropriate language covering the topics listed below shall be made available to the refugee upon arrival. Complete orientation on all topics shall be completed before the end of the R&P period. Orientation materials are available from the Cultural Orientation Resource Exchange at www.COResourceExchange.org. Orientation topics and content objectives must include:
i. Role of the Local Resettlement Agency • The local resettlement agency is not a government agency. • Assistance provided by the local resettlement agency and public assistance is limited and benefits vary across agencies, locations, and cases. • There are a number of organizations that will work alongside local resettlement agencies to assist with access to locally-available programs and provision of services. • The local resettlement agency provides assistance to refugees through the provision of items and/or money to meet initial needs, a limited scope of services, and advocacy on refugees’ behalf to receive service for which they are eligible. • The quality and quantity of items provided will vary. • Refugees and the local resettlement agency are responsible in partnership for successful resettlement.
ii. Refugee Status • There are rights related to refugee status. • There are responsibilities related to refugee status. • Applying for permanent residency and naturalization are important steps in the adjustment process. • There may be immigration consequences to breaking U.S. laws. • Refugees may be eligible to file for family reunification, which would allow family members overseas to come to the U.S.
iii. English • For both adults and children, learning English is critical to successful adjustment in the U.S. • Learning English will take time and the process may vary from person to person. • There are a variety of ways to learn English.
iv. Public Assistance • Public assistance is available to help refugees pay for their needs, but is limited in amount and scope. • There are a variety of types of government assistance. • The local resettlement agency will provide help in accessing public assistance services. • There are responsibilities associated with some types of assistance.
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#: 5710

Name of Recipient

S-PRMCO-17-CA-1XXX

v. U.S. Laws • The U.S. is governed by the rule of law. • The U.S. has many laws governing behavior in public. • There are legal rights and restrictions related to family life. • There are rights and responsibilities related to U.S. residency and citizenship.
vi. Your New Community • There are community and public services that are available to support residents. • The local resettlement agency will assist refugees in becoming acquainted with their new community. • Members of the refugee’s ethnic or religious group who live in the area may be a good source of support.
vii. Employment • Early employment and job retention are essential to survival in the U.S., and must be the primary focus for all employable adults (men and women). • A person’s initial job might not be in their chosen profession. • The refugee himself or herself plays a central role in finding/obtaining employment in the U.S. • A crucial way of finding better paying jobs is learning how to speak English. • There are general characteristics of U.S. professional and work culture to which refugees must adapt in order to be successful in finding and maintaining employment. • Employees have rights as well as responsibilities in the workplace.
viii. Health • Only critical and immediate health care needs may be met in the initial weeks of resettlement. • Initial health screenings and immunizations will be scheduled within thirty (30) days of arrival. • The U.S. has no universal healthcare system and refugee medical assistance (RMA) differs state by state. In many cases, RMA is available for eight months. • A variety of health care services are available in the U.S. • Preventative health care plays a large role in maintaining good health. • There are norms associated with health care services in the U.S. • U.S. health practices may differ from those of other cultures or countries. • There are local resources available to support refugees’ mental health.
ix. Budgeting and Personal Finance • Refugees are responsible for managing their personal finances. • In the U.S., financial transactions are mostly conducted through the banking system.
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#: 5711

Name of Recipient

S-PRMCO-17-CA-1XXX

• Paying taxes is a legal obligation in the U.S. x. Housing
• There are a variety of types of housing arrangements depending on affordability and the local context (including shared housing, apartment, house, etc.).
• The local resettlement agency provides assistance in home orientation, after which housekeeping and home maintenance are individual and family responsibilities.
• Understanding basic safety considerations and use of appliances / facilities will promote safety in the home.
• There are additional domestic life skills that facilitate independent living.
xi. Hygiene • There are norms for personal hygiene in the U.S.
xii. Safety • Attention to personal safety is an important consideration for all people. • Police and law enforcement agencies exist to help people if they become a victim of a crime. • It is important to be prepared for emergencies. • It is important to be familiar with safety procedures.
xiii. Cultural Adjustment • There are core characteristics that define the American experience. • There are cultural norms and expectations that are fairly widespread throughout the U.S. • The philosophies of self-sufficiency and self-advocacy are central to American culture and to refugees’ cultural adjustment. • There are numerous phases of cultural adjustment. • Resettlement may have an impact on family roles and dynamics. • Expectations regarding parenting practices may differ in the U.S. from what refugees are used to. • There are some basic coping mechanisms to deal with the stress of adjustment. • There are ways to seek assistance from others in your community.
xiv. Education • There are legal and normative expectations regarding schooling in the U.S. • The value for adults and teenagers to continue formal education should be weighed against the need to work. • There are many options for continuing education and training beyond compulsory K-12 schooling.
xv. Transportation • Public transportation options exist in most communities.

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#: 5712

Name of Recipient

S-PRMCO-17-CA-1XXX

• Owning or having access to a personal vehicle comes with benefits and responsibilities.
6) Assistance to Refugee Minor Children Unaccompanied refugee minors (under 18 years of age) are defined and categorized by their relationships with traveling companions and ultimate resettlement circumstances. The following codes are used to identify the circumstances of refugee minor children.
Refugee Minor Codes:
M1: Minors attached to, traveling with, and resettling with biological or legally adoptive parents;
M2: Minors attached to, traveling with, and resettling with blood relatives other than biological or legally adoptive parents;
M3: Minors attached to, traveling with and resettling with non-relatives and minors traveling alone to join non-relatives (only those agencies with refugee foster care responsibilities as described in subsection 16.g.7 will have the authority to place refugee children in this category unless otherwise approved by the Bureau);
M4: Minors destined for foster care (only those agencies with refugee foster care responsibilities as described in the cooperative agreement will have the authority to place refugee children in this category);
M5: Minors traveling apart from but destined to join biological or legally adoptive parent(s). This includes minors traveling alone to join parent(s) in the U.S., minors traveling with relatives other than parents to join parent(s) in the U.S. and minors traveling with non-relatives to join parent(s) in the U.S.;
M6: Minors traveling apart from the blood relative(s) (other than parents) they are destined to join. This includes minors traveling alone to join a relative (not parent) in the U.S. and minors traveling with non-relatives to join a relative (not parent) in the U.S.;
M7: Minors who are married regardless of their traveling companions or U.S.-based relatives.
With respect to any minor allocated to the Recipient under this agreement entering the United States according to one of the minor codes listed above, the Recipient shall:
a) Have knowledge of the state and local child abuse and neglect mandatory reporting requirements and follow such requirements during the R&P period;
b) Ensure that case files covering such minors can readily be identified and segregated (codes M2-M7) and include a copy of the Best Interest Determination (BID) of the child, if available;
c) In the case of a minor entering the United States unaccompanied by parents and seeking to be united with relatives, or other caretakers, including parents (codes Page 35 of 40

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#: 5713

Name of Recipient

S-PRMCO-17-CA-1XXX

M2, M3, M5, M6), conduct a suitability determination of the family unit, taking into account the principle that children should be reunited with relatives whenever possible and appropriate. The suitability determination shall be conducted prior to submitting a sponsorship assurance for minors whose designated caregivers are already in the U.S. (codes M5, M6, M3) and within seven (7) days of arrival for minors who are traveling with relatives or other caretakers (codes M2, M3), in accordance with subsection 16.g.1.d above and will include, but need not be limited to:
i. An assessment of the nature and extent of any previous relationship between the child and the family unit prior to the minor’s arrival in this country;
ii. An assessment of the nature and extent of the current relationship between the child and others in the family unit;
iii. An assessment of whether the family unit is willing and able to provide ongoing care and supervision of the child, and how the family plans to provide for the child;
iv. An assessment of the family unit’s understanding of and intentions regarding securing legal responsibility for the child; and
v. An assessment of the requirements of state law, including whether the family unit must be licensed as a foster care provider or must acquire legal custody or guardianship so that the child may legally remain in the household.
d) If the Recipient’s professional resettlement staff determine that the placement is not suitable, the Recipient shall immediately notify the Bureau and return the case to the RPC so that the minor (codes M3, M6,) can be reclassified to enter the United States as an unaccompanied minor requiring foster case. In the event that a caseworker deems a parent unsuitable to receive a minor (code M5), the State Refugee Coordinator and the Bureau must be immediately notified. If the Recipient’s professional resettlement staff determines that the placement is not suitable during a post-arrival suitability determination (M2, M3), the Recipient shall immediately notify the Bureau and the State Refugee Coordinator. A copy of the statement of suitability determination shall be retained in the minor’s case file (codes M2, M3, M5, M6);
e) If the minor is traveling with non-relatives to be resettled with the same or other non-relatives (code M3), the Recipient shall undertake the assessment as described above within seven (7) days of arrival of the family. If the Recipient’s professional resettlement staff determines that the child’s placement with the nonparental unit is not suitable, the Recipient shall notify the Bureau immediately in order to coordinate transfer of the unaccompanied minor to foster care;
f) In the case of a minor entering with or coming to join non-relatives (code M3), the Recipient, other than those referenced in subsection 16.g.6 above, shall obtain the Bureau's agreement to the placement before assuring the case;
g) For unaccompanied minors resettling with non-relatives or non-parental relatives (code M2, M3, M6), the Recipient shall orient the family unit to the nature and expectations of U.S. practices and legal requirements respecting child care using appropriate language interpretation as necessary, and provide the family unit with
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#: 5714

Name of Recipient

S-PRMCO-17-CA-1XXX

a written statement, provided or approved by the state, county, or local child welfare bureau, and translated as necessary, of its responsibilities and legal obligations in caring for the child. This statement shall include requirements for guardianship, licensing as a foster care provider if relevant, or other forms of legal responsibility. The acknowledgement of understanding and commitment to carry out such responsibilities in the written statement shall be documented by having the responsible adult(s) in the family unit sign the statement. Copies of the signed statement shall be given to the family unit and retained in the case file covering the minor. In the case of a minor entering the United States alone, this will be done at the time of the suitability determination described in subsection 16.g.6.c above. In the case of a minor traveling with relatives, this will be done during the orientation described in subsection 16.g.6.e above; h) For minors described as codes M2, M3, M5, M6 and M7, the Recipient shall:
i. Advise, encourage, and assist the family in regard to the above-mentioned responsibilities and legal obligations in caring for the child under the requirements of the state;
ii. Provide regular and personal contact with the minor for ninety (90) days following arrival, and maintain in the case file covering the minor records of assistance to the minor and of the minor's needs during the ninety (90)day period;
iii. Within fourteen (14) days after the ninetieth (90th) day after arrival, conduct a follow-up home visit to determine the continued suitability of the placement and to assess the need for continued services and arrange for such services, if needed and feasible; and
iv. Within thirty (30) days after the ninetieth (90th) day after arrival submit a minor follow-up evaluation report, including an assessment of the family unit's understanding and intentions regarding the securing of legal responsibility for the minor under state law. Copies of this evaluation shall be retained in the case file covering the minor and sent to the Recipient's headquarters and the State Refugee Coordinator so that further action may be taken by the state if the state deems it necessary. Headquarters should maintain the completed Minor Follow-up Evaluation Forms for no less than one year after the minor’s arrival to the U.S.
Responsibilities enumerated in section 16.g.6. may not be delegated beyond an affiliate and may only be performed by professional resettlement staff. 7) Foster Care
a) General i. The services performed by the Recipient under this section shall be performed for the purposes of (a) ensuring that foster care minors (minor code M4) approved for admission to the United States are sponsored as required by law, (b) facilitating Department of Health and Human Services/Office of Refugee Resettlement (HHS/ORR) efforts to place such children under the laws of the states pursuant to section 412(d)(2)(B) of the INA, and (c) ensuring that foster care minors are admitted and moved to their resettlement locations in a manner that takes due regard of their special circumstances;
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#: 5715

Name of Recipient

S-PRMCO-17-CA-1XXX

ii. The Recipient shall perform the program services specified in subsection 16.g.7.(b) through 16.g.7.(d) below on behalf of foster care minors who are assigned to it under this agreement; and
iii. The program services shall be performed by paid staff of the Recipient's operational headquarters.
b) Pre-arrival Services The Recipient shall, with respect to foster care minors assigned to it by the RPC, prior to their arrival in the United States: i. Provide for such foster care minors the sponsorship assurances required for their admission to the United States; ii. Prepare and submit on behalf of such foster care minors sponsorship assurances and other documents required for admission to the RPC for transmission to appropriate overseas processing offices of the Department of Homeland Security, the Department of State, or their designees; iii. After a careful review of the case (including, but not necessarily limited to, consideration of the minor's ethnicity, educational level, medical status, family relationships, reunification potential, age, and religion), and in consultation with the appropriate overseas processing post and Agency, assign the case to one of the state-authorized providers of foster care services (hereinafter referred to as an "approved provider") listed in the proposal; iv. Notify the approved provider that the case has been assigned to it, transmit available information (including appropriate documentation) concerning the foster care minor to the approved provider, respond to inquiries from the approved provider and other appropriate state or local social service providers concerning the foster care minor, and obtain additional information as needed from the appropriate processing post and Agency; v. Upon request, consult with and provide advice to the approved provider concerning problem cases, including cases that may require transfer to another core provider; prepare the necessary paperwork for cases that require transfer; and accept appropriate pre-arrival transfer cases and assign them to an approved provider; vi. Provide orientation on the initial reception and placement of foster care minors as needed to the staffs of approved providers; and vii. Assist in the preparation of documents needed to process applications for the parents of foster care minors for admission to the United States as refugees.
c) Post-arrival Services The Recipient shall, with respect to foster care minors assigned to it under this agreement, after their arrival in the United States: i. Facilitate refugee travel to resettlement sites in the United States; ii. Upon request, consult with and provide advice to the approved provider concerning difficult cases; iii. When the Recipient deems it appropriate, provide funding for emergency needs of foster care minors that cannot be met through other social service
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#: 5716

Name of Recipient

S-PRMCO-17-CA-1XXX

programs and that arise within ninety days of a minor's arrival in the United States; and iv. Initiate preparation of the Interstate Compact Form and prepare documents that are required to transfer a foster care minor to another state, if necessary. d) Case Files The Recipient shall establish and maintain a case file on each arriving foster care minor assigned under this agreement that includes a written confirmation of sponsorship, biographic data, and other information pertinent to managing the minor's initial resettlement. The Bureau, the Inspector General of the Department of State, and any of their authorized representatives shall have the right to examine at any reasonable time the case files maintained by the Recipient. It is expected that all case files will be treated as confidential. 8) Loan Services (Varies for ECDC) a) Recipient hereby confirms that it will operate in accordance with all the terms of the current Memorandum of Understanding (MOU) entered into by the Recipient or its representative with IOM for servicing refugee transportation loans, and also confirms that it will actively participate in all meetings organized by the IOM, in consultation with the Bureau, to discuss methods, policies and procedures for standardizing services among all participating organizations. These meetings are intended to provide information and guidance that will improve loan services. b) In accordance with the MOU, entered into by the Recipient or its representative with IOM, the Recipient is required to use its best efforts for transportation loan services through the establishment and maintenance of a computerized system that permits the initial bill to be sent within six (6) months of the refugee's arrival in the U.S.; the regular mailing of bills and reminder notices to encourage repayments to be made according to schedule; the management of the loan billing and repayment records; and full accounting and appropriate transfer of funds to IOM. In accordance with the terms, criteria, policies and procedures of the MOU, entered into by the Recipient or its representative with IOM, the Recipient's efforts shall include: i. developing and maintaining a loan tracking system that provides for the prompt billing of refugees within six (6) months of arrival, provided required loan information has been received; ii. billing refugees monthly provided a valid address is available; iii. maintaining a system that actively seeks refugees' current addresses and social security numbers for use in billing activities; iv. maintaining a system that records and calculates balances on individual refugee loan accounts; v. establishing and maintaining a procedure for reviewing and determining the appropriateness of requests for deferral, in accordance with established criteria; vi. maintaining a procedure for transferring funds to IOM on a monthly basis with required accounting details; vii. reporting accounts status and fund transfers on a quarterly basis to IOM and to the Bureau;
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#: 5717

Name of Recipient

S-PRMCO-17-CA-1XXX

viii. transferring to IOM all loan notes becoming in default; ix. submitting requests to IOM as needed for approval to forgive (“cancel”) loans for humanitarian reasons; and x. reporting monthly to a consumer reporting agency ("CRA").
c) In addition, the Recipient will ensure that each affiliate, during the Reception and Placement period informs each refugee who signed an IOM loan note that the loan is a legal debt that must be repaid in accordance with the terms of the note, and documents this notification in the case file; reports to the Recipient headquarters on a monthly basis any known change in the address of an adult refugee; and requests and maintains a record of the Social Security number obtained by each refugee in connection with the assistance provided under section 16.g.4 of the Cooperative Agreement.
d) The Recipient agrees to cover all expenses of loan services activities from the twenty-five percent (25%) amount that is authorized to be retained from the funds repaid by refugees and to transfer the remaining seventy-five percent (75%) promptly to IOM.
e) In the event Recipient provides resettlement services to a refugee but is not designated by IOM as the billing agency for the refugee’s transportation loan or has returned the loan to IOM, Recipient shall assist IOM or any other entity assigned responsibility for providing loan services to refugees being resettled under this Cooperative Agreement. The assistance shall continue during the Reception and Placement period and include: informing each adult refugee having signed a loan note of their legal responsibility to fully repay the loan in accordance with the schedule set forth in their loan note, unless revised in writing by the loan servicing agency; reporting each adult refugee's initial resettlement address or subsequent address change; responding to inquiries from the loan servicing agency for address information; and providing the social security number of each adult refugee holding a loan.
OR (for ECDC)
The Recipient shall assist the Agency or IOM assigned responsibility for providing loan services to refugees being resettled under this Cooperative Agreement. This assistance shall include: informing each adult refugee having signed a loan note of their legal responsibility to fully repay the loan in accordance with the schedule set forth in their loan note, unless revised in writing by the loan servicing agency; reporting each adult refugee's initial resettlement address or subsequent address change; responding to inquiries from the loan servicing agency for address information; and providing the social security number of each adult refugee holding a loan.

17. Special Provision for Performance in a Designated Combat Area (SPOT): N/A

18. State Department Leahy Amendment Vetting Requirements: N/A

19. Statutory Deviations: N/A

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Bartlett Declaration Attachment 3

 
 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 1 of 15

The Honorable James L. Robart 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 JOHN DOE, et al.,

Civil Action No. 2:17-cv-00178JLR

11

Plaintiffs,

12

v.

13 DONALD TRUMP, et al.,

14

Defendants.

15 JEWISH FAMILY SERVICE OF
16 SEATTLE, et al.,

17

Plaintiffs,

18

v.

19 DONALD TRUMP, et al.,

20

Defendants.

Civil Action No. 2:17-cv-01707JLR
DEFENDANTS’ EMERGENCY MOTION FOR STAY OF PRELIMINARY INJUNCTION PENDING APPEAL
(RELATING TO BOTH CASES)

21

NOTE ON MOTION CALENDAR:

December 29, 2017

22

23

24

25

26

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 2 of 15

1

INTRODUCTION

2

Defendants hereby move the Court to stay its preliminary injunction barring enforcement

3 of two provisions of the October 23, 2017, Memorandum to the President (cited in the Court’s

4 opinion as the “Agency Memorandum” and cited herein and in Defendants’ prior submissions as

5 the “Joint Memorandum”) pending a decision from the Ninth Circuit on Defendants’ forthcoming

6 appeal. Defendants also request that the Court enter an order staying its injunction during the 7 interim period while the Court considers this motion.1

8

As explained more fully below, the balance of harms weighs strongly in favor of a stay,

9 and the Government is likely to prevail on the merits of its appeal. The Supreme Court recently

10 stayed in full injunctions that district courts had entered against enforcement of the entry

11 restrictions in Presidential Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017), based

12 in part on a balancing of harms and interests that are similar to those at issue here. The same

13 result is warranted in this case.

14

STANDARD OF REVIEW

15

In deciding a motion to stay pending appeal, courts consider four factors: “(1) whether the

16 stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether

17 the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will

18 substantially injure the other parties interested in the proceeding; and (4) where the public interest

19 lies.” Nken v. Holder, 556 U.S. 418, 434 (2009). A stay is appropriate if the movant demonstrates

20 that it has raised serious questions going to the merits on appeal and the balance of hardships tips

21 sharply in its favor. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir.

22 2011).

23

24

25 1 Defendants have reviewed the Court’s Local Civil Rules and have determined that this
26 emergency stay motion is analogous to a motion for a temporary restraining order. Accordingly,
Defendants have adhered to the noting date and page count rules associated with such motions.

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 1 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 3 of 15

1

ARGUMENT

2 I. THE BALANCE OF HARMS WEIGHS STRONGLY IN FAVOR OF A STAY

3

The serious and irreparable harms to the Government and the public from this Court’s

4 preliminary injunction outweigh any harm Plaintiffs might suffer if the injunction is stayed. The

5 Supreme Court reached this conclusion when it stayed in full the injunctions issued by district

6 courts in Trump v. Hawaii, No. 17A550, 2017 WL 5987406 (U.S. Dec. 4, 2017), and Trump v.

7 Int’l Refugee Assistance Project (IRAP), No. 17A560, 2017 WL 5987435 (U.S. Dec. 4, 2017).
The Supreme Court necessarily determined that the Government’s national-security and foreign8
policy interests outweighed the plaintiffs’ interests in those cases. See Nken, 556 U.S. at 434. 9
The Government’s national-security interests here, which also relate to risks from the admission 10
of aliens from abroad, are just as weighty. And Plaintiffs interests’ and alleged harms are 11
significantly weaker than those of the plaintiffs in IRAP and Hawaii because the provisions of the
12 Joint Memorandum that Plaintiffs challenge are temporary (and due to expire in the near future).
13 Thus, the Supreme Court’s orders in IRAP and Hawaii counsel in favor of this Court staying its

14 preliminary injunction against the Joint Memorandum pending appellate review.

15

A. THE PRELIMINARY INJUNCTION IMPOSES SERIOUS, IRREPARABLE HARM ON

16

THE GOVERNMENT AND THE PUBLIC

17

This Court’s preliminary injunction undermines the Executive Branch’s constitutional and

18 statutory authority to safeguard the Nation’s security by conducting appropriate screening of

19 aliens seeking admission to the United States, and it intrudes on the political branches’

20 constitutional prerogatives. “[N]o governmental interest is more compelling than the security of

21 the Nation,” Haig v. Agee, 453 U.S. 280, 307 (1981), and “the Government’s interest in combating

22 terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project (HLP),

23 561 U.S. 1, 28 (2010). The Executive Branch’s protection of these interests warrants the utmost

24 deference, particularly where, as here, it acts based on “[p]redictive judgment[s]” regarding

25 specific national-security risks. Dep’t of the Navy v. Egan, 484 U.S. 518, 529 (1988); see HLP,

26

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 2 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 4 of 15

1 561 U.S. at 33-35. Rules “concerning the admissibility of aliens” also “implement[] an inherent

2 executive power.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).

3

After conducting a review of the refugee program as required by Executive Order No.

4 13,780 (EO-2), and “[n]otwithstanding the additional procedures identified or implemented

5 during [that period],” the Secretaries of State and Homeland Security and the Director of National

6 Intelligence “continue to have concerns” about the admission of refugees from Security Advisory

7 Opinion (SAO) countries, which were “previously identified as posing a higher risk to the United

8 States.” Joint Mem. at 2. The officials thus concluded it was necessary to conduct a “tailored”

9 and “in-depth threat assessment” of each SAO country before continuing admissions and making

10 further eligibility determinations as to refugee applicants from the affected countries. Joint Mem.

11 Addendum at 3; see id. (explaining that the review “will include input and analysis from the

12 intelligence and law enforcement communities, as well as all relevant information related to

13 ongoing or completed investigations and national security risks and mitigation strategies”). The

14 review of the refugee program called for by EO-2 also highlighted that “[t]he majority of

15 following-to-join refugees do not [currently] receive the same, full baseline interagency checks

16 that principal refugees receive.” Joint Mem. Addendum at 4. The Cabinet Secretaries thus made

17 a joint determination that, in order “to ensure the security and welfare of the United States,” it is

18 necessary to “implement adequate screening mechanisms for following-to-join refugees that are

19 similar to the process employed for principal refugees” before continuing admissions and making

20 further eligibility determinations as to following-to-join refugees.

21

The Court’s Order enjoining enforcement of these two challenged provisions necessarily

22 imposes irreparable harm on the Government and the public interest. Even a single State “suffers

23 a form of irreparable injury” “[a]ny time [it] is enjoined by a court from effectuating statutes

24 enacted by representatives of its people.” Maryland v. King, 567 U.S. 1301, 1303 (2012)

25 (Roberts, C.J., in chambers) (citation omitted); see, e.g., O Centro Espirita Beneficiente Uniao de

26 Vegetal v. Ashcroft, 314 F.3d 463, 467 (10th Cir. 2002). A fortiori, this Court’s injunction imposes

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 3 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 5 of 15

1 irreparable injury on the Executive Branch and the public given that the Joint Memorandum rests

2 on the national-security judgment of three Cabinet Secretaries, officials charged with determining

3 what screening steps are needed to evaluate requests for admission. These Secretaries jointly

4 determined that the SAO and following-to-join refugee populations may presently pose an

5 elevated risk due to inadequate screening and vetting and that additional procedures were needed

6 before further favorable eligibility determinations could be made. The problem is all the greater

7 given the Court’s extension of the preliminary injunction not only to refugee applicants and

8 organizations before the Court, or even to applicants nationwide who have close familial or

9 institutional ties to the United States, but also to an additional pool of applicants whose only

10 domestic link is through the attenuated resettlement assurance process. Defendants address this 11 latter concern in their pending motion for reconsideration, see ECF No. 93.2

12

These national-security and institutional harms exist notwithstanding the Government’s

13 understanding that the preliminary injunction does not impact any new screening or vetting

14 processes adopted as a result of the Government’s 120-day review pursuant to section 6(a) of

15 Executive Order 13,780, and that the injunction operates prospectively only—i.e., prohibiting

16 enforcement of the Joint Memorandum’s specified provisions beginning on the date of the

17 preliminary injunction’s issuance (December 23, 2017). Defendants do not understand the

18 preliminary injunction to require affirmative action to undo any of the steps that were taken to

19 implement the Joint Memorandum prior to December 23, including decisions made before

20 December 23 about how to allocate resources consistent with the Joint Memorandum. For

21

22

2 In the litigation regarding the Proclamation, the Ninth Circuit recently determined that

23

the balance of equities and the public interest tilt in favor of the plaintiffs. See Hawaii v. Trump, No. 17-17168, — F.3d —, —, 2017 WL 6554184, at *22-23 (9th Cir. Dec. 22, 2017). Defendants

24 respectfully disagree with that decision and intend to petition for a writ of certiorari. Moreover, that court’s analysis was based on the purported inadequacy of the President’s national-security

25 findings, see id., whereas here the Court did not hold the Joint Memorandum invalid on that basis.

Also, as noted above, the underlying injunction in that case is stayed pending disposition of the 26 Government’s forthcoming petition for a writ of certiorari, see Trump v. Hawaii, 2017 WL

5987406, at *1.

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 4 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 6 of 15

1 example, prior to the injunction’s issuance and consistent with the Joint Memorandum’s terms,

2 the State Department’s Bureau of Population, Refugees, and Migration (PRM) scheduled federal

3 fiscal year Quarter 2 “circuit rides” for U.S. Citizenship and Immigration Services (USCIS)

4 officers to interview refugee applicants in different locations, and also scheduled almost all of the

5 refugee applicant interviews for those locations. Those interviewees (selected before the

6 injunction was issued, consistent with the Joint Memorandum’s terms) have already been notified

7 of their upcoming interviews. Defendants do not understand the preliminary injunction to require

8 affirmative actions to undo these types of decisions that were made during the approximately two-

9 month period while the Joint Memorandum was in effect. Cf. Hernandez v. Sessions, 872 F.3d

10 976, 999 (9th Cir. 2017) (noting that “[m]andatory injunctions” are “subject to a higher standard

11 than prohibitory injunctions”); Fed. R. Civ. P. 65(d)(1).

12

Compelling Defendants to undo these prior decisions would likely redound to the

13 detriment of innocent third parties who have no connection to this lawsuit. For instance, if USCIS

14 were required to modify the universe of refugees to be interviewed during upcoming circuit rides

15 (despite those circuit rides and interviews being scheduled prior to the injunction’s issuance),

16 USCIS might then need to cancel some of the existing interviews, including for refugee applicants

17 who have already been notified of their anticipated interview. Such cancellations would not be

18 consistent with the public interest. Cf. Richland Park Homeowners Ass’n, Inc. v. Pierce, 671 F.2d

19 935, 943 (5th Cir. 1982) (“The injury to the public interest that would be caused by the uprooting

20 of . . . 44 innocent families . . . weigh[s] heavily against the plaintiffs in the judicial consideration

21 of their demand for relief . . . .”). Moreover, there is significant doubt about whether it would

22 even be possible for Defendants to undo some of their prior decisions. While Defendants may be

23 able to adjust the interview schedule slightly, it is not feasible on short notice either to shift these

24 already-scheduled circuit rides to different countries or substantially revise the existing interview

25 schedules to substitute different refugee applicants. That is because almost all of the necessary

26 preparatory work—including completion of pre-screening interviews, security checks, and

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 5 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 7 of 15

1 notification to refugee applicants—has already occurred. Furthermore, the USCIS officers

2 conducting these interviews have been working to complete necessary pre-travel requirements—

3 including obtaining visas, making travel arrangements, obtaining or verifying necessary

4 vaccinations, and scheduling participation in location-specific pre-departure trainings—so 5 redeploying to other locations is not feasible in the near term.3

6

In light of the above, Defendants do not understand the preliminary injunction to require

7 them to take affirmative steps to undo the decisions that were made consistent with the Joint

8 Memorandum prior to the preliminary injunction’s issuance. In the event that Plaintiffs or the

9 Court have a different understanding of the preliminary injunction, further proceedings would be

10 necessary to help inform the Court’s analysis of these potential burdens and harms. Even under

11 the present injunction, however, the Government suffers significant national-security and

12 institutional injuries warranting a stay.

13

B. A BRIEF STAY PENDING EXPEDITED APPEAL WOULD NOT IMPOSE ANY

14

SUBSTANTIAL HARM ON PLAINTIFFS

15

As the Government argued in its opposition briefs and at the December 21, 2017, hearing,

16 the individual Plaintiffs—perhaps excepting Joseph Doe—have not established that they have

17 been injured or, indeed, affected at all by the challenged provisions of the Joint Memorandum.

18 Plaintiffs have not adequately demonstrated that they are on the brink of travel such that, but for

19 the SAO provision or the following-to-join implementation period, they would have arrived in the

20 United States during the short time before those provisions expire. Rather, Plaintiffs’ own

21 declarations and allegations show that other circumstances may be delaying their travel.

22 Accordingly, these Plaintiffs both lack standing to challenge the Joint Memorandum and have

23

24

3 Because most of the interviewees were selected prior to the injunction and consistent

with the Joint Memorandum, some refugee applicants from SAO countries were scheduled for

25 interviews because they met the Joint Memorandum’s criteria for continued, case-by-case

processing during the 90-day review period. If additional, urgent requests from SAO nationalities 26 are identified, PRM and USCIS will work together to try to add them to the scheduled circuit

rides.

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 6 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 8 of 15

1 failed to carry their burden of demonstrating irreparable harm sufficient to warrant a preliminary

2 injunction.

3

With respect to the following-to-join implementation period, only three individual

4 Plaintiffs purport to challenge that provision. However, the challenges brought by two of these

5 Plaintiffs (Joseph Doe and Afkab Hussein) fail at the outset because their family members are

6 apparently located in Kenya, where the following-to-join vetting protocols are already generally

7 aligned with the protocols for principal refugees. Therefore, following-to-join refugees from non-

8 SAO countries processed in those locations were not impacted by the suspension related to

9 alignment of vetting protocols. Compare Decl. of Afkab Mohamed Hussein in Support of Pls.’

10 Mot. ¶¶ 3, 10-11, Jewish Family Service of Seattle, et al. v. Trump, et al. (JFS), No. 2:17-cv-

11 01707, ECF No. 48 (“Hussein Decl.”), with Decl. of Joseph Doe in Supp. of Mot. for Prelim. Inj.

12 ¶ 9, ECF No. 47; see also Decl. of Jennifer B. Higgins in Supp. of Defs.’ Opp’n to Pl. Joseph

13 Doe’s Mot. for Prelim. Inj. ¶ 11, ECF No. 51–1. John Doe 7 also challenges the following-to-

14 join provision; unlike the families of Joseph Doe and Afkab Hussein, John Doe 7’s son is located

15 in a country (Iraq) where following-to-join processing was suspended pending institution of new

16 vetting protocols. However, as discussed below, John Doe 7’s son has been waiting to travel

17 since November 2016, and there is no basis from which the Court could conclude that the

18 following-to-join implementation period is the cause of his delay.

19

With respect to the SAO provision, a recurring theme across Plaintiffs’ allegations and

20 declarations is that they have been waiting to travel for a long time—months, even years. It is

21 wholly speculative to presume that they would have arrived during the short period affected by

22 the challenged provisions of the Joint Memorandum:

23 •

Jeffrey Doe alleges that his parents and siblings applied for refugee status in 2005,

24

received an approval letter in 2006, and were assured by a resettlement agency in 2015.

25

But he also alleges that their medical checks have expired. Third Am. Compl. ¶ 89, ECF

26

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 7 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 9 of 15

1 2 3 • 4 5 6 7 8 • 9 10 11 12 • 13 14 15 16 17 18 • 19 20 21 22 • 23 24 25 26

No. 42. Taking those allegations as true, the Court has no basis to conclude that Jeffrey’ Doe’s family is on the brink of travel. Afkab Hussein’s declaration states that Forms I-730 for his wife and son were approved in June 2016 and that his wife and son have “completed several stages of the follow-tojoin screening process.” Hussein Decl. ¶¶ 16-17. The reference to “several” stages (rather than “all” stages) itself suggests that these family members must still complete additional steps before being approved to travel. John Doe 1 (who is also the subject of Allen Vaught’s concerns) was conditionally approved for resettlement in or around December 2016 and was told in October 2017 to “get ready to travel,” but he has been delayed due to problems with his passport. Decl. of John Doe # 1 in Supp. of Pls.’ Mot. ¶¶ 15-16, JFS, ECF No. 52. John Doe 2 (who is also the subject of John Doe 3’s concerns) was conditionally approved for resettlement in or around March 2016, and his sponsor was told to expect his arrival by August 2016, yet in January 2017 he was still awaiting security checks. Decl. of John Doe #2 in Supp. of Pls.’ Mot. ¶ 9, JFS, ECF No. 53. Given that well over a year has elapsed since John Doe 2 was expected to travel, it would be speculative to infer that the SAO provision is the cause of his delay. Jane Doe 4 was referred for resettlement in June 2017 and had a pre-screening interview with the International Organization for Migration in September 2017. It is unclear whether she has completed her medical checks. Decl. of Jane Doe #4 in Supp. of Pls.’ Mot. ¶ 5, JFS, ECF No. 55. Jane Doe 5 (who is also the subject of Jane Doe 6’s concerns) has been awaiting security checks since 2016. Decl. of Jane Doe #5 in Supp. of Pls.’ Mot. ¶ 7, JFS, ECF No. 56. Irrespective of the Joint Memorandum, Jane Doe 5 must complete those security checks before she can qualify for refugee admission.

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 8 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 10 of 15

1 •

John Doe 7’s son was assured by a resettlement agency in November 2016. Decl. of John

2

Doe #7 ¶ 4, JFS, ECF No. 58. Given that his application apparently has not progressed in

3

the thirteen months since he received his assurance, Plaintiffs offer no basis from which

4

the Court could presume that, but for the SAO provision, John Doe 7’s son would be

5

scheduled to travel before that provision expires.4

6

That leaves Joseph Doe. As Government counsel acknowledged at the December 21

7 hearing, Joseph Doe’s family members do appear to be on the brink of travel. However, as set

8 forth in the Declaration of Jennifer L. Smith, attached hereto as Exhibit A, Joseph Doe’s family

9 falls within an exception under “[p]roposed interim guidance . . . which was in the process of

10 being reviewed for clearance before the Preliminary Injunction was issued.” Smith Decl. ¶ 2.

11 Pursuant to that proposed guidance, on December 21, 2017, PRM’s overseas staff requested that

12 the Resettlement Support Center in Kenya provide the family with travel documents and begin

13 planning their travel. Id. ¶ 3. At this point, the family is expected to travel in mid-to-late January,

14 and the State Department anticipates that it will know the date of the travel booking by January

15 2, 2018. Id. ¶¶ 3-4. Accordingly, even if the Court stays its injunction, Joseph Doe’s family will

16 be processed for travel, subject to admissions and admissibility requirements not affected by the

17 Joint Memorandum.

18

None of the individual plaintiffs therefore would suffer any concrete harm based on a stay

19 of the preliminary injunction. Nor will any of the organizations, who may continue “serv[ing]

20

21

4 The Court wrote that “[w]hether Doe 7’s son’s application has other hurdles to cross . . .

does not diminish the fact that the SAO and FTJ provisions of the Agency Memo add two more.” 22 Doe v. Trump, Nos. C17-0178JLR & C17-1707JLR, 2017 WL 6551491, at *9 (W.D. Wash. Dec.

23

23, 2017). The Court likewise wrote that, regardless whether Plaintiffs are on the brink of travel, “their separation from their family members will be prolonged as a result of the SAO provisions,”

24 since resources have been diverted to non-SAO countries during the 90-day review period. Id. at *10. However, Plaintiffs bear the burden at all stages in litigation to show that they have properly

25 invoked the Court’s subject-matter jurisdiction. As the Government has argued, the refugee

admissions process is complicated and time-consuming—and Plaintiffs have not adequately 26 shown that the short delay in processing and admissions attributable to the SAO provision will

have any material impact on them.

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 9 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 11 of 15

1 Muslim and Arabic-speaking refugees,” Doe, 2017 WL 6551491, at *23, regardless whether the

2 Joint Memorandum is implemented. Thus, the balance of equities strongly favors a stay.

3 II. THE GOVERNMENT IS LIKELY TO PREVAIL ON THE MERITS

4

The Government respectfully submits that, notwithstanding this Court’s

5 preliminary-injunction decision, the Government also is likely to succeed on the merits of its 6 appeal.5 There are serious flaws in the Court’s reasoning with respect to Plaintiffs’ statutory

7 claims. The Court concluded, for instance, that the following-to-join implementation period

8 likely violates 8 U.S.C. § 1157(c)(2)(A) because that statute provides that following-to-join

9 refugees “shall” be entitled the same admission status as the principal refugee. Doe, 2017 WL

10 6551491, at *19. Yet as the Government previously argued, the brief implementation period does

11 not alter in any respect the substantive rights of following-to-join refugees, so to whatever extent

12 § 1157(c)(2)(A) confers a benefit, the Government has not rescinded it. Further, the Government

13 is entitled to make eligibility determinations for each refugee; there is no mandatory timeframe

14 for making such determinations; and, as the Joint Memorandum explains, these new procedures

15 are needed in order to make such determinations.

16

The Court also held that the SAO provision likely conflicts with the Immigration and

17 Nationality Act (INA) by adding criteria to the Act’s definition of “refugee” and to the

18 admissibility requirements for refugees. Id. at *22. But neither Plaintiffs nor the Court have

19 identified any INA provision that would bar the agencies charged with administering the statute

20 from exercising their discretion to review or enhance screening and vetting measures to promote

21 national security and welfare, and that is all the Joint Memorandum does. Congress could not

22 have been clearer in 8 U.S.C. § 1157(c)(1): “the Attorney General may, in the Attorney General’s

23

24

25 5 The Government preserves and incorporates by reference its arguments concerning the
26 nonjusticiability of Plaintiffs’ claims (including the application of the doctrine of consular
nonreviewability).

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 10 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 12 of 15

1 discretion and pursuant to such regulations as the Attorney General may prescribe, admit any

2 refugee” (emphasis added).

3

Likewise problematic, especially from a functional standpoint, is the Court’s preliminary

4 determination that the Joint Memorandum was not properly promulgated pursuant to the

5 Administrative Procedure Act (APA). The agencies’ Joint Memorandum “did not alter the

6 substantive criteria by which it would approve or deny” refugee applications; “it simply changed

7 the procedures it would follow in applying those substantive standards.” James V. Hurson

8 Assocs., Inc. v. Glickman, 229 F.3d 277, 281 (D.C. Cir. 2000). For that reason, the Joint

9 Memorandum is consistent with the underlying refugee statutes (and 6 U.S.C. § 202(4)) and is

10 not a legislative rule requiring notice-and-comment rulemaking under the APA. See id.; see also

11 Kessler v. FCC, 326 F.2d 673, 681 (D.C. Cir. 1963). The Cabinet Secretaries merely determined

12 that favorable eligibility determinations could not be made in most cases—subject to case-by-case

13 exceptions for those from SAO countries—until the screening procedures are further reviewed,

14 and, as necessary, upgraded.

15

At the December 21 hearing, the Court expressed concern that accepting this argument

16 would allow agency heads to suspend the refugee program indefinitely or even permanently. See

17 also Doe, 2017 WL 6551491, at *21. But that hypothetical is simply not before the Court. The

18 Joint Memorandum’s provisions are expressly temporary and were expected to last for less time

19 than it would have taken to conduct a full round of notice-and-comment rulemaking. The Joint

20 Memorandum has not impaired any substantive rights, and refugee applicants remain eligible to

21 be processed for refugee status and admitted as refugees if they are found eligible and admissible

22 at the conclusion of the Joint Memorandum’s brief review and implementation periods.

23

Indeed, the Court’s reasoning enjoining enforcement of the Joint Memorandum on that

24 basis leads to an even more problematic result: any change in procedure that delays a prospective

25 refugee’s arrival in the United States, or makes it less likely for someone to be granted refugee

26 status, would suddenly become a substantive rule that would be invalid without notice-and-

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 11 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 13 of 15

1 comment. That is not only contrary to decades of practice and Ninth Circuit case law, see In re

2 Hill, 811 F.2d 484, 487 (9th Cir. 1987) (“The application of virtually any procedural rule can

3 result in the denial of a ‘substantive’ right, yet this does not transform the procedural rule into a

4 substantive rule.”), it would also threaten agencies’ abilities to take important actions (such as

5 improving their screening procedures) on a timely basis. For that matter, under this Court’s

6 reasoning, the agencies could not have created an SAO procedure after the 9/11 attacks to ensure

7 that proper screening was employed before making eligibility determinations (at least without

8 first conducting a time-consuming and unwieldy notice-and-comment rulemaking process). As

9 discussed at the hearing, even Plaintiffs appear to agree that agencies must have the discretion to

10 quickly and continually revise their screening procedures. See also Joint Decl. of Former Nat’l

11 Sec. Officials ¶ 4, JFS, ECF No. 46. Thus, a stay is also warranted because the Government has

12 demonstrated a likelihood of success on the merits of its appeal.

13

CONCLUSION

14

For these reasons, Defendants respectfully request that, pending final disposition of their

15 appeal, this Court stay its preliminary injunction. In addition, Defendants request that the Court

16 stay its injunction pending its ruling on this emergency motion for a stay pending appeal.

17 DATED: December 29, 2017
18 19 20 21

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JENNIFER D. RICKETTS Director, Federal Programs Branch

22

JOHN R. TYLER

23

Assistant Director, Federal Programs Branch

24

/s/ Joseph C. Dugan

MICHELLE R. BENNETT

25

DANIEL SCHWEI

KEVIN SNELL

26

JOSEPH C. DUGAN

DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 12 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 14 of 15

Trial Attorneys

1

U.S. Department of Justice

2

Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW

3

Washington, DC 20530

Tel: (202) 514-3259

4

Fax: (202) 616-8470

Email: joseph.dugan@usdoj.gov 5

6

Attorneys for Defendants

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DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 13 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 15 of 15

1

CERTIFICATE OF SERVICE

2 I certify that on December 29, 2017, a copy of the foregoing document was electronically
3 filed with the Clerk of the Court using the CM/ECF system, which will send notification of such
4 filing to all counsel of record.
5 DATED this 29th day of December, 2017.
6

7

/s/ Joseph C. Dugan JOSEPH C. DUGAN

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DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 14 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

Case 2:17-cv-00178-JLR Document 95-1 Filed 12/29/17 Page 1 of 4
Exhibit A

Case 2:17-cv-00178-JLR Document 95-1 Filed 12/29/17 Page 2 of 4

Case 2:17-cv-00178-JLR Document 95-1 Filed 12/29/17 Page 3 of 4

Case 2:17-cv-00178-JLR Document 95-1 Filed 12/29/17 Page 4 of 4

 
 Case 2:17-cv-00178-JLR Document 96 Filed 12/30/17 Page 1 of 5

1

THE HONORABLE JAMES L. ROBART

2

3

4

5

6

7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 JOHN DOES, et al.,

10

Plaintiffs,

11

v.

12 DONALD TRUMP, et al.,

13

Defendants.

14 JEWISH FAMILY SERVICE, et al.,
15 Plaintiffs,
16 v.
17 DONALD TRUMP, et al.,
18 Defendants.
19

CASE NO. C17-0178JLR
PLAINTIFFS’ JOINT NOTICE IN RESPONSE TO DEFENDANTS’ EMERGENCY MOTION FOR STAY OF PRELIMINARY INJUNCTION PENDING APPEAL
(RELATING TO BOTH CASES)
CASE NO. C17-1707JLR

20

21

22

23

24

25

26

PLAINTIFFS’ JOINT NOTICE Nos. 17-cv-01707-JLR, 17-cv-00178-JLR
138038788.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 96 Filed 12/30/17 Page 2 of 5

1

Defendants’ “Emergency Motion for a Stay of Preliminary Injunction Pending Appeal,”

2 which was filed at 4:33 p.m. on Friday afternoon of a holiday weekend, is both procedurally
3 improper and transparent gamesmanship that should not be countenanced by this Court. First,
4 Defendants’ characterization of the motion as an “emergency motion” is questionable, as they
5
6 waited almost a full week since this Court’s December 23, 2017 Order Issuing a Preliminary

7 Injunction to file it.1 Second, Defendants’ motion is neither a motion for a stay pending appeal

8 (there is no pending appeal), nor is it analogous to a motion for a temporary restraining order, as

9 Defendants claim. See Dkt. 95 at n.1. A motion for a temporary restraining order is governed by
10 Fed. R. Civ. P. 65, which provides that the parties and their agents can be bound by such an
11 order. See Fed. R. Civ. P. 65(d)(2). Defendants’ motion, though, seeks to enjoin the Court from
12 enforcing its December 23, 2017 Order. See Dkt. 95 at 1 (“Defendants hereby move the Court to
13
14 stay its preliminary injunction barring enforcement of two provisions of the October 23, 2017,

15 Memorandum to the President.”). Defendants’ motion is best characterized as a second Motion

16 for Reconsideration, although Defendants fail to point to any changed circumstances or any other
17 factors that would justify a second motion for reconsideration.2 Accordingly, unless the Court 18
directs otherwise, Plaintiffs propose to respond to Defendants’ motion on January 5, 2018. 19
Plaintiffs respectfully request that Doe Plaintiffs and the JFS Plaintiffs be permitted to submit 20 21 separate briefing in response to the motion.

22

23

24

1

The claim that Defendants’ motion is an “emergency” is further belied by the fact that Defendants

25 admit that they are permitting Joseph Doe’s family members to move forward with travel to the United States

despite being subject to both the SAO and FTJ ban. See Dkt. 95 at 9.

26

2

While Defendants’ first Motion for Reconsideration questioned only the scope of the injunction

issued by the Court, this second motion questions the basis for that injunctive relief.

PLAINTIFFS’ JOINT NOTICE Nos. 17-cv-01707-JLR, 17-cv-00178-JLR –1
138038788.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 96 Filed 12/30/17 Page 3 of 5

1 Respectfully submitted,
2

3 /s/ Lauren Watts Staniar David Burman, WSBA No. 10611

4 Lauren Watts Staniar, WSBA No. 48741

Tyler Roberts, WSBA No. 52688 5 Perkins Coie LLP

6

1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099

7 Telephone: (206) 359.8000 Facsimile: (206) 359.9000

8 dburman@perkinscoie.com

lstaniar@perkinscoie.com 9 troberts@perkinscoie.com

10 Mariko Hirose, Pro Hac Vice

11 Deepa Alagesan, Pro Hac Vice Linda Evarts, Pro Hac Vice

12 Kathryn C. Meyer, Pro Hac Vice

International Refugee Assistance Project 13 40 Rector Street, 9th Floor

14

New York, NY 10006 Tel: (646) 459-3044

15 mhirose@refugeerights.org dalagesan@refugeerights.org

16 levarts@refugeerights.org

kmeyer@refugeerights.org 17

18

Elizabeth Sweet, Pro Hac Vice Mark Hetfield, Pro Hac Vice

19 HIAS, Inc. 1300 Spring Street, Suite 500

20 Silver Spring, MD 20910

Tel: 301-844-7300 21 liz.sweet@hias.org

22 mark.hetfield@hias.org

23

24

25

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DATED: December 30, 2017
Justin B. Cox, Pro Hac Vice National Immigration Law Center PO Box 170208 Atlanta, GA 30317 Tel: (678) 279-5441 Fax: (213) 639-3911 cox@nilc.org
Karen C. Tumlin, Pro Hac Vice Melissa S. Keaney, Pro Hac Vice Esther H. Sung, Pro Hac Vice National Immigration Law Center 3450 Wilshire Blvd, #108-62 Los Angeles, CA 90010 Tel: (213) 639-3900 Fax: (213) 639-3911 tumlin@nilc.org keaney@nilc.org sung@nilc.org
Lauren E. Aguiar, Pro Hac Vice Mollie M. Kornreich, Pro Hac Vice Abigail E. Davis, Pro Hac Vice Four Times Square New York, NY 10036 Tel: (212) 735-3000 Fax: (212) 735-2000 lauren.aguiar@probonolaw.com mollie.kornreich@probonolaw.com abigail.sheehan@probonolaw.com
Counsel for Plaintiffs Jewish Family Service, et al.

PLAINTIFFS’ JOINT NOTICE Nos. 17-cv-01707-JLR, 17-cv-00178-JLR–2
138038788.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 96 Filed 12/30/17 Page 4 of 5

1 AMERICAN CIVIL LIBERTIES UNION OF KELLER ROHRBACK L.L.P.

2 WASHINGTON FOUNDATION

Lynn Lincoln Sarko, WSBA # 16569

3 Emily Chiang, WSBA # 50517 Lisa Nowlin, WSBA # 51512

Tana Lin, WSBA # 35271 Amy Williams-Derry, WSBA # 28711

4 901 Fifth Avenue, Suite 630

Derek W. Loeser, WSBA # 24274

Seattle, WA 98164 5 Telephone: (206) 624-2184

Alison S. Gaffney, WSBA # 45565 1201 Third Avenue, Suite 3200

6

Email: echiang@aclu-wa.org Email: lnowlin@aclu-wa.org

Seattle, WA 98101 Telephone: (206) 623-1900

7 Attorneys for Plaintiff Joseph Doe

Facsimile: (206) 623-3384 Email: lsarko@kellerrohrback.com

8

Email: tlin@kellerrohrback.com

Email: awilliams-derry@kellerrohrback.com

9

Email: dloeser@kellerrohrback.com

10

Email: agaffney@kellerrohrback.com

11

Laurie B. Ashton (admitted pro hac vice)

3101 North Central Avenue, Suite 1400

12

Phoenix, AZ 85012-2600

Telephone: (602) 248-0088

13

Facsimile: (602) 248-2822

14

Email: lashton@kellerrohrback.com

15

Alison Chase (admitted pro hac vice)

1129 State Street, Suite 8

16

Santa Barbara, CA 93101

17

Telephone: (805) 456-1496 Facsimile: (805) 456-1497

18

Email: achase@kellerrohrback.com

19

Attorneys for Plaintiff Joseph Doe /

Cooperating Attorneys for the American Civil

20

Liberties Union of Washington Foundation

21

22

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25

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PLAINTIFFS’ JOINT NOTICE Nos. 17-cv-01707-JLR, 17-cv-00178-JLR –1
138038788.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 96 Filed 12/30/17 Page 5 of 5

1

CERTIFICATE OF SERVICE

2

I hereby certify that on December 30, 2017, I electronically filed the foregoing document

3 with the Clerk of the Court using the CM/ECF system which will send notification of such filing

4 to all of the registered CM/ECF users for this case.

5

I hereby declare under penalty of perjury of the laws of the State of Washington that the

6 foregoing is true and correct.

7 DATED this 30th day of December, 2017.
8

9

/s/ Lauren Watts Staniar

10

Lauren Watts Staniar, WSBA No. 48741

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PLAINTIFFS’ JOINT NOTICE Nos. 17-cv-01707-JLR, 17-cv-00178-JLR–2
138038788.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 Case: 18-35015, 02/06/2018, ID: 10754140, DktEntry: 24-1, Page 1 of 19

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JANE DOE, et al., Plaintiffs-Appellees-Cross-Appellants,
v.
DONALD TRUMP, in his official capacity as President of the United States, et al., Defendants-Appellants-Cross-Appellees.

Nos. 18-35015, 18-35026

DEFENDANTS’ MOTION TO DISMISS THE APPEAL, AND TO VACATE THE JUDGMENT AND REMAND
FOR DISMISSAL, ON GROUNDS OF MOOTNESS
The district court in this case entered a nationwide preliminary injunction barring the enforcement of two provisions of a Memorandum to the President issued on October 23, 2017, by the Secretaries of State and Homeland Security and the Director of National Intelligence (DNI).1 The challenged provisions (1) temporarily de-prioritized, during a 90-day review period, processing of refugee applications of nationals of 11 countries previously identified as posing a higher risk to the United States through their designation on the Security Advisory Opinion (SAO) list, and (2) temporarily

1 Copies of the preliminary injunction (Op.; DE# 92) and the Memorandum to the President (Agency Memo; DE# 46-2) are included with this motion.

Case: 18-35015, 02/06/2018, ID: 10754140, DktEntry: 24-1, Page 2 of 19
suspended, pending additional security screening procedures, admission of followingto-join (FTJ) derivative refugees. The 90-day SAO review period and de-prioritization specified in the October 23 Memorandum expired by its own terms on January 22, 2018; and on February 1, 2018, the government implemented the additional security screening procedures for FTJ refugees that terminates the FTJ suspension by its own terms. Thus, the district court’s injunction no longer has any effect because the enjoined provisions of the Memorandum have both ended by their own terms. Because these cross-appeals are now moot, the government respectfully requests that the Court dismiss the appeal, and vacate the injunction below and remand with instructions to dismiss the underlying claims, on grounds of mootness, pursuant to the doctrine recognized by the Supreme Court in United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). That “established practice,” ibid., was followed by the Supreme Court just last year when the challenged refugee provisions of a related Executive Order expired by their own terms, mooting the Supreme Court’s review. See Trump v. Hawaii, 138 S. Ct. 377 (Mem.), No. 16-1540 (Oct. 24, 2017).
BACKGROUND 1. Plaintiffs brought these cases (consolidated by the district court) to challenge two provisions in a Memorandum to the President issued on October 23, 2017, which the district court referred to as the “Agency Memo,” see Op. 9 & n.4. The Agency Memo explained that an earlier suspension of the United States Refugee
2

Case: 18-35015, 02/06/2018, ID: 10754140, DktEntry: 24-1, Page 3 of 19
Admissions Program (USRAP) had ended, and that, in light of a multi-agency review, that program could resume. However, the Agency Memo also identified security-related concerns arising from the government’s processing of two particular categories of refugee applications:
a. The SAO Provision. The Agency Memo explained that the Secretaries of State and Homeland Security and the DNI “continue to have concerns regarding the admission of nationals of, and stateless persons who last habitually resided in, 11 particular countries previously identified as posing a higher risk to the United States through their designation on the Security Advisory Opinion (SAO) list.” The SAO list, which was first established following the September 11, 2001, attacks, identifies particular countries that pose a higher risk to the national security of the United States. The current version of the refugee SAO list was adopted in 2015 and identifies 11 such countries. Agency Memo 2; Op. 10-11. The Agency Memo explained that the Secretaries of State and Homeland Security, along with the DNI, would “conduct a detailed threat analysis and review” for refugee applicants who were either nationals of the 11 countries previously identified in the SAO list or stateless persons who last habitually resided in one of those countries. Ibid. That analysis and review was expected to take 90 days, and during that time “the Secretary of State and the Secretary of Homeland Security will temporarily prioritize refugee applications from other non-SAO countries” and reallocate resources “to process
3

Case: 18-35015, 02/06/2018, ID: 10754140, DktEntry: 24-1, Page 4 of 19
applicants from non-SAO countries.” Agency Memo 2. That 90-day period ended on January 22, 2018 (January 21 was a Sunday). The Agency Memo’s prioritization of refugee applications from non-SAO countries thus no longer has any effect.
b. The FTJ Provision. The Agency Memo indefinitely suspended entry into the United States of FTJ refugees. Agency Memo 2-3; Op. 9-10. FTJ refugees are the spouses and unmarried minor children of admitted principal refugees who travel to join the principal refugee more than four months after the principal refugee’s admission. Op. 9 n.5; Agency Memo 2 n.1. As the Agency Memo observed, the majority of FTJ refugees did not then undergo the same security screening procedures as the principal refugees they seek to join in the United States. Agency Memo 2-3. Accordingly, the Agency Memo indefinitely suspended processing of FTJ refugee applications, and directed that “additional security measures must be implemented before admission of following-to-join refugees can resume”; the Agency Memo provided that, “once those enhancements have been implemented,” admission of FTJ refugees “will resume.” Id. at 3. Implementation of the security enhancements called for by the Agency Memo has now been completed, as of February 1, 2018, and processing of FTJ refugees now incorporates that additional screening. Because the Agency Memo called for the suspension of FTJ refugee processing to end once those enhancements were completed, the challenged FTJ provision no longer has any effect.
4

Case: 18-35015, 02/06/2018, ID: 10754140, DktEntry: 24-1, Page 5 of 19
2. The Agency Memo followed an earlier review of refugee policy, called for by the President on March 6, 2017, in Executive Order 13,780 (EO-2). See 82 Fed. Reg. 13,209 (Mar. 9, 2017).2 In relevant part, Section 6 of EO-2 suspended the travel of refugees into the United States under the USRAP, and also suspended decisions on refugee applications. Both suspensions were to last for 120 days. EO-2 § 6(a). EO-2 also directed the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the DNI, to review the USRAP application process to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States, and to implement such additional procedures. Ibid. Based on that review, the agencies adopted the measures described in the Agency Memo.
A federal district court in Hawaii preliminarily enjoined Section 6 of EO-2, Hawaii v. Trump, 245 F. Supp. 3d 1227 (D. Haw. 2017), and this Court partially affirmed, upholding the injunction in substantial part but allowing the Government to conduct its internal review, Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017). The Supreme Court granted certiorari and partially stayed the injunction, concluding that the injunction should apply only to individuals “who can credibly claim a bona fide
2 EO-2 was preceded by Executive Order 13,769, which was revoked by EO-2. 5

Case: 18-35015, 02/06/2018, ID: 10754140, DktEntry: 24-1, Page 6 of 19
relationship with a person or entity in the United States.” Trump v. IRAP, 137 S. Ct. 2080 (2017). After EO-2’s refugee suspension expired by its own terms, the Supreme Court vacated the Hawaii decision and remanded to this Court with instructions to dismiss the challenge as moot. Trump v. Hawaii, 138 S. Ct. 377 (Mem.), No. 16-1540 (Oct. 24, 2017).
3. Shortly after the Agency Memo, the President issued Executive Order 13,815 on October 24, 2017. See 82 Fed. Reg. 50,055 (Oct. 27, 2017). In relevant part, Executive Order 13,815 stated that the Secretary of State, the Secretary of Homeland Security, and the DNI had informed the President that recent “improvements to the USRAP vetting process are generally adequate to ensure the security and welfare of the United States,” and thus that the refugee program may resume. Id. § 2(a). The Order further directed the Secretary of State and the Secretary of Homeland Security to continue to assess and address any risks posed by particular refugees. Id. § 3.
4. On December 23, 2017, approximately 30 days before the expiration of the 90-day period for SAO threat analysis and review, the district court entered a nationwide preliminary injunction barring enforcement of the FTJ and SAO
6

Case: 18-35015, 02/06/2018, ID: 10754140, DktEntry: 24-1, Page 7 of 19
provisions of the Agency Memo.3 The district court first held that plaintiffs have Article III standing to assert their claims; that plaintiffs’ claims are not barred by the doctrine of consular nonreviewability; that the Agency Memo constitutes final agency action under the Administrative Procedure Act (APA); and that the Secretary’s action is not committed to agency discretion. Op. 19-38. The court then concluded that plaintiffs were likely to succeed on the merits because the Agency Memo failed to comply with notice-and-comment requirements under the APA, Op. 39-46, and because the provisions were contrary to the Immigration and Nationality Act, Op. 47-56. The court declined to reach any other merits argument. Op. 19, 56 n.29. The court found that plaintiffs would suffer irreparable harm in the absence of an injunction, Op. 56-58, and that the balance of the remaining equitable factors warranted injunctive relief, Op. 59-62. The district court entered a nationwide injunction prohibiting enforcement of the challenged portions of the Agency Memo
3 As the district court noted, plaintiffs narrowly challenged only two provisions of the Agency Memo: the 90-day de-prioritization under the SAO provision and the temporary suspension under the FTJ provision. Plaintiffs did not seek to enjoin the government’s efforts to implement additional security screening mechanisms for FTJ refugees, nor did plaintiffs seek to enjoin the government’s threat analysis and review of the SAO countries to determine if additional safeguards are necessary. Plaintiffs did not seek a guarantee of admissions into the United States for the refugees at issue. Op. 38.
7

Case: 18-35015, 02/06/2018, ID: 10754140, DktEntry: 24-1, Page 8 of 19
for all foreign nationals with a credible claim of a bona fide relationship with a person or entity in the United States. Op. 61-65.
5. The government filed a notice of appeal on January 4, 2018. Plaintiffs in one of the consolidated cases filed a cross-appeal on January 11, 2018. This Court established a briefing schedule for the cross-appeals, and the Circuit Mediator subsequently entered an order vacating that briefing schedule and establishing a schedule for the Court’s consideration of this motion.
6. On January 22, 2018, 90 days after the date of the Agency Memo, the SAO provision challenged in this case expired by its own terms. The government recently informed the district court of subsequent developments, explaining that the Secretary of Homeland Security issued a memorandum on January 29, 2018, outlining additional security enhancements and recommendations to strengthen the integrity of the USRAP. See Notice, Jan. 31, 2018 (DE# 119). As the Department of Homeland Security summarized in a related press release, these security enhancements and recommendations include: (1) “Additional screening for certain nationals of high-risk countries”; (2) “Administering the USRAP in a more riskbased manner when considering the overall refugee admissions ceiling, regional allocations, and the groups of applicants considered for resettlement”; and (3) “A periodic review and update of the refugee high-risk country list and selection criteria.” Press Release, Dep’t of Homeland Sec., DHS Announces Additional,
8

Case: 18-35015, 02/06/2018, ID: 10754140, DktEntry: 24-1, Page 9 of 19

Enhanced Security Procedures for Refugees Seeking Resettlement in the United

States (last updated Jan. 31, 2018), https://www.dhs.gov/news/2018/01/29/dhs-

announces-additional-enhanced-security-procedures-refugees-seeking-

resettlement.

7. Shortly thereafter, the government implemented the additional security

screening procedures for processing FTJ refugees. Processing of FTJ refugee

applications using the new screening procedures began on February 1, 2018. The

Departments of State and Homeland Security have posted information about the new

screening procedures.

See https://travel.state.gov/content/travel/en/us-

visas/immigrate/follow-to-join-refugees-and-asylees.html; http://www.uscis.gov/i-

730 (Special Instructions: “New security measures for following-to-join refugees”).

ARGUMENT I. THE APPEALS OF THE PRELIMINARY INJUNCTION ARE MOOT
“A case becomes moot – and therefore no longer a ‘Case’ or ‘Controversy’ for

purposes of Article III – ‘when the issues presented are no longer ‘live’ or the parties

lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568

U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)).

Thus, even if there is a live controversy when the case is filed, courts should refrain

from addressing the merits of claims if “the requisite personal interest that must exist

at the commencement of the litigation” is no longer present. Arizonans for Official

9

Case: 18-35015, 02/06/2018, ID: 10754140, DktEntry: 24-1, Page 10 of 19
English v. Arizona, 520 U.S. 43, 67-68 & n.22 (1997). Because the challenged provisions in this case have expired by their own terms, there is no longer a present case or controversy, and plaintiffs lack a legally cognizable interest in the outcome of their challenges to the expired provisions.
The Agency Memo, issued on October 23, 2017, specified that the Secretaries of State and Homeland Security and the DNI would “conduct a detailed threat analysis and review for nationals” from SAO countries and stateless persons who last habitually resided in those countries. Agency Memo 2. The Agency Memo further specified that the de-prioritization of refugees from SAO countries would continue only “[w]hile the temporary review is underway,” and that the review period would be “complete[d] * * * no later than 90 days from the date of this memorandum.” Ibid. As the district court observed, plaintiffs “d[id] not seek to enjoin the agencies from conducting their 90-day ‘detailed threat analysis and review’ of the SAO countries to determine what additional safeguards the agencies believe are necessary with respect to the admission of refugees from those countries,” Op. 38, and the district court’s preliminary injunction did not prohibit the government from completing such a review. As specified in the Agency Memo, the government’s SAO review was completed on January 22, 2018, 90 days after the Agency Memo was issued. Accordingly, the de-prioritization of SAO refugees by
10

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the Agency Memo has ended and is now without any effect, as are the portions of the preliminary injunction prohibiting enforcement of the SAO provision.
The FTJ provisions similarly became moot by their own terms when the government implemented additional security screening procedures on February 1, 2018. As with the SAO provision, plaintiffs did not “seek to enjoin the agencies’ efforts to implement screening mechanisms for FTJ refugees,” Op. 38, and the district court’s preliminary injunction did not prohibit the government from doing so. Because the new FTJ security measures have now been implemented, the processing and admission of following-to-join refugees is no longer suspended under the terms of the Agency Memo. Agency Memo 3. Accordingly, as of February 1, 2018, the FTJ provision of the Agency Memo ceased to have any effect, and the preliminary injunction prohibiting enforcement of the FTJ provision similarly ceased to have any effect.
Because the provisions of the Agency memo that plaintiffs have challenged in this case have expired by their own terms, the preliminary injunction has no continuing effect, and the appeals from the district court’s decision are moot. See University of Tex. v. Camenisch, 451 U.S. 390, 394 (1981) (When enjoined conduct has ceased, “the correctness of the decision to grant [the] preliminary injunction * * * is moot.”). The merits of the government’s appeal and the plaintiffs’ crossappeal thus present questions with no ongoing practical or legal import. A decision
11

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from this Court on any of the merits issues addressed by the district court would be an advisory opinion.
For the same reasons, the Agency Memo itself no longer imposes any harm on plaintiffs. See Arizonans for Official English, 520 U.S. at 67 (“To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’”) (citation omitted). Even if, as the district court concluded, plaintiffs were harmed by the SAO and FTJ provisions at the time these cases were brought and decided below, Op. 20-21, those provisions have now expired; thus, they will not and cannot cause any ongoing harm.
No exception to mootness applies in this case. The limited exception when a legal question is capable of repetition yet evades review “applies ‘only in exceptional situations,’” where “the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,” and “there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Kingdomware Technologies, Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (citation omitted; brackets in original). Here, there is no significant likelihood that the same parties will again be subject to the same action, which was expressly temporary and for limited purposes, which have since been met.
The government has completed its review of refugees from SAO countries, and has taken steps to implement the recommendations that resulted from that
12

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review, including (1) additional screening for certain nationals of high-risk countries; (2) administering the USRAP in a more risk-based manner when considering the overall refugee admissions ceiling, regional allocations, and the groups of applicants considered for resettlement; and (3) a periodic review and update of the refugee SAO list and selection criteria. Those recommendations are new steps, not within the terms of the Agency Memo’s 90-day review and related temporary SAO de-prioritization. If plaintiffs seek to challenge any new policy, they may do so by filing new or amended complaints, but the current challenge to the temporary de-prioritization of SAO refugees in the Agency Memo is not likely to be repeated.
Similarly, the government has now fully implemented the new FTJ security measures called for in the Agency Memo, and the related temporary suspension of FTJ refugee application processing has accordingly ended by the Agency Memo’s own terms. Plaintiffs are not likely to be subjected to another temporary suspension of FTJ refugee processing to allow those new measures to be put in place, because the called-for measures were put in place as of February 1, 2018. See also America Cargo Transport., Inc. v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010) (“The government’s change of policy presents a special circumstance in the world of mootness”).
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The exception to mootness for a defendant’s “voluntary cessation” of “allegedly illegal conduct” also does not apply here. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.10 (1982). That exception exists because “a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 285 n.1 (2001). But the government has not altered its behavior or the terms of the Agency Memo. The terms of the Agency Memo always contemplated that the temporary SAO and FTJ provisions would terminate. The Agency Memo specified that the SAO provision would only continue during the government’s 90day review (which ended on January 22), and that processing of FTJ refugees would resume once new security measures were implemented (which took place February 1). The challenged provisions have thus expired by their own terms.
In Burke v. Barnes, 479 U.S. 361 (1987), Members of the House of Representatives sued to challenge the President’s pocket-veto of a bill pertaining to U.S. military aid to El Salvador. Id. at 363. When the “bill in question expired by its own terms * * * a few weeks after the Court of Appeals entered its judgment,” the Supreme Court held “that any issues concerning whether [the bill] became a law were mooted.” Ibid. The same is true here. The challenged SAO provision expired by its own terms on January 22, and the FTJ provisions expired when new security measures were implemented on February 1. See also Log Cabin Republicans v.
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United States, 658 F.3d 1162, 1166 (9th Cir. 2011) (“[T]he Supreme Court and our court have repeatedly held that a case is moot when the challenged statute * * * expires * * *.”).
Similarly, after the Supreme Court granted certiorari to review the preliminary injunction against certain provisions of Section 6 of EO-2 and allowed those provisions to take effect on a limited basis, the earlier suspension of USRAP expired by its own terms after 120 days. Relying on Burke v. Barnes, the Supreme Court concluded that because the suspension had expired by its own terms, the appeal of the preliminary injunction was moot and no longer presented a live case or controversy. Trump v. Hawaii, 138 S. Ct. 377 (Mem.), No. 16-1540 (Oct. 24, 2017). Just as the passage of time resulted in the expiration of the challenged provisions of EO-2 and thus mooted the appeal of a preliminary injunction addressed to those provisions, so too does the expiration of the SAO and FTJ provisions moot this appeal of a preliminary injunction addressed to those provisions. II. THE DISTRICT COURT’S JUDGMENT SHOULD BE VACATED
Where, as here, an appeal becomes moot before the appealing party can obtain review, the “established practice” is to “vacate the judgment below and remand with a direction to dismiss.” United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). This rule is “commonly utilized,” id. at 41, and is the “normal” procedure for mootness, Camreta v. Green, 563 U.S. 692, 713 (2011). The rule serves important
15

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purposes: vacatur “clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance.” Munsingwear, 340 U.S. at 40. In addition, a “party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment.” U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S 18, 25 (1994).4
While there is an exception where the party seeking vacatur has mooted the case by settlement, Bancorp, 513 U.S. at 25, or failed to pursue an appeal, Karcher v. May, 484 U.S. 72, 83 (1987), vacatur is the proper course when a case becomes moot due to the expiration of a challenged law. See Burke, 479 U.S. at 363; Log Cabin Republicans, 658 F.3d at 1167 (“The ‘established’ practice when a civil suit becomes moot on appeal is to vacate the district court’s judgment and remand for dismissal of the complaint.”) (citing Munsingwear). In Burke, where the case was mooted when the challenged bill “expired by its own terms,” the Supreme Court vacated the court of appeals’ judgment and remanded with instructions to dismiss the complaint. Id. at 365. And when EO-2 § 6 expired by its own terms after 120 days, the Supreme Court not only instructed this Court to dismiss the challenge as
4 Pursuant to this Court’s practice, it may also dismiss the appeal as moot, in conjunction with vacatur and direction to dismiss on remand. See, e.g., Alaska Wilderness League v. Jewell, 637 Fed. Appx. 976, 981 (9th Cir. 2015).
16

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moot, but (citing Burke) vacated the judgment below following the Court’s
“established practice.” Hawaii, 138 S. Ct. 377 (Mem.), No. 16-1540 (Oct. 24, 2017).
The same established practice applies here, and the same disposition is appropriate
here as well: This Court (like the Supreme Court in Hawaii) should vacate the
judgment below and remand with instructions to dismiss the claims underlying the
injunction as moot.
CONCLUSION For these reasons, defendants respectfully request that this Court dismiss the
appeal, and vacate the district court’s judgment and remand with instructions to
dismiss, on grounds of mootness.
Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
HASHIM M. MOOPPAN Deputy Assistant Attorney General
/s/ H. Thomas Byron III SHARON SWINGLE H. THOMAS BYRON III
Attorneys, Appellate Staff Civil Division, Room 7529 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 616-5367
FEBRUARY 2018
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CERTIFICATE OF COMPLIANCE I hereby certify that this motion complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-volume limitations of Fed. R. App. P. 27(d)(2)(A). This motion contains 3,807 words, excluding the parts of the motion excluded by Fed. R. App. P. 27(d)(2) and 32(f).
/s/ H. Thomas Byron III H. Thomas Byron III

Case: 18-35015, 02/06/2018, ID: 10754140, DktEntry: 24-1, Page 19 of 19
CERTIFICATE OF SERVICE I hereby certify that on February 6, 2018, I electronically filed the foregoing motion with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
/s/ H. Thomas Byron III H. Thomas Byron III

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege1 1ofo6f 565

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

JOHN DOE, et al.,

CASE NO. C17-0178JLR

10
v. 11

Plaintiffs,

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND

12

DONALD TRUMP, et al.,

ORDER ISSUING A PRELIMINARY INJUNCTION

13

Defendants.

(RELATING TO BOTH CASES)

14

JEWISH FAMILY SERVICES, et

CASE NO. C17-1707JLR

15

al.,

Plaintiffs,

16

v.

17

DONALD TRUMP, et al.,

Defendants. 18

19

I. INTRODUCTION

20

The work of this court, and more broadly of the federal Judiciary, is to resolve

21 disputes between parties; that is what the court endeavors to do today in ruling on the two

22 motions before it. Plaintiffs in both cases are refugees, who find themselves in dire

ORDER - 1

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege2 2ofo6f 565

1 circumstances, their family members who yearn to be reunited with them, and

2 humanitarian organizations whose fundamental mission is to help these vulnerable

3 refugees resettle in the United States. Plaintiffs in both cases present compelling

4 circumstances of irreparable harm inflicted by the federal agencies’ action at issue here.

5 Nevertheless, the fundamental question the court must resolve is did the federal agencies

6 act within their legal authority? If so, the court does not intervene, but leaves the

7 decision to the other two branches of government—Congress and the Executive. Today,

8 however, the court intervenes and preliminarily enjoins the federal agencies’ action. It

9 does so because, at this early stage in the proceedings, Plaintiffs show that they are likely

10 to succeed on their claims that the agencies exceeded their statutory authority and also

11 that they meet the other qualifying factors necessary for preliminary injunctive relief.

12

One further note: This is an area of rapidly developing law with related cases

13 presently on appeal and decisions anticipated shortly.1 Plaintiffs, however, seek a

14 decision now and are entitled to one given the facts in this case. In deciding these

15 motions, the court must rely on the precedent currently available to it. The court

16 understands that appellate courts may issue additional guidance in the days to come. If

17 the parties believe that the court should revisit any portion of today’s decision on the

18 basis of subsequent authority, they should raise this to the court’s attention through

19 appropriate motions. The court now turns to the motions at hand.

20 //

21

1 Indeed, one such decision was issued last night. See Hawaii v. Trump, No. 17-17168,

22

2017 WL 6547095 (9th Cir. Dec. 22, 2017) (“Hawaii III”). The court has reviewed that opinion and incorporated it into this decision.

ORDER - 2

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege3 3ofo6f 565

1

Before the court are two motions seeking to preliminarily enjoin certain aspects of

2 Executive Order No. 13,815 (“EO-4”), § 3(a), 82 Fed. Reg. 50,055 (Oct. 27, 2017), and

3 its accompanying memorandum to Defendant Donald Trump, President of the United

4 States, from Defendants Rex Tillerson, Secretary of the Department of State (“DOS”),

5 Elaine Duke, Acting Secretary of the Department of Homeland Security (“DHS”), and

6 Daniel Coats, Director of National Intelligence (“DNI”) (Lin Decl. (Dkt. # 46) ¶ 3, Ex. B

7 (attaching a copy of the memorandum) (hereinafter, “Agency Memo”)). Plaintiffs John

8 Doe, Jack Doe, Jason Doe, Joseph Doe, James Doe, Jeffrey Doe, the Episcopal Diocese

9 of Olympia, and the Council on American Islamic Relations-Washington (collectively,

10 “Doe Plaintiffs”) filed the first motion for a preliminary injunction in Doe, et al. v.

11 Trump, et al., No. C17-0178JLR (W.D. Wash.) (“the Doe Case”). (See Doe PI Mot.

12 (Dkt. # 45).) Shortly after Doe Plaintiffs filed their motion, Plaintiffs Jewish Family

13 Service of Seattle (“JFS-S”), Jewish Family Services of Silicon Valley (“JFS-SV”), Allen

14 Vaught, Afkab Mohamed Hussein, John Does 1-3 and 7, and Jane Does 4-6 (collectively,

15 “JFS Plaintiffs”) filed a separate action in JFS-S, et al. v. Trump, et al., No. C17-

16 1707JLR (W.D. Wash.) (“the JFS Case”) and a second motion for a preliminary

17 injunction. (See JFS Compl. (17-1707 Dkt. # 1); JFS PI Mot. (17-1707 Dkt. # 42).)2

18 Recognizing that both cases and motions for preliminary injunction concerned EO-4 and

19 the Agency Memo, the court consolidated the cases. (See OSC re: Consol. (Dkt. # 52);

20

21

2 References to docket numbers in this order refer to filings the Doe Case, unless the

22

docket number is preceded by “17-1707.” Docket numbers preceded by “17-1707” refer to entries in the JFS Case.

ORDER - 3

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege4 4ofo6f 565

1 Stip. Re: Consol. (Dkt. # 60); Consol. Order (Dkt. # 61).) Following consolidation, Doe

2 Plaintiffs joined JFS Plaintiffs’ motion, and JFS Plaintiffs joined Doe Plaintiffs’ motion.

3 (Doe Joinder (Dkt. #62); JFS Joinder (17-1707 Dkt. # 70).)

4

In addition to the parties’ briefing (see Doe PI Mot.; JFS PI Mot.; Doe Resp. (Dkt.

5 # 51); JFS Resp. (Dkt. # 77); Doe Reply (Dkt. # 54); JFS Reply (Dkt. # 79); Doe Joinder;

6 JFS Joinder ; Doe Supp. Br. (Dkt. # 76); JFS Supp. Br. (Dkt. # 73); Def. Supp. Br. (Dkt.

7 # 78)), the court has considered the relevant portions of the record, and the applicable

8 law. Further, the court heard oral argument on December 21, 2017. Being fully advised,

9 the court (1) GRANTS Doe Plaintiffs’ motion for a preliminary injunction, and (2)

10 GRANTS JFS Plaintiffs’ motion for a preliminary injunction except for those refugees

11 who lack a bona fide relationship with a person or entity in the United States.3 See

12 Trump v. Int’l Refugee Assistance Project, --- U.S. ---, 137 S. Ct. 2080, 2089 (2017)

13 (“IRAP”).

14 //

15 //

16

3 In accordance with Federal Rules of Civil Procedure 52(a) and 65(d), this order shall 17 constitute the court’s findings of fact and conclusions of law setting forth the grounds for issuing

the preliminary injunction contained herein. See Fed. R. Civ. P. 52(a); Fed. R. Civ. P. 65(d); see

18 also A.H.R. v. Wash. State Health Care Auth., No. C15-5701JLR, 2016 WL 98513, at *1 n.4

(W.D. Wash. Jan. 7, 2016). Although the court has not labeled paragraphs specifically as

19 findings of fact or conclusions of law, such labels are not necessary. The nature of the findings

and conclusions that follow is apparent. See Tri–Tron Int’l v. A.A. Velto, 525 F.2d 432, 435-36

20 (9th Cir. 1975) (“We look at a finding or a conclusion in its true light, regardless of the label that the district court may have placed on it. . . . [T]he findings are sufficient if they permit a clear

21

understanding of the basis for the decision of the trial court, irrespective of their mere form or arrangement.”) (internal citations omitted); In re Bubble Up Del., Inc., 684 F.2d 1259, 1262 (9th

22

Cir. 1982) (“The fact that a court labels determinations ‘Findings of Fact’ does not make them so if they are in reality conclusions of law.”).

ORDER - 4

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege5 5ofo6f 565

1

II. BACKGROUND

2 A. The President’s Executive Orders on Immigration and Refugees

3

1. EO-1

4

One week after his inauguration, President Trump issued Executive Order No.

5 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017) (“EO-1”). In addition to suspending the entry

6 of aliens from seven majority-Muslim countries for 90 days, EO-1 suspended the United 7 States Refugee Admission Program (“USRAP”) for 120 days and banned the entry of 8 Syrian refugees indefinitely. Id. §§ 3(c), 5(a), 5(c). During the 120-day suspension of 9 USRAP, EO-1 directed the Secretaries of DOS and DHS and the DNI to conduct a 10 security review of USRAP. Id. § 5(a). In this period, refugees could be admitted on a 11 case-by-case basis only if their admission was “in the national interest,” which was 12 defined to include when a person is “a religious minority in his country of nationality

13 facing religious persecution.” Id. § 5(e). EO-1 further directed that when USRAP

14 resumed, DOS was to “prioritize refugee claims made by individuals on the basis of

15 religious-based persecution, provided that the religion of the individual is a minority

16 religion in the individual’s country of nationality.” Id. § 5(b).

17

On February 3, 2017, this court issued a nationwide temporary restraining order

18 (“TRO”) enjoining EO-1, including the suspension of USRAP. Washington v. Trump,

19 No. C17-0141JLR, 2017 WL 462040, at *1 (W.D. Wash. Feb. 3, 2017), stay pending 20 appeal denied, 847 F.3d 1151 (9th Cir. 2017), appeal dismissed, No. 17-35105, 2017 WL 21 3774041 (9th Cir. Mar. 8, 2017). On appeal, the Ninth Circuit interpreted the court’s 22 TRO to be a preliminary injunction and declined the Government’s request to stay this

ORDER - 5

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege6 6ofo6f 565

1 court’s order. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), appeal dismissed,

2 No. 17-35105, 2017 WL 3774041 (9th Cir. Mar. 8, 2017).

3

2. EO-2

4

After the Ninth Circuit’s ruling, President Trump abandoned his efforts to defend

5 EO-1, and issued Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017)

6 (“EO-2”). EO-2 expressly revoked EO-1. EO-2 § 13. EO-2 was similar to EO-1 except

7 that it omitted the explicit preference for religious minorities and the indefinite

8 suspension of Syrian refugees. EO-2 directed another review of USRAP and restarted the

9 120-day suspension of USRAP during the new review period, subject to case-by-case

10 waivers. Id. §§ 6(a), (c). EO-2 stated that the suspension of USRAP was necessary to

11 allow the agencies to “determine what additional procedures should be used to ensure

12 that individuals seeking admission as refugees do not pose a threat to the security and

13 welfare of the United States.” Id. § 6(a). EO-2 also stated that at the conclusion of the

14 review period, USRAP adjudications would resume for stateless persons and nationals of

15 countries for which the agencies “determined that the additional procedures implemented

16 . . . [we]re adequate to ensure the security and welfare of the United States.” Id.

17

Before EO-2 could take effect, a federal district court in Hawaii issued a TRO,

18 holding that EO-2 violated the Establishment Clause. See, e.g., Hawaii v. Trump, 245 F.

19 Supp. 3d 1227, 1230 (D. Haw. 2017), hearing en banc denied sub nom. Hawaii v. Trump,

20 864 F.3d 994 (9th Cir. 2017), aff’d in part, vacated in part, remanded sub nom. Hawaii v.

21 Trump, 859 F.3d 741 (9th Cir. 2017), cert. granted sub nom. Trump v. Int’l Refugee

22 Assistance Project, --- U.S. ---, 137 S. Ct. 2080 (2017), and cert. granted, judgment

ORDER - 6

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege7 7ofo6f 565

1 vacated, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017), and vacated, 874 F.3d

2 1112 (9th Cir. 2017), and appeal dismissed as moot sub nom. Hawaii v. Trump, 874 F.3d

3 1112 (9th Cir. 2017). The Ninth Circuit upheld the district court’s decision on the ground

4 that President Trump failed to invoke the proper authority to suspend refugee admissions.

5 Hawaii v. Trump, 859 F.3d 741, 776 (9th Cir. 2017), cert. granted sub nom. Trump v.

6 Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017), and cert. granted, judgment

7 vacated, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017), and vacated, 874 F.3d

8 1112 (9th Cir. 2017) (“Hawaii I”). In addition, a federal district court in Maryland and

9 the Fourth Circuit Court of Appeals both concluded that EO-2 likely violated the

10 Establishment Clause. Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539,

11 544 (D. Md. 2017), aff’d in part, vacated in part, 857 F.3d 554 (4th Cir. 2017) (en banc),

12 as amended (May 31, 2017), as amended (June 15, 2017), cert. granted, --- U.S. ---, 137

13 S. Ct. 2080 (2017), and vacated and remanded sub nom. Trump v. Int’l Refugee

14 Assistance Project, --- U.S. ---, 138 S. Ct. 353 (2017). Pending appeals from both the

15 Ninth and Fourth Circuit Courts of Appeal, the Supreme Court stayed the preliminary

16 injunctions issued by the Maryland and Hawaii district courts—except for foreign

17 nationals and refugees who had a “credible claim of a bona fide relationship with a

18 person or entity in the United States.” IRAP, 137 S. Ct. at 2088-89.

19

3. EO-3

20

While review of EO-2 was pending before the Supreme Court, President Trump

21 replaced those portions of EO-2 that relate to immigrants (and not refugees), with a

22 Presidential Proclamation. See Proclamation No 9,645, 82 Fed. Reg. 45,161 (Sept. 27,

ORDER - 7

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege8 8ofo6f 565

1 2017) (“EO-3”). EO-2’s refugee ban was still in effect at the time President Trump

2 issued EO-3. Federal district judges in Hawaii and Maryland issued preliminarily

3 injunctions blocking implementation of portions of EO-3. See Int’l Refugee Assistance

4 Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *1 (D. Md. Oct. 17,

5 2017), appeal docketed, No. 17-2231 (4th Cir. Oct. 20, 2017), and appeal docketed, No.

6 17-2240 (4th Cir. Oct. 23, 2017); Hawaii v. Trump, No. CV 17-00050 DKW-KSC, 2017

7 WL 4639560, at *1 (D. Haw. Oct. 17, 2017), appeal docketed, No. 17168 (9th Cir. Oct.

8 24, 2017). The Ninth Circuit affirmed the Hawaii district court’s ruling in large part, but

9 narrowed the scope of the injunction to give relief only to those with a credible bona fide

10 relationship with the United States, pursuant to the Supreme Court’s decision in IRAP,

11 137 S. Ct. at 2088. See Hawaii III, 2017 WL 6547095 at * 26. The ruling from the

12 Maryland federal district court remains on appeal. The Supreme Court has stayed both

13 preliminary injunctions pending further appeals. See Trump v. Int’l Refugee Assistance

14 Project, No. 17A560, 2017 WL 5987435, at *1 (U.S. Dec. 4, 2017); Trump v. Hawaii,

15 No. 17A550, 2017 WL 5987406, at *1 (U.S. Dec. 4, 2017).

16

4. EO-4 and the Agency Memo

17

On October 24, 2017, the same day that EO-2’s 120-day refugee ban expired,

18 President Trump issued Executive Order 13,815, 82 Fed. Reg. 50,055 (Oct. 27, 2017)

19 (“EO-4”). EO-4 stated that continued suspension of refugee admission was not

20 necessary, EO-4 § 3(a), and that the Administration had improved USRAP vetting

21 processes so that they were “generally adequate to ensure the security and welfare of the

22 United States,” id. § 2(a). Nevertheless, EO-4 directed a continuing risk assessment as to

ORDER - 8

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege9 9ofo6f 565

1 “[c]ertain [c]ategories of [r]efugees.” Id. §§ 3(a)(i)-(ii). The Secretaries of DOS and

2 DHS and the DNI outlined the risk assessment and the EO-4 categories of refugees in the

3 Agency Memo, which was dated October 23, 2017, but released on October 24, 2017.4

4 (See Lin Decl. ¶ 3, Ex. B (attaching Agency Memo); see also Burman Decl. ¶ 3, Ex. B

5 (attaching Agency Memo).)

6

Plaintiffs seek to preliminarily enjoin certain provisions of the Agency Memo that

7 (1) indefinitely suspend “following-to-join” (“FTJ”) derivative refugees from entering the

8 United States, and (2) suspend for at least 90-days the entry of refugees who are

9 “nationals of, and stateless persons who last habitually resided in, 11 particular countries

10 previously identified as posing a higher risk to the United States through their designation

11 on the Security Advisory Opinion (“SAO”) list.” (Agency Memo at 2-3; see generally

12 Doe PI Mot.; JFS PI Mot.)

13

a. The FTJ Provisions

14

The Agency Memo indefinitely suspends the FTJ process for refugees.5 (Agency

15 Memo at 2-3.) Approximately 2,500 refugees in the United States are able to reunite

16

4 An addendum is attached to the Agency Memo, entitled “Addendum to Section 6(a) 17 Memorandum,” which refers to the review of USRAP directed by Section 6(a) of EO-2

(“Agency Memo Addendum”). (See Burman Decl. (17-1707 Dkt. # 43) ¶ 3, Ex. B.)

18

5 Under the INA, subject to numerical limits set annually by the President, the Secretary

19 of DHS may admit “any refugee who is not firmly resettled in any foreign country, is determined

to be of special humanitarian concern to the United States, and is admissible (except as otherwise

20 provided under ([8 U.S.C. § 1157(c)(3)]) as an immigrant.” 8 U.S.C. § 1157(c)(1). Refugees admitted under this provision are referred to as “principal refugees.” See 8 C.F.R. § 207.7(a).

21

“Derivative refugees” are the spouses and unmarried minor children of an admitted principal refugee. See id. When derivative refugees travel to join the principal refugee more than four

22

months after the principal refugee’s admission, they are FTJ derivative refugees, rather than “accompanying” derivative refugees. See id.

ORDER - 9

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege1010ofo6f 565

1 with their immediate family members annually through the FTJ process. (Id. at 2 n.1.)

2 The Agency Memo states that most FTJ refugee applicants do not currently undergo the

3 same security procedures as the principal refugee who has already resettled in the United

4 States. (Id. at 2-3.) The Secretaries of DOS and DHS and the DNI determined that FTJ

5 refugees should not be admitted to the United States until additional screening procedures

6 are in place. (Id. at 3.) Although the Agency Memo does not exempt Kenya and

7 Thailand from its application, Defendants state that FTJ refugees processed at

8 resettlement centers in those two countries are not affected by the Agency Memo because

9 “adequate review mechanisms are already in place in those countries.” (JFS Resp. at 5,

10 n.3; see also Doe Resp. at 5; Higgins Decl. (Dkt. # 51-1) ¶ 11).) At oral argument,

11 Defendants clarified that during the Agency Memo’s indefinite FTJ suspension, the

12 Government was not just barring entry of FTJ refugees, but had completely stopped

13 processing FTJ refugee applications—except for FTJ refugees who are processed in

14 Thailand or Kenya.

15

b. The SAO Provisions

16

The Agency Memo also suspends for at least 90 days refugee admission of

17 nationals of 11 countries on the SAO list, as well as stateless persons who last resided in

18 those countries. (See Agency Memo at 2.) The Agency Memo does not identify the

19 countries, but Plaintiffs assert that the countries are Egypt, Iran, Iraq, Libya, Mali,

20 Somalia, Sudan, Syria, and Yemen, as well as North Korea and South Sudan.6 (See JFS

21 6 At oral argument, Defendants declined to confirm this list of the 11 SAO countries on
22 the basis that it was “law enforcement sensitive information.” However, Defendants conceded

ORDER - 10

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege1111ofo6f 565

1 PI Mot. at 7; see also Smith Decl. (17-1707 Dkt. # 44) ¶ 5.) Countries on the SAO list

2 “have been assessed by the U.S. government to pose elevated potential risks to national

3 security.” (Agency Memo Addendum at 1.) The SAO list for refugees was established

4 after September 11, 2001, and has changed over the years. (Id.) The most recent list was

5 updated in 2015. (Id.) USRAP already requires additional screening and procedures for

6 refugees from countries on the SAO list. (Id.) USRAP subjects these refugees to

7 additional vetting through SAOs, which are “DOS-initiated biographic check[s]

8 conducted by the Federal Bureau of Investigation and intelligence community partners.”

9 (Id. at 1 n.1.)

10

The Agency Memo requires the agencies to “conduct a review and analysis” of

11 USRAP for refugees from SAO countries for an additional 90 days—notwithstanding the

12 agencies’ review of USRAP pursuant to EO-1 and EO-2. (See Agency Memo at 2.) Like

13 President Trump’s prior EOs, the Agency Memo suspends refugee admission from SAO

14 countries unless resettlement “would fulfill critical foreign policy interests, without

15 compromising national security and the welfare of the United States,” a determination

16 made on a “case-by-case basis” (Id.) In addition, the Agency Memo diverts resources

17 dedicated to processing refugees who are citizens of (or stateless persons who last resided

18 in) SAO countries and reallocates those resources to processing refugee applicants from

19 non-SAO countries. (Id.) During oral argument, Defendants acknowledged that this

20 would impact the pace of processing for SAO refugees. Thus, even if the SAO

21

22

that the court could “rely on Plaintiffs’ allegations for purposes of addressing the issues” presented in these motions.

ORDER - 11

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege1212ofo6f 565

1 suspension is lifted after 90-days, it will have a long-term effect. “Refugees have only a

2 narrow window of time to complete their travel, as certain security and medical checks

3 expire and must then be re-initiated.” Hawaii v. Trump, 871 F.3d 646, 664 (9th Cir.

4 2017) (“Hawaii II”). “Even short delays may prolong a refugee’s admittance.” Id.

5 B. Facts Pertaining to Specific Plaintiffs

6

1. Joseph Doe

7

Joseph Doe is a plaintiff in the Doe Case. (See Doe TAC (Dkt. # 42) ¶¶ 54-71.)

8 He is from Somalia, was first admitted to the United States in 2014 as a refugee, and

9 became a lawful permanent resident in 2016. (Joseph Decl. (Dkt. # 47) ¶¶ 2, 9, 11.)

10 Joseph fled Somalia with his family as a young child; he and his family eventually ended

11 up in a refugee camp in Kenya, where Joseph grew up, married, and began his own

12 family. (Id. ¶¶ 3-8.) Joseph’s wife and children were unable to come to the United States

13 with Joseph, remaining in Kenya. (Id. ¶¶ 8-9.) Joseph filed an I-730 petition to bring his 14 wife and children to the United States as FTJ refugees. (Id. ¶ 10.) Joseph’s wife and 15 children have completed their final interviews, security and medical clearances, received 16 a formal assurance from a refugee resettlement agency, and are on the brink of travel. 17 (Id. ¶ 12; Joseph Supp. Decl. (Dkt. # 56) ¶¶ 3-5.) Yet, Joseph’s family has not received 18 permission from DHS to travel. (Joseph Supp. Decl. ¶ 7.) Joseph’s two youngest

19 children were born in Kenya and have never been to Somalia. (Id. ¶ 9.) Nevertheless, 20 they are considered to be Somali citizens due to Joseph’s nationality. (Id.) Somalia is an 21 SAO country. (Smith Decl. ¶ 5.) Thus, the United States embassy in Somalia informed 22 Joseph that although his wife and oldest step-son, who are both Kenyan citizens, could

ORDER - 12

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege1313ofo6f 565

1 obtain permission to travel to the United States, his 4-year-old and 5-year-old sons cannot

2 because they are considered Somali citizens. (See Joseph Supp. Decl. ¶ 10.)

3

2. John Doe 7

4

John Doe 7 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 20.) JFS Plaintiffs

5 base their joinder in the Doe motion for preliminary injunction on facts pertaining to Doe

6 7. (JFS Joinder at 1-2.) Doe 7 is an Iraqi national, who was admitted as a refugee to the

7 United States in 2014, along with his wife and two children. (Doe 7 Decl. (17-1707 Dkt.

8 # 58) ¶ 2.) He filed an I-720 petition for his 19-year-old son from his first marriage to

9 join him as an FTJ refugee, which the Government approved. (Id. ¶¶ 3-4.) His son has

10 completed his interview and fingerprinting and received a formal assurance from JFS-S

11 in November 2016. (Id. ¶ 4.) Since that time, Doe 7’s son has been waiting to travel to

12 the United States. (Id.)

13

3. Afkab Mohamed Hussein

14

Afkab Mohamed Hussein is a plaintiff in the JFS Case. (See JFS Compl. ¶ 12.)

15 He is a Somali national, who was admitted to the United States as a refugee in September

16 2015. (Hussein Decl. (17-1707 Dkt. # 48) ¶ 1.) His wife, who was pregnant with their

17 son at the time, did not travel with Mr. Hussein to the United States. (See id. ¶ 6.) Mr.

18 Hussein filed I-720 petitions for his wife and son to join him in the United States as FTJ

19 refugees, which the Government approved in June 2016. (Id. ¶¶ 10, 16.) His wife and

20 son were both born in Kenya but are considered Somali citizens. (See id. ¶¶ 11-12.)

21 //

22 //

ORDER - 13

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege1414ofo6f 565

1

4. John Doe 1

2

John Doe 1 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 13.) Doe 1 is an Iraqi

3 former interpreter for the United States military. (Doe 1 Decl. (17-1707 Dkt. # 52) ¶¶ 1,

4 3.)7 Doe 1 and his family were in extreme danger in Iraq due to his work for the United

5 States military. (See id. ¶¶ 3-8.) As a result, in 2014, he fled Iraq for Cairo, Egypt

6 without his family. (Id. ¶¶ 8-9.) In September 2014, he applied for refugee status in the

7 United States. (Id. ¶ 12.) He is currently “in the end stage of processing for refugee

8 admissions.” (Id. ¶ 15.) He was conditionally approved for resettlement in the United

9 States in December 2015, and has received an assurance of sponsorship from a 10 resettlement agency. (Id.) In early October 2017, the International Organization for 11 Migration (“IOM”) told Doe 1 to “get ready to travel to the United States.” (Id. ¶ 16.)

12 While he was updating his passport to travel, EO-4 and the Agency Memo went into

13 effect, preventing him from traveling. (See id.)

14

5. John Does 2 and 3

15

John Doe 2 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 15.) John Doe 2 is an

16 Iraqi former interpreter for the United States Army. (Doe 2 Decl. (17-1707 Dkt. # 53)

17 ¶¶ 1, 3.) In 2010, he came to the United States to complete his PhD. (Id. ¶ 5.) Upon

18 graduation, he travelled back to Mosul, Iraq without his wife and children who remained

19 in the United States. (Id.) While he was in Mosul, ISIS seized control of the city, and he

20 7 (See also Vaught Decl. (17-1707 Dkt. # 49) ¶¶ 1-24 (describing the declarant’s work

21

with Doe 1 as an interpreter while the declarant was serving in Falluja, Iraq with the United States Army Reserve’s Civil Affairs and Psychological Operations Command, his distress in

22

having to leave Doe 1 behind in Iraq, his efforts to assist Doe 1 to resettle in the United States, and his objections to EO-4 and the Agency Memo).)

ORDER - 14

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege1515ofo6f 565

1 has been unable to rejoin his family in the United States ever since. (Id. ¶ 6.) In 2015, he

2 applied for admission to the United States as a refugee. (Id. ¶¶ 7-8.) He is currently “in

3 the end stage of processing for refugee admissions.” (Id. ¶ 9; see also id. ¶ 12.) He was

4 “awaiting security checks and travel booking” when he was informed of the restrictions

5 on refugees that apply to Iraqi nationals in EO-1, EO-2, and EO-4. (Id.) He has been

6 stranded in Iraq and separated from his family for three years. (Id. ¶ 11.) One of his

7 children is now married to a lawful permanent resident, and he has two granddaughters

8 who are United States citizens. (Id. ¶ 5.)

9

John Doe 3 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 16.) He is a lawful

10 permanent resident of the United States and the son-in-law of Doe 2. (Doe 3 Decl.

11 (17-1707 Dkt. # 54) ¶ 1.) He is worried about Doe 2’s safety. Doe 2’s family in the

12 United States, which consists of his wife, five children, two sons-in-law, and two

13 granddaughters, miss him dearly, rely on him, and want to be reunited with him. (Id.

14 ¶¶ 2, 4-5.)

15

6. Jane Doe 4

16

Jane Doe 4 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 17.) Doe 4 is an

17 Egyptian, who has applied for refugee status in the United States. (Doe 4 Decl. (17-1707

18 Dkt. # 55) ¶¶ 1-2.) She is a transgender woman who faces extreme harassment and

19 persecution in Egypt because of her gender identity. (Id. ¶ 3; see also id. ¶ 6.) Until the

20 recent restrictions on refugee admissions to the United States, USRAP was processing

21 her refugee application on an expedited basis. (Id. ¶ 5.)

22 //

ORDER - 15

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege1616ofo6f 565

1

7. Jane Does 5 and 6

2

Jane Doe 5 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 18.) She is an Iraqi

3 national and waiting to travel to the United States as a refugee. (Doe 5 Decl. (17-1707

4 Dkt. # 56) ¶¶ 2-3.) She hopes to live with her sister who resides in Castle Creek, Utah.

5 (Id. ¶ 2.) Her mother, father, another sister, and a brother also live in the United States.

6 (Id. ¶ 8.) In Iraq, Doe 5 works as an interpreter and administrator for American

7 companies. (Id. ¶ 3.) As a result of her work, she faces danger, threats, and harassment

8 in Iraq. (Id. ¶¶ 3-5) In November 2015, Doe 5 was kidnapped by Iraqi militants who

9 raped her multiple times and held her for about a month. (Id. ¶ 4.) When they released

10 her, they told her they would kill her if she continued to work with the Americans. (Id.)

11 She applied for refugee status in 2012. (Id. ¶ 7.) She has completed multiple stages of

12 the refugee admissions process and has been awaiting security checks and travel booking

13 since 2016. (Id.)

14

Jane Doe 6 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 19.) She is a United

15 States citizen and the sister of Doe 5. (Doe 6 Decl. (17-1707 Dkt. # 57) ¶ 1.) She fears for

16 her sister’s safety in Iraq and misses her deeply. (See id. ¶¶ 2, 4-6.)

17

All of the individual Plaintiffs have been injured by prolonged separation from

18 their family members. (See, e.g., Hussein Decl. ¶¶ 6, 18; Doe 2 Decl. ¶¶ 5, 10; Doe 3

19 Decl. ¶ 4; Doe 5 Decl. ¶ 8; Doe 6 Decl. ¶¶ 6-7; Doe 7 Decl. ¶¶ 5-7.) Those individual

20 Plaintiffs stranded abroad in perilous circumstances are injured by their inability to travel

21 to safety in the United States. (See, e.g., Doe 1 Decl. ¶¶ 3-11; Doe 2 Decl. ¶¶ 5-10; Doe 4

22 Decl. ¶ 7; Doe 5 Decl. ¶ 9.)

ORDER - 16

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege1717ofo6f 565

1

8. The Organizational Plaintiffs

2

JFS Plaintiffs argue in conjunction with their motion for preliminary injunction

3 that EO-4 and the Agency Memo also harm the organizational Plaintiffs—JFS-S and

4 JFS-SV.8 (JFS PI Mot. at 12-13.) These agencies provide services to and help resettle

5 refugees in response to the moral, religious, and cultural commands of their religion.

6 (JFS-S Decl. (17-1707 Dkt. # 50) ¶¶ 2-8, 15-16; JFS-SV Decl. (17-1707 Dkt. # 51) ¶¶ 11-

7 18.) Due to the anticipated reduction in refugees from Muslim countries as a result of

8 EO-4 and the Agency Memo, these organizations anticipate that they will need to lay-off

9 employees, reduce services, divert resources to address fears raised by EO-4 and the

10 Agency Memo, cancel established programs, and lose relationships and goodwill with

11 volunteers and community partners who these organizations have cultivated relationships

12 with over the years. (See JFS-S Decl. ¶¶ 30-34; JFS-SV Decl. ¶¶ 27-35.) Further, the

13 agencies state that because they hire staff and volunteers and design programs to be

14 culturally and linguistically relevant to the communities they serve, they cannot simply

15 divert the lost resources to refugees who hail from other parts of the world and who are

16 unaffected by EO-4 and the Agency Memo. (JFS-SV Supp. Decl. (Dkt. # 82) ¶¶ 2-4;

17 JFS-S Supp. Decl. (Dkt. # 81) ¶¶ 3-6.) Indeed, the agencies will be forced to replace

18 staff, build new community relationships, and redesign programs. (JFS-SV Supp. Decl.

19 ¶ 4; JFS-S Supp. Decl. ¶¶ 6-7.)

20 //

21

8 Doe Plaintiffs did not assert harm to organizational Plaintiffs Episcopal Diocese of

22

Olympia or the Council on American-Islamic Relations-Washington in support of their motion for a preliminary injunction. (See generally Doe PI Mot.)

ORDER - 17

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege1818ofo6f 565

1

III. ANALYSIS

2

Doe Plaintiffs assert that they are entitled to a preliminary injunction because they

3 are likely to succeed on four claims: (1) the Agency Memo’s indefinite ban on FTJ

4 refugees is contrary to the INA (Doe PI Mot. at 9-12); (2) the Agency Memo’s indefinite

5 ban on FTJ refugees deprives Plaintiffs of due process under the Fifth Amendment (id. at

6 12-14); (3) the Agency Memo violates the Administrative Procedures Act’s (“APA”), 5

7 U.S.C. § 553(b), requirement for notice and comment rulemaking (id. at 14-15); and (4)

8 the Agency Memo violates the APA, 5 U.S.C. § 706(2)(A), because it is arbitrary and

9 capricious (id at 14-18).

10

JFS Plaintiffs assert that they are entitled to a preliminary injunction because they

11 are likely to succeed on four claims: (1) the Agency Memo’s SOA provisions violate the

12 Establishment Clause (JFS PI Mot. at 13-17); (2) the Agency Memo’s SAO provisions

13 violate the APA, 5 U.S.C. § 706(2)(A), because they are arbitrary and capricious (id. at

14 17-18); (3) the Agency Memo violates the APA, 5 U.S.C. § 706(2)(C), because it is ultra

15 vires and contrary to the INA (id. at 19-22); and (4) the Agency Memo violates the APA

16 because the agency failed to engage in required notice and comment rulemaking (id. at

17 20).9

18

Defendants oppose both Doe Plaintiffs’ and JFS Plaintiffs’ substantive arguments

19 that they are likely to prevail on these claims. (Doe Resp. at 12-21; JFS Resp. at 15-28.)

20

21

9 JFS Plaintiffs also assert that the FTJ provisions of the Agency Memo violate the APA,

22

the INA, and the Due Process Clause of the Fifth Amendment (JFS PI Mot. at 22-23), and they filed a formal notice of joinder in Doe Plaintiffs’ motion (see JFS Joinder.)

ORDER - 18

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege1919ofo6f 565

1 In addition, Defendants oppose both motions on a variety of justiciability grounds. (Doe

2 Resp. at 7-12; JFS Resp. at 5-15.) The court addresses Defendants’ justicaibility issues

3 first, and then addresses the substance of the Doe and JFS motions for preliminary

4 injunctions. In addressing the substance of Plaintiffs’ motions, the court turns to the

5 statutory issues first. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,

6 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that

7 courts avoid reaching constitutional questions in advance of the necessity of deciding

8 them.”). Because the court ultimately concludes that Plaintiffs show a likelihood of

9 success on the merits of their statutory claims, the court does not reach either JFS

10 Plaintiffs’ Establishment Clause claim or Doe Plaintiffs’ due process claim. See

11 Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)

12 (“[I]f a case can be decided on either of two grounds, one involving a constitutional

13 question, the other a question of statutory construction or general law, the Court will

14 decide only the latter.”).

15 A. Justiciability

16

Defendants challenge the justiciability of both motions for preliminary injunction

17 on four grounds: (1) Plaintiffs lack Article III standing (Doe Resp. at 7-8; JFS Resp. at

18 5-9); (2) Plaintiffs’ claims are barred by principles of nonreviewability (Doe Resp. at 8-

19 11; JFS Resp. at 10-14); (3) Plaintiffs fail to identify any final agency action (Doe Resp.

20 at 11-12; JFS Resp. at 14-15), and (4) Plaintiffs’ claims concerning the SAO provisions

21 are unreviewable under 5 U.S.C. § 701(a) (JFS Resp. at 15). In addition to these issues,

22 //

ORDER - 19

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege2020ofo6f 565

1 the court also addresses statutory standing because both Doe Plaintiffs and JFS Plaintiffs

2 raise statutory claims.10

3

1. Article III Standing

4

To satisfy Article III standing, “a plaintiff must show (1) [he or she] has suffered

5 an ‘injury in fact’[;] . . . (2) the injury is fairly traceable to the challenged action of the

6 defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be

7 redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

8 (TOC), Inc., 528 U.S. 167, 180-81 (2000) (internal citation omitted). At this preliminary

9 stage of the litigation, Plaintiffs may rely on the allegations in their complaint and

10 whatever other evidence they submit in support of their preliminary injunction motions to

11 meet their burden. Hawaii I, 859 F.3d at 762; Washington, 847 F.3d at 1159. Defendants

12 challenge the standing of both the individual and organizational Plaintiffs. (JFS Resp. at

13 6-7; Doe Resp. at 7.)

14

a. Individual Plaintiffs

15

Plaintiffs allege in their complaints that the SAO and FTJ provisions of the

16 Agency Memo extend the separation of citizens and lawful residents in the United States

17 from their family members abroad. (See generally Doe TAC; JFS Compl.) Plaintiffs

18 provide numerous declarations supporting those allegations, which the court has detailed

19 above. See supra § II.B.1-7. Prolonged separation from a family member is an injury in

20

21

10 The court does not reach Doe Plaintiffs’ due process claim or JFS Plaintiffs’

22

Establishment Clause claim. Thus, the court addresses only whether Plaintiffs have standing to challenge the Agency Memo based on their APA and INA claims.

ORDER - 20

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege2121ofo6f 565
1 fact sufficient to establish Article III standing.11 See Hawaii I, 859 F.3d at 763 (holding 2 that a citizen had Article III standing to challenge EO-2 because EO-2 prolonged the 3 separation of the citizen and his family from reunification with his mother-in-law by 4 stalling her visa application); see also Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 5 2013) (“The right to live with and not be separated from one’s immediate family is ‘a 6 right that ranks high among the interests of the individual.’”) (quoting Landon v. 7 Plascenia, 459 U.S. 21, 34-35 (1982)); Leiva-Perez v. Holder, 640 F.3d 962, 969-70 (9th 8 Cir. 2011) (recognizing that “important [irreparable harm] factors include separation 9 from family members” (internal quotation marks omitted)); Legal Assistance for 10 Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469, 471-73 (D.C. Cir. 1995), 11 vacated on other grounds, 519 U.S. 1 (1996) (holding that U.S. resident sponsors had 12 standing to challenge DOS’s refusal to process visa applications because the prolonged 13 separation of immediate family members resulted in injury to the sponsors); IRAP, 137 S. 14 Ct. at 2089 (“An American individual . . . that has a bone fide relationship with a 15 particular person seeking to enter the country as a refugee can legitimately claim concrete 16 hardship if that person is excluded.”); Int’l Refugee Assistance Project v. Trump, No. CV 17 TDC-17-0361, 2017 WL 4674314, at *12 (D. Md. Oct. 17, 2017) (citizens and lawful 18 permanent residents established “injury in fact” for purposes of Article III standing 19 because EO-3’s “indefinite ban on the issuance of immigrant and nonimmigrant visas for 20 // 21
11 At oral argument, Defendants conceded that separation from “one’s loved ones” can 22 constitute such harm.
ORDER - 21

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege2222ofo6f 565

1 nationals of the Designated Countries has imposed an actual, imminent injury on [the

2 plaintiffs] by prolonging their separation from family members.”).

3

Nevertheless, Defendants argue that none of the individual Plaintiffs have

4 demonstrated that suspension of FTJ refugee processing has caused them harm. First,

5 Defendants argue that Joseph fails to show any injury because his wife and children are

6 from Kenya, and Kenya is one of two countries in which the Government is continuing to

7 process FTJ refugee applications because screening procedures are already in place to

8 ensure appropriate FTJ scrutiny. (Doe Resp. at 2, 6-7; Higgins Decl. ¶ 11 (explaining

9 that in Kenya and Thailand “the security vetting received for a Form I-730 beneficiary is

10 the same as the screening received for principal refugee applicants,” and therefore the

11 Government is continuing to issue travel authorization to approve FTJ refugees who are

12 processed in those locations).) However, as noted above, two of Joseph’s children are

13 considered Somali citizens and are, therefore, subject to the Agency Memo’s SAO

14 provisions. (See Joseph Supp. Decl. ¶ 9.) Accordingly, the processing of their FTJ

15 refugee applications remain on hold. (See id. ¶ 10.)

16

Defendants also argue that Mr. Hussein’s family is in Kenya, and thus he has no

17 standing to challenge the FTJ provisions of the Agency Memo. (JFS Resp. at 6 (citing

18 Higgins Decl. ¶ 11).) However, Mr. Hussein’s family members are also Somali

19 nationals, and therefore subject to the SAO provisions. (See Hussein Decl. ¶¶ 10-11.)

20 Because both Joseph’s and Mr. Hussein’s FTJ refugee applications for their family

21 members are subject to the Agency Memo’s SAO provisions, Joseph and Mr. Hussein

22 have standing to challenge the Agency Memo. Indeed, during the December 21, 2017,

ORDER - 22

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege2323ofo6f 565

1 hearing on Plaintiffs’ motions, Defendants withdrew their argument that Joseph lacked

2 standing.

3

In any event, Doe 7 also has an approved FTJ refugee application for his 19-year

4 old son to come to the United States. (Doe 7 Decl. ¶ 4) Doe 7’s son is an Iraqi national

5 (id. ¶ 3), and so Doe 7’s FTJ application and the processing of his son’s FTJ refugee

6 status are subject to both the FTJ and SAO provisions of the Agency Memo (id. ¶¶ 3-10).

7 Accordingly, the court concludes that Doe 7 has standing. One party with standing is

8 sufficient to fulfill Article III’s case-or-controversy requirement. Rumsfeld v. Forum for

9 Acad. & Institutional Rights, Inc., 547 U.S. 47, 52, n.2 (2006).

10

Nevertheless, Defendants argue that it is speculative to infer that the Agency

11 Memo’s FTJ and SAO provisions are the source of any delay in the processing of Doe 7’s

12 FTJ refugee application as opposed to any other number of factors that might delay a

13 refugee’s application. (JFS Resp. at 6.) Whether Doe 7’s son’s application has other

14 hurdles to cross, however, does not diminish the fact that the SAO and FTJ provisions of

15 the Agency Memo add two more. Removing these hurdles would speed the resolution of

16 any others that may exist since processing of these applications is not presently

17 proceeding at all. (See Agency Memo.) In any event, the evidence before the court is

18 that Doe 7’s FTJ application for his son has been approved, his son has completed his

19 interview and fingerprinting, has received an assurance from a refugee resettlement

20 agency in the United States, and is waiting to travel. (Doe 7 Decl. ¶ 4.) At this stage of

21 the proceedings, this is sufficient to establish harm for purposes of Article III standing

22 with respect to both the SAO and FTJ provisions.

ORDER - 23

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege2424ofo6f 565

1

Defendants also argue that the individual Plaintiffs have no standing to challenge

2 the SAO provisions because the Agency Memo provides for exceptions on a case-by-case

3 basis. (JFS Resp. at 6-7.) Defendants argue that Plaintiffs cannot demonstrate harm until

4 they demonstrate that they “cannot qualify for this exemption.” (See id. at 7 n.4.) In

5 Hawaii I, the Ninth Circuit rejected a virtually identical argument when it concluded that

6 EO-2’s discretionary waiver did not undermine Article III standing. 859 F.3d at 768.

7 Indeed, the Ninth Circuit stated that the plaintiffs would “face substantial hardship if [the

8 court] were to first require that they try to obtain a waiver before [the court] . . .

9 consider[ed] their case.” Id.; see also Hawaii III, 2017 WL 6547095, at *6 (“[EO-3’s]

10 waiver provisions are not a sufficient safety valve and do not mitigate the substantial

11 hardships Plaintiffs have already suffered and will continue to suffer due to [EO-3].”)

12 (internal quotation marks omitted); Int’l Refugee Assistance Project v. Trump, 2017 WL

13 4674314, at *16 (stating in the context of analyzing the ripeness of challenges to EO-3

14 that “the waiver process itself presents an additional hurdle not faced by other visa

15 applicants which would delay reunification, thus creating a harm not contingent on future

16 events”).

17

Finally, Defendants parse the various individual Plaintiffs’ declarations and argue

18 “it is doubtful that these applicants are on the brink of travel such that the 90-day SAO

19 review period will have any concrete impact on them.” (JFS Resp. at 7.) Whether

20 Defendants are on the brink of travel or not, however, their separation from their family

21 members will be prolonged as a result of the SAO provisions. The Agency Memo

22 specifically states that, during the 90-day review, DOS and DHS will “take resources that

ORDER - 24

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege2525ofo6f 565

1 may have been dedicated to processing nationals of, or stateless persons who last

2 habitually resided in, SAO countries and . . . reallocate them to process applicants from

3 non-SAO countries for whom the processing may not be as resource intensive.” (Agency

4 Memo at 2.) Indeed, Defendants conceded that during the suspension the Government is

5 redirecting “processing resources” away from SAO countries and that refugee

6 applications will not be processed at the same pace. Thus, even assuming refugee

7 applications from SAO countries are processed at all during the review period, they will

8 undoubtedly be slowed by this resource diversion, prolonging the individual Plaintiffs’

9 separation from their family members.

10

In sum, the court concludes that the individual Plaintiffs have sufficiently

11 demonstrated harm due to the SAO provisions and that at least one individual Plaintiff—

12 Doe 7—has sufficiently alleged harm due to the FTJ provisions. The court concludes

13 that the final two aspects of Article III standing—causation and redressability—are also

14 satisfied. These Plaintiffs’ injuries are traceable to EO-4 and its accompanying Agency

15 Memo, and, if Plaintiffs prevail, a decision enjoining portions of the Agency Memo

16 would redress those injuries.

17

b. Organizational Plaintiffs

18

Plaintiffs assert that JFS-S and JFS-SV have standing as organizational Plaintiffs

19 because the Agency Memo has caused them to divert resources away from their core

20 mission of resettling refugees. (See JFS PI Mot. at 12; see generally JFS-S Decl.;

21 JFS-SV Decl.) This is ordinarily sufficient to demonstrate harm underpinning Article III

22 standing. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (diversion of

ORDER - 25

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege2626ofo6f 565

1 resources confers Article III standing); Fair Hous. Council of San Fernando Valley v.

2 Roomate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012) (“[A]n organization has ‘direct

3 standing to sue [when] it showed a drain on its resources from both a diversion of its

4 resources and frustration of its mission.’”) (second alteration in original) (quoting Fair

5 Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)).

6

Defendants argue that JFS-S and JFS-SV have not shown that the Agency Memo

7 impairs their core mission because EO-4 largely resumes USRAP, “subject to conditions

8 for applicants of special concern.” (JFS Resp. at 9.) Further, Defendants contend that,

9 although the Agency Memo may temporarily alter the composition of refugees entering

10 the country, it does not alter the overall number of refugees entering the country. (Id.)

11 Thus, according to Defendants, the organizational mission of the agencies is not

12 impaired. (Id.)

13

JFS-S and JFS-SV, however, cannot make up the deficits in the arrival of FTJ

14 refugees and refugees from SAO countries by receiving and serving other refugees. Each

15 organization devoted significant resources to serving Muslim and Arabic-speaking

16 refugees because these refugees represent a large percentage of their clients, including by

17 hiring staff and designing programs specifically devoted to serving these clients. (JFS-S

18 Supp. Decl. ¶¶ 5-7; JFS-SV Supp. Decl. ¶¶ 3-4.) Yet, the effect of the Agency Memo is

19 likely to be a significant reduction in the admission of Muslim refugees into the United

20 States. Over 40% of all refugees resettled in the United States within the last two fiscal

21 years came from one of the SAO countries. (Smith Decl. ¶ 15.) Of that group, 99%

22 came from one of the nine Muslim-majority SAO countries, and over 80% identified as

ORDER - 26

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege2727ofo6f 565

1 Muslim. (Id. ¶¶ 15, 17.) The Agency Memo’s FTJ provisions are also likely to have a

2 disproportionate effect on Muslim refugees because it is generally available only to

3 refugees admitted in the last two years, 8 C.F.R. § 207.7(d), which is the period of time

4 when the admission of Muslim refugees reached a record high. (Burman Decl. ¶ 41, Ex.

5 NN.) The resources JFS-S and JFS-SV devoted to Muslim and Arabic-speaking refugees

6 cannot simply be shifted to serving other refugees from other parts of the world; instead

7 these resources are wasted, and the agencies’ organizational purpose is thereby frustrated.

8 (See JFS-S Supp. Decl. ¶¶ 6-7; JFS-SV Supp. Decl. ¶ 4); see, e.g., El Rescate Legal

9 Servs., Inc. v. Exec. Office of Immigration Rev., 959 F.2d 742, 748 (9th Cir.1992) (legal

10 services organizations “established to assist Central American refugee clients, most of

11 whom [we]re unable to understand English,” who were seeking asylum and the

12 withholding of deportation, had standing to challenge government policy of not providing

13 full translation of those proceedings).12 Accordingly, the court concludes that both JFS-S

14 and JFS-SV have standing as organizational plaintiffs.

15

JFS-S and JFS-SV also assert third-party standing because they have a close

16 relationship to the individual Plaintiffs whose claims they raise and these individual

17 Plaintiffs are unable to protect their interests on their own. (JFS PI Mot. at 13 (citing

18

19

12 The El Rescate court expounded on the issue of organizational standing immediately

after declaring the issue moot, 959 F.2d at 748, and so this portion of the decision is arguably

20 dicta. However, at least one subsequent Ninth Circuit panel described this part of El Rascate as a holding. See Fair Hous. of Marin, 285 F.3d at 904-05 (“This Court . . . held that “[t]he

21

allegation that the [the government’s] policy frustrates these goals [of helping refugees obtain asylum and withhold deportation] and requires the organizations to expend resources in

22

representing clients they otherwise would spend in other ways is enough to establish standing.”) (second and fourth alterations in original) (emphasis added).

ORDER - 27

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege2828ofo6f 565

1 Powers v. Ohio, 499 U.S. 400, 410-11 (1991)).) Defendants’ only response is that the

2 organization’s clients have suffered no injury. (JFS Resp. at 9, n.7.) The court, however,

3 concludes otherwise. See supra § III.A.1.a. Accordingly, the court also concludes based

4 on the record presented at this point in the proceedings that JFS-S and JFS-SV have third-

5 party standing.

6

2. Statutory Standing

7

Although Defendants do not raise this issue, because the various individual

8 Plaintiffs, as well as JFS-S and JFS-SV, assert a statutory claim under the INA, the court

9 “must also determine whether they meet the requirement of having interests that ‘fall

10 within the zone of interests protected by the law invoked.’” Hawaii I, 859 F.3d at 766

11 (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., --- U.S. ---, 134 S. Ct.

12 1377, 1388 (2014)). The “‘zone of interests’ test is ‘not meant to be especially

13 demanding,’ and a court should deny standing only ‘if the plaintiff’s interests are so

14 marginally related to or inconsistent with the purposes implicit in the statute that it cannot

15 reasonably be assumed that Congress intended to permit the suit.’” Cetacean Cmty. v.

16 Bush, 386 F.3d 1169, 1177 (9th Cir. 2004) (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S.

17 388, 399 (1987)). The “benefit of any doubt goes to the plaintiff.” Match-E-Be-Nash-

18 She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012).

19

In Hawaii I, the Ninth Circuit had “little trouble concluding that [the citizen

20 plaintiff] [wa]s within the zone of interests of the INA to challenge EO2 based on [his

21 INA] statutory claim,” because “[h]e assert[ed] that the travel ban prevents his mother-in-

22 law from reuniting with his family.” 859 F.3d at 766 (citing Legal Assistance for

ORDER - 28

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege2929ofo6f 565

1 Vietnamese Asylum Seekers, 43 F.3d at 471-72 (“The INA authorizes the immigration of

2 family members of the United States citizens and permanent resident aliens. In originally

3 enacting the INA, Congress implemented the underlying intention of our immigration

4 laws regarding preservation of the family unit. Given the nature and purpose of the

5 statute, the resident appellants fall well within the zone of interest Congress intended to

6 protect.”) (internal quotation marks, citations, and alterations omitted)). Does 3 and 6, a

7 lawful permanent resident and a citizen, respectively, both claim that the Agency Memo

8 prevents reuniting with their family members. See supra §§ II.B.5, 7. The court finds no

9 legitimate basis for distinguishing the present situation from that of the plaintiff in

10 Hawaii I. Accordingly, the court concludes that Does 3 and 6 fall within the zone of

11 interest of the INA and the Refugee Act of 1980.

12

JFS-S and JFS-SV Plaintiffs also fall within the zone of interest of the INA and

13 the Refugee Act of 1980. In Hawaii I, the Ninth Circuit held that the States’ “interest in

14 effectuating its refugee resettlement policies and programs also falls within the zone of

15 interests protected by the INA.” 859 F.3d at 766. The Ninth Circuit noted that INA

16 provisions concerning refugees “were amended to provide a ‘systematic procedure’ for

17 the admission of refugees into the United States, as well as ‘uniform provisions for the

18 effective resettlement and absorption of those refugees admitted.’” Id. at 766-67 (quoting

19 Refugee Act of 1980, Pub. L. No. 96-212, § 101, 94 Stat. 102 (1980)). Making

20 provisions for the resettlement and absorption of refugees into the United States is the

21 core mission of both JFS-S and JFS-SV. (JFS-S Decl. ¶¶ 2-7, 15-16, 30, 34; JFS-SV

22 Decl. ¶¶ 11, 18, 36-37.) Thus, these organizations’ interests in effectuating refugee

ORDER - 29

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege3030ofo6f 565

1 resettlement and absorption falls within the zone of interest protected by the INA and the

2 Refugee Act of 1980.13

3

3. Nonreviewability

4

Like they have in other cases involving the President’s various EOs on

5 immigration, Defendants assert that the “doctrine of consular nonreviewability” applies

6 to bar the court’s review of Doe and JFS Plaintiffs’ statutory claims. (See Doe Resp. at

7 8-10; JFS Resp. at 12-13.) Courts have traditionally applied the doctrine of consular

8 nonreviewability to bar challenges to decisions by consular officials adjudicating

9 individual visa applications. See Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971

10 (9th Cir. 1986) (“[I]t has been consistently held that the consular official’s decision to

11 issue or withhold a visa is not subject either to administrative or judicial review.”).

12 Defendants rely on out-of-circuit authority to argue for a significant expansion of the

13 doctrine and support their position by stating that “[t]he principle underlying that doctrine

14 applies regardless of the manner in which the Executive Branch denies entry to an alien

15 abroad, including a refugee applicant.” (See Doe Resp. at 8 (citing Haitian Refugee Ctr.,

16 Inc. v. Baker, 953 F.2d 1498, 1506 (11th Cir. 1992).)14

17

18

13 The court does not decide if Plaintiffs who are located abroad have statutory standing

under the INA because “[i]f one party to an action has standing, a court need not decide the

19 standing issue as to other parties when it makes no difference to the merits of the case.” See

Legal Assistance for Vietnamese Asylum Seekers, 45 F.3d at 472 (declining to decide if refugees

20 in Hong Kong or the organizational plaintiff had standing because the court had already found that the family members of refugees in the United States were within the zone of interest of the

21 INA).

14 In Baker, the Eleventh Circuit relied in part on the doctrine of consular 22 nonreviewability to preclude review of an Executive Order and agency guidelines that were

ORDER - 30

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege3131ofo6f 565

1

But the Ninth Circuit has already rejected Defendants’ position. Just as in

2 Hawaii I, individual Plaintiffs here “do not seek review of an individual consular

3 officer’s decision to grant or to deny a visa pursuant to valid regulations, which could

4 implicate the consular nonreviewability doctrine,” but rather the government’s

5 “promulgation of sweeping immigration policy.” 859 F.3d at 768. “Courts can and do

6 review both constitutional and statutory ‘challenges to the substance and implementation

7 of immigration policy.’” Id. (quoting Washington, 847 F.3d at 1163; see Hawaii III,

8 2017 WL 6547095, at *6-*7 (concluding that the doctrine of consular nonreviewability

9 did not apply to bar the court’s review of EO-3); see also Sale v. Haitian Ctrs. Council,

10 Inc., 509 U.S. 155 (1993) (without discussing consular nonreviewabilty, but over the

11 Government’s objections that the doctrine applied and barred review, reviewing the

12 merits of a statutory claim challenging an EO that blocked the entry of Haitians); Sale v.

13 Haitian Ctrs. Council, Inc., 1993 WL 754941 (U.S.), 16-22 (U.S. Oral. Arg., 1993)

14 (arguing that the doctrine bars review). Thus, the court rejects Defendants’ assertion that

15 this doctrine bars judicial review of EO-4 and the Agency Memo.15

16 promulgated thereunder, which provided for the interdiction and return of Haitians on the high
17 seas who were deemed to be economic rather than political refugees. 953 F.2d at 1507.

18

15 In Hawaii I, the Ninth Circuit declined to apply Mandel’s “facially legitimate and bona

fide” standard in the context of a statutory challenge to EO-2. 859 F.3d at 769 n.9. The court

19 recognizes that the Supreme Court vacated Hawaii following the expiration of EO-2. See

Hawaii v. Trump, 874 F.3d 1112, 1112 (9th Cir. 2017) (“In view of the Supreme Court order

20 dated October 24, 2017, the court's opinion filed June 12, 2017, is vacated and the appeal is dismissed as moot.”). But Hawaii I, 859 F.3d at 769 n.9, remains persuasive authority despite

21

the Supreme Court’s vacatur. See Orhorhaghe v. INS, 38 F.3d 488, 493 n.4 (9th Cir. 1994) (following as persuasive authority a decision vacated by the Supreme Court as moot). Hawaii I

22

is closely analogous and related to the issues presently before this court, and as a district court within the Ninth Circuit, this court is unwilling to ignore it or depart from its reasoning.

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1

4. Final Agency Action

2

Finality is a prerequisite to judicial review of agency action. See 5 U.S.C. § 704.

3 To be final, the agency action first “must mark the consummation of the agency’s

4 decisionmaking process—it must not be of a merely tentative or interlocutory nature.”

5 Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 (9th Cir.

6 2008). Second, the action “must be one by which rights or obligations have been

7 determined, or from which consequences will flow.” Id.

8

Defendants do not contest the first requirement. (See JFS Resp. at 14-15; Doe

9 Resp. at 11-12.) But Defendants contend that, even if Plaintiffs could show the first

10 requirement, they cannot show the second requirement “because the implementation

11 period does not determine any rights or obligations or prescribe any legal consequences.”

12 (JFS Resp. at 14-15; Doe Resp. at 11.) Indeed, according to Defendants, a processing 13 //

14

15

Nevertheless, during oral argument, Defendants argued that the Supreme Court’s decision in Fiallo v. Bell, 430 U.S. 787 (1977), trumped the Ninth Circuit’s rulings in both Hawaii I, 859

16

F.3d at 769 n.9, and Washington, 847 F.3d at 1161-64, concerning the applicability of the Mandel standard. However, Fiallo is distinguishable. In Fiallo, the Supreme Court was not

considering a challenge to agency action that was alleged to be ultra vires or outside of the 17 agency’s statutory authority under the INA. Rather, Fiallo involved an action to enjoin

provisions of the INA itself as constitutionally invalid. 430 U.S. at 788 (“This case brings before

18 us a constitutional challenge to §§ 101(b)(1)(D) and 101(b)(2) of the Immigration and

Nationality Act of 1952.”). In that context, the Supreme Court noted the “limited scope of

19 judicial inquiry into immigration legislation” and emphasized “‘over no conceivable subject is

the legislative power of Congress more complete than it is over’ the admission of aliens.” Id. at

20 792 (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909) (emphasis added)). Accordingly, the Court limited its review of the statutory provision at issue to the “facially

21

legitimate and bona fide” standard found in Mandel. Id. at 795 (citing Mandel, 408 U.S. at 770). Because the issues before this court involve a statutory challenge to agency action in the form of

22

the Agency Memo, and not a constitutional challenge to any provision of the INA, Fiallo is not applicable here.

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1 delay alone does not alter the family’s “legal situation,” and thus the FTJ implementation

2 program is not a final agency action subject to judicial review.16 (Id.)

3

To the contrary, whether the Agency Memo produces a “suspension” or an

4 indefinite delay, the Agency Memo has significant real-world impacts on Plaintiffs’

5 various situations. See Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (explaining

6 that “the core question is whether . . . the result of that [challenged agency] process is one

7 that will directly affect the parties.”). Under similar circumstances involving EO-3, the

8 district court in Maryland stated: “As for Defendants’ claim that the agency action to

9 date is not ‘final,’ [EO-3] is already in effect as to certain individuals and is being

10 enforced by federal agencies.” Int’l Refugee Assistance Project v. Trump, 2017 WL

11 4674314, at *18. The same is true here. As discussed above, the individual Plaintiffs are

12 subject to the Agency Memo’s provisions, and the effect of those provisions is to prolong

13 the separation of family members in some cases and prevent escape from perilous

14

15

16 The cases Defendants rely upon are readily distinguishable. In Fairbanks, the Ninth

16

Circuit held that the Army Corps of Engineers’ determination that certain municipal property contained wetlands subject to regulation under the Clean Water Act was only “a bare statement

of the agency’s opinion” that neither required the municipality to do or to forebear from 17 anything. 543 F.3d at 594. As such, the Corps’ opinion did not determine any of the

municipality’s rights or obligations or result in any legal consequences. Id. at 595. Defendants’

18 reliance on International Brotherhood of Teamsters v. U.S. Department of Transportation, 861

F.3d 944, 952 (9th Cir. 2017), is also misplaced. In that case, an agency’s report on a pilot

19 program involving Mexico-domiciled trucking companies’ long-haul operations in the United

States had no legal consequences, but was merely the last step in completing a pilot program to

20 clear the way for Mexico-domiciled carriers. Id. As such, the report “did not change the legal situation” and was not, therefore, final agency action. Id. In contrast to the opinion and report in

21

the cases cited by Defendants, the Agency Memo’s FTJ and SAO provisions are presently being implemented by USCIS. (See Higgins Decl. ¶¶ 11-16.) Those requirements have concrete

22

impacts upon Plaintiffs by delaying the reunification of families or the departure from dangerous circumstances. See supra §§ II.B.1-7.

ORDER - 33

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1 circumstances in others. See supra § IIB.1-7. And, as the Ninth Circuit in Hawaii II

2 noted, even short delays can have cascading effects that prolong a refugee’s processing

3 and ultimate admission. 871 F.3d at 644 (“Refugees have only a narrow window of time

4 to complete their travel, as certain security and medical checks expire and must then be

5 re-initiated. Even short delays may prolong a refugee’s admittance.”); (see also JFS-S

6 Supp. Decl. ¶ 8 (explaining the cascading effects of even a short delay in processing).)

7 Based on the foregoing record and authorities, the court concludes that the Agency Memo

8 represents final agency action.

9

5. Agency Discretion

10

Defendants argue in two conclusory sentences that the court is stripped of

11 jurisdiction to review Plaintiffs’ statutory challenges to the Agency Memo’s SAO

12 provisions under 5 U.S.C. § 701(a). (See JFS Resp. at 15.) Specifically, Defendants

13 argue that 8 U.S.C. § 1157(c)(1) commits the admission of refugees to the Secretary’s

14 discretion, whereas 5 U.S.C. § 701(a) prohibits APA review of agency action that “is

15 committed to agency discretion by law.” The court rejects Defendants’ argument. There

16 is a “strong presumption that Congress intends judicial review of administrative action.”

17 Helgeson v. Bureau of Indian Affairs, 153 F.3d 1000, 1003 (9th Cir. 1998). Section

18 701(a) overcomes this presumption only in “rare instances where statutes are drawn in

19 such broad terms that in a given case there is no law to apply, thereby leaving the court

20 with no meaningful standard against which to judge the agency’s exercise of discretion.”

21 Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011). “[T]he mere

22 fact that a statute contains discretionary language does not make agency action

ORDER - 34

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1 unreviewable.” Id. Indeed, section 701(a)(2) has “never been thought to put exercises of

2 discretion beyond judicial review.” ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1071 (9th

3 Cir. 2015).

4

ASSE International, Inc. v. Kerry presents an analogous situation. See 803 F.3d. at

5 1069-72. In that case, although the authorizing statute gave the DOS complete discretion

6 in determining whether to create certain exchange programs, the Ninth Circuit found that

7 the DOS’s regulations “provide more than an ample basis in law for [the court] to review

8 its decision under the APA.” Id. at 1070. These regulations created the program, provide

9 who is eligible to become a sponsor, and “establish[ed] a comprehensive scheme for

10 administering an exchange program.” Id. Because these regulations “have the force of

11 law” and carry “real consequences for [those] failing to abide by them,” the Ninth Circuit

12 concluded that judicial review was not prevented by the discretionary language in the

13 authorizing statute. Id. at 1070-71.

14

Defendants have similarly failed to rebut the strong presumption of judicial

15 reviewability. Although 8 U.S.C. § 1157(c)(1) contains discretionary language, the

16 subsequent regulations promulgated by DHS provide the “meaningful standard” by which

17 the court can review Defendants’ exercise of discretion. See 8 C.F.R. § 207; Pinnacle

18 Armor, Inc., 648 F.3d at 719. Like the regulations in ASSE International, the regulations

19 governing the admission of refugees implement the Refugee Act of 1980, detail

20 eligibility to apply for refugee status, and lay out “a comprehensive scheme” for the

21 refugee program. See 803 F.3d at 1070; 8 C.F.R. §§ 207.1-9. These regulations are

22 binding, and failure to abide by these regulations results in “real consequences.” See 803

ORDER - 35

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege3636ofo6f 565

1 F.3d at 1070; 8 U.S.C. § 1157(c)(1). Thus, as in ASSE International, the regulations

2 provide a “meaningful standard” and “more than an ample basis in law” against which to

3 judge the Defendants’ decisions under the APA. See also Hawaii III, 2017 WL 6547095,

4 at *8 (concluding that 5 U.S.C. § 701(a)(2) did not apply to bar review of EO-3 “where,

5 as here, a court is tasked with reviewing whether an executive action has exceeded

6 statutory authority”).

7

Nor does 8 U.S.C. § 1252(a)(2)(B)(ii) strip the court of jurisdiction over this

8 action.17 Section 1252(a)(2)(B)(ii) states that no court shall have jurisdiction to review:

9

Any other decisions or action of the Attorney General or Secretary of

Homeland Security the authority for which is specified under this subchapter

10

to be in the discretion of the Attorney General or the Secretary of Homeland

Security[.]

11

Section 1157(c)(1) specifies that the admission of refugees is within the Secretary’s

12

discretion. Were Plaintiffs challenging a denial of refugee admission, section

13

1252(a)(2)(B)(ii) may well bar judicial review. Instead, Plaintiffs are challenging the

14

failure to act on refugee applications. And while section 1157(c)(1) grants the Secretary

15

discretion in deciding the outcome of a refugee application, it does not specify that the

16

Secretary has discretion to suspend adjudicating such applications. See 8 U.S.C.

17

§ 1157(c)(1). In other words, the Secretary may have discretion over what the decision

18

will be, but not over whether a decision will be made. See 5 U.S.C. § 555(b) (“With due

19

20

21

17 Defendants do not mention 8 U.S.C. § 1252(a)(2)(B)(ii) in their discussion of jurisdiction stripping, focusing instead only on 5 U.S.C. § 701(a). (See JFS Resp. at 15.)

22

However, because section 1252(a)(2)(B)(ii) implicates the court’s subject matter jurisdiction, the court addresses the issue.

ORDER - 36

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1 regard for the convenience and necessity of the parties or their representatives and within

2 a reasonable time, each agency shall proceed to conclude a matter presented to it.”

3 (emphasis added)). Thus, neither section 1157(c)(1) nor any other statute provides the

4 “specified” discretionary authority to suspend adjudicating refugee status that would

5 trigger section 1252(a)(2)(B)(ii)’s bar on judicial review.18 See Spencer Enters., Inc. v.

6 United States, 345 F.3d 683, 690 (9th Cir. 2003).

7

Alternatively, section 1252(a)(2)(B)(ii) does not divest this court of jurisdiction

8 because it applies only to acts that are “matters of pure discretion, rather than discretion

9 guided by legal standards.” See Spencer, 345 F.3d at 690. The decision regarding

10 refugee admission, however, is guided by a series of eligibility requirements set out in

11 sections 1157(c)(1) and 1101(a)(42). See 8 U.S.C. §§ 1101(a)(42), 1157(c)(1).

12 Moreover, section 1157(c)(1) requires the Secretary to adhere to all adopted regulations,

13 and as discussed above, the Secretary has promulgated such regulations that provide

14 specific standards limiting its discretion. For these reasons, it is not certain that the

15 Secretary’s obligations with respect to processing refugee applications are discretionary

16 within the meaning of section 1252(a)(2)(B)(ii), as construed in Spencer.

17 //

18 //

19

20

18 Many district courts have adopted this reasoning in the analogous context of

immigration status adjustments. See, e.g., Asmai v. Johnson, 182 F. Supp. 3d 1086, 1091-92

21

(E.D. Cal. 2016); see also Hong Wang v. Chertoff, 550 F. Supp. 2d 1253, 1256-57 (W.D. Wash. 2012) (collecting cases). When the statute grants discretion only as to the ultimate decision but

22

not as to the timing of when that decision is made, jurisdiction is not barred by section 1252(a)(2)(B)(ii). See, e.g., Dong v. Chertoff, 513 F. Supp. 2d 1158, 1165 (N.D. Cal. 2007).

ORDER - 37

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege3838ofo6f 565

1

In sum, neither 5 U.S.C. § 701(a) nor 8 U.S.C. § 1252(a)(2)(B)(ii) bar the court

2 from hearing this matter. Having disposed of Defendants’ justiciability arguments, the

3 court now turns to the substance of Plaintiffs’ motions for preliminary injunction.

4 B. Motions for Preliminary Injunction

5

Doe Plaintiffs seek to enjoin both the SAO and FTJ provisions of the Agency

6 Memo to the extent those provisions indefinitely suspend the processing of FTJ refugee

7 applications or prohibit the entry of FTJ refugees into the United States. (See generally

8 Doe PI Mot.; Doe Reply; see also Doe TAC.) The JFS Plaintiffs join in this motion.

9 (See JFS Joinder; JFS PI Mot. at 22-23.) In the JFS Case, Plaintiffs also seek to enjoin

10 the SAO provisions of the Agency Memo to the extent those provisions suspend the

11 admission of refugees or inhibit the processing of refugee applications from those SAO

12 countries for 90 days. (See generally JFS PI Mot.; JFS Reply; see also JFS Compl.) Doe

13 Plaintiffs join in this motion as well. (See Doe Joinder.)

14

The court also clarifies what Plaintiffs in both cases do not seek. Plaintiffs do not

15 seek to enjoin the agencies’ efforts to implement screening mechanisms for FTJ refugees

16 that are similar to or aligned with the processes employed for principal refugees.

17 Plaintiffs do not seek to enjoin the agencies from conducting their 90-day “detailed threat

18 analysis and review” of the SAO countries to determine what additional safeguards the

19 agencies believe are necessary with respect to the admission of refugees from those

20 countries. And finally, Plaintiffs do not seek a guarantee of immediate admission into the

21 United States for the refugees at issue. (See Doe Reply at 9.) Rather, as indicated above,

22 they seek an order preliminarily enjoining those provisions of the Agency Memo that (1)

ORDER - 38

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1 prohibit the admission of refugees from SAO countries and impede the processing of

2 their refugee applications for 90-days, and (2) indefinitely prohibit the admission of FTJ

3 refugees and indefinitely suspend the processing of their refugee applications. With

4 those clarifications, the court now considers their motions.

5

1. Standard

6

“A preliminary injunction is ‘an extraordinary remedy that may only be awarded

7 upon a clear showing that the plaintiff is entitled to such relief.’” Feldman v. Ariz. Sec’y

8 of State’s Office, 843 F.3d 366, 375 (9th Cir. 2016) (quoting Winter v. Nat. Res. Def.

9 Council, 555 U.S. 7, 22 (2008)). To obtain such relief, “[a] plaintiff . . . must establish

10 that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the

11 absence of preliminary relief, that the balance of equities tips in his favor, and that an

12 injunction is in the public interest.” Winter, 555 U.S. at 20. A plaintiff must make a

13 clear showing as to each of these elements.19 Feldman, 843 F.3d at 375.

14

2. Notice and Comment Rulemaking under the APA

15

Plaintiffs assert that the court should set aside the Agency Memo as it relates to

16 both the indefinite FTJ suspension and the 90-day SAO suspension because it represents

17 a “legislative rule” for which notice and comment rulemaking under the APA is required.

18 (Doe PI Mot. at 14-15; JFS PI Mot. at 19-20.) “Under the APA, a federal administrative

19 19 In the Ninth Circuit, “‘if a plaintiff can only show that there are ‘serious questions

20 going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s

21

favor,’ and the other two Winter factors are satisfied.” Feldman, 843 F.3d at 375 (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1282, 1291 (9th Cir. 2013)). Here, because the

22

court concludes that Plaintiffs meet the Winter standard for issuing a preliminary injunction, there is no need for the court to consider the alternate standard.

ORDER - 39

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege4040ofo6f 565

1 agency is required to follow prescribed notice-and-comment procedures before

2 promulgating substantive rules.” Colwell v. Dep’t of Health & Human Servs., 558 F.3d

3 1112, 1124 (9th Cir. 2009); see 5 U.S.C. § 553. Courts require agencies to engage in

4 notice and comment rulemaking when implementing policy changes with substantive

5 consequences for refugees and other immigrants. See, e.g., Texas v. United States, 809

6 F.3d 134, 171-78 (5th Cir. 2015) (as revised), aff’d by an equally divided

7 court, --- U.S. ---, 136 S. Ct. 2271 (2016) (holding that plaintiffs were likely to succeed

8 on the merits of their APA claim that notice and comment rulemaking required for

9 immigration policy granting deferred action status to certain undocumented immigrants);

10 Zhang v. Slattery, 55 F.3d 732, 744-47 (2d Cir. 1995), superseded by statute on other

11 grounds, 8 U.S.C § 1101(a)(42) (finding notice and comment rulemaking is required for

12 the agency’s interim rule recognizing fear of coercive family practices as basis for

13 refugee status).

14

Defendants do not deny that the Agency Memo represents a rule; rather, they

15 argue the Agency Memo is exempt from APA rulemaking procedures because it

16 represents a procedural—not substantive—rule for which a notice and comment period is

17 not required. (Doe Resp. at 16; JFS Resp. at 18-19); see 5 U.S.C. § 553(b)(3)(A) (stating

18 that APA rulemaking “does not apply . . . to interpretive rules, general statements of

19 policy, or rules of agency organization, procedure, or practice”). Defendants argue that

20 the Agency Memo does not change the substantive criteria for determining whether a

21 refugee applicant can be admitted to the United States, it merely suspends the admission

22 of refugees from SAO countries for 90 days and the admission of FTJ refugees until such

ORDER - 40

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege4141ofo6f 565

1 time as the agencies can align the screening procedures for FTJ refugees with the

2 screening procedures employed for principal refugees. (Doe Resp. at 17; JFS Resp. at

3 18-19.)

4

The court need not accept an agency’s characterization of its own rule. Hemp

5 Indust. Ass’n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003); see also Reno-Sparks Indian

6 Colony v. U.S. E.P.A., 336 F.3d 899, 909 (9th Cir. 2003) (“The agency is not entitled to

7 deference [concerning its decision not to engage in rulemaking] because complying with

8 the notice and comment provisions when required by the APA is not a matter of agency

9 choice.”) (internal quotation marks omitted). Further, the exceptions to APA rulemaking

10 must be “narrowly construed and only reluctantly countenanced.” Alcaraz v. Block, 746

11 F.2d 593, 612 (9th Cir. 1984). At times, distinguishing between rules that require APA

12 rulemaking and those that do not is challenging. Stoddard Lumber Co. v. Marshall, 627

13 F.2d 984, 987 (9th Cir. 1980) (noting that distinguishing between such rules “has proved

14 to be quite difficult”). There are, however, guideposts as described in the authority relied

15 upon by Defendants. (See JFS Resp. at 19; Does Resp. at 17-19.) Whether a rule is

16 “substantive” or “procedural” requires a court to make “legal conclusions that depend

17 upon their settings for definition.” Neighborhood Television, Inc. v. FCC, 742 F.2d 629,

18 637 (D.C. Cir. 1984); Brown Exp., Inc. v. United States, 607 F.2d 695, 701 (5th Cir.

19 1979). To determine the nature of a rule, the court must look at the rule’s effect on those

20 interests ultimately at stake in the agency proceeding. Neighborhood Television, 742

21 F.2d at 637. If a rule does not substantially affect or jeopardize those ultimate interests,

22 //

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1 then it is procedural and not substantive. Waste Mgmt., Inc. v. U.S.E.P.A., 669 F. Supp.

2 536, 539 (D.D.C. 1987). In short, context matters.

3

In their response to Plaintiffs’ motion, Defendants rely on two thirty-plus-year-old

4 decisions out of the District of Columbia—neither of which is analogous to the

5 facts-at-hand. (Doe Resp. at 17-18.) In Waste Management, 669 F. Supp. at 538-40, the

6 court held that the agency issued a procedural rule when it decided to defer consideration

7 of applications for ocean incineration permits until the agency promulgated new rules on

8 the topic. In Neighborhood Television, 742 F.2d at 636-38, the court determined that an

9 agency’s decision to “freeze” processing of certain applications for television translator

10 licenses was also a procedural rule. The status sought by Plaintiffs here—refugee

11 status—is far-afield from either an ocean incineration permit or a television translator

12 license. Further, in both cases, the courts focused on the fact that the delay caused by a

13 suspension did not by itself undermine the interests at stake, and in both situations, the

14 delay itself was related to the agencies’ ongoing notice and comment rulemaking efforts.

15 See Waste Mgmt., 669 F. Supp. at 539-40; Neighborhood Television, 742 F.2d at 636-38.

16 Unlike the challengers’ interests in those cases, Plaintiffs’ interests—to reunite with

17 family members or to flee perilous situations and find refuge in the United States—are

18 undermined by any delay. Hawaii II, 871 F.3d at 644 (“Refugees have only a narrow

19 window of time to complete their travel, as certain security and medical checks expire

20 and must then be re-initiated. Even short delays may prolong a refugee’s admittance.”);

21 (see also JFS-S Supp. Decl. ¶ 8 (explaining the cascading effects of even a short delay in

22 processing).)

ORDER - 42

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1

Further, 8 C.F.R. part 207, the regulations implementing the Refugee Act of 1980,

2 and subsequent amendments outlining procedures for the FTJ program, were subject to

3 notice and comment before they were codified. See Aliens and Nationality; Refugee and

4 Asylum Procedures, 46 Fed. Reg. 45,116 (Sept. 10, 1981) (to be codified at 8 C.F.R. pt.

5 207); Procedures for Filing a Derivative Petition (Form I-730) for a Spouse and

6 Unmarried Children of a Refugee/Asylee, 63 Fed. Reg. 3792 (Jan. 27, 1988) (to be

7 codified at 8 C.F.R. § 207.7). Where the original rule was adopted after a notice and

8 comment period, courts have generally found the decision to alter those rules to be

9 substantive, and therefore subject to APA rulemaking procedures as well. See, e.g.,

10 Sequoia Orange Co. v. Yeutter, 973 F.2d 752, 757 (9th Cir. 1992) (ruling that the

11 decision to alter voting procedures was subject to APA rulemaking requirement because

12 the original voting procedures were adopted after notice and comment); Arlington Oil

13 Mills, Inc. v. Knebel, 543 F2d 1092, 1100 (5th Cir. 1976).

14

In addition, “[w]hen a policy acts as a substantive rule and alters an existing

15 regulatory scheme,” the agency “must adopt that policy according to procedures set forth

16 in the APA.” Mt. Diablo Hosp. Dist. v. Bowen, 860 F.2d 951, 956 (9th Cir. 1988). The

17 Agency Memo indefinitely suspends the entire FTJ refugee program, and it suspends the

18 admission of all refugees (with limited exceptions) from the 11 SAO countries. As

19 discussed above, the regulatory scheme for processing principal and derivative refugees,

20 such as FTJ refugees, is set forth in detail in 8 C.F.R. part 207. The court has little

21 //

22 //

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1 difficulty in concluding that such changes “alter” that “existing regulatory scheme.”20

2 See Mt. Diablo, 860 F.2d at 956.

3

Defendants also assert that the SAO provisions are exempt from rulemaking

4 because they fall within the APA’s foreign affairs exception. (JFS Resp. at 19-20); see 5

5 U.S.C. § 553(a)(1) (“This section applies . . . except to the extent that there is involved

6 . . . a . . . foreign affairs function of the United States.”). The Ninth Circuit cautions that

7 the “foreign affairs exception would become distended if applied to INS actions

8 generally, even though immigration matters typically implicate foreign affairs.” Yassini

9 v. Crosland, 618 F.2d 1356, 1360 (9th Cir. 1980). Indeed, “[f]or the exception to apply,

10 the public rulemaking provisions should provoke definitely undesirable international

11 consequences.” Id. Although the Ninth Circuit cautioned that a rule of law “that would

12 inhibit the flexibility of the political branches should be adopted with only the greatest of

13 caution,” nevertheless “[r]eview of decisions involving aliens . . . remains available.” Id.

14

Defendants rely on Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008), in which

15 the Second Circuit reviewed the National Security Entry-Exit Registration System, a

16 program devised after September 11, 2001, that required registration for certain

17 individuals from specific countries. (See JFS Resp. at 19-20.) The Second Circuit found

18 that rulemaking was not required due to the foreign affairs exception. Rajah, 544 F.3d at

19 437. The Second Circuit was concerned that in explaining why some of a particular

20

21

20 In addition, those refugees who fall within the SAO provisions of the Agency Memo

and who would otherwise meet the definition of “refugee” are now barred from admission for at

22

least 90 days unless they can demonstrate the additional, agency-created requirement that their admission would “fulfill critical foreign policy interests.” (Agency Memo at 2.)

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CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege4545ofo6f 565

1 nation’s citizens were regarded as a threat, (1) sensitive foreign intelligence might be

2 revealed, (2) relations with other countries might be impaired, and (3) the process would

3 be slow and diminish the Government’s ability to protect against a potential terrorist

4 attack. Id.

5

The court agrees with Plaintiffs, however, that Rajah is inapposite for a number of

6 reasons. (See JFS Reply at 9.) First, Plaintiffs do not seek rulemaking on whether

7 particular countries should be on the SAO list, but rather on whether and how the USRAP

8 should be suspended while the review is conducted. (See id.) Second, it is not evident

9 that such rulemaking would “provoke definitively undesirable international

10 consequences,” see Yassini, 618 F.2d at 1360 n.4, and Defendants proffer no evidence

11 that it would (see generally Dkt.). The court is simply unwilling to apply the exception

12 without some evidence to support its application. Compare Yassini, 618 F.2d at 1360-61

13 (applying the exception only after examining the affidavits of the Attorney General and

14 Deputy Secretary of State establishing the directive’s relationship to the Iran hostage

15 crisis); with Jean v. Nelson, 711 F.2d 1455, 1477 (11th Cir. 1983) (holding that a rule

16 directing the detention of Haitians at the border was not within the exception given the

17 lack of evidence of any consequences), aff’d, 472 U.S. 846 (1985).

18

Finally, when the Rajah and Yassini courts applied the foreign affairs exception,

19 they were grappling with agency directives issued in response to dire national

20 emergencies—the September 11 attack and the Iranian hostage crisis. See Rajah, 544

21 F.3d at 433; Yassini, 618 F.2d at 1361. Although not determinative, the circumstances in

22 which the courts applied the exception provides context for their decisions. Here,

ORDER - 45

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege4646ofo6f 565

1 Defendants offer no evidence that the agencies issued the SAO suspension in response to

2 a national security or foreign affairs crisis. Indeed, all the Agency Memo states to justify

3 the 90-day suspension of refugees from SAO countries (with limited exceptions) is that

4 the Secretaries of DOS and DHS and the DNI “continue” to have unspecified “concerns”

5 regarding their admission. (Agency Memo at 2.)21 Thus, the exigent factual

6 circumstances under which the agency directives were issued in Yassini and Rajah is

7 another distinguishing factor that diminishes the applicability of those cases here.

8

For the foregoing reasons, the court agrees with Plaintiffs that the foreign affairs

9 exception to rulemaking is inapplicable to the SAO provisions and that the agencies

10 should have engaged in APA rulemaking before issuing both the SAO and FTJ

11 provisions at issue in the Agency Memo. Accordingly, the court concludes that Plaintiffs

12 have demonstrated that they are likely to succeed on the merits of their claim that the

13 agencies violated the APA’s rulemaking requirement.22

14 //

15 //

16 //

17

21 The court notes that the only evidence in the record is to the contrary—that operating

USRAP in SAO countries does not pose a significant risk to the country. (Joint Decl. Former

18 Nat’l Sec. Officers (17-1707 Dkt. # 46) ¶ 12 (“During the four decades from 1975 to the end of

2015, over three million refugees have been admitted to the United States. Despite this number,

19 only three refugees have killed people in terrorist attacks on U.S. soil during this period. None

of these refugees were from the [SAO] countries.”).) Instead, the evidence before the court is

20 that the SAO provisions of the Agency Memo undermine the country’s national security and foreign policy interests, “rather than making us safer.” (Id. ¶ 14.)

21

22 Concluding that Plaintiffs are likely to succeed on the merits of this statutory claim is

22

sufficient to fulfill this requirement for preliminary relief. Nevertheless, the court also considers a second statutory claim.

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1

3. INA Challenges

2

Plaintiffs also argue that the Agency Memo violates the INA. The Doe Plaintiffs

3 argue that the FTJ provisions of the Agency Memo violate 8 U.S.C. § 1157(c)(2)(A) of

4 the INA by indefinitely suspending the processing of FTJ derivative refugee applications

5 and indefinitely barring their entry into the country. (Doe PI Mot. at 9-12.) The JFS

6 Plaintiffs argue that the SAO provisions of the Agency Memo are ultra vires under the

7 APA because they suspend the processing of refugee applications from SAO countries

8 and bar the entry of refugees from those countries (with limited exceptions) for at least 90

9 days in violation of 8 U.S.C. § 1157(c)(1) of the INA. (JFS PI Mot. at 19, 21-22.)

10

The APA provides a right of action for plaintiffs who challenge administrative

11 actions that violate a federal statute. Any “person . . . adversely affected or aggrieved by

12 agency action within the meaning of a relevant statute, is entitled to judicial review

13 thereof.” 5 U.S.C. § 702; see also Cetacean Cmty., 386 F.3d at 1176-77 (“[T]he end

14 result is the same whether the underlying statute grants standing directly or whether the

15 APA provides the gloss that grants standing. In both cases, the plaintiff can bring suit to

16 challenge the administrative action in question. In the first case, the substantive statute

17 grants statutory standing directly to the plaintiff. In the second case, the substantive

18 statute is enforced through Section 10(a) of the APA.”); Hernandez-Avalos v. I.N.S., 50

19 F.3d 842, 846 (10th Cir. 1995) (“[A] plaintiff who lacks a private right of action under

20 the underlying statute can bring suit under the APA to enforce the statute.”). The court

21 has already determined that Plaintiffs in both cases fall within the zone of interest

22 protected by the Refugee Act of 1980 and the INA. See supra § III.A.2. Because 5

ORDER - 47

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege4848ofo6f 565

1 U.S.C. § 702 applies, Plaintiffs in both the Doe Case and the JFS Case can bring their

2 INA statutory challenges under the APA. Under 5 U.S.C. § 706(2)(C), a “reviewing

3 court shall . . . hold unlawful and set aside agency action . . . found to be . . . in excess of

4 statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C.

5 § 706(2)(C); see also Texas, 809 F.3d at 178. The court will address whether Plaintiffs

6 have demonstrated that they are likely to succeed on each claim.

7

a. FTJ Provisions

8

Doe Plaintiffs argue that the suspension of processing FTJ refugee applications

9 and the indefinite bar on their entry into the United States violates the INA. (See Doe PI

10 Mot. at 9-12.) Specifically, Plaintiffs argue that the award of FTJ refugee status in 8

11 U.S.C. § 1157(c)(2)(A) is not up to the Secretary’s discretion. Instead, this section of the

12 INA contains indisputably mandatory language:

13

A spouse or child . . . of any refugee who qualifies for admission under

paragraph (1) shall, if not otherwise entitled to admission under paragraph

14

(1) and if not a person described in the second sentence of section

1101(a)(42) of this title, be entitled to the same admission status as such

15

refugee if accompanying, or following to join, such refugee and if the spouse

or child is admissible . . . as an immigrant under this chapter.

16 8 U.S.C. § 1157(c)(2)(A) (emphasis added). Doe Plaintiffs contrast the use of the word

17 “shall” with permissive language Congress utilized in the same section concerning

18 principal refugees, which states in pertinent part that the Secretary “may, in the

19 [Secretary’s] discretion . . . admit any refugee.” 8 U.S.C. § 1157(c)(1).23 The Supreme

20

21

23 The statute refers to the “Attorney General,” but the statutory references to the

22

Attorney General in this provision are now deemed to refer to the Secretary of DHS. 6 U.S.C. § 557; see Durable Mfg. Co. v. U.S. Dep’t of Labor, 548 F.3d 497, 499 n.1 (7th Cir. 2009)

ORDER - 48

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege4949ofo6f 565

1 Court has observed that Congress’s use of “may” contrasts with its use of “a mandatory

2 ‘shall’ in the very same section” and has interpreted Congress’s use of “shall” under such

3 circumstances “to impose discretionless obligations.” Lopez v. Davis, 531 U.S. 230, 241

4 (2001). Plaintiffs assert that the remaining language Congress used in Section

5 1157(c)(2)(A)—that FTJ refugees are “entitled to the same admission status” as the

6 principal refugee—only reinforces Congress’s intent to abrogate the agency’s discretion

7 in this instance. (Doe PI Mot. at 11.) The court agrees.

8

Defendants argue that 8 U.S.C. § 1157(c)(2)(A) does not guarantee admission into

9 the United States because FTJ refugees must still be found to be otherwise admissible

10 under the chapter. (Doe Resp. at 12-13.) Indeed, Defendants argue that 8 U.S.C.

11 § 1157(c)(2)(A) conditions FTJ refugee status on admissibility, which is not ultimately

12 adjudicated until an individual appears at a port to seek entry to the United States. (Id. at

13 13 (citing 8 U.S.C. § 1201(h) (“Nothing in this chapter shall be construed to entitle any

14 alien, to whom a visa or other documentation has been issued, to be admitted [to] the

15 United States, if, upon arrival at a port of entry in the United States, he [or she] is found

16 to be inadmissible under this chapter, or any other provision of law.”) and 8 C.F.R.

17 207.7(d) (explaining that approval of an I-730 Petition for a FTJ refugee can be

18 “revoked” prior to entry)).) However, in Spencer, the Ninth Circuit held that the word

19 “shall” in 8 U.S.C. § 1153(b)(5) indicated a nondiscretionary statutory duty to grant a

20

21 (“Under 6 U.S.C. § 557, references in federal law to any agency or officer whose functions have

22

been transferred to DHS shall be deemed to refer to the Secretary of DHS or other official or component to which the functions were transferred.”).

ORDER - 49

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege5050ofo6f 565

1 type of visa under the immigrant investor program. 345 F.3d at 691. Further, the

2 application of statutory eligibility requirements did not render the agency’s determination

3 a discretionary one. Id. Accordingly, the court rejects Defendants’ argument.

4

Defendants also respond that Plaintiffs’ argument lacks merit because the Agency

5 Memo does not “rescind” anything, but only suspends the admission of FTJ refugees

6 until such time as security or screening procedures are reinforced. (JFS Resp. at 12.)

7 However, Defendants cite no authority for the proposition that the Secretary can

8 indefinitely suspend a nondiscretionary statutory duty, and so the court rejects this

9 argument, too.

10

Further, Defendants mischaracterize Plaintiffs’ claim as “seeking to compel their

11 immediate admission” or “suggest[ing] . . . that [8 U.S.C. §] 1157(c)(2)(A) requires their

12 admission now.” (Doe Resp. at 13-14.) As noted above, Plaintiffs do not claim that they

13 or their family members are entitled to immediate admission into the United States;

14 rather, Plaintiffs claim that Defendants are not entitled to, and do not have the statutory

15 authority to, indefinitely suspend FTJ refugee processing at will. By using mandatory

16 language in 8 U.S.C. § 1157(c)(2)(A), Congress created an entitlement for spouses and

17 children of principal refugees to “the same refugee status” as the principal refugee—

18 assuming the spouse and children are otherwise admissible. Nothing in the statute

19 authorizes the Secretary to stop, terminate, or suspend the ability of otherwise qualified

20 applicants from seeking and obtaining that entitlement.

21

Based on the foregoing authorities and analysis, the court concludes that Plaintiffs

22 have demonstrated that they are likely to succeed on the merits of their claim that the

ORDER - 50

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege5151ofo6f 565

1 Agency Memo’s FTJ provisions of the Agency Memo at issue here violate 8 U.S.C.

2 § 1157(c)(2)(A) of the INA and, therefore, also violate 5 U.S.C. § 706(2)(C) of the APA.

3

b. SAO Provisions

4

JFS Plaintiffs argue that the 90-day suspension of processing for refugees

5 applications (with limited exceptions) from SAO countries and the bar to entry into the

6 United States violates the INA. (See JFS PI Mot. at 19, 21-22.) Despite suspending over

7 40 percent of all refugees currently admitted under USRAP,24 the Agency Memo itself

8 provides no statutory basis for the 90-day SAO suspension. (See Agency Memo at 2.) In

9 their briefing and argument to the court, Defendants point to two INA provisions as

10 underpinning the suspension—6 U.S.C. § 202(4) and 8 U.S.C. § 1157(c)(1).25 (See JFS

11 Resp. at 16.) The court addresses each of these statutory grounds and finds neither to

12 confer the necessary authority. See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374

13 (1986) (“[A]n agency literally has no power to act . . . unless and until Congress confers

14 power upon it.”).

15

Section 202(4) of Title 6 states that the Secretary of DHS is responsible for

16 “[e]stablishing and administering rules . . . governing the granting of visas or other forms

17 of permission, including parole, to enter the United States to individuals who are not a

18 citizen or an alien lawfully admitted for permanent residence in the United States.” (JFS

19 Resp. at 16 (quoting 6 U.S.C. § 202(4)).) Without citation to legal authority, Defendants

20 24 (See Smith Decl. ¶ 15 (“Out of the 138,710 refugees resettled in the United States in
21 Fiscal Years 2016 and 2017, 60,309, or 43.5%, were from one of the 11 SAO countries.”).)
25 Defendants rely on no other statutory grounds for the SAO provisions in the Agency 22 Memo. (See JFS Resp. at 16-17.)

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1 assert that the authority granted in 6 U.S.C. § 202(4) over entry into the United States

2 “necessarily encompasses authority to restrict entry.” (JFS Resp. at 16.) They assert that

3 this is all that the SAO provisions do—restrict entry for all refugees from SAO countries.

4

Defendants also rely on 8 U.S.C. § 1157(c)(1), which states:

5

[The Secretary] may, in the [Secretary’s] discretion and pursuant to such

regulations as the [Secretary] may prescribe, admit any refugee who is not

6

firmly resettled in any foreign country, is determined to be of special

humanitarian concern to the United States, and is admissible . . . as an

7

immigrant under this chapter.

8 8 U.S.C. § 1157(c).26 Defendants argue that the permissive language in this section

9 invests the Secretary with the discretion to admit any refugee and thus implicitly also

10 confers the discretion to exclude any refugee without time limitation.

11

But taking Defendants’ position to its logical end, the court would be required to

12 conclude that these two statutory provisions provide the Secretary with the authority to

13 exclude all refugees, and indeed—in the case of 6 U.S.C. § 202(4)—all immigrants from

14 admission to the country. When the court asked in oral argument for Defendants to

15 provide some limiting principle that would avoid this result, they could not. This cannot

16 be what Congress intended when it drafted these two provisions.

17

Congress’s stated purpose in passing the Refugee Act of 1980 was as follows:

18

The objectives of this Act are to provide a permanent and systematic

procedure for the admission to this country of refugees of special

19

humanitarian concern to the United States and to provide comprehensive and

uniform provisions for the effective resettlement and absorption of those

20

refugees who are admitted.

21 26 See supra note 21.
22

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CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege5353ofo6f 565

1 Refugee Act of 1980, Pub. L. No. 96-212 § 101(b), 94 Stat. 102. Defendants’

2 interpretation of 6 U.S.C. § 202(4) and 8 U.S.C. § 1157(c) is untenable in light of this

3 stated purpose. Defendants’ interpretation would allow either provision to swallow

4 whole the remainder of the Refugee Act of 1980. See Abourezk v. Reagan, 785 F.2d

5 1043, 1057-58 (D.C. Cir. 1986), aff'd, 484 U.S. 1 (1987) (finding “persuasive” the

6 plaintiff’s argument that the government’s statutory interpretation violated provisions of

7 the INA “because it effectively swallow[ed] up” another provision, thereby “nullif[ying]

8 the contours of existing inadmissibility grounds and “evad[ing] the limitations of

9 Congress”).

10

Although it involved different INA provisions, the Fifth Circuit recently dealt with

11 a similar overreach of statutory interpretation by the Government. In Texas, several

12 states challenged the DHS Secretary’s creation of the “Deferred Action for Parents of

13 Americans and Lawful Permanent Residents” (“DAPA”) program. 809 F.3d at 146. In

14 striking down DAPA as “an unreasonable interpretation that is ‘manifestly contrary’ to

15 the INA,” the Fifth Circuit held that the Government’s “interpretation of [the INA]

16 statutory provisions that the Secretary advance[d, which] would allow him to grant lawful

17 presence and work authorization to any illegal alien in the United States,” was “an

18 untenable position in light of the INA’s intricate system of immigration classifications

19 and employment eligibility.” 809 F.3d at 184. Likewise, Defendants’ broad

20 interpretation of both 6 U.S.C. § 202(4) and 8 U.S.C. § 1157(c)(1), which they argue

21 allows them to exclude all refugees of certain national origins, and by extension would

22 allow them to exclude all refugees, is untenable because it allows the DHS Secretary to

ORDER - 53

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege5454ofo6f 565

1 simply ignore the “permanent and systematic procedure” for refugee admission and

2 resettlement that Congress established in the Refugee Act of 1980. See Refugee Act of

3 1980, Pub. L. No. 96-212 § 101, 94 Stat. 102; see also Hawaii III, 2017 WL 6547095, at

4 *11-13 (concluding that EO-3 “conflicts with the statutory framework of the INA by

5 indefinitely nullifying Congress’s considered judgments on matters of immigration”).

6

Plaintiffs also argue that the SAO provisions conflict with the INA and Refugee

7 Act of 1980 in additional ways. First, Plaintiffs assert that the SAO provisions run

8 roughshod over the Refugee Act’s definition of “refugee.” (JFS PI Mot. at 21.) In 8

9 U.S.C. § 1101(a)(42), Congress set forth the specific statutory elements that individuals

10 must satisfy to be admitted as a refugee.27 Id. Congress also specified criteria as to who

11 would be excluded from the definition. Id. By either prohibiting refugees from SAO

12 countries from participating in USRAP or by grafting on the additional requirement that

13 refugees from SAO countries must also “fulfill critical foreign policy interests” to

14 qualify, the agencies impermissibly redefine the term “refugee.” They either add to the

15

16

27 In defining a refugee, Congress set forth specific criteria including that (1) the person

must be outside his or her country of nationality or outside any country in which he or she last 17 habitually resided, (2) the person must be unable or unwilling to return to, or unable or unwilling

to avail himself or herself of the protection of, that country, (3) this inability or unwillingness

18 must be due to persecution or a well-founded fear of persecution, and (4) the persecution must be

on account of race, religion, nationality, membership in a particular social group, or political

19 opinion. Id. In addition, Congress has specified that a person who has been forced to abort a

pregnancy or to undergo involuntary sterilization, or been persecuted for their refusal to do these

20 things or for other resistance to a coercive population control program, is deemed to have met some of the qualifications for refugee status listed above. Id. Finally, Congress specified criteria

21

that would exclude a person from refugee status. Specifically, the term “does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person

22

on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id.

ORDER - 54

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege5555ofo6f 565

1 criteria that Congress delineates to exclude one from refugee status or add an element to

2 Congress’s carefully-crafted definition. Either way, the Agency Memo impermissibly

3 conflicts with this provision.

4

Second, the nation-based SAO suspension impermissibly alters the admissibility

5 standards set by Congress in 8 U.S.C. § 1182(a). An individual refugee may enter the

6 country only if she is not subject to one of the inadmissibility bars. See 8 U.S.C.

7 § 1157(c)(1) (“[The Secretary] may . . . admit any refugee who . . . is admissible . . . as

8 an immigrant under this chapter.”). Section 1182(a) contains a long list of detailed

9 inadmissibility bars, including on “criminal,” “security,” “terrorist,” and “foreign

10 policy” grounds. See 8 U.S.C. § 1182. The INA “emphatically did not commit the

11 decision to exclude an alien to standardless agency discretion; the statute lists

12 [numerous] distinctly delineated categories that conspicuously provide standards to

13 guide the Executive in its exercise of exclusion power.” Abourezk, 785 F.2d at 1051.

14 Defendants cannot alter the contours of admissibility as sculpted by Congress or evade

15 these congressional limitations by creating a new and separate inadmissibility ground

16 that does not exist in the INA.28

17

28 Defendants’ observation that the “Government routinely grants preferences on the 18 basis of nationality” under the Refugee Act (JFS Resp. at 17 (italics in original)) supports rather

than undermines Plaintiffs. Such preferences are granted either pursuant to a Presidential

19 determination required by the Refugee Act, 8 U.S.C. § 1157(a)(3) (requiring the President to

allocate refugee admissions after appropriate consultation with Congress), as is the case with the

20 Priority 2 designations—including the Central American Minors program—and Priority 3 designations, see U.S. Dep’t of State, Proposed Refugee Admissions for FY 2018, at 7 (Oct. 4,

21 2017) (report to Congress), (noting that section 207(a)(3) of the INA grants authority to determine the USRAP priority system), or pursuant to a duly issued regulation that permits the

22

Secretary to prioritize certain refugee admissions based on appropriate criteria, including “reuniting families, close association with the United States, compelling humanitarian concerns, and public

ORDER - 55

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege5656ofo6f 565

1

Based on the foregoing authorities and analysis, the court concludes that Plaintiffs

2 have demonstrated that they are likely to succeed on the merits of their claim that the

3 Agency Memo’s SAO provisions at issue here violate the INA and, therefore, also 5

4 U.S.C. § 706(2)(C) of the APA.29

5

4. Irreparable Harm

6

To qualify for a preliminary injunction, Plaintiffs must show that they are “likely

7 to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20.

8 The individual Plaintiffs argue that the suspensions in the Agency Memo will prolong the

9 separation of their family members and that this is an irreparable harm. They are correct.

10 This Circuit has repeatedly found that “separation from family members” is an

11 irreparable harm. Leiva-Perez v. Holder, 640 F.3d 962, 969-70 (9th Cir. 2011) (quoting

12 Andreiu v. Ashcroft, 253 F.3d 477, 484 (9th Cir. 2001) (en banc). The related Executive

13 Order litigation has reaffirmed this holding. See Hawaii I, 859 F.3d at 782-83

14 (“prolonged separation from family members” is irreparable harm); Washington, 847

15 F.3d at 1169 (identifying “separated families” as an irreparable harm); see also Int’l

16 Refugee Assistance Project, 857 F.3d at 583-84.

17

Defendants respond that the Agency Memo “would at most delay the entry of

18 Plaintiff’s family members.” (Doe Resp. at 21; JFS Resp. at 30-31.) According to

19
interest factors,” 8 C.F.R. § 207.5 (2017). Although section 207.5 may permit the agency to
20 preference certain admissions based on these criteria, this authority—on which Defendants did not base their actions—does not encompass the categorical suspension at issue here.

21

29 Because the court concludes that Plaintiffs are likely to succeed on two of their

22

statutory claims, it does not consider Plaintiffs’ third statutory claim or Plaintiffs’ constitutional claims.

ORDER - 56

CCaassee: 21:81-73-5c0v1-050,10728/0-J6L/2R01D8,oIcDu:m1e0n7t5942140F,ilDedktE12n/t2ry3:/1274-2P, aPgaege5757ofo6f 565

1 Defendants, “[s]uch delay alone does not amount to irreparable harm, as processing times

2 for refugees can vary widely and on average are quite lengthy.” (Id.) Defendants do not

3 distinguish delayed unification from prolonged separation, nor do they cite any authority

4 that delay is not irreparable harm. (See Doe Resp.; JFS Resp.) Further, the Ninth Circuit

5 has at least implicitly rejected the notion that delay is not irreparable harm. See Hawaii I,

6 859 F.3d at 768 (holding that the plaintiffs “will face substantial hardship if we were to

7 first require that they try to obtain a waiver before we will consider their case”). No

8 matter which synonym one uses, the court finds that the Agency Memo causes irreparable

9 harm to individual Plaintiffs whose separation from their family members is prolonged.

10

The organizational Plaintiffs also suffer irreparable harm from the Agency Memo.

11 JFS-S and JFS-SV have dedicated significant resources to helping refugees from the SAO

12 countries. (JFS PI Mot. at 12-13.) Due to the Agency Memo’s suspension of refugees,

13 the organizations claim that they will need to lay-off employees, reduce services, cancel

14 established programs, lose institutional knowledge, and ultimately lose goodwill with

15 volunteers and community partners. (See id.) “Evidence of threatened loss of . . .

16 goodwill certainly supports a finding of the possibility of irreparable harm.” Stuhlberg

17 Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 841 (9th Cir. 2001); see

18 also Rent-A-Ctr. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th

19 Cir. 1991).

20

Defendants recycle their “delay” argument to claim that the organizations have not

21 suffered irreparable harm. (See JFS Resp. at 30-31.) This argument is similarly

22 unavailing here. Moreover, the indefinite duration of the “delay” in admitting refugees

ORDER - 57

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1 leaves the organizations unable to operate or plan effectively, further deteriorating

2 goodwill and adding to their harms. Defendants also argue that the organizations are not

3 irreparably harmed because “these organizations already fulfill their missions by

4 representing such clients who are unaffected by the challenged provisions.” (Id. at 12.)

5 The evidence before the court, however, is that JFS-S and JFS-SV are not able to simply

6 shift resources to “unaffected” refugees. Rather, these organizations have built programs

7 specifically to serve Muslim and Arabic-speaking refugees. (JFS-S Supp. Decl. ¶¶ 6-7;

8 JFS-SV Supp. Decl. ¶ 4.) Throughout the time it will take JFS-S and JFS-SV to

9 adequately build programs to service other populations, the organizations will suffer

10 irreparable harm. See Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718,

11 739 (S.D. Ind. 2016), aff’d, 838 F.3d 902 (7th Cir. 2016) (“Although the funding denied

12 to [the agency] could be reimbursed, [the agency] has presented evidence that, in the

13 interim, its organizational objectives would be irreparably damaged by its inability to

14 provide adequate social services to its clients.”); see also Hawaii I, 859 F.3d at 782-83

15 (finding the “State’s inability to assist in refugee resettlement” was an irreparable harm).

16 Further, as explained above, any sudden shift in the organizations’ priorities will threaten

17 their relationships and goodwill with community partners. In short, the Agency Memo

18 threatens the organizational Plaintiffs’ mission, services, and goodwill, and therefore

19 causes them irreparable harm.

20

Based on the foregoing, the court concludes that Plaintiffs are likely to suffer

21 irreparable harm in the absence of preliminary relief.

22 //

ORDER - 58

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1

5. Public Interest and Balancing the Equities

2

The balancing of the equities and the public interest inquiries are distinct. See

3 Winter, 555 U.S. at 20. In weighing equities, a court “must balance the competing claims

4 of injury and must consider the effect on each party of the granting or withholding of the

5 requested relief.” Id. at 24 (internal citation omitted). Conversely, when determining the

6 public interest, a court “primarily addresses impact on non-parties rather than parties.”

7 League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752

8 F.3d 755, 766 (9th Cir. 2014). That said, “[t]hese factors may merge where the

9 Government is a party” because the Government purports to be acting in the public

10 interest. See Colo. River Indian Tribes v. Dep’t of Interior, No. ED CV14-02504 JAK

11 (SPx), 2015 WL 12661945, at *34 (C.D. Cal. June 11, 2015); see also Hawaii, 241 F.

12 Supp. 3d at 1139-40 (combining the balance of equities and public interest analyses).

13 Here, the Defendant’s sole argument for the balancing of equities and public interest

14 factors is the Government’s weighty interest in national security. (See Doe Resp. at 24;

15 JFS Resp. at 28.) The court, therefore, considers these factors together.

16

The court agrees that the Government has a “compelling” interest in national

17 security. Haig v. Agee, 453 U.S. 280, 307 (1981); see also Hawaii I, 859 F.3d at 78

18 (“National security is undoubtedly a paramount public interest.”). Defendants, however,

19 do not point to any specific national security threat that the Agency Memo curtails. At

20 most, the Agency Memo expresses general “concerns” with admitting FTJ refugees and

21 refugees from SAO countries. (See Agency Memo at 2-3.) Further, Defendants have not

22 put forth evidence of how a preliminary injunction might cause specific injury or harm in

ORDER - 59

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1 this instance or how the recent preliminary injunction of EO-1’s or EO-2’s suspensions of

2 all or portions of USRAP caused any harm or injury. (See generally Dkt.)

3

On the other hand, former national security officials—many of whom held “the

4 most senior responsibility within the U.S. Government for overseeing the refugee

5 resettlement process”—expressed that they are “unaware of any national security threat

6 that would justify” the Agency Memo. (Joint Decl. Former Nat’l Sec. Officers ¶¶ 4, 7.)

7 In fact, the former officials detailed concretely how the Agency Memo will harm the

8 United States’ national security and foreign policy interests. (Id. at ¶¶ 14-15.) Enjoining

9 portions of the Agency Memo will simply restore refuge procedures and programs to the

10 position they were in prior to its issuance, which already includes “the most thorough

11 vetting of any travelers to the United States. (Id. ¶ 8); see Hawaii I, 859 F.3d at 783

12 (noting this same effect of enjoining portions of EO-2).

13

In any event, national security, although undoubtedly “a paramount public

14 interest,” see Hawaii I, 859 F.3d at 784, does not always override all other public

15 interests, see IRAP, 137 S. Ct. at 2088-89. Moreover, the agencies must exercise national

16 security authority lawfully. “[C]urtailing unlawful executive action” also serves the

17 public interest. Texas, 809 F.3d at 187; see also Hawaii I, 859 F.3d at 784. Further,

18 suspending the FTJ refugees program and the processing of refugee applications (with

19 limited exceptions) from SAO countries hinders Plaintiffs’ ability to reunite with their

20 families while increasing refugees’ exposure to perilous circumstances abroad, and its

21 also disrupts and hinders JFS-S’s and JFS-SV’s ability to resettle and serve refugees. See

22 supra § II.B. Thus, “[t]he public interest in uniting families and supporting humanitarian

ORDER - 60

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1 efforts in refugee resettlement support the conclusion that the public interest is served by

2 preliminarily enjoining [portions of the agency Memo] and maintaining the status quo.”

3 See Hawaii I, 859 F.3d at 784 (citing Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1094

4 (9th Cir. 2005) (“Public policy supports recognition and maintenance of a family unit.

5 The [INA] was intended to keep families together. It should be construed in favor of

6 family units and the acceptance of responsibility by family members.”)). Further, the

7 INA should be construed in accordance with its “humane purpose . . . to reunite

8 families.” Kaliski v. Dist. Dir. of Immigration & Naturalization Serv., 620 F.2d 214, 217

9 (9th Cir. 1980). In Hawaii I, the Ninth Circuit concluded that, because a preliminary

10 injunction of EO-2 would serve the foregoing interests, it was in the public interest. 859

11 F.3d at 784-85. Likewise, this court concludes that Plaintiffs have demonstrated that a

12 preliminary injunction of the FTJ and SAO suspensions here is in the public interest.

13

Nevertheless, the court’s analysis would not be complete without considering the

14 Supreme Court’s recent decision in IRAP, 137 S. Ct. 2080, and the court will tailor any

15 preliminary injunction it issues to the confines of that ruling.30 When evaluating whether

16

30 The court recognizes that the Supreme Court recently stayed two preliminary 17 injunctions relating to EO-3, pending appeals in the Fourth Circuit and Ninth Circuit,

respectively. See Trump v. Int’l Refugee Assistance Project, No. 17A560, 2017 WL 5987435, at

18 *1 (U.S. Dec. 4, 2017); Trump v. Hawaii, No. 17A550, 2017 WL 5987406, at *1 (U.S. Dec. 4,

2017). The Court’s rulings, however, do not provide any analysis or explanation why it stayed

19 the injunctions. On December 5, 2017, this court ordered the parties “to provide supplemental

briefing concerning what impact, if any, the Supreme Court’s December 4, 2017, orders have

20 concerning the two pending motions for preliminary injunction.” (Supp. Br. Order (Dkt. # 68) at 2; see also Doe Supp. Brief; JFS Supp. Brief; Def. Supp. Brief.) After considering the parties’

21

supplemental briefs and the Supreme Court’s December 4, 2017, rulings, this court will still rely on IRAP, 137 S. Ct. 2080 (2017), the only reasoned opinion from the Supreme Court on a related

22

matter to date. Nothing in the December 4, 2017, rulings expressly undermines, let alone mentions, IRAP. Moreover, the December 4, 2017, rulings dealt exclusively with immigrants—

ORDER - 61

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1 to issue a stay of the EO-2 preliminary injunctions, the Supreme Court determined that

2 the balance of equities favored “foreign nationals who have a credible claim of a bona

3 fide relationship with a person or entity in the United States.” Id. at 2088. The Court

4 recognized that the Government’s interest in protecting national security was at its apex

5 when considering the admission of foreign nationals with no connection to the United

6 States. Id. However, the Supreme Court found that the balance of equities was different

7 when considering the admission of aliens who had a credible claim of a bona fide

8 relationship with a person or entity within the United States. Id. With respect to these

9 individuals, the Supreme Court upheld the lower courts’ injunctions against enforcement

10 of EO-2. Id. The Court also specifically extended this balancing of equities to refugees:

11 “[a]n American individual or entity that has a bona fide relationship with a particular

12 person seeking to enter the country as a refugee can legitimately claim concrete hardship

13 if that person is excluded.” Id. at 2089.

14

By statutory definition, as Defendants conceded at oral argument, all FTJ refugees

15 have a bona fide relationship with a person in the United States. See 18 U.S.C. § 1157(c).

16 Thus, a preliminary injunction will be applicable to all FTJ refugees. The same,

17 however, is not true for all refugees from SAO countries. These refugees are not

18 necessarily in a relationship with a United States person or organization. The IRAP Court

19 held that for “refugees who lack any such connection to the United States . . . the balance

20

21 not refugees or the INA provisions currently at issue. It is simply impossible to say how the

22

Court considered the equities in the December 4, 2017, rulings, and whether the Court’s analysis applies here.

ORDER - 62

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1 tips in favor of the Government’s compelling need to provide for the Nation’s security.”

2 137 S. Ct. at 2089. Thus, any preliminary injunction concerning refugees from SAO

3 countries will apply only to individuals with a bona fide relationship to a person or entity

4 within the United States.31 See id.

5

For the reasons stated above and with the noted limitations based on the Supreme

6 Court’s decision in IRAP, the court finds that the balance of equities and the public

7 interest factors weigh in favor of enjoining the FTJ and SAO provisions in the Agency

8 Memo at issue here.

9

6. Scope of the Injunction

10

Defendants argue that any preliminary injunction should apply to the individual

11 Plaintiffs in this action only. (Doe Resp. at 22-23; JFS Resp. at 28-29.) An injunction is

12 not necessarily overbroad by extending benefits or protection to persons other than the

13 prevailing parties—even in the absence of a certified class—if such breadth is necessary

14 to give the prevailing parties the relief to which they are entitled. Hawaii I, 859 F.3d at

15 788. “Narrowing the injunction to apply to only Plaintiffs would not cure the statutory

16 violation identified, which in all applications would violate provisions of the INA.” Id.

17 In addition, partial implementation of the challenged provisions in the Agency Memo

18

19

31 With respect to a “bona fide relationship” with an American organization, the Supreme

Court held that for such a relationship to exist, it “must be formal, documented, and formed in

20 the ordinary course, rather than for the purpose of evading [the Executive Order at issue].” See IRAP, 137 S. Ct. at 2088. The Ninth Circuit has interpreted this language to include refugee

21

applicants covered by a formal assurance from a refugee resettlement agency. See Hawaii II, 871 F.3d at 658. Thus, those refugees from SAO countries who have a formal assurance from

22

JFS-S, JFS-SV, or some other refugee resettlement agency or humanitarian organization, would be covered by the preliminary injunction.

ORDER - 63

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1 would undermine uniform enforcement of the nation’s immigration laws. See Texas, 809

2 F.3d at 155 (issuing nationwide injunction concerning the DAPA program because

3 “partial implementation of the Executive Order ‘would undermine the constitutional

4 imperative of ‘a uniform Rule of Naturalization’ and Congress’s instruction that ‘the

5 immigration laws of the United States should be enforced vigorously and uniformly’”)

6 (footnotes omitted) (quoting U.S. CONST, art. I, § 8, cl. 4 and Immigration and Reform

7 Control Act of 1986, Pub. L. No. 99-603, § 115(1), 100 Stat. 3359, 3384); see also

8 Hawaii III, 2017 WL 6547095, at *25 (holding that the “the district court did not abuse

9 its discretion by granting a nationwide injunction” with respect to EO-3).

10

Accordingly, the court issues a nationwide preliminary injunction32 as follows:

11 1. Defendants and their officers, agents, servants, employees, attorneys, and all

12 members and persons acting in concert or participation with them from the date of this

13 Order, are enjoined and restrained from enforcing those provisions of the Agency Memo

14 that suspend the processing of FTJ refugee applications or suspend the admission of FTJ

15 refugees into the United States. This portion of the preliminary injunction does not apply

16 to Defendants’ efforts to implement “additional security measures” or align “the

17 screening mechanisms for [FTJ] refugees” with “processes employed for principal

18 refugees” as described in the Agency Memo.

19 //

20 32 The preliminary injunction does not apply to the President. See Hawaii I, 859 F.3d at

21

788 (holding that the court lacked jurisdiction to enjoin the President). However, the preliminary injunction runs against all other Defendants. See id. (“Injunctive relief . . . may run against all

22

other executive officials, including the Secretary of Homeland Security and the Secretary of State.”).

ORDER - 64

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1 2. Defendants and their officers, agents, servants, employees, attorneys, and all

2 members and persons acting in concert or participation with them from the date of this

3 Order, are enjoined and restrained from enforcing those provisions of the Agency Memo

4 that suspend or inhibit, including through the diversion of resources, the processing of

5 refugee applications or the admission into the United States of refugees from SAO

6 countries. However, this portion of the preliminary injunction only applies to FTJ

7 refugees or other refugees with a bona fide relationship to a person or entity within the

8 United States. See IRAP, 137 S. Ct. at 2088 89. Further, this portion of the preliminary

9 injunction does not apply to Defendants’ efforts to conduct a detailed threat assessment

10 for each SAO country.

11

IV. CONCLUSION

12

Based on the foregoing analysis, the court GRANTS Plaintiffs’ motion in the Doe

13 Case (Dkt. # 45), and GRANTS Plaintiffs’ motion in the JFS Case (17-1707 Dkt. # 42)

14 except for those refugees who lack a bona fide relationship with a person or entity in the

15 United States.

16

Dated this 23rd day of December, 2017.

17

A

18

JAMES L. ROBART

19

United States District Judge

20

21

22

ORDER - 65

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MEMORANDUM TO THE PRESIDENT

FROM:

Rex W,. Tillerson Secretary Department of State
Elaine Duke Acting Secretary DDepartment of Homeland Security
Daniel Coats Director Office of the Director of Natiionall Intelligence

OCT 2Z332z0a1n7

RESUUMIING THE UNITED STATES REFUGEE ADMISSIONS PROGRAM WITH ENHANCED 'VVETITTIINNG CAPABILITIIES
In section 6(a) of Executiive Order 113780 of March 6, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), you directed a review to strengthen the vetting process for the U.S. Refugee Admissions Program (USRAP). You instructed the Secretary of State to suspend the travel of refugees into the United States under that program, and the Secretary of Homeland Security to suuspend deci sions on applications for refugee status, for a temporary, 11220-day period, subject to certain exceptions. During the 1120-day suspension period, Section 6(a) required the Secretary of State, in conjunction with the Secretary of Homeland Security annd in consultatiion with the Director of Nationall Intelligence, to review the USRAP applicationn annd adjudication processes to determine what additional procedures shoulld be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the UUnited States, and to implement such additional procedures.
The Secretary of State convened a working group to implement the review process under section 6(a) of Executive Order 113780, which proceeded in parallel with the development oftthe uniform baseline of screening and vetting standards and procedures for all travelers under section 5 ofrthat Executive Order. The section 6(a) working group then compared the refugee screening and vetting procecss with the unifform baseline standards and procedures established by the section 5 working group. This helped to inform the section 6(a) working groupp's identification offa number of additional ways to enhance the refugee screening and vetting processes. The Secretary of State and the Secretary of Homeland Security have begun implemecnting those improvements.
Pursuant to section 6(a), this memorandum reflects our joint determination that the improvements to the USRAP vetnting process identified by the 6(a) working group arec generally adequate to ensure the security and welfare of the United States, and therefore that the Secretary

CCaassee:21:187-3-c5v0-1050,10728/-0J6L/R201D8o, cIDum: 1e0n7t 54461-240,FDilektdE1n1tr/y0:62/147-3, PPaaggee 32 ooff 87
of State may resume travel of refugees into the United States and that the Secretary of Homeland Security may resume making decisions on applications for refugee status for stateless persons and foreign nationals, subject to the conditions described below.
Notwithstanding the additional procedures identified or implemented during the last 1120 days, we continue to have concerns regarding the admission of nationals of, and stateless persons who last habitually resided in, 111 particular countriies previously identified as posing a higher risk to the United States through their designation on the Security Advisory Opiinion (SAO) list. The SAO list for refugees was established following the September 1I1Jtlhh terrorist attacks and has evolved over the years through interagency consultations. The current list of countries was established in 20155. To address these concerns, we will conduct a detailed threat analysis and review for nationaalls of these high risk countries and stateless persons who last habitually resided in those countries, including a threat assessment off each country, pursuant to section 207(c) and applicable portions of section 212(a) of the Immigration and Nationality Act (INA), 8 U.S..Cc. 1I1I57(c) and 111182(3a), section 402(4) of the Homeland Security Act of2200002, 6 U.S.C.202(4), and other appllicable authorities. During this review, the Secretary of State and the Secretary of Homeland Security will temporarily prioritize refugee applications from other non-· SAO countries. DHS and DOS wiill work together to take resources that may have been dedicated to processing nationals of, or stateless persons who last habitually resided in, SAO countries and, during the temporary review period, reallocate them to process applicants from non-SAO countries for whom the processing may not be as resource intensive.
While the temporary review is underway, the Secretaries of Homeland Security and State will cooperate to carefully scrutinize the applications of nationals of countries on the SAO list, or of stateless persons who last habitually resided in those countries, and will consider individuals for potential admission whose resettlement in the United States would fulfill critical foreign policy interests, without compromising national security and the welfare of the United States. As such, the Secretary of Homeland Security willl admit on a case-by-case basis only refugees whose admission is deemed to be in the national interest and poses no threat to the security or welfare of the United Statces. We will direct our staff to work jointly and with law enforcement agencies to complete the additional review of the SAO countries no later than 90 days from the date of this memmorandum, and to determine what additional safeguards, if any, are necessary to ensure that the admission of refugees from these countries of concern does not pose a threat to the security and welfare of the United States.
Further, it is our joint determination that additional security measures must be implemented promptly for derivative refugeeess—-tthhoose who are "following-to-join" principal refugees that have already been resettled in the United Staatteess—-rreeggaarrddlless of nationalilty..1' At present, the majority of following-to-join refugees, unlike principal refugees, do not undergo enhanced MDHIS review, which includes soliciiting information from the refugee applicant earlier
I When a refugee is proocccesss!.e'Od for admission to the United States, eligible family members located in the same place as the refugee (spouses and/or unmarried children under 211 years of agec) tIyypically arce also processed at the same time, and tIhey receive thec same screening as the principal refugee. Each year, however, resettled principal refugees also petition, through a separate process, for approximately 2,.500 family members to be admitted to the United Statles as following-Ito-join refugees. The family member may be residing and processed in a dilfTferent coouunnUtr"y than where the principal refugee was processed, and while most following-·tlo-·join refugees share the nationality of the principal, some may be of a diflfTeerTeennt nationality.
2

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in the process to provide for a more thorough screening process, as well as vetting certain
nationals or stateless persons against classified databases. We have jointly deternmnined that additional security measures must be implemented before admissiion of folllowing-·to-·join refugees can resume. Based on an assessment of current systems checks, as well as requirements for unifornmnity identified by Section 5, we will direct our staffs to work jointly to implement adequate screening mechanisms for following-·to-·join refugees that are similar to the processes employed for principal refugees, in order to ensure the security and welffare of the United States. We will resume admission of following-·to-·join refugees once those enhancements have been implemented.

1ifrs.1~
Rex W. Tillecrson Secretary Department of State

Elaine Duke Acting Secretary Department of Homeland Security

Dan Coats Director Nationall Intelligence

3

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UNCLASSIFIED
Addendum to Section 6(a) Memorandum
Executive Order 13780, Protecting the Natiioonnffroomm Foreign Teerrrorist Entry ibnuto the United Sltates
Section 6(a) of Executive Order 13780 of March 6, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), required a review of the United States Refugee Admissions Program (USRAP) applicatiion and adjudication process during a 120-day period to determine what additional procedures should be used to ensure that indiividuals seeking admission as refugees do not pose a threat to the security and welfare of the United States. The Secretary of State (State), in conjunction with the Secretary of Homeland Security (DHS) and in consultation with the Director of National Intelligence (ODNI) established an interagency working group (the Section 6(a) Working Group) to undertake this review.
This addendum provides a summary oftthe additional procedures that have been and will be implemented. A classified report provides further detaill of this review and enhancements. The interagency working group has recommended and implemented enhanced vetting procedures in three areas:: application, intervviews annd adjudicatiolnls, anlld system checks.
Interagency Approach to the Review
To conduct the review, the Section 6(a) Working Group conducted a baseline assessment of USRAP application and adjudication processes and developed additional procedures to further enhance the security and welfare of the United States. The Section 6(a) Working Group ensured alignment with other concurrent and relevant reviews undertaken under the Executive Order, such as the review under Sectiion 5, which established unifoornmn baseline screening standards for all travelers to the Uniited States.
All individuals admitted through the USRAP already receive a baseline of extensive security checks. The USRAP also requires additional screening and procedures for certain individuals from 1I1I speciific countries that have been assessed by the U.S. government to pose elevated potential risks to national security; these individuals are subject to additional vetting through Security Advisory Opinions (SAAOOss))1'. The SAO list for refugees was established following the September 1I1I `th terrorist attacks and has evolved over the years through interagency consultations. The most recent list was updated in 2015. The Section 6(a) Working Group agreed to continue to follow this tiered approach to assessing risk and agreed that these nationalities continued to require additional vetting based on current elevated potential for risk. Each additional procedure identified during the 112200--day review was evaluated to deternmnine whether it should apply to statelless persons and refugees of all nationalities or only certain nationalities.22
'1TThhee SAO is a DOS-initiated biographic check conducted by the Federal BUureau of Investigation and intelligence community parntnncers. SAO name cehecks arec initiated for the groups and nationalities designated by the U.S. governmecnt as requiring this higher level check. 2~ Stateless persons in this regard means persons without nationality who last habitually resided in one oftthhesce countries.
UNCLASSIFfIED
1

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UNCLASSIFIED
Additional Procedures for Refugee Applicants Seeking Resettlement in the United States
Application Process:
­). Increased Data Collection: Additional data are being collected from all applicants in order to enhance the effectiveness ofbbiiooggrraapphic security checks. These changes will improve the ability to determine whether an applicant is being truthfull about his or her claims, has engaged in criminal or terrorist activiity, has terrorist ties, or is otherwise connected to nefarious actors.
­)- Enhanced Identity Managemmeenntt: The electronic refugee case management system has been improved to better detecct potential fraud by strengthening the ability to identify duplicate identities or identity documents. Any such matches are subject to further investigation prior to an applicant being allowed to travel. These changes will make it harder for applicants to use deceptive tactics to enter our country.
Interview and Adjudication Process:
»­ Fraud Detection and National Security: DHS's U.S. Citizenship and Immigration
Services (USCIS) will forward-deploy specially trained Fraud Detection and National Security (FDNS) officers at refugee processing locations to help identify potential fraud, national security, and public safety issues on certain circuit rides to advise and assist interviewinng officers. With FDNS officers on the ground, the United States will be better positioned to detect and disrupt fraud and identify potential national security and public safety threats.
»­ New Guidance and Trainingg:: USCIS is strengthening its guidance on how to assess the
credibility and admissibility of refugee appllicants. This new guidance clarifies how officers should identify and analyze grounds of inadmissibility related to drug offenses, drug trafficking, prostitution, alien smugglling, torture, membership in totalitarian parties, fraud and misrepresentation, certain immigration violations, and other crimiinal activity. USCIS has also updated guidance for refugee adjudicators to give them greater fllexibility in assessing the credibility ofrreeffugeec applicants, including expanding factors that may be considered in making a credibility deternmnination consistent with the REAL ID Act. This enhanced guidance supplements the robust credibility guiidance and training USCIS officers already receive prior to adjudicating refugee cases. Additionally, the updated guidance equips officers with tactics to identify inadequate or improper interpretation.
­)- Expanded Information-Sharing: State and USCIS are exchanging more in-depth infornmnation to link related cases so that interviewing officers are able to develop more tailored lines of questioning that will help catch potentiial fraud, national security threats, or public safety concerns.
UNCLASSIFIED
2

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UNCLASSIFIED
SSystem Checks:
>;;.. Updating Security Checks: Measures have been put in place to ensure that if applicants change or update key data points, including new or altered biographic information, that such data is then subject to renewed scrutiny and security checks. This will add an additional layer of protection to identify fraud and national security issues.
>»- Security Advisory Opinions (SAOs): Departments and agencies have agreed to expand
the classes of refugee applicants that are subject to SAOs, thereby ensuring that more refugees receive deeper vetting.
• USCIS' Fraud Detection and National Security Directorate is also expanding its "enhanced review" process for applicants who meet SAO criteria. This includes checks against certain social media and classified databases.
Additional Review Process for Certain Categories of Refugee Applicants
The Department of Homelland Security continues to have concerns regarding the admissiion of nationals of, and stateless persons who last habitually resided in, II particular countries previously identified as posing a higher risk to the United States through their designation on the SAO list. The SAO list for refugees was established following the September 111ltth terrorist attacks and has evolved over the years through interagency consultations. The current list of countries was established in 2015.
As such, for countries subject to SAOs, the Secretary of State and the Secretary of Homeland Security, in consultation with the Director of National Intelligence and the Atntormney General, will coordinate a review and analysis of each country, pursuant to existing USRAP authorities. This review wiill include an in-depth threat assessment of each country, to be completed within 90 days. Moreover., it will include input and analysis from the intelligence and law enforcement communities, as well as all relevant information related to ongoing or completed investigations and national security risks and mitigation strategies.
This review will be tailored to each SAO country, and decisions may be made for each country independently. While the temporary review is underway, the Secretaries of Homeland Security and State will cooperate to carefully scrutinize the applications of nationals of, and stateless persons who last habitually resided in, countries on the SAO list and will consider individuals for potentiall admission whose resettlement in the United States would fulfill criticall foreign policy interests, without compromising national security and the welfare of the United States. As such, the Secretary of Homeland Security may admit on a case-by-case basis only refugees whose admission is deemed to be in the national interest and poses no threat to the security or welfare of the United States.
In addition, during this review period, the Secretary of State and the Secretary of Homeland Security will temporarily prioritize refugee applications from non-SAO countries. DOHS and DOS will work together to take resources that may have been dedicated to processing nationals of, or stateless persons who last habitually resided in,. SAO countries and, during the temporary
UNNCCLLAASSSSIiFfIiED
3

CCaassee2: :1187--3c5v0-01051, 7082-/J0L6R/201D8o,cIuDm: 1e0n7t 54461-240,FDilekdtE1n1tr/y0:62/147-3,PPaaggee87ooff87
UNCLASSIFIED
review period, reallocate them to process applicants from non-SAO countries for whom the processing may not be as resource intensive. This means that refugee admissions for nationals of, and stateless persons who last habiltUually resided in, SAO countries will occur at a slower pace, at least during the temporary review period and likely further into the fiscal year, as the deployment of additionnal screening and integrity measures have historically led to lengthier processing times. While DHS prioritizes its resources in this manner until the additional analysis is completed, DHS will interview refugee applicants as appropriate from SAO countries on a discretionary basis.
Form 11-730 Refugee Following-tfoa-Join Processing
A principal refugee applicant may include his or her spouse and unmarried children under 21 years of age as derivative refugee applicants on his or her Form 11-590, Registration for Classification as a Refugee. When these family members are co-located with the principal, the derivative applicants generally are processed through the USRAP and, if approved, travel to the United States with the principal refugee applicant. These family members receive the same baseline security checks as the principal refugee and, if found eligible, are admitted as refugees. Alternatively, a prinnCcipal refugee admitted to the United States may file a Form 11-730, Refugee/Asylee Relative Petition, for his or her spouse and unmarried children under 21 years of age, to follow-to-join the principal refugee in the United States. If DHS grants the petition after interview and vetting, the approved spouse or unmarried child is admitted as a recfugee and counted toward the annual refugee ceiling. While the vast majority of eligible refugee family members admitted to the United States each year accompany, and are screened with, the principal refugee, principal refugees admitted to the United States file petitions for approximately 2,500 family members to join them in the United States through the followingg-tojoin process. Following-to-join family members may be residing and processed in a different country than where the principal refugee was processed, and while most share the nationality of the principal refugee, some may be of a different nationality. In any given year, DHS receives petitions for beneficiaries representing over 60 different nationalities. In recent years, the nationalities most represented were Iraqi, Somali, Burmese, Congolese, Ethiopian and Eritrean.
The majority of following-to-join refugees do not receive the same, full baseline interagency checks that principal refugees receive. Nor do following-to-join refugees currently undergo enhanced DHS review, which includes soliciting infornmnation from the refugee earlier in the process to provide for more thorough screening and vetting of certain natlionals or stateless persons against classified databases. DHS and State are expeditiously tlaking measures to better align the vetting regime for following-tloa-joiin refugees with that for principal refugees by I) ensuring that all following-to-join refugees receive the full baseline interagency checks that principal refugees receive; 2) requesting submiission of the beneficiary's 11--590 application in support of the Form 11-730 petition earlier in the process to provide ffor more thorough screening; 3) vetting certain nationals or stateless persons against classified databases; and 4) expanding SAO requirements for this population in keeping with the agreed-to expansion for 1Iw-55990 refugee applicants. These additional seccurity measures must be implemented before admission of following-to-join reffuuggeeeess—-rreeggaarrddlleess of natioonnaalliittyy—--can resume. Once the security enhancements are in place, admission of following-tlo-join refugees can resume.
UNCLASSIFIED
4

 
 Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-1, Page 1 of 27

No. 18-35015, 18-35026 __________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
______________________________________________________________________________
JOHN DOE, ET AL., Plaintiffs-Appellees,
JEWISH FAMILY SERVICE OF SEATTLE, ET AL., Plaintiffs-Appellees-Cross-Appellants,
v.
DONALD TRUMP, President of the United States, ET AL., Defendants-Appellants-Cross-Appellees.
On Appeal from the United States District Court for the Western District of Washington
No. C17-cv-01707 (consolidated with 2:17-cv-00178) Hon. James L. Robart

JFS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Deepa Alagesan Mariko Hirose Linda B. Evarts Kathryn Meyer INTERNATIONAL REFUGEE
ASSISTANCE PROJECT 40 Rector Street, 9th Floor New York, NY 10006 Telephone: (646) 602-5639
Justin B. Cox NATIONAL IMMIGRATION LAW CENTER P. O. Box 170208 Atlanta, GA 30317 Telephone: (678) 279-5441

Melissa S. Keaney Esther Sung Karen C. Tumlin NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd. #108-62 Los Angeles, CA 90010 Telephone: (213) 639-3900
David Burman Lauren Watts Staniar Tyler S. Roberts PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: (206) 359-8000

Attorneys for Plaintiffs-Appellees-Cross-Appellants Jewish Family Service, et al.

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-1, Page 2 of 27

Additional Counsel
Elizabeth Sweet Mark Hetfield HIAS, INC. 1300 Spring Street, Suite 500 Silver Spring, MD 20910 Telephone: (301) 844-7300

Lauren E. Aguiar Mollie M. Kornreich Abigail E. Davis Four Times Square New York, NY 10036 Telephone: (212) 735-3000

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TABLE OF CONTENTS INTRODUCTION .....................................................................................................1 BACKGROUND .......................................................................................................3
I. FACTUAL BACKGROUND..........................................................................3 II. PROCEDURAL HISTORY ............................................................................6 ARGUMENT ...........................................................................................................10 I. THIS CASE SHOULD BE REMANDED FOR THE DISTRICT COURT
TO ADJUDICATE MOOTNESS IN THE FIRST INSTANCE ..................10 II. IN THE ALTERNATIVE, THE APPEAL IS NOT MOOT.........................14
A. The Controversy Is Still Live ..............................................................14 B. The Capable of Repetition yet Evading Review Exception Applies ..16 C. The Voluntary Cessation Exception Applies ......................................17 III. IN ANY EVENT, THE PRELIMINARY INJUNCTION SHOULD NOT BE VACATED ..............................................................................................18 CONCLUSION ........................................................................................................20
i

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Cases

TABLE OF AUTHORITIES

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) ............................................................................ 14, 15, 17, 18

Burke v. Barnes, 479 U.S. 361 (1987) ................................................................................ 15, 17, 20

California Department of Social Services v. Leavitt, 523 F.3d 1025 (9th Cir. 2008) ..............................................................................13
California Native Plant Society v. Environmental Protection Agency, 251 F.R.D. 408 (N.D. Cal. 2008) .........................................................................13

Chemical Producers & Distributors Association v. Helliker, 463 F.3d 871 (9th Cir. 2006) ................................................................................19

County of Los Angeles v. Davis, 440 U.S. 625 (1979) .............................................................................................18

Dilley v. Gunn, 64 F.3d 1365 (9th Cir. 1995) ......................................................................... 19, 20

Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) .............................................................................................16

Halet v. Wend Investment Co., 672 F.2d 1305 (9th Cir. 1982) ..............................................................................11

Hawai’i v. Trump, 859 F.3d 741 (9th Cir.) (per curiam), vacated as moot, 137 S. Ct. 377 (2017) .............................................................3, 4

Hawai’i v. Trump, 871 F.3d 646 (9th Cir.), stay granted in part, 138 S. Ct. 1 (2017) ........................6

ii

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Hawai’i v. Trump, 878 F.3d 662 (9th Cir. 2017), cert. granted, 86 U.S.L.W. 3365 (U.S. Jan. 19, 2018) .......................................................................................................................4
Karuk Tribe of California v. United States Forest Service, 681 F.3d 1006 (9th Cir. 2012) ..............................................................................16
Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir. 2011) ....................................................................... 17, 20
Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720 (9th Cir. 1982) ................................................................................19
Sherwood v. Tennessee Valley Authority, 842 F.3d 400 (6th Cir. 2016) ................................................................... 10, 13, 18
Sensient Flavors LLC v. National Institute for Occupational Safety & Health, No. 08-CV-0949, 2008 WL 11383364 (S.D. Ind. Oct. 31, 2008) .......................13
Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011) ..............................................................................14
Trump v. Hawai’i, 138 S. Ct. 377 (2017) ...........................................................................................15
United States Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) ...............................................................................................19
United States v. Brandau, 578 F.3d 1064 (9th Cir. 2009) ................................................................. 10, 11, 13
United States v. Munsingwear, Inc., 340 U.S. 36 (1950) ........................................................................................ 18, 19
Von Kennel Gaudin v. Remis, 282 F.3d 1178 (9th Cir. 2002) ..............................................................................10
iii

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INTRODUCTION Defendants’ Motion to Dismiss is an attempt at evading judicial review of their third effort to unlawfully suspend the congressionally enacted United States Refugee Admissions Program (“USRAP”). Since taking office, this Administration has continuously sought to suspend the USRAP, claiming the need to conduct “reviews”—first in 120-day increments and then for 90 days—and causing irreparable harm to refugees fleeing persecution, their U.S.-based family members, and the organizations that serve them. This Court should reject Defendants’ request to dismiss these cross-appeals as moot and vacate the preliminary injunction of the latest suspension, as Defendants have not carried their heavy burden of demonstrating mootness. Plaintiffs filed this case because, immediately after the end of the second suspension of the USRAP, Defendants issued a Memorandum dated October 23, 2017 (the “Agency Memo”), which suspended processing and admissions of (1) refugees from the eleven countries on the Security Advisory Opinion (“SAO”) list, nine of which are Muslim-majority countries, for a minimum of 90 days while the agencies conducted a review, and (2) follow-to-join (“FTJ”) refugees seeking family reunification for an indefinite period while the agencies implemented additional security measures. The district court enjoined the suspensions as to refugees with bona fide relationships to U.S. persons and entities and ordered the
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reversal of actions taken under the Agency Memo, including the reallocation of resources away from processing SAO refugees.
Defendants now ask this Court to vacate that injunction based on the completion of the SAO country review and the FTJ implementation period, but the Court should remand for factual development because Defendants have provided little information on whether the suspensions have actually ended. Defendants have provided no evidence that they have resumed processing FTJ applications. Nor have Defendants represented that they lifted the suspension of SAO admissions at the end of the 90-day review independent of the injunction, or that they have taken all the steps necessary to correct the diversion of resources from the processing of SAO refugees that occurred under the Agency Memo. Indeed, an agency memorandum issued at the end of the 90-day review suggests that any resumption of SAO processing and admissions is happening because of the injunction and raises the specter of the suspension continuing under new cover.
Alternatively, if the Court decides the mootness question now, it should find that the record does not support a finding of mootness—especially because Defendants have a still-continuing obligation under the injunction to restore the processing of SAO refugee applications to the status quo ante by reversing the resource reallocation implemented under the Agency Memo. Moreover, that this is Defendants’ third attempt to suspend the USRAP makes evident that this case fits
2

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squarely within the “capable of repetition, yet evading review” and “voluntary cessation” exceptions to the mootness doctrine.
Finally, even if this Court were to find the case moot, vacatur is inappropriate. Defendants have devastated Plaintiffs’ lives and organizations over the past year through a series of suspensions of the USRAP. The Court should not permit Defendants to wipe clean the court orders that hold them accountable by structuring their unlawful actions in short, successive time periods.
BACKGROUND I. FACTUAL BACKGROUND
This case is a challenge to the Administration’s third attempt to ban refugees from the United States. The first attempt, Executive Order 13,769 (“EO-1”), issued one week after President Trump’s inauguration, banned Syrian refugees indefinitely and suspended the USRAP for 120 days while the Secretaries of State and the Department of Homeland Security (“DHS”), and the Director of National Intelligence (“DNI”), were to conduct a security review of the USRAP. See Preliminary Injunction Order (“Op.”; DE# 92) at 5 (attached to Defs.’ Motion to Dismiss). After this first attempt was enjoined, the Administration attempted again to suspend the USRAP for another 120-day review by issuing Executive Order No. 13,780 (“EO-2”) on March 6, 2017. See id. at 6. This second attempt was enjoined before it could take effect. See Hawai’i v. Trump, 859 F.3d 741, 757, 760 (9th Cir.)
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(per curiam), vacated as moot, 137 S. Ct. 377 (2017). While that injunction was on appeal, the second suspension expired and was replaced by Executive Order No. 13,815 (“EO-4”) and the Agency Memo, which are the subject of this action. See Op. at 8-9; Agency Memo (attached to Defs.’ Mot. to Dismiss).1
The Agency Memo claimed the need to review the USRAP for nationals of SAO countries for an additional 90 days, see Agency Memo at 2, notwithstanding that USRAP should have already been reviewed for 158 days under the earlier executive orders and that refugees from SAO countries were already subject to heightened security checks, see Op. at 11.2 During this 90-day period, the Agency Memo allocated resources away from processing SAO refugees to processing nonSAO refugees. See Agency Memo at 2. Contrary to Defendants’ assertion that the reallocation was “temporary,” Mot. at 13, the Agency Memo itself acknowledged, and the district court found, that the reallocation would slow down admissions and processing from these countries beyond the 90-day review and “likely further into the fiscal year.” Agency Memo add. at 4; see also Op. at 11-12. The Agency Memo
1 Portions of EO-2 that did not affect refugees were replaced with a Presidential Proclamation dated September 24, 2017 (“EO-3”), see Op. at 7-8, which was also enjoined, see Hawai’i v. Trump, 878 F.3d 662, 673, 702 (9th Cir. 2017) (per curiam), cert. granted, 86 U.S.L.W. 3365 (U.S. Jan. 19, 2018) (No. 17-965). 2 The SAO countries are reportedly nine countries that are at least 87 percent Muslim (Egypt, Iran, Iraq, Libya, Mali, Somalia, Sudan, Syria, and Yemen), plus North Korea and South Sudan. See Op. at 10. Defendants agreed that the district court could accept as true the list alleged by Plaintiffs. See id. at 10-11 n.6.
4

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also suspended admissions of SAO refugees for an undefined period of time, id. at 10. The Agency Memo promised nothing about whether these suspensions would be lifted at the end of the 90-day review period. See Declaration of Deepa Alagesan, Ex. A (Tr. of 12/21/17 Prelim. Inj. Hr’g) at 35:3-6 (“COURT: So you’re saying [the SAO provision] ends at 90 days, and it cannot be continued? MR. DUGAN: I don’t know what will come to pass after the 90-day period.”); 38:1-5 (“MR. DUGAN: I mean, perhaps the government will conclude at the end of the 90 days that refugee admissions may resume in March . . . . We just don’t know.”).
In addition, the Agency Memo indefinitely suspended the FTJ process for refugees until additional security measures had been implemented. See Op. at 10. The FTJ process allows the spouses and unmarried minor children of already resettled refugees to join them in the United States. See id. at 9-10.
Plaintiffs in this case— including Iraqi former translators for the U. S. military whose lives are at risk because of their service, a transgender woman in Egypt living in perilous conditions, fathers in Ohio and Washington seeking to reunite with their children, and resettlement agencies that effectuate their sincerely held religious beliefs by serving vulnerable refugees—have suffered irreparable harm. See id. at 13-17; 56-57. Contrary to Defendants’ arguments below that “delay alone does not amount to irreparable harm,” id. at 57, the SAO and FTJ suspensions have directly impacted the Individual Plaintiffs’ ability to reach safety and reunite with their
5

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families, and the Organizational Plaintiffs’ ability to carry out their missions, see Op. at 57-58. Such delays cascade and reverberate for a long time because of the nature of refugee processing. Id. at 16; see Hawai’i v. Trump, 871 F.3d 646, 66 (9th Cir. 2017) (“Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be re-initiated. Even short delays may prolong a refugee’s admittance”). II. PROCEDURAL HISTORY
On December 23, 2017, the district court (Robart, J.) granted Plaintiffs’ motion for a preliminary injunction, enjoining the Agency Memo’s FTJ and SAO suspensions for those refugees with a bona fide relationship to U.S. persons or entities. Id. at 4.3 Specifically, the district court held that Plaintiffs were likely to succeed on their Administrative Procedure Act (“APA”) claims that the suspensions were ultra vires and violated notice-and-comment requirements, id. at 46, 50-51, 56; Plaintiffs were suffering irreparable harm, id. at 58; and the balance of equities and public interest warranted an injunction, id. at 63. Defendants filed a notice of appeal on January 4, 2018. Notice of Appeal (DE# 99).4
Defendants have twice attempted—unsuccessfully—to modify the scope of
3 For purposes of this brief, “Plaintiffs” refers to the plaintiffs in Jewish Family Service of Seattle, et al. v. Trump, et al., No. C17-1707JLR (W.D. Wash.). 4 Plaintiffs cross-appealed the preliminary injunction’s limitation to refugees with bona-fide relationships. Notice of Cross-Appeal (DE# 107).
6

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the preliminary injunction. First, they moved for reconsideration of the holding that an assurance from a resettlement agency constitutes a bona fide relationship, a motion the court denied. Defs.’ Mot. for Recons. (DE# 93). Second, six days later, Defendants filed an “emergency” motion for a stay of the preliminary injunction pending appeal with the district court. Defs.’ Mot. for Stay of Prelim. Inj. (DE# 95).5 In this motion, Defendants effectively conceded their noncompliance with the injunction, asserting that the injunction did not “require affirmative action to undo any of the steps that were taken to implement the [Agency Memo] prior to [the date of the injunction],” id. at 4, and expressing “significant doubt” about their ability to undo such actions, id. at 5. Defendants cited only one example of a step they claimed they could not undo: that it was not feasible for them to “modify the universe of refugees to be interviewed during upcoming circuit rides.” Id.6 The district court rejected Defendants’ “attempts to unilaterally modify the preliminary injunction” and denied the stay motion, confirming that the injunction required them to take affirmative steps to undo any actions taken before its issuance and warning that failure to comply with the injunction could result in a contempt finding and sanctions. See Order Denying Mot. for Stay Pending Appeal (DE# 106) at 6-7.
5 However, Defendants never filed a stay motion in this Court. 6 A “circuit ride” is a tour of duty for DHS officers to interview refugee applicants abroad. See Gauger Decl. (DE# 114-1) ¶ 4. Dates and locations are scheduled at least one quarter in advance and refugees are then scheduled for interviews. See id.
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In the face of the district court’s warning, Defendants filed a “notice of compliance” on January 16, 2018. The notice stated that Defendants issued guidance to DHS and DOS to resume processing of FTJ and SAO refugees; added an unspecified number of interviews for SAO nationals to the schedule for the second quarter of fiscal year 2018; and “aim[ed]” to add to their third-quarter schedule interview locations with greater percentages of SAO nationals. Defs.’ Jan. 16, 2018 Notice (DE# 114) at 1. The notice failed to address a host of questions, including whether all reallocation of resources under the Agency Memo had been reversed and whether and what guidance was provided to other agencies involved in refugee processing. See Pls.’ Opp. to Defs.’ Mot. to Stay Proceedings (DE# 115) at 7-9.
Thereafter, Defendants filed another notice with the district court on January 31, 2018, announcing the end of the Agency Memo’s 90-day SAO review on January 22, 2018. Defs.’ Jan. 31, 2018 Notice (DE# 119). Although it stated that the “review period expired by its terms,” id. at 1 (emphasis added), the notice did not represent that SAO refugee processing or admissions had resumed and simply referenced, without attaching, a new memorandum from DHS, dated January 29 (the “January 29 Memo”), that supposedly introduced “additional security enhancements and recommendations to strengthen the integrity of the [USRAP].” Id. Similarly, Defendants did not specify whether FTJ refugee processing had resumed and made only the unsubstantiated assertion that the implementation of additional procedures
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for FTJ refugees was “expected to be completed on or about February 1, 2018.” Id. at 2. The notice asserted that the January 29 Memo would be implemented consistent with the preliminary injunction and that Defendants would honor commitments made under the injunction. Id. at 1.
The January 29 Memo, which Defendants provided to Plaintiffs in redacted form a week after its filing, similarly asserted in conclusory fashion that Defendants are in compliance with the injunction and failed to provide concrete information on whether SAO and FTJ refugee processing or admissions had resumed. See Jan. 29 Memo (DE# 122 Ex. C) at 1-2 n.3. Instead, the Memorandum referenced additional guidelines and training that could readily be employed to continue the SAO suspensions under new cover. See, e.g., id. at 2-3 (instructing USCIS to “[i]ssue supplementary guidance and train officers on when it may be appropriate to deny refugee applicants as a matter of discretion based on the totality of the circumstances” and to “[d]etermine which SAO nationals . . . will require a reinterview in light of the modifications listed above.”).
On February 6, 2018, Defendants filed in this Court a motion to dismiss the pending cross-appeals, vacate the preliminary injunction, and remand the case for dismissal based on purported mootness. Their motion to stay the district court proceedings pending appeal of the preliminary injunction, and Plaintiffs’ crossmotion for limited expedited discovery on compliance, remains pending below. See
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Defs.’ Mot. to Stay Proceedings (DE# 110); Pls.’ Mot. for Disc. (DE# 121). ARGUMENT
I. THIS CASE SHOULD BE REMANDED FOR THE DISTRICT COURT TO ADJUDICATE MOOTNESS IN THE FIRST INSTANCE. Defendants ask this Court to dismiss the case as moot claiming that “the
challenged provisions . . . have expired by their own terms,” Mot. at 10, but the record here raises factual questions that Plaintiffs are entitled to probe around whether the challenged suspensions—not just the SAO review or implementation of additional FTJ security measures—have ended. Accordingly, this Court should remand to the district court for the necessary factual development.
This Court has long held that remand is appropriate where, as here, there are factual questions around mootness. See, e.g., United States v. Brandau, 578 F.3d 1064, 1069-70 (9th Cir. 2009) (remanding case for a district court to hold an evidentiary hearing on mootness); Von Kennel Gaudin v. Remis, 282 F.3d 1178, 1183-84 (9th Cir. 2002) (denying motion to dismiss and remanding where factual dispute as to mootness existed); see also Sherwood v. Tenn. Valley Auth., 842 F.3d 400, 407 (6th Cir. 2016) (remanding case and noting that “[f]ully fleshing out any future mootness claim may require jurisdictional discovery”). In Brandau, for example, the government argued that the appeal was moot because the challenged policy, which required shackling of defendants during initial appearances in criminal court, had been replaced while the appeals were pending. The Court remanded the
10

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case for factual development, noting that the government had provided “no information at all regarding the practical effect of the new [policy], and whether or not the de facto policy . . . remains [the same as before],” 578 F.3d at 1067, and that anecdotal information suggested that the shackling practice remained in place despite the change in law. See id. at 1069-70.
As in Brandau, this case is rife with factual disputes. For example, although the January 29 Memo indicates that the 90-day SAO review period has expired, Jan. 29 Memo at 1, Defendants conceded at oral argument that the SAO suspension itself may continue after the review, see supra at 5, and they have never represented that the suspension of SAO admissions has ended independent of the injunction, see supra at 8-9. See also Mot. at 3-4 (discussing expiration of 90-day review and concurrent reallocation of resources but failing to mention suspension of admissions).7 And although the January 29 Memo states that “the prioritization [of applications] set forth in the [Agency Memo] is not hereby renewed,” Jan. 29 Memo at 3, Defendants have provided no information about reversing the prior reallocation of resources directed by the Agency Memo other than indicating their plans to restore certain circuit rides into the next quarter, see supra at 8. The January 29 Memo fails
7 Similarly, although defendants claim in the motion that the FTJ suspension has ended, they have not submitted any evidence to substantiate that claim. Cf. Halet v. Wend Inv. Co., 672 F.2d 1305, 1308 (9th Cir. 1982) (concluding that the Court “cannot rely on [defendant’s] statement alone” in determining that a case is moot).
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to provide any concrete information about what Defendants are now doing with SAO or FTJ processing. Instead, it references guidance and trainings that could be construed to continue the SAO suspension and suggests that any SAO processing and admissions taking place now is happening due to the injunction. See supra at 9.
Moreover, the limited information Plaintiffs do have, along with Defendants’ earlier attempt to unilaterally modify the injunction, see supra at 7, raises significant concerns that the suspensions might be continuing despite the injunction. None of the 11 individual Plaintiffs or their family members awaiting resettlement, see Op. at 12-16, or approximately 77 affected clients of the organizational Plaintiffs, see JFS-S Decl. (DE# 50) ¶ 26; JFS-SV Decl. (DE# 51) ¶ 32, has traveled since the preliminary injunction was issued, even though some were close to travel at the time the Agency Memo was issued, see Op. at 13, 14, 23.8 As of January 26, 2018, only 23 SAO refugees have been admitted since the injunction was issued, which is just two percent of the total number of refugees who have been admitted during that time. See Smith Decl. ¶ 4. In contrast, in fiscal years 2016 and 2017, more than 43 percent of refugees admitted to the United States were from SAO countries. Id. ¶ 5.
Because of these concerns and the magnitude of harm to Plaintiffs if the suspensions are in fact continuing, see supra at 5-6, Plaintiffs have sought limited
8 One client of an organizational plaintiff was scheduled to travel but had his travel date delayed for unknown reasons. See Pls.’ Mot. for Disc. at 4 n.6.
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discovery on Defendants’ compliance. See Pls.’ Opp. to Defs.’ Mot. for Stay of Prelim. Inj. at 12; Pls.’ Mot. for Disc at 1. Remand is thus also appropriate to allow this discovery, as this Court has instructed that “appropriate discovery should be granted” where “significant questions regarding compliance have been raised.” Cal. Dep’t of Soc. Servs. v. Leavitt, 523 F.3d 1025, 1034 (9th Cir. 2008) (explaining that “the kind and amount of evidence of noncompliance required to justify discovery is, necessarily, considerably less than that needed to show actual noncompliance”).
In light of the inadequate record, grave concerns about compliance, and repeated attempts to suspend the USRAP, Defendants’ unsupported assertions on the Motion to Dismiss are insufficient for either Plaintiffs or this Court to determine whether this appeal is moot. See Brandau, 578 F.3d at 1069 (remanding where Court lacked sufficient information to determine whether “there is an ‘ongoing policy’” of the violative conduct or whether it is “absolutely clear” that the challenged policy “will not recur, or that in practice, the alleged violations ever ceased, let alone were ‘completely and irrevocably eradicated’” (citation omitted)). Remand is necessary for Plaintiffs to take discovery and assess Defendants’ assertions.9
9 Discovery on jurisdictional issues is of course appropriate even in an APA case. See, e.g., Cal. Native Plant Soc'y v. E.P.A., 251 F.R.D. 408, 410 (N.D. Cal. 2008); Sensient Flavors LLC v. Nat'l Inst. for Occupational Safety & Health, No. 08-CV0949, 2008 WL 11383364, at *1 (S.D. Ind. Oct. 31, 2008); cf. Sherwood, 842 F.3d at 407 (noting, in APA case, that “[f]ully fleshing out any future mootness claim may require jurisdictional discovery”).
13

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-1, Page 19 of 27
II. IN THE ALTERNATIVE, THE APPEAL IS NOT MOOT. A. The Controversy Is Still Live. If this Court decides not to remand for a factual determination of mootness, it
should decide that the appeal is not moot. A case is not moot where “the issues presented are . . . ‘live’” and plaintiffs retain “a legally cognizable interest in the outcome,” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (citation omitted). Defendants fail to meet their “heavy” burden, as the moving party, of demonstrating mootness. See Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1192 (9th Cir. 2011) (citation omitted).
Defendants assert that the controversy is no longer live because the challenged provisions have expired and the preliminary injunction “is now without any effect,” Mot. at 11, but this is belied by the record. Not only does the January 29 Memo fail to contain sufficient information on the suspension of SAO or FTJ refugees for assessing mootness, see supra at 11-12, it effectively concedes that the injunction continues to direct Defendants’ conduct by specifying that “[a]ny actions shall be undertaken consistent with the nationwide injunction [and] any commitments made by the United States to implement the injunction will be honored.” Jan. 29 Memo at 1-2 n.3 (emphasis added). Thus, by Defendants’ own admission, the injunction remains live, and Plaintiffs should not have to rely on Defendants’ word that their commitments to comply with the injunction will be honored even in its absence.
14

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At minimum, those continuing commitments include the restoration of interviews for SAO refugees. Defendants represented that they intended to comply with the injunction’s mandate to restore interviews by scheduling additional interviews of SAO nationals in the second quarter (Jan.-Mar.) in several locations and “aim[ing]” to schedule third-quarter circuit rides (Apr.-June) in “locations where greater percentages of SAO nationals are ready for interviews.” Defs.’ Jan. 19 Notice at 4. Thus, for months to come, Plaintiffs will continue to receive remedies pursuant to the preliminary injunction, compliance with which the district court is responsible for overseeing, and Plaintiffs will retain “a legally cognizable interest in the outcome” of this case. Already, 568 U.S. at 91.
These circumstances thus differ sharply from the challenge to EO-2’s refugee suspension, which the Supreme Court dismissed as moot. See Trump v. Hawai’i, 138 S. Ct. 377, 377 (2017). EO-2 suspended admissions and processing of refugees for a fixed 120-day period and did not order a reallocation of resources that would require affirmative action to reverse. This is not true of the SAO and FTJ suspensions. See supra at 5, 8-9, 11-12.10 Accordingly, Defendants have not met their burden of showing that this case is moot.
10 Defendants’ reliance on Burke v. Barnes, 479 U.S. 361 (1987), to argue mootness, Mot. at 14-15, is similarly misplaced. In Burke, the bill in question had expired at the end of the fiscal year under its own terms, mooting after that date the question whether the President properly vetoed the bill. See 479 U.S. at 363.
15

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B. The Capable of Repetition yet Evading Review Exception Applies. Plaintiffs’ challenge to this latest refugee suspension falls squarely within the mootness exception for controversies that are “capable of repetition yet evading review.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). This is because “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.” Id. (citation omitted). First, it is unreasonable to expect plaintiffs to have obtained complete judicial review of the Agency Memo within the 90-day duration of the review. This Court has found that government actions of even longer duration are too short to be fully litigated prior to their expiration. See, e.g., Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1018 (9th Cir. 2012) (one-year duration evades review). Second, Plaintiffs have every reason to believe that their refugee applications will be unlawfully suspended again. Defendants’ contention that the suspensions were “expressly temporary and for limited purposes, which have since been met,” Mot. at 12, is wrong, as discussed above, see supra at 5. Furthermore, Defendants’ contention rings hollow given this Administration’s repeated attempts to suspend the USRAP and halt processing of Plaintiffs’ applications over the past year in order to “review” the program. See supra at 3-4; see also Mot. at 5-6. In fact, SAO refugees are at very real risk of a repeat suspension given that the January 29 Memo
16

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recommended additional reviews of SAO processing, see Jan. 29 Memo at 3-4—the same reason that Defendants used to justify the Agency Memo’s SAO suspension in the first place, see Agency Memo at 2. History indicates that Plaintiffs are more than reasonably likely to be subject to the same unlawful action again.
C. The Voluntary Cessation Exception Applies. Even if Defendants were correct that the challenged conduct has fully ended, that purported cessation does not moot this challenge because Defendants “cannot automatically moot a case simply by ending its unlawful conduct once sued.” Already, 568 U.S. at 91. Defendants argue that this exception does not apply because the “terms of the Agency Memo always contemplated that the temporary SAO and FTJ provisions would terminate,” Mot. at 14, but, as explained above, that is not so—the FTJ suspension was indefinite, and the suspension of SAO admissions was not necessarily tied to the 90-day review. See supra at 5.11 Given that the Agency Memo did not guarantee the termination of the
11 The cases cited by Defendants, see Mot. at 14-15, do not support their contention that the voluntary cessation exception does not apply here. Unlike the bill in question in Burke, the Agency Memo did not direct that the SAO and FTJ suspensions would expire after a fixed date. See supra at 15 n.9 (citing Burke, 479 U.S. at 363). And Log Cabin Republicans v. United States, 658 F.3d 1162, 1166 (9th Cir. 2011), is inapposite because the challenged statute there did not expire but was repealed by a subsequent statutory enactment. See id. at 1167 (distinguishing voluntary cessation from statutory repeal, which is “enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed”) (citation omitted).
17

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challenged suspensions, Defendants have not met their “formidable” burden, Already, 568 U.S. at 91, to show that “(1) it can be said with assurance that there is ‘no reasonable expectation . . .’ that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Cty. of L.A. v. Davis, 440 U.S. 625, 631 (1979) (citations omitted). First, given this Administration’s clear commitment to banning refugees, and particularly Muslim refugees, Plaintiffs have every reasonable expectation that the unlawful suspension of refugee processing will recur, see supra at 16-17, if it has stopped at all. Second, as explained above, the expiration of the 90-day review has not “irrevocably eradicated the effects of the alleged violation,” Davis, 440 U.S. at 631, not the least because it will take Defendants two fiscal quarters, if not longer, to restore the diversion of resources that occurred as a result of the Agency Memo. See supra at 15; see also Sherwood, 842 F.3d at 405 (agency’s formal abandonment of challenged rule insufficient to moot case where record evidence suggested agency had not reverted back to pre-rule practices and agency “failed to prove that the . . . rule ha[d] no continuing effect”). The voluntary cessation exception mootness should apply here to stop Defendants from mooting the case. III. IN ANY EVENT, THE PRELIMINARY INJUNCTION SHOULD NOT
BE VACATED. Even if the Court were to find the case moot, it should reject Defendants’ attempt to vacate the preliminary injunction under United States v. Munsingwear,
18

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-1, Page 24 of 27
Inc., 340 U.S. 36, 41 (1950). See Mot. at 15. Although Munsingwear approved of vacatur where appellate review is precluded by “happenstance” of mootness, 340 U.S. at 40, subsequent decisions of the Supreme Court and this Court have made clear that automatic vacatur is an “extraordinary” remedy and that the party seeking it has the burden to demonstrate “equitable entitlement” to it. U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 24, 26 (1994) (denying motion for vacatur where mootness caused by settlement); Dilley v. Gunn, 64 F.3d 1365, 1370 (9th Cir. 1995) (“[T]he touchstone of vacatur is equity”).
Defendants have not met their burden here for an automatic vacatur. Vacatur should not be awarded to a party that caused mootness through voluntary action. See id.; Ringsby Truck Lines, Inc. v. W. Conference of Teamsters, 686 F.2d 720, 722 (9th Cir. 1982) (party that moots its own appeal “is in no position to complain that [its] right of review of an adverse lower court judgment has been lost”). Here, for all the reasons explained above, Defendants have not submitted an adequate record on the cause of the mootness and have not addressed the equities of dismissal. See supra at 10-13. This Court has directed remand in precisely these situations so that the district court can determine in the first instance “whether mootness was caused by the voluntary action of the party seeking vacatur” and, if so, balance the equities. Chem. Producers & Distribs. Ass'n v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006); see also Dilley, 64 F.3d at 1370 (holding that when the appeal is rendered moot by the
19

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appellant, the court’s “established procedure” is to remand to consider vacatur in light of “the consequences and attendant hardships” and “the competing values of finality of judgment and right of relitigating of unreviewed disputed”).12
Here, Plaintiffs will be unfairly prejudiced by a vacatur because it is Defendants who have controlled every step of this controversy. Over the course of a year, Defendants have attempted to suspend the USRAP through a series of timelimited review periods. See supra at 3-4. When the district court enjoined their latest attempt, Defendants declined to seek expedited appeal and instead waited to file a motion to dismiss this appeal as moot. See supra at 7, 9. If the Court were to grant vacatur here, it would prevent litigants from ever holding the government accountable so long as it takes unlawful actions in successive, short time periods.
CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court deny Defendants’ motion in its entirety and remand the case to the district court to consider the question of mootness. In the alternative, Plaintiffs respectfully request that the Court deny Defendants’ motion on the ground that the case is not moot and consider the merits of the pending cross-appeals.
12 Because Defendants have not submitted an adequate record on the threshold question of mootness, neither Burke nor Log Cabin Republicans nor the Supreme Court’s order dismissing the challenge to EO-2 as moot support Defendants’ vacatur arguments, see Mot. at 16-17. See supra at 15 n.10, 17 n.11.
20

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David Burman Lauren Watts Staniar Tyler S. Roberts Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Tel: (206) 359-8000
Lauren E. Aguiar Mollie M. Kornreich Abigail E. Davis Four Times Square New York, NY 10036 Tel: (212) 735-3000
Elizabeth Sweet Mark Hetfield HIAS, Inc. 1300 Spring Street, Suite 500 Silver Spring, MD 20910 Tel: (301) 844-7300

Respectfully submitted,
__s_/_D_e_e_p_a__A_l_a_g_es_a_n___________ Deepa Alagesan Mariko Hirose Linda Evarts Kathryn C. Meyer International Refugee
Assistance Project 40 Rector Street, 9th Floor New York, NY 10006 Tel: (646) 602-5639
Karen C. Tumlin Melissa S. Keaney Esther H. Sung National Immigration Law Center 3450 Wilshire Blvd, #108-62 Los Angeles, CA 90010 Tel: (213) 639-3900
Justin B. Cox National Immigration Law Center PO Box 170208 Atlanta, GA 30317 Tel: (678) 279-5441
Counsel for Plaintiffs Jewish Family Service of Seattle, et al.

21

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing response with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on February 21, 2018. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.

Date: February 21, 2018

_s_/ _D_e_e_p_a_A__la_g_e_s_a_n______________ Deepa Alagesan

22

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-2, Page 1 of 2

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN DOE, et al., Plaintiffs-Appellees,
JEWISH FAMILY SERVICE OF SEATTLE, et al., Plaintiffs-Appellees-Cross-Appellants,
v.
DONALD TRUMP, President of the United States, et al.,
Defendants-Appellants-Cross-Appellees.

Nos. 18-35015, 18-35026

DECLARATION OF DEEPA ALAGESAN IN SUPPORT OF JFS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS THE APPEAL, AND TO VACATE THE JUDGMENT AND
REMAND FOR DISMISSAL, ON GROUNDS OF MOOTNESS
I, Deepa Alagesan, declare as follows: 1. I am a Staff Attorney at the International Refugee Assistance Project and
counsel in this action for Plaintiffs-Appellees-Cross-Appellants Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, Afkab Mohamed Hussein, Allen Vaught, John Does 1-3 and 7, and Jane Does 4-6 (together, “JFS Plaintiffs”). I submit this declaration in support of JFS Plaintiffs’ opposition to Defendants’ motion to dismiss the appeal, and to vacate the judgment and remand for dismissal, on grounds of mootness.

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-2, Page 2 of 2
2. Attached as Exhibit A is a true and correct excerpt of the Verbatim Report of Proceedings before the Honorable James L. Robart, United States District Judge, held at the United States District Court for the Western District of Washington at Seattle on December 21, 2017.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.
Executed this 21st day of February, 2018, at New York, New York.
_s_/ _D_e_e_p_a_A__la_g_e_s_a_n_____________ Deepa Alagesan

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-3, Page 1 of 9
Exhibit A

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-3, Page 2 of 9

December 21, 2017

1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE _____________________________________________________________

JOHN DOE, et al.,

)

)

Plaintiffs,

) CASE NO. C17-00178-JLR

)

v.

) SEATTLE, WASHINGTON

) December 21, 2017

DONALD TRUMP, et al.,

)

) PRELIMINARY INJUNCTION

Defendants.

) HEARING

)

______________________________ )

)

JEWISH FAMILY SERVICE OF SEATTLE,)

et al.,

)

)

Plaintiffs

)

v.

)

)

DONALD TRUMP, et al.,

)

)

Defendants.

)

_____________________________________________________________

VERBATIM REPORT OF PROCEEDINGS BEFORE THE HONORABLE JAMES L. ROBART
UNITED STATES DISTRICT JUDGE _____________________________________________________________

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-3, Page 3 of 9

December 21, 2017

2

APPEARANCES:

For the Doe Plaintiffs:

TANA LIN ALISON GAFFNEY Keller Rohrback 1201 3rd Avenue, Suite 3200 Seattle, WA 98101-3052

LISA NOWLIN ACLU of Washington 901 Fifth Avenue, Suite 630 Seattle, WA 98164

For the JFS Plaintiffs:

LAUREN E. AGUIAR 4 Times Square, 40-300 New York, NY 10036

DAVID J. BURMAN Perkins Coie 1201 3rd Avenue, Suite 4900 Seattle, WA 98101-3099

ALISON GAFFNEY Keller Rohrback 1201 3rd Avenue, Suite 3200 Seattle, WA 98101-3052

MARIKO HIROSE International Refugee Assistance Project 40 Rector Street, 9th Floor New York, NY 10006

ESTHER SUNG National Immigration Law Center 3450 Wilshire Blvd., #108-62 Los Angeles, CA 90010

For the Defendant:

JOSEPH DUGAN US Department of Justice Civil Division Federal Programs 20 Massachusetts Avenue NW, #7300 Washington, DC 20530
AUGUST E. FLENTJE Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-3, Page 4 of 9

December 21, 2017

34

1 we look at the supplemental declarations that plaintiffs have

2 been put into the record, it's clear that he is close enough

3 to the brink of travel. I don't have a credible argument to

4 say that he hasn't been injured.

5

THE COURT: Thank you for your candor on that.

6

MR. DUGAN: Yes, Your Honor.

7

And what I do want to say, briefly, though, on that point

8 is that if this court were to enter a nationwide injunction,

9 it would have to find -- well, that circumstances are such

10 that would warrant a nationwide injunction. So not only that

11 the court is persuaded by plaintiffs' arguments on the

12 merits, not only that the court is persuaded that one or more

13 parties has standing, but also that these circumstances

14 warrant broad and expansive relief.

15

And if we look at the declarations that have been put into

16 the record, I think what we see is that most of these

17 individual plaintiffs are not on the brink of travel --

18 right? -- have not demonstrated that but for the challenge

19 provisions, they would either already be in the country or

20 would be able to enter the country during the short time

21 period that remains.

22

THE COURT: Well, "short time period that remains,"

23 where do you get a short time period that remains when it can

24 become indefinite?

25

MR. DUGAN: Well, these policy are not going to be

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-3, Page 5 of 9

December 21, 2017

35

1 indefinite. Right? I mean, the SAO provision, it's a 90-day

2 window, and we're already more than halfway there.

3

THE COURT: So you're saying it ends at 90 days, and

4 it cannot be continued?

5

MR. DUGAN: I don't know what will come to pass after

6 the 90-day period.

7

THE COURT: So it's indefinite?

8

MR. DUGAN: Not -- not this provision -- right? --

9 not this policy. It may be that the government will

10 implement some further policy based on review that will take

11 place over 90 days.

12

Excuse me.

13

THE COURT: I often have that impact on people.

14

MR. DUGAN: I was told to speak slowly today, Your

15 Honor, which perhaps I'm succeeding at that, but maybe not.

16

THE COURT: I think you're getting a visual clue from

17 the court reporter.

18

MR. DUGAN: Yes, I will take account of that as I

19 proceed.

20

But as we look at --

21

THE COURT: Finish explaining your answer, because

22 I -- so it runs for 90 days?

23

MR. DUGAN: Yes, sir.

24

THE COURT: And then it has the ability to be

25 renewed, and it can be renewed forever. I mean, there's lots

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-3, Page 6 of 9

December 21, 2017

36

1 of law out there that says exactly that circumstance is an

2 indefinite suspension, and it's not going to be viewed as

3 terminating in 90 days.

4

MR. DUGAN: It might be helpful for the court to

5 think about what the 90-day period represents. Right?

6

So this joint memorandum came about at the conclusion of

7 the 120-day period. Right? The 120-day period that didn't

8 start when it was originally intended to start but eventually

9 took effect, and during that 120-day period, we had internal

10 review -- right? -- the joint memorandum and the addendum to

11 the joint memorandum spell out the review that took place

12 during that period, the fact that there were these working

13 groups that were convened to assess the security risks that

14 different groups of refugee may or may not pose.

15

After that period, we have two documents in October.

16 Right? We had the joint memorandum. We also had the refugee

17 order.

18

THE COURT: I'm going to ask you -- we need to all

19 standardize our terminology. You just called it the "joint

20 memorandum." Is that the same as the agency memorandum?

21

MR. DUGAN: Yes, Your Honor. I will call it the

22 "agency memorandum."

23

THE COURT: Call it that.

24

MR. DUGAN: And "refugee order," of course, by that I

25 refer to President -- yes, okay.

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December 21, 2017

37

1

So generally speaking at this point -- right? -- the U.S.

2 Refugee Admissions program has resumed, and that's what the

3 agency decision-makers recommended, and that's what the

4 President decided, subject to narrow exceptions that were

5 identified for further review during that 120-day period.

6

So this is kind of a roundabout answer to Your Honor's

7 question, but we're not in a permanent cycle of 90 days, 120

8 days. We have a deliberate sort of case- and

9 country-specific review process that's going on now that

10 flows out of that 120-day review period.

11

I don't know what will happen at the conclusion of the 90

12 days, but I don't think it would be appropriate for the court

13 to enjoin as unlawful, unconstitutional, or in violation of

14 APA standards or what have you, a policy based on what the

15 government might do. We don't know. As I stand here today,

16 I don't know. I haven't been included in those

17 conversations. I'm very low-ranking.

18

The court can decide later, when it see what the

19 government does. And I'm sure if plaintiffs are dissatisfied

20 with whatever actions the government takes, they have very

21 able counsel, I have no doubt they will bring those concerns

22 to the court's decisions.

23

But it seems it would be imprudent, especially this late

24 in the process, we have a month left on the SAO provision,

25 for the court to enjoin it when we don't know if these

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-3, Page 8 of 9

December 21, 2017

38

1 plaintiffs will be injured. I mean, perhaps the government

2 will conclude at the end of the 90 days that refugee

3 admissions may resume in March, or perhaps the government

4 will decide that further security measures are needed for

5 certain countries. We just don't know.

6

THE COURT: Counsel, it seems to me you're missing

7 two words there: "Irreparable harm." They put in a

8 compelling case that the separation of these people from

9 their families is irreparable harm, and your position on that

10 is kind of, well, tough luck because it may change in the

11 future. That's not the preliminary injunction standard.

12

MR. DUGAN: I -- I agree that separation from one's

13 loved ones can constitute irreparable harm. I don't dispute

14 that. And I think that some of these plaintiffs have very

15 compelling cases. I've read their declarations, and I

16 understand.

17

But for this court to enjoin this policy, this court would

18 have to conclude, on a plaintiff-by-plaintiff basis --

19 right? -- we don't have a class at this point. No class has

20 been certified -- on a plaintiff-by-plaintiff basis that the

21 joint memorandum is causing that harm; that these plaintiffs

22 are not separated from their families because of the plethora

23 of circumstances that can cause refugee admissions to be

24 delayed, complicated, unexpect- --

25

And so when you look at the declarations, what you see --

Case: 18-35015, 02/21/2018, ID: 10771931, DktEntry: 25-3, Page 9 of 9

December 21, 2017

65

C E R T I F I C A T E

I, Nancy L. Bauer, CCR, RPR, Court Reporter for the United States District Court in the Western District of Washington at Seattle, do hereby certify that I was present in court during the foregoing matter and reported said proceedings stenographically.
I further certify that thereafter, I have caused said stenographic notes to be transcribed under my direction and that the foregoing pages are a true and accurate transcription to the best of my ability.

Dated this 18th day of January 2018.
/S/ Nancy L. Bauer Nancy L. Bauer, CCR, RPR Official Court Reporter

 
 Case: 18-35015, 02/21/2018, ID: 10772550, DktEntry: 26-1, Page 1 of 31

No. 18-35015
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN DOE, ET AL., JEWISH FAMILY SERVICE OF SEATTLE, ET AL.,
Plaintiffs-Appellees, v.
DONALD J. TRUMP, et al., Defendants-Appellants.
On Appeal from the United States District Court for the Western District of Washington
No. 2:17-cv-00178 (consolidated with C17-cv-01707) Hon. James L. Robart

DOE PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

KELLER ROHRBACK L.L.P. Lynn Lincoln Sarko Tana Lin Amy Williams-Derry Derek W. Loeser Alison S. Gaffney 1201 Third Ave., Suite 3200 Seattle, WA 98101 Tel.: (206) 623-1900

Emily Chiang Lisa Nowlin AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave., Suite 630 Seattle, WA 98164 Tel.: (206) 624-2184

Laurie B. Ashton 3101 N. Central Ave., Suite 1400 Phoenix, Arizona 85012-2600 Tel.: (602) 248-0088

Alison Chase 801 Garden Street, Suite 301 Santa Barbara, CA 93101 Tel.: (805) 456-1496

Attorneys for Doe Plaintiffs/Cooperating Attorneys for the American Civil Liberties Union of Washington Foundation

Case: 18-35015, 02/21/2018, ID: 10772550, DktEntry: 26-1, Page 2 of 31
TABLE OF CONTENTS I. INTRODUCTION ......................................................................................1 II. FACTUAL BACKGROUND .....................................................................4 III. ARGUMENT..............................................................................................8
A. The Court Should Remand for the District Court to Address Mootness in the First Instance. ............................................8
B. This Case Falls Within Two Exceptions to the Mootness Doctrine. .........................................................................................11 1. Defendants cannot evade review by voluntary cessation of unlawful conduct. ..............................................11 a. Defendants’ purported policy change is insufficient to moot the case........................................12 b. Defendants’ actions can reasonably be expected to recur.........................................................14 2. Defendants’ suspension of follow-to-join procedures is capable of repetition yet evading review. ..................................................................................16
C. Even If This Case Is Moot, Defendants Are Not Entitled to Vacatur. ......................................................................................18
D. The Supreme Court’s Prior Orders to Vacate Are of No Moment Here..................................................................................21
IV. CONCLUSION ........................................................................................22
i

Case: 18-35015, 02/21/2018, ID: 10772550, DktEntry: 26-1, Page 3 of 31
TABLE OF AUTHORITIES Cases ACLU of Nev. v. Masto,
670 F.3d 1046 (9th Cir. 2012)....................................................................19, 20 Already, LLC v. Nike, Inc.,
568 U.S. 85 (2013)...........................................................................................11 Am. Games, Inc. v. Trade Prods., Inc.,
142 F.3d 1164 (9th Cir. 1998)..........................................................................21 America Cargo Transport, Inc. v. United States,
625 F.3d 1176 (2010).................................................................................12, 13 Amoco Oil Co. v. EPA,
231 F.3d 694 (10th Cir. 2000)..........................................................................20 Arizonans for Official English v. Arizona,
520 U.S. 43 (1997)...........................................................................................10 Associated Gen. Contractors of Am., San Diego Chapter, Inc. v. Cal.
Dep’t of Transp., 713 F.3d 1187 (9th Cir. 2013) ..............................................14 Ayotte v. Am. Econ. Ins. Co.,
578 F. App’x 657 (9th Cir. 2014).....................................................................21 Bell v. City of Boise,
709 F.3d 890 (9th Cir. 2013)......................................................................12, 13 Burke v. Barnes,
479 U.S. 361 (1987).........................................................................................13 Camreta v. Greene,
563 U.S. 692 (2011).........................................................................................19 Chafin v. Chafin,
568 U.S. 165 (2013)...........................................................................................8 City of Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283 (1982).........................................................................................11
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Dilley v. Gunn, 64 F.3d 1365 (9th Cir. 1995)......................................................................19, 20
FEC v. Wisc. Right To Life, Inc., 551 U.S. 449 (2007).........................................................................................17
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000).........................................................................................12
Halet v. Wend Inv. Co., 672 F.2d 1305 (9th Cir. 1982)..........................................................................10
Karcher v. May, 484 U.S. 72 (1987)...........................................................................................19
Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir. 2011)..........................................................................13
McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015)..........................................................................13
Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993)....................................................................14
Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985)......................................................................11, 16
Trump v. Hawaii, 138 S. Ct. 377 (2017).......................................................................................22
TRW, Inc. v. FTC, 647 F.2d 942 (9th Cir. 1981)............................................................................10
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994)......................................................................... 18, 19, 20, 21
United States v. Brandau, 578 F.3d 1064 (9th Cir. 2009)............................................................................9
United States v. Munsingwear, Inc., 340 U.S. 36 (1950)............................................................................... 19, 20, 22
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United States v. Or. State Med. Soc’y, 343 U.S. 326 (1952).........................................................................................15
United States v. W.T. Grant Co., 345 U.S. 629 (1953)............................................................................. 10, 11, 15
Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981).........................................................................................10
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017)............................................................................4
White v. Lee, 227 F.3d 1214 (9th Cir. 2000)..........................................................................12
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I. INTRODUCTION In this most recent installment of the Trump Administration’s attempts to ban Muslims from the United States, Defendants banned refugees from nine Muslim-majority countries and indefinitely suspended the processing and admission of all “follow-to-join” (“FTJ”) refugees—the spouses and children of already admitted refugees. The district court held that Plaintiffs were likely to succeed on their claims that the FTJ suspension violated both the Immigration and Nationality Act (“INA”), which entitles refugees in the United States to reunite with their families, and the Administrative Procedure Act (“APA”), which requires notice-and-comment rulemaking for substantive changes to the FTJ program.1 The district court issued a nationwide preliminary injunction on December 23, 2017, ordering Defendants to immediately resume FTJ processing and admissions. On January 9, 2018, the district court clarified that Defendants were required to take actions necessary to undo their implementation of the suspension. Defendants’
1 This appeal arises from the district court’s order in two consolidated cases: Doe v. Trump, No. 17-0178JLR (W.D. Wash.) (challenging the indefinite suspension of FTJ processing and admissions) and Jewish Family Services v. Trump, No. 171707JLR (W.D. Wash.) (challenging 90-day suspension of refugees from countries on the Security Advisory Opinion (“SAO”) list). The arguments made in the JFS Plaintiffs’ Opposition to Defendants’ Motion (“JFS Opposition”), Appeal Dkt. 25-1, also apply to Doe Plaintiffs.
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submissions before both this Court and the district court serve only to underscore that the need for the injunction is ongoing.
Defendants now seek to evade judicial review, arguing that Plaintiffs’ claims are moot2 and requesting vacatur of the district court’s judgment. Curiously, Defendants ask this Court to dismiss their own appeal on mootness grounds, even though they presumably knew when they filed the appeal that they intended to resume processing FTJ and SAO applications within weeks—in other words, that they intended to voluntarily cease their conduct in an attempt to moot the case.3 This Court should reject Defendants’ maneuvering to deprive the district court of its proper jurisdiction. On the current record, Plaintiffs’ claims are not moot, and this case should be remanded to the district court for it to determine whether the preliminary injunction is still necessary.
Defendants cannot dispose of factual disputes with pro forma compliance notices filed in the district court that raise more questions than they answer. Defendants have not rescinded the administrative agency memorandum (“Memo”)
2 The Doe case also asserts claims related to the indefinite ban on entry of nonimmigrants from Muslim-majority countries, which are not a subject of this appeal.
3 Defendants indicated on December 11, 2017, their intention to resume processing FTJ refugee applications on February 1, 2018, and their awareness that the SAO review period would expire on January 22, 2018. Defs.’ Suppl. Br. Concerning Supreme Court Stay Orders, DE-78 (“DE-” refers to the district court docket entries).
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that indefinitely suspended FTJ admissions, provided any evidence that the Memo is no longer in effect, or guaranteed that they will not invoke the Memo (or some subsequent version of it) in the future. Nor have they acknowledged their continuing obligation under the district court’s injunction to ensure that those injured by their actions are made whole—an obligation made even more critical by the Administration’s dramatic slowdown of refugee admissions. Defendants’ assertion that they will voluntarily disregard the directives in the Memo is belied by their statement that they will continue periodic reviews of the refugee program—presumably to reserve the option to suspend the program again based on those reviews, in accordance with the terms of the FTJ suspension in the Memo, which do not expire and have not been revoked.
Should the Court find it appropriate to rule on mootness on the present record, two exceptions to mootness doctrine apply here: (1) any asserted mootness is the result of voluntary cessation, and (2) Defendants’ indefinite suspension of FTJ processing is capable of repetition but evading review. Moreover, Defendants are not entitled to the extraordinary remedy of vacatur. Defendants intentionally sought to moot the case and evade judicial review, and the public maintains a strong interest in the judicial determination of the legality of Defendants’ conduct.
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II. FACTUAL BACKGROUND4 The Memo, Appeal Dkt. 24-3, is the latest in a series of anti-Muslim antirefugee actions. On January 27, 2017, one week after taking office, President Trump signed Executive Order 13769 (“EO-1”). See Prelim. Inj. Order (“PIO”) 5, Appeal Dkt. 24-2. EO-1 suspended entry into the United States for 90 days for nationals of seven Muslim-majority countries, suspended the U.S. Refugee Admissions Program (USRAP) for 120 days, and indefinitely barred Syrian refugees. Id. Following court orders striking down EO-1, see, e.g., Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), Defendants rescinded EO-1, replacing it with Executive Order 13780 (“EO-2”). PIO 6. EO-2, described by Defendant Trump as a “watered-down version” of EO-1, Third Am. Compl. (“TAC”) ¶¶ 5, 176, 291, DE-42, suspended for another 90 days the entry of nationals of six Muslimmajority countries and again suspended all refugee admissions for 120 days. PIO 6. When EO-2’s 90-day travel ban expired on September 24, 2017, Defendant Trump issued a Proclamation (“EO-3”) that, among other things, imposes an indefinite ban on nationals of six Muslim-majority countries. Id. at 7-8.
4 Doe Plaintiffs adopts the Procedural History set forth in JFS Opposition and will not repeat it here.
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On October 24, 2017, when EO-2’s 120-day refugee ban expired, Defendant Trump issued Executive Order 13815, “Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities” (“EO-4”). Although EO-4 purported to resume refugee admissions, it was accompanied by the Memo, which imposed yet another 90-day ban on refugees from eleven SAO countries (nine of them Muslim-majority), and indefinitely suspended the processing and admission of all FTJ refugees. The Memo provided for lifting of the FTJ suspension only after implementation of “additional security measures,” without any temporal limitation. Memo 3. Defendants concede that “[t]he [Memo] indefinitely suspended entry into the United States of FTJ refugees.” Defs.’ Mot. Dismiss Appeal (“Mot.”) 4, Appeal Dkt. 24-1.
The Memo is the most recent manifestation of Defendants’ animus against Muslims and refugees and their desire to help Christians. See, e.g., TAC ¶¶ 268 (describing Defendant Trump’s speculation that Syrian refugees could be a terrorist army in disguise), 177 (documenting Defendant Trump’s intent to “‘help[] the Christians big league’”) (citation omitted). Defendant Trump also claimed that Syrian refugees “‘[are] all men, and they’re all strong-looking guys.’” Id. ¶ 268 (citation omitted). But 72% of the Syrian refugees admitted since 2011 are women and children under age fourteen, id., and almost 80% of dependent refugee arrivals
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in FY 2014 and 2015 were children under age sixteen or female spouses. Nowlin Decl. ¶ 5, DE-57.
Defendants’ actions have had real-world impact. During the first quarter of FY 2017, 48% of refugees admitted to the United States were Muslim—compared to only 13% so far in FY 2018.5 The overall number of admitted refugees in these quarters has also plummeted by 79%, from 25,671 refugees to 5,323.6 The International Rescue Committee anticipates admissions of less than half of the Administration’s 45,000 refugee cap.7
Plaintiff Joseph Doe was admitted to the United States in 2014 as a refugee, and he filed an I-730 petition to have his wife and young children join him. The INA guarantees principal refugees the right to bring their immediate families to the United States following completion of security and medical clearances. Doe’s family was at the end of the comprehensive screening process when Defendants’ Muslim bans were first issued, prolonging his separation from his family. When
5 Press Release, IRC: Trump Administration on Track to Miss Own Target for Refugee Admissions, Int’l Rescue Committee (Jan. 25, 2018), https://www.rescue.org/press-release/irc-trump-administration-track-miss-owntarget-refugee-admissions.
6 Refugee Processing Center, PRM Admissions Graph January 31, 2018, http://www.wrapsnet.org/s/Graph-Refugee-Admissions-FY2018_01_31.xls.
7 IRC Press Release, supra note 5.
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the Memo imposed an indefinite suspension on his right to reunify with his family, he filed a motion for a preliminary injunction.8 DE-45.
The district court granted the preliminary injunction on December 23, 2017, enjoining Defendants from suspending the processing or admission of FTJ refugees or refugees from SAO countries with a bona fide relationship to a person or entity in the United States. PIO 64-65. Defendants filed a notice of compliance on January 19, 2018, DE-114, and filed an additional notice on January 31, 2018. Second Notice, DE-119 (attached). In the Second Notice, Defendants asserted that “the implementation of the additional procedures for following-to-join refugees set forth in the Joint Memorandum is expected to be completed on or about February 1, 2018[.]” Id. at 2. This notice was not accompanied by any declarations or other evidence, but cited to a press release Defendants issued on January 29 and updated on January 31, 2018. Id. at 1. In that press release, Defendants “announced additional security enhancements and recommendations to strengthen the integrity of the U.S. Refugee Admissions Program.”9 These enhancements include
8 JFS Plaintiffs Afkab Mohamed Hussein and John Doe 7 joined in the Doe Plaintiffs’ preliminary injunction motion. JFS Pls.’ Notice, JFS v. Trump, No. 171707JLR, DE-70.
9 Press Release, U.S. Dep’t of Homeland Sec., DHS Announces Additional, Enhanced Security Procedures for Refugees Seeking Resettlement in the United States (last updated Jan. 31, 2018), https://www.dhs.gov/news/2018/01/29/dhsannounces-additional-enhanced-security-procedures-refugees-seekingresettlement.
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“[a]dditional screening for certain nationals,” “[a]dministering the USRAP in a more risk-based manner,” and “[a] periodic review and update of the refugee highrisk country list and selection criteria.”10
III. ARGUMENT A. The Court Should Remand for the District Court to Address Mootness
in the First Instance. A case “becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (citation omitted). Here, the preliminary injunction not only enjoins Defendants from enforcing the Memo but also requires them to take steps to undo the harms the Memo has already caused. Stay Order 6, DE-106 (attached). Because FTJ applications were suspended while other refugee applications proceeded, FTJ refugees have been set back respectively—and any delays in the process are compounded because medical clearances expire and are not easy to obtain. See PIO 12, Second Suppl. Doe Decl. ¶ 2, DE-91 (describing the need to travel over 500 miles to medical examination site). These concrete injuries are exacerbated by Defendants’ dramatic slowdown in overall refugee application processing and, without proactive steps to undo the harm caused by the FTJ suspension, some family reunifications will be delayed by many more months, if not years. On the
10 Id.
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present record, it is unclear whether Defendants have actually implemented all necessary steps to “restore the status quo prior to the issuance of the Memo with respect to the processing of applications from FTJ refugees”—and, therefore, whether there is an ongoing need for the injunction. Stay Order 6.
Whether Defendants have in fact complied with the injunction is for the district court to determine. See United States v. Brandau, 578 F.3d 1064, 1069-70 (9th Cir. 2009) (denying motion to dismiss and remanding to resolve factual disputes as to the practical effect of new policies and whether challenged policies remained in play). See also JFS Opposition, Argument § I. Several factual disputes remain, and Defendants cannot merely declare otherwise.
First, Defendants have not actually rescinded the Memo—whose terms governing the FTJ suspension do not expire, precisely because (as Defendants themselves note) “the [Memo] indefinitely suspended processing of FTJ refugee applications.” Mot. 4. Second, Defendants have offered no concrete evidence whatsoever that they have resumed processing FTJ applications or that the indefinite suspension of FTJ refugee admissions has actually been lifted: not a single official statement, internal memorandum, or guidance provided to posts. Third, Defendants’ Second Notice—which was filed without any supporting declaration or other evidence—states only that “the implementation of the additional procedures for following-to-join refugees set forth in the Joint
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Memorandum is expected to be completed on or about February 1, 2018.” Second Notice 2 (emphasis added). The notice contains no other information, even though it was filed only one day before the expected completion date of the “additional procedures.” A court “cannot rely on [Defendants’] statement[s] alone” in determining mootness. Halet v. Wend Inv. Co., 672 F.2d 1305, 1308 (9th Cir. 1982).
This factual backdrop is wholly insufficient to demonstrate mootness. See, e.g., TRW, Inc. v. FTC, 647 F.2d 942, 953 (9th Cir. 1981) (“promises to refrain from future violations, no matter how well meant, are not sufficient to establish mootness”); United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (“Here the defendants told the court that the interlocks no longer existed and disclaimed any intention to revive them. Such a profession does not suffice to make a case moot[.]”). The cases to which Defendants cite only underscore that they have not met the bar. See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (plaintiff challenging state employee speech restriction left her publicsector job); Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) (university obeyed injunction to provide a student with an interpreter and the student then graduated).
The uncertainty in the record calls for remand to the district court for limited discovery regarding the practical effects of Defendants’ recent actions, including: whether Defendants have rescinded the Memo with regard to FTJ refugees,
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directed FTJ processing and admissions to continue even without the injunction, and complied in full with the injunction, which requires them to undo steps they took to prejudice Plaintiffs. B. This Case Falls Within Two Exceptions to the Mootness Doctrine.
Even if Plaintiffs’ claims were moot, two well-established exceptions to mootness doctrine apply: (1) voluntary cessation and (2) capable of repetition yet evading review. Moreover, the existence of “a public interest in having the legality of the practices settled . . . militates against a mootness conclusion.” Olagues v. Russoniello, 770 F.2d 791, 795 (9th Cir. 1985) (alteration in original) (quoting W.T. Grant, 345 U.S. at 632).
1. Defendants cannot evade review by voluntary cessation of unlawful conduct.
“[A] defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). Otherwise, “the courts would be compelled to leave ‘[t]he defendant . . . free to return to his old ways,’” id. at 289 n.10 (alteration in original) (citation omitted)—meaning that “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). Therefore, “a defendant claiming that its voluntary compliance moots a case bears
11

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the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). Defendants attempt to evade the voluntary-cessation exception—and judicial review—by asserting that the FTJ provisions “became moot by their own terms.” Mot. 11. But the Memo did not set any time limits on the FTJ provisions, and Defendants’ own briefing acknowledges that “the [Memo] indefinitely suspended processing of FTJ refugee applications.” Id. at 4. If the FTJ suspension has been lifted, it is a result of Defendants’ voluntary action. Accordingly, Defendants bear a “formidable burden” to show the allegedly wrongful behavior could not reasonably be expected to recur. Defendants have not met that burden.
a. Defendants’ purported policy change is insufficient to moot the case.
For Defendants to meet their formidable burden through a policy change, they must show that the change is “entrenched” and “permanent.” See Bell v. City of Boise, 709 F.3d 890, 900 (9th Cir. 2013). In Bell, this Court distinguished prior precedent in which a policy change was found to meet this standard “based on the broad scope and unequivocal tone of the new policy.” Id. (discussing White v. Lee, 227 F.3d 1214 (9th Cir. 2000)). The new policy in White had been renewed annually for over five years and addressed all of plaintiffs’ objections. Id. Similarly, in America Cargo Transport, Inc. v. United States, 625 F.3d 1176
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(2010) (cited Mot. 13), the government adopted the plaintiff’s position. Id. at 1179. Defendants here have done none of these things. They have not officially withdrawn the Memo or announced a policy change. Nothing in Defendants’ actions suggests an “entrenched” and “permanent” policy change.
Defendants rely on cases involving a statutory change, see Mot. 14-15 (citing Burke v. Barnes, 479 U.S. 361 (1987), and Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir. 2011)), but these cases are inapplicable. “[W]hile a statutory change ‘is usually enough to render a case moot,’ an executive action that is not governed by any clear or codified procedures cannot moot a claim.” McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015) (quoting Bell, 709 F.3d at 898-900). In Bell, this Court explained that an internal policy of a local government agency “is not a formal written enactment of a legislative body and thus was not subject to any procedures that would typically accompany the enactment of a law.” 709 F.3d at 900. Thus, even assuming a lack of intent to resume the challenged conduct, “the ease with which the [defendant] could do so counsels against a finding of mootness,” in contrast to cases in which a statute (which went through an appropriate process, unlike the Memo here) was repealed or expired. Id.
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b. Defendants’ actions can reasonably be expected to recur. Far from satisfying their formidable burden to demonstrate that their unlawful conduct will not recur, Defendants simply assert that “Plaintiffs are not likely to be subjected to another temporary suspension of FTJ processing to allow these new measures to be put in place, because the called-for measures were put in place as of February 1, 2018.” Mot. 13. But a “recurrent violation” in this context is not limited to a memorandum calling for the exact same suspension and new measures. Instead, As the Supreme Court has explained, the mootness exception’s “repetition” prong does not require “the possibility that the selfsame statute will be enacted” in identical form. Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993). “[I]f that were the rule, a defendant could moot a case by repealing the challenged statute and replacing it with one that differs only in some insignificant respect.” Id. This Court has found sufficient repetition in, for example, “a substantially similar preference program… alleged to disadvantage [the plaintiffs] ‘in the same fundamental way’ as the previous program.” Associated Gen. Contractors of Am., San Diego Chapter, Inc. v. Cal. Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013) (quoting City of Jacksonville, 508 U.S. at 662). Here, a “recurrent violation” is not limited to an exact repeat of provisions of the Memo.
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Furthermore, when determining whether “there exists some cognizable danger of recurrent violation,” a court should consider “the bona fides of the expressed intent to comply, the effectiveness of the discontinuance and, in some cases, the character of the past violations.” W.T. Grant Co., 345 U.S. at 633. Each of these factors weighs against mootness. Defendants have no bona fides when it comes to refugee admissions considering their past actions and words; indeed, they continue to defend the legitimacy of the FTJ suspension. Moreover, they have explicitly reserved the right to conduct periodic reviews of refugee admission criteria, Mot. 13, presumably so that they may re-invoke the Memo’s suspension should they see fit. Defendants’ statement in briefing that their unlawful conduct has ceased is insufficient to satisfy their burden of demonstrating that the conduct will not recur, particularly since EO-1, EO-2, EO-3, and the Memo demonstrate Defendants’ practice is to impose serial blanket bans against refugees any time they review vetting procedures, without evidence of the necessity or efficacy of such a ban. “It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.” United States v. Or. State Med. Soc’y, 343 U.S. 326, 333 (1952). Defendants have failed even to offer protestations of repentance and reform.
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The situation here parallels that in Olagues, an appeal involving a United States Attorney’s investigation of foreign-born, naturalized citizens requesting bilingual ballots, allegedly in violation of the Voting Rights Act. Although the investigation had ceased by the time of the appeal, this Court ruled that the exception to mootness applied. First, the defendant “at all times continued to argue vigorously that his actions were lawful.” 770 F.2d at 795. Second, there was no showing that a similar investigation against the same groups would not recur, and the defendant was empowered to conduct such future investigations. Finally, other factors weighed against mootness, including the fear engendered by the investigation, the possibility of a chilling effect on the plaintiff organizations without a determination of the legality of the investigation, and the “significant public interest” in addressing the separation-of-powers questions raised. Id.
Here, Defendants (1) have continued to defend the lawfulness of their actions, (2) are empowered to issue additional executive orders and memoranda, and (3) have repeatedly sought to evade review. Further, there is significant public interest in the legality of the government’s actions. Defendants cannot meet their formidable burden, and Plaintiffs’ claims are not moot.
2. Defendants’ suspension of follow-to-join procedures is capable of repetition yet evading review.
Defendants’ actions also fall into the well-established exception to mootness for circumstances capable of repetition yet evading review, which “applies where
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(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” FEC v. Wisc. Right To Life, Inc., 551 U.S. 449, 462 (2007) (citation omitted).
Although the FTJ suspension at issue was indefinite (as opposed to expiring on its own terms), Defendants’ own pleadings demonstrate that they have structured the suspension and this litigation as to be capable of repetition but evading review. The suspension is indefinite on its face but implemented as a short-term suspension even more ill-defined than the term-limited suspensions Defendants favor elsewhere—giving Defendants even more flexibility to evade review. Defendants lifted the suspension in response to the district court’s preliminary injunction and claim that the injunction is therefore moot before completion of judicial review. But because they did not revoke the mechanism by which the suspension was enacted, i.e., the Memo, they are free to repeat the suspension contemplated by the Memo at any time—and free again to lift the suspension upon being sued, and free again to argue mootness before judicial review can be completed.
That they are, in fact, likely to re-suspend FTJ admissions is evidenced not only by their multiple attempts to suspend refugees admissions over this past year but also the very press release to which they cite—which announces
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“enhancements and security recommendations” regarding the refugee program that include “[a]dditional screening for certain nationals,” “[a]dministering the USRAP in a more risk-based manner,” and “[a] periodic review and update of the refugee high-risk country list and selection criteria.”11 Defendants have provided no assurance or indication that they would not again justify suspending FTJ refugee admissions on the basis of similar “reviews.” See also supra §§ II, III.B.1.c. C. Even If This Case Is Moot, Defendants Are Not Entitled to Vacatur.
Even if this Court were to find this appeal moot, it should not vacate the judgment below. Courts dispose of moot cases “in the manner most consonant to justice . . . in view of the nature and character of the conditions which have caused the case to become moot.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 24 (1994) (alteration in original) (citation omitted). Here, the mootness was entirely caused by Defendants’ voluntary action, and Defendants are not entitled to vacatur. In any event, where mootness is caused by the appellant’s own conduct, the “established procedure” in this circuit is to remand to the district court so it may balance the relevant equitable concerns and decide whether to vacate its judgment. ACLU of Nev. v. Masto, 670 F.3d 1046, 1066 (9th Cir. 2012).
Defendants cite United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950), for the proposition that, when a case has become moot, vacating the judgment
11 See supra pp. 7-8.
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below is the “established practice.” Mot. 15. But as this Court has explained, “after U.S. Bancorp, automatic vacatur under Munsingwear can no longer be viewed as the ‘established practice’ whenever a case becomes moot on appeal, and [] the primary inquiry is whether the appellant caused the mootness by his own voluntary act.” Dilley v. Gunn, 64 F.3d 1365, 1370 n.4 (9th Cir. 1995).
Defendants argue that because the FTJ suspension expired “by its own terms,” rather than as a result of their actions, Munsingwear applies. Mot. 16. But the Memo’s unlawful suspension of FTJ refugee processing was open-ended and indefinite, and only as litigation progressed did Defendants claim that they anticipated implementing certain security measures by February 1, 2018. “Munsingwear justified vacatur to protect a litigant who had the right to appeal but lost that opportunity due to happenstance,” Camreta v. Greene, 563 U.S. 692, 712 n.10 (2011), i.e., “becom[ing] moot due to circumstances unattributable to any of the parties.” Karcher v. May, 484 U.S. 72, 82-83 (1987). Camreta, for example, involved “the happenstance of [a party] moving across country and becoming an adult,” which deprived the petitioner of the right to appeal. 563 U.S. at 713. Far from “happenstance,” Defendants alone controlled the circumstances they now argue render this appeal moot—from the structure of the provisions in the Memo, to the timing of and manner in which they pursued their appeal, to the actions they took in response to the injunction.
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“[T]he touchstone of vacatur is equity.” Dilley, 64 F.3d at 1370. Rather than a foregone conclusion, vacatur is in fact an “extraordinary remedy,” and the party seeking vacatur has the burden to “demonstrate not merely equivalent responsibility for the mootness, but equitable entitlement” to vacatur. U.S. Bancorp, 513 U.S. at 26. Defendants cannot meet this burden. When, as here, a case has been mooted by the appellant’s own actions, the Supreme Court has directed that appellate courts should vacate the district court order only in “exceptional circumstances.” Masto, 670 F.3d at 1066 (quoting U.S. Bancorp, 513 U.S. at 29). Contrary to Defendants’ argument that Munsingwear dictates vacatur any time an appeal is moot, “the equitable principles weighing in favor of vacatur in [Munsingwear] cut the other direction where the appellant by his own act prevents appellate review of the adverse judgment.” Id. Indeed, “granting vacatur to a party who both causes mootness and pursues dismissal based on mootness serves only the interests of that party” and “encourages parties with unfavorable judgments to file an appeal, comply with the judgment, and then request the judgment be vacated.” Amoco Oil Co. v. EPA, 231 F.3d 694, 699 (10th Cir. 2000).
In addition, “[a]s always when federal courts contemplate equitable relief,” this Court’s decision “must also take account of the public interest.” U.S. Bancorp, 513 U.S. at 25-26. As the Supreme Court explained, “[j]udicial precedents are presumptively correct and valuable to the legal community as a whole. They are
20

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not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.” Id. (citation omitted). Indeed, public policy dictates that the party seeking relief from an adverse decision “should not be allowed to ‘buy an eraser for the public record.’” Am. Games, Inc. v. Trade Prods., Inc., 142 F.3d 1164, 1170 (9th Cir. 1998) (citation omitted); see also Ayotte v. Am. Econ. Ins. Co., 578 F. App’x 657, 658-59 (9th Cir. 2014) (same). Particularly in the context of a third consecutive refugee ban, allowing Defendants to erase the decision below based on purported mootness would not serve the public interest. The district court’s opinion provides useful guidance to the agencies and the public about the rights of resettled refugees and the APA’s procedural requirements in this context.
Vacatur here would directly contradict the principles of justice and equity that underlie the remedy, and should be denied. D. The Supreme Court’s Prior Orders to Vacate Are of No Moment Here.
Finally, Defendants’ reliance on the Supreme Court’s order vacating this Court’s decision in Trump v. Hawaii, 138 S. Ct. 377 (2017) (Mem.), is unavailing for three reasons.
First, that order involved a challenge to EO-2, which provided for suspension of refugee admissions “for 120 days after the effective date of this order,” 82 Fed. Reg. 13,209, 13,215, while here, the Memo’s suspension of FTJ
21

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processing is open-ended, resulting in what Defendants themselves concede was an indefinite suspension. Mot. 4 (“the [Memo] indefinitely suspended processing of FTJ refugee applications”). The 120-day period expired on its own terms on October 24, 2017, making the present appeal distinguishable with respect to the “principal condition” for evaluating the appropriateness of vacatur—voluntary action by the party seeking that relief.
Second, that order also involved an appeal from a precedential Ninth Circuit opinion; here, the district court’s preliminary injunction is not binding on other courts. The concern about an unreviewable circuit court judgment “spawning any legal consequences” does not extend to a district court decision. Munsingwear, 340 U.S. at 41.
Third, unlike the prior cases, the district court in this case not only enjoined Defendants from enforcing their unlawful refugee bans but also affirmatively ordered Defendants to “take actions that are necessary to undo those portions of the [Memo] that are enjoined.” Stay Order 6. No such proactive actions were ordered in the cases before the Supreme Court. See supra § III.A. These additional facts are critical and make vacatur inappropriate here.
IV. CONCLUSION The Court should remand this matter for limited discovery on whether Plaintiffs’ claims are, in fact, moot. Even if Defendants’ statements were sufficient
22

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to moot Plaintiffs’ claims, exceptions to mootness doctrine apply, because any asserted mootness is the result of voluntary cessation, and Defendants have not satisfied their formidable burden to show that there will be no recurrent violation. Defendants’ actions are particularly capable of repetition in light of their stated intention to conduct future periodic reviews, coupled with their repeated use of “temporary” suspensions and bans accompanying “reviews” of USRAP. Finally, even if this Court finds Plaintiffs’ claims to be moot, Defendants have not met their heavy burden to justify the extraordinary remedy of vacatur.
23

Case: 18-35015, 02/21/2018, ID: 10772550, DktEntry: 26-1, Page 29 of 31

DATED this 21st day of February, 2018.
AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION
By: /s/ Emily Chiang By: /s/ Lisa Nowlin
Emily Chiang, WSBA # 50517 Lisa Nowlin, WSBA # 51512 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Email: echiang@aclu-wa.org
lnowlin@aclu-wa.org
Attorneys for Plaintiffs

KELLER ROHRBACK L.L.P.
By: /s/ Lynn Lincoln Sarko By: /s/ Tana Lin By: /s/ Amy Williams-Derry By: /s/ Derek W. Loeser By: /s/ Alison S. Gaffney
Lynn Lincoln Sarko, WSBA # 16569 Tana Lin, WSBA # 35271 Amy Williams-Derry, WSBA # 28711 Derek W. Loeser, WSBA # 24274 Alison S. Gaffney, WSBA # 45565 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 Email: lsarko@kellerrohrback.com
tlin@kellerrohrback.com awilliams-derry@kellerrohrback.com dloeser@kellerrohrback.com agaffney@kellerrohrback.com
By: /s/ Laurie B. Ashton Laurie B. Ashton (admitted pro hac vice) 3101 North Central Avenue, Suite 1400 Phoenix, AZ 85012-2600 Telephone: (602) 248-0088 Facsimile: (602) 248-2822 Email: lashton@kellerrohrback.com
By: /s/ Alison Chase Alison Chase (admitted pro hac vice) 801 Garden Street, Suite 301 Santa Barbara, CA 93101 Telephone: (805) 456-1496 Facsimile: (805) 456-1497 Email: achase@kellerrohrback.com
Attorneys for Plaintiffs/Cooperating Attorneys for the American Civil Liberties Union of Washington Foundation

24

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CERTIFICATE OF COMPLIANCE I hereby certify that this Response complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-volume limitations of Fed. R. App. P. 27(3)(2)(A). This motion contains 5113 words, excluding the parts of the motion excluded by Fed. R. App. P. 27(d)(2) and 32(f).
/s/Tana Lin Tana Lin
25

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CERTIFICATE OF SERVICE I hereby certify that on February 21, 2018, I electronically filed the foregoing Response with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
/s/Tana Lin Tana Lin
26

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71205650F, iDlekdtE0n1t/r0y9: /2168-2,PPaaggee11oof f1166

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 JOHN DOE, et al.,
10
v. 11

Plaintiffs,

CASE NO. C17-0178JLR
ORDER DENYING MOTION FOR STAY PENDING APPEAL

12

DONALD TRUMP, et al.,

(RELATING TO BOTH CASES)

13

Defendants.

14

JEWISH FAMILY SERVICES, et al.,

15 v.

Plaintiffs,

16

DONALD TRUMP, et al.,

17

Defendants.

CASE NO. C17-1707JLR

18

I. INTRODUCTION

19

Before the court is Defendants Donald Trump, United States Department of State,

20 Rex Tillerson, United States Department of Homeland Security (“DHS”), United States

21 Customs and Border Protection, Kevin McAleenan, Michele James, Office of the

22

ORDER - 1

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1 Director of National Intelligence, Elaine Duke, and Daniel Coats’s (collectively,

2 “Defendants” or “the Government”) emergency motion for a stay pending the appeal of

3 the court’s December 23, 2017, order granting Plaintiffs’ motions for preliminary

4 injunctions in the consolidated cases. (MFS (Dkt. # 95); see also PI Order (Dkt. # 92).)

5 The court directed Plaintiffs in the two consolidated cases1 to file separate responses to

6 Defendants’ motion. (12/30/17 Order (Dkt. # 97).) The court has considered the motion,

7 Plaintiffs’ responses (JFS Resp. (Dkt. # 100); Doe Resp. (Dkt. # 101)), the relevant

8 portions of the record, and the applicable law. Being fully advised, the court DENIES the

9 motion.

10

II. BACKGROUND

11

On December 23, 2017, the court issued a preliminary injunction in the

12 consolidated cases against certain aspects of Executive Order No. 13,815 (“EO-4”), 82

13 Fed. Reg. 50,055 (Oct. 27, 2017), and its accompanying memorandum to President

14 Trump, from Secretary of State Tillerson, Acting Secretary of DHS Duke, and Director of

15 National Intelligence (“DNI”) Coats. (See generally PI Order; see also Lin Decl. (Dkt.

16 # 46) ¶ 3, Ex. B (attaching a copy of the memorandum) (hereinafter, “Agency Memo”).)

17 //

18

1 Plaintiffs in Doe, et al. v. Trump, et al., No. C17-0178JLR (W.D. Wash.), include John

Doe, Joseph Doe, James Doe, Jack Doe, Jason Doe, Jeffrey Doe, Episcopal Diocese of Olympia,

19 and Council on American Islamic Relations–Washington (collectively, “Doe Plaintiffs”).

Plaintiffs in Jewish Family Services, et al. v. Trump, et al., No. C17-1707JLR (W.D. Wash.),

20 include Afkab Mohamed Hussein, Allen Vaught, John Does 1-3, Jane Does 4-6, John Doe 7, Jewish Family Service of Seattle (“JFS-S”), and Jewish Family Services of Silicon Valley (“JFS-

21

SV”) (collectively, “JFS Plaintiffs”). On November 29, 2017, the court consolidated these two cases under Case No. C17-0178JLR. (Min. Order (Dkt. #61).) Notations of docket entries in

22

this order that are preceded by “17-1707” are docket entries in Case No. C17-1707JLR. Otherwise, docket entry notations refer to entries in Case No. C17-0178JLR.

ORDER - 2

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1 The preliminary injunction enjoins Defendants2 “from enforcing those provisions of the

2 Agency Memo that suspend the processing of [following-to-join (“FTJ”)] refugee

3 applications or suspend the admission of FTJ refugees into the United States” and “those

4 provisions of the Agency Memo that suspend or inhibit, including through the diversion

5 of resources, the processing of refugee applications or the admission into the United

6 States of refugees from [Security Advisory Opinion (“SAO”) list] countries.” (PI Order

7 at 64-65.)

8

On December 27, 2017, Defendants filed a motion asking the court to reconsider

9 certain aspects of the preliminary injunction related to SAO countries. (MTR (Dkt.

10 # 93).) Defendants’ motion asked the court to reconsider its ruling that a bona fide

11 relationship with an American organization includes refugee applicants covered by a

12 formal assurance from a refugee resettlement agency. (See generally id.; see also PI

13 Order at 63 n.31.) At the request of the court, Plaintiffs filed a consolidated response.

14 (MTR Resp. (Dkt. # 98); 12/29/17 Order (Dkt. # 94).) On January 5, 2018, the court

15 denied Defendants’ motion for reconsideration. (1/5/18 Order (Dkt. # 103).)

16

Meanwhile, on December 29, 2017, Defendants filed a second motion, which they

17 denominated as an “emergency motion” for a stay of the preliminary injunction pending

18 an appeal. (See MFS.) The court again directed Plaintiffs to file a response to

19 Defendants’ motion, but this time allowed Doe Plaintiffs and JFS Plaintiffs to file

20 separately. (See 12/30/17 Order (Dkt. # 97).) Doe Plaintiffs and JFS Plaintiffs filed their

21 2 The preliminary injunction applies to all Defendants except for President Trump. (See
22 PI Order at 64 n.32.)

ORDER - 3

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1 responses on January 4, 2018. (See JFS Resp.; Doe Resp.) On the same day, Defendants

2 filed a notice of appeal of the court’s preliminary injunction. (Notice of Appeal (Dkt.

3 # 99).) Finally, on January 5, 2018, Defendants filed a “notice,” which asked the court to

4 stay that portion of the preliminary injunction that Defendants unsuccessfully challenged

5 in their motion for reconsideration. (Notice re: MFS (Dkt. # 104).) The court now

6 considers Defendants’ emergency motion for a stay.

7

III. ANALYSIS

8

In analyzing Defendants’ motion, the court first considers its own jurisdiction to

9 decide the motion. Next, the court considers certain statements in Defendants’ motion,

10 which impliedly modify the court’s preliminary injunction unilaterally. Finally, the court

11 considers the merits of Defendants’ motion to stay.

12 A. Jurisdiction

13

Because Defendants filed a notice of appeal (see Notice of Appeal), the court first

14 considers its own jurisdiction to decide Defendants’ emergency motion for a stay pending

15 appeal. “While a preliminary injunction is pending on appeal, a district court lacks

16 jurisdiction to modify the injunction in such a manner as to ‘finally adjudicate substantial

17 rights directly involved in the appeal.’” A & M Records v. Napster, Inc., 284 F.3d 1091,

18 1099 (9th Cir. 2002) (quoting Newton v. Consolidated Gas Co., 285 U.S. 165, 177

19 (1992)). Nevertheless, Federal Rule of Civil Procedure 62(c) allows the court to issue

20 further orders with respect to an injunction, even during an appeal, in order to preserve

21 the status quo or ensure compliance with its earlier orders. See Nat. Res. Def. Council,

22 Inc. v. Sw. Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). Indeed, “[t]he plain

ORDER - 4

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1 language of Rule 62(c) allows the district court to ‘suspend, modify, restore, or grant an

2 injunction’ during the pendency of [an] interlocutory appeal, and such action can inure to

3 the benefit of plaintiffs or defendants.” Mayweathers v. Newland, 258 F.3d 930, 935 (9th

4 Cir. 2001) (quoting Fed. R. Civ. P. 62(c)); see also Fed. R. App. P. 8(a)(1) (“A party

5 must ordinarily move first in the district court for the following relief: (A) a stay of

6 the . . . order of a district court pending appeal; . . . or (C) an order suspending,

7 modifying, restoring, or granting an injunction while an appeal is pending.”). Based on

8 these authorities, the court concludes that it has jurisdiction to consider Defendants’

9 emergency motion to stay the preliminary injunction despite the pending appeal. The

10 court’s exercise of jurisdiction, however, may “not ‘materially alter the status of the case

11 on appeal.’” Mayweathers, 258 F.3d at 935 (quoting Nat. Res. Def. Council, Inc., 242

12 F.3d at 1166).

13 B. Defendants’ Attempts to Unilaterally Modify the Preliminary Injunction

14

Defendants declare in their motion they “do not understand the preliminary

15 injunction to require affirmative action to undo any of the steps that were taken to

16 implement the Joint Memorandum prior to December 23.” (MFS at 4; see also id. at 6

17 (“Defendants do not understand the preliminary injunction to require them to take

18 affirmative steps to undo decisions that were made consistent with the [Agency Memo]

19 prior to the preliminary injunction’s issuance.”).) To the extent that this declaration is an

20 attempt to unilaterally modify the preliminary injunction, the court rejects it.3

21 3 At this point, the court declines to consider the possibility that Defendants’ declaration
22 is an improper attempt to excuse noncompliance with the court’s order. The court simply notes

ORDER - 5

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1

The court’s preliminary injunction requires Defendants to take actions that are

2 necessary to undo those portions of the Agency Memo that are enjoined. For example, if

3 Defendants sent guidance suspending the admission of FTJ refugees or refugees from

4 SAO countries, they must rescind that guidance. If they issued instructions to

5 de-prioritize the processing of applications from SAO countries, they must reverse those

6 instructions. Defendants are required to restore the status quo prior to the issuance of the

7 Agency Memo with respect to the processing of applications from FTJ refugees and

8 refugees from SAO countries. Contrary to Defendants’ assertions (see MFS at 5), this

9 requirement does not transform the preliminary injunction into a mandatory one, see Ariz.

10 Dream Act Coal. v. Brewer, 757 F.3d 1053, 1060-61 (9th Cir. 2014) (holding that an

11 injunction that prohibits the enforcement of a new law or policy is prohibitory, not

12 mandatory, even where the policy has already taken effect prior to filing the lawsuit).

13

In any event, Defendants’ arguments that they should be excused from taking any

14 “affirmative actions” to comply with the preliminary injunction are conclusory and

15 unsupported by any evidence. (See, e.g., MFS at 5 (asserting without evidence that there

16 “is significant doubt about whether it would even be possible for Defendants to undo

17 some of their prior decisions”).) Indeed, the only concrete example that Defendants

18 provide to support their argument relates to certain “circuit rides” that Defendants

19 scheduled for the second quarter of fiscal year 2018 pursuant to the Agency Memo’s

20 directive to divert resources away from processing SAO refugee applications. (See id. at

21

22

that, in the absence of a stay, Defendants’ failure to comply with the preliminary injunction could result in a possible finding of contempt and the possible imposition of sanctions.

ORDER - 6

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1 4-5.) Defendants posit that they “might” have to cancel the presently scheduled “circuit

2 rides” and refugee applicant interviews if they are required to comply with the

3 preliminary injunction. (See id. at 4-5 (asserting this possibility without evidentiary

4 support).) First, contrary to Defendants’ assertions, nothing in the preliminary injunction

5 requires Defendants to cancel any already-scheduled circuit rides or refugee interviews.

6 Complying with the preliminary injunction, however, does require Defendants to restore

7 any circuit rides that they would have scheduled absent the Agency Memo. Second,

8 Defendants have submitted no evidence that such interviews could not be restored

9 without cancelling previously scheduled interviews. (See MFS; see generally Dkt.)

10 Indeed, the time to submit such evidence, to the extent it exists, would have been when

11 the court was considering Plaintiffs’ motions for preliminary injunction. Thus, the court

12 rejects Defendants’ apparent attempts to unilaterally modify the preliminary injunction

13 and again orders Defendants to comply with the preliminary injunction as written.

14 C. Motion to Stay

15

In the Ninth Circuit, “[t]he standard for evaluating stays pending appeal is similar

16 to that employed by district courts in deciding whether to grant a preliminary injunction.”

17 Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983). Granting a stay is within the

18 court’s discretion, and the party seeking the stay bears the burden of demonstrating “that

19 the circumstances justify the exercise of that discretion.” Washington v. Trump, 847 F.3d

20 1151, 1164 (9th Cir. 2017) (quoting Nken v. Holder, 556 U.S. 418, 433-34 (2009)). The

21 court’s discretion is guided by four factors: “(1) whether the stay applicant has made a

22 strong showing that he is likely to succeed on the merits; (2) whether the applicant will be

ORDER - 7

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1 irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure

2 the other parties interested in the proceeding; and (4) where the public interest lies.”

3 Nken, 556 U.S. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (internal

4 quotation marks omitted).

5

1. Defendants Fail to Make a Strong Showing that They Are Likely to Succeed

on the Merits

6 Defendants fail to make the necessary “strong showing” that they are likely to

7 succeed on the merits. See id. Defendants offer no new arguments or analysis

8 concerning their likelihood of success on the merits. (See MFS at 10-12.) Instead,

9 Defendants simply rehash arguments this court has already rejected. (See id.) The court

10 has previously explained why (1) the suspension of the FTJ refugee program is

11 inconsistent with 8 U.S.C. § 1157(c)(2)(A) (PI Order at 48-51), (2) the suspension of

12 refugees from SAO countries is inconsistent with the Refugee Act of 1980 (id. at 51-56),

13 and (3) promulgation of the Agency Memo required notice and comment rulemaking

14 under the Administrative Procedures Act (“APA”) (id. at 39-46).4 Nothing in

15 Defendants’ motion for a stay causes the court to reevaluate those rulings.

16 //

17 //

18 //

19

20

4 Defendants assert that the court’s ruling that Plaintiffs are likely to succeed on their

APA rulemaking claim would “threaten agencies’ abilities to take important actions . . . on a

21

timely basis” or to “quickly and continually revise screening procedures” during national emergencies. (See MFS at 12.) However, the court’s ruling does not throw open the door to

22

rulemaking in every instance. For example, the APA contains a “good cause” exception to rulemaking, see 5 U.S.C. § 553(b)(B), which Defendants chose not to invoke here.

ORDER - 8

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1

2. Defendants Fail to Show Irreparable Harm Absent a Stay or that the Public

Interest Favors a Stay

2

Defendants fail to show that they will be irreparably injured absent a stay or that

3 the public interest favors a stay.5 First, Defendants assert that “[e]ven a single State

4 ‘suffers a form of irreparable injury’ ‘[a]ny time [it] is enjoined by a court from

5 effectuating statutes enacted by representatives of its people.” (MFS at 3 (alterations in

6 original) (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012)).) Here, however, it is

7 Defendants who—based on the Agency Memo—seek to override statutes enacted by

8 Congress. As the court explained in its preliminary injunction, the enjoined Agency

9 Memo provisions concerning FTJ refugees run roughshod over the nondiscriminatory

10 family reunification provision of 8 U.S.C. § 1157(c)(2)(A). (PI Order at 48-51.) In

11 addition, the Agency Memo’s SAO provisions (1) seek to evade the “permanent and

12 systemic procedure” for refugee admission and resettlement that Congress established in

13 the Refugee Act of 1980, (2) rework the Act’s definition of “refugee” under 8 U.S.C.

14 1101(a)(42), and (3) impermissibly alter the admissibility standards set by Congress in 8

15 U.S.C. § 1182(a). (Id. at 51-56.) Where the Government’s actions thwart Congressional

16 intent and undermine Congressionally-enacted statutes, the public interest is best served

17 by curtailing those actions. See Hawaii v. Trump, --- F.3d ----, 2017 WL 6554184, at *23

18 (9th Cir. 2017) (“Hawaii III”) (“It is axiomatic that the President must exercise his

19 //

20 5 As the court noted when ruling on Plaintiffs’ preliminary injunction motions, when the

21

Government is a party, analysis of the public interest element tends to overlap with other elements central to the court’s analysis. (See PI Order at 59.) Accordingly, although the public

22

interest and irreparable harm to Defendants in the absence of a stay are separate factors, the court considers them together here.

ORDER - 9

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1 executive powers lawfully. When there are serious concerns that the President has not

2 done so, the public interest is best served by ‘curtailing unlawful executive action.’”)

3 (quoting Texas v. United States, 809 F.3d 134, 187 (5th Cir. 2015), aff’d by an equally

4 divided court, --- U.S. ---, 136 S. Ct. 2271 (2016)).

5

Further, although the Government has a “compelling” interest in national security,

6 see Haig v. Agee, 453 U.S. 280, 307 (1981),6 Defendants cannot simply rely on

7 unspecified security concerns, see Ziglar v. Abbasi, --- U.S. ---, 137 S. Ct. 1843, 1862

8 (2017) (explaining that “national-security concerns must not become a talisman used to

9 ward off inconvenient claims—a ‘label’ used to ‘cover a multitude of sins’”).7 Here,

10 although the Agency Memo states that the Secretaries who authored it continue to have

11 indeterminate, general “concerns” regarding the admission of nationals, and stateless

12 persons who last habitually resided in, SAO list countries (Agency Memo (Dkt. # 46-2) at

13 2), Defendants offer no evidence in support of their assertion that the preliminary

14 injunction poses national security harms (see generally Dkt.). Indeed, there is no

15 //

16 //

17

6 See also Hawaii v. Trump, 859 F.3d 741, 784 (9th Cir.), cert. granted sub nom. Trump 18 v. Int’l Refugee Assistance Project, --- U.S. ---, 137 S. Ct. 2080 (2017), and cert. granted,
judgment vacated on other grounds as moot, --- U.S. ---, 138 S. Ct. 377 (2017), and vacated on
19 other grounds as moot, 874 F.3d 1112 (9th Cir. 2017) (“Hawaii I”) (“National security is undoubtedly a paramount public interest.”).

20 7 See also Hawaii III, 2017 WL 6554184, at *22 (holding that in the absence of

21

“sufficient findings that the ‘entry of certain classes of aliens would be detrimental to the national interest,’” national security interests did not outweigh harm to plaintiffs); Washington,

22

847 F.3d at 1168 (similarly holding that the Government’s general interest in combatting terrorism, without more, was insufficient to outweigh likely harm to the plaintiffs).

ORDER - 10

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1 evidence in the record that either SAO or FTJ refugees pose a security threat.8

2 Countering Defendants’ general and unspecified concerns, Plaintiffs offer detailed

3 testimony from numerous former national security officials concretely describing how the

4 Agency Memo will harm our national security and foreign policy interests. (See Joint

5 Decl. Former Nat’l Sec. Officers.) Based on the record before it, the court cannot

6 conclude that Defendants have met their burden of establishing that the public interest

7 favors a stay.

8

In addition, Defendants’ own actions undermine their position that they or the

9 public interest will be harmed absent a stay. Defendants assert that they have tracked

10 down Joseph Doe’s family and that a “[p]roposed interim guidance” of the U.S.

11 Citizenship and Immigration Services (“USCIS”) would allow travel to the United States

12 of Joseph’s family and all other FTJ refugee applicants who obtained valid travel

13 documents on or before October 24, 2017—the day that Defendants issued EO-4 and the

14 Agency Memo.9 (MFS at 9; Smith Decl. ¶¶ 2-4.) Indeed, Defendants state that they

15 //

16

8 “During the four decades from 1975 to the end of 2015, over three million refugees

have been admitted to the United States. Despite this number, only three refugees have killed 17 people in terrorist attacks on U.S. soil during this period. None of these refugees were from the

11 listed countries in the [Agency Memo].” (Joint Decl. Former Nat’l Sec. Officers (17-1707

18 Dkt. # 46) ¶ 12.)

19

9 Defendants state that the proposed interim guidance “was in the process of being

reviewed for clearance before the Preliminary Injunction was issued.” (Smith Decl. (Dkt.

20 # 95-1) ¶ 2.) But Defendants did not so inform the court while it was considering the preliminary injunction. Further, the declaration describes the interim guidance as merely

21

“[p]roposed.” (Id. ¶ 2.) Thus, although USCIS may have processed Joseph Doe’s wife and children “[b]ased on the proposed USCIS guidance,” it is unclear if USCIS has generally

22

adopted the interim guidance with respect to processing all FTJ refugee applicants who had received valid travel documents prior to October 24, 2017. (See id. ¶ 3.)

ORDER - 11

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71205650F, iDlekdtE0n1t/r0y9: /2168-2,PPaaggee1122oof f1166

1 expect to know the date of travel booking for Joseph’s family by January 2, 2018.10

2 (Smith Decl. ¶ 4.) Thus, Defendants have decided to admit certain FTJ refugees,

3 including those from SAO countries, prior to implementation of the additional screening

4 procedures for FTJ refugees or completion of the additional threat analysis of SAO

5 countries that the Agency Memo prescribes. This decision undermines Defendants’

6 position that the preliminary injunction impairs national security or that Defendants will

7 be irreparably harmed absent a stay. Defendants’ decision to permit Joseph Doe’s

8 family, as well as other FTJ and SAO refugees, to travel to the United States so long as

9 they received their travel papers prior to October 24, 2017, confirms that the government

10 will suffer no irreparable harm by allowing such refugee admissions during the pendency

11 of their appeal.

12

Finally, Defendants again rely on the Supreme Court’s December 4, 2017, stay

13 orders in Trump v. Hawaii, No. 17A550, 2017 WL 5987406 (U.S. Dec. 4 2017), and

14 //

15

10 Defendants may be attempting to moot Joseph Doe’s claims by creating an exception

16

for him. (See MFS at 9; see also Doe Resp. at 8-10 (asserting that such attempts are unavailing).) Although the court need not rule on this issue for purposes of determining the

present motion to stay, the court notes that Joseph seeks to represent a class. (See Mot. for Class 17 Cert. (Dkt. # 19).) Mootness of a named plaintiff’s claim after class certification does not moot

the action. Haro v. Sebelius, 747 F.3d 1099, 1110 (9th Cir. 2014) (citing Sosna v. Iowa, 419

18 U.S. 393, 401 (1975)). Further, where the named plaintiff’s claim is transitory such that the trial

court does not have sufficient time to rule on a motion for class certification before the proposed

19 representative’s individual claim expires, the ‘relation back’ doctrine preserves the merits of the

case for judicial resolution. See id.; see also Pitts v. Herbst, Inc., 653 F.3d 1081, 1090-91 (9th

20 Cir. 2011) (“[A]lthough [the plaintiff’s] claims are not inherently transitory as a result of being time sensitive, they are acutely susceptible to mootness in light of the defendant’s tactic of

21

picking off lead plaintiff’s with a Rule 68 offer to avoid a class action. . . . The result is the same: a claim transitory by its very nature and one transitory by virtue of the defendant’s litigation

22

strategy share the reality that both claims would evade review.” (internal quotation marks, citations, and alterations omitted)).

ORDER - 12

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71205650F, iDlekdtE0n1t/r0y9: /2168-2,PPaaggee1133oof f1166

1 Trump v. Hawaii, No. 17A560, 2017 WL 5987435 (U.S. Dec. 2017), to argue that their

2 national security interests outweigh Plaintiffs’ interests and that the court should impose a

3 stay here as well. (MFS at 2.) Defendants’ reliance on these two stay orders is

4 misplaced. First, the court has already declined to speculate on the reasons for the

5 Supreme Court’s December 4, 2017, stay orders, which involved preliminary injunctions

6 against portions of Presidential Proclamation No. 9,645, 82 Fed. Reg. 45,161 (Sept. 27,

7 2017) (“EO-3”), and were devoid of any analysis. (See PI Order at 61-62 n.30.)

8

Second, the balancing of the equities here is necessarily different here than in the

9 cases challenging EO-3. This case involves refugees—individuals “who are fleeing

10 danger” and “who have been persecuted by actual terrorists”—and their families or other

11 individuals or organizations in the United States with whom those refugees have a bona

12 fide relationship. (See Joint Decl. Former Nat’l Sec. Officers ¶ 14.f; see also id. ¶ 17.)

13 The two cases stayed by the Supreme Court on December 4, 2017, challenged EO-3 and

14 did not involve refugees or those here in the United States with a bona fide relationship to

15 refugees. Further, in this case, Defendants have acknowledged that they will process the

16 applications of FTJ refugees and refugees from SAO countries so long as the refugees

17 received their travel papers prior to October 24, 2017. As discussed above, this

18 acknowledgement undermines Defendants’ assertion of national security concerns

19 regarding the admission of FTJ and SAO refugees pending Defendants’ appeal and

20 necessarily affects the balancing of equities in this case in a manner not applicable to the

21 cases challenging EO-3.

22 //

ORDER - 13

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71205650F, iDlekdtE0n1t/r0y9: /2168-2,PPaaggee1144oof f1166

1

Moreover, the EO-3 cases before the Supreme Court involved entry prohibitions

2 by the President and specific authorities that Congress granted the President in 8 U.S.C.

3 §§ 1182(f) and 1185(a)(1). Those authorities and the unique role the President may play

4 based on those authorities is not at issue here. (See PI Order at 51 (discussing statutory

5 authorities invoked in this case).) Indeed, the restrictions at issue here were put into

6 place by agency officials after the President found that his suspension of entry of refugees

7 was no longer necessary. (Compare EO-4 § 3(a) (“Presidential action to suspend the

8 entry of refugees under [United States Refugee Assistance Program (“USRAP”)] is not

9 needed at this time to protect the security and interests of the United States and its

10 people.”), with Agency Memo at 2-3 (suspending the processing of applications and entry

11 of refugees from SAO countries for 90 days and FTJ refugees indefinitely).)

12

Third, Defendants again ignore the Supreme Court’s earlier, reasoned opinion

13 denying a stay in relevant part in Trump v. International Refugee Assistance Project, ---

14 U.S. ---, 137 S. Ct. 2080, 2089 (2017) (“IRAP”). IRAP, like this case, involved a

15 purportedly temporary ban on refugees contained in Executive Order No. 13,780, 82 Fed.

16 Reg. 13,209 (Mar. 9, 2017) (“EO-2”), which the Government justified by indicating its

17 desire to study and upgrade vetting procedures. IRAP, 137 S. Ct. at 2084. Nevertheless,

18 the Supreme Court denied a stay of the injunctions on EO-2 as to the same refugees

19 protected by the preliminary injunction here—those with a bona fide relationship to

20 Untied States persons or entities. Id. at 2089. Thus, for all of the foregoing reasons, the

21 court again rejects Defendants’ argument that the Supreme Court’s December 4, 2017,

22 //

ORDER - 14

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71205650F, iDlekdtE0n1t/r0y9: /2168-2,PPaaggee1155oof f1166

1 stay orders concerning EO-3 require this court to balance the equities in Defendants’

2 favor or to impose a stay on the preliminary injunction in this litigation as well.

3

Based on the foregoing analysis, the court concludes that Defendants have failed

4 to demonstrate that they will be irreparably injured absent a stay or that the public interest

5 favors a stay.

6

3. Issuance of the Stay Will Substantially Injure the Other Interested Parties

7

Defendants’ contentions concerning a lack of injury to individual Plaintiffs in the

8 event of a stay pending appeal again reiterate arguments that this court has already

9 rejected. (Compare Mot. at 6-10 with PI Order at 12-16, 20-25, 56-57.) Defendants

10 provide the court with no basis to reevaluate its prior rulings that Plaintiffs will be

11 irreparably harmed in the absence of a preliminary injunction. Further, Defendants

12 ignore the harm to organizational Plaintiffs, such as JFS-S and JFS-SV, in their motion

13 seeking a stay. (See generally MFS.) These organizational Plaintiffs would also suffer

14 substantial harm in the event of a stay. (See PI order at 25-28.) The court concludes that

15 Defendants failed to demonstrate that this factor favors a stay.

16

Having evaluated all the factors that guide its exercise of discretion, the court

17 denies Defendants’ motion for a stay. In addition, for the same reasons as stated herein

18 and in its order denying Defendants’ motion for reconsideration (see 1/5/18 Order), the

19 court also denies Defendants’ request in their January 5, 2018, notice for a more limited

20 stay concerning those refugees who have a bona fide relationship with an entity in the

21 United States through a resettlement assurance agency (see Notice re: MFS).

22 //

ORDER - 15

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71205650F, iDlekdtE0n1t/r0y9: /2168-2,PPaaggee1166oof f1166

1

IV. CONCLUSION

2

Based on the analysis and authority cited above, the court DENIES Defendants’

3 motion to stay the court’s preliminary injunction order pending appeal (Dkt. # 95) and

4 their request for a more limited in stay contained in their January 5, 2018, notice (Dkt.

5 # 104).

6

Dated this 9th day of January, 2018.

7

8

A

9

JAMES L. ROBART

United States District Judge

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ORDER - 16

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215450F, iDlekdtE0n1t/r1y9: /2168-3,PPaaggee11oof f88

The Honorable James L. Robart 1

2

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5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 JOHN DOE, et al.,

Civil Action No. 2:17-cv-00178JLR

11

Plaintiffs,

12

v.

13 DONALD TRUMP, et al.,

14

Defendants.

15 JEWISH FAMILY SERVICE OF
16 SEATTLE, et al.,

17

Plaintiffs,

18

v.

19 DONALD TRUMP, et al.,

20

Defendants.

Civil Action No. 2:17-cv-01707JLR
DEFENDANTS’ NOTICE OF COMPLIANCE WITH PRELIMINARY INJUNCTION
(RELATING TO BOTH CASES)

21

22

23

24

25

26

DEFS.’ NOTICE OF COMPLIANCE WITH PRELIM. INJ. Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215450F, iDlekdtE0n1t/r1y9: /2168-3,PPaaggee22oof f88

1

INTRODUCTION

2

Defendants respectfully submit this Notice of Compliance with the Court’s preliminary

3 injunction Order dated December 23, 2017 (“PI Order”). As set forth below and in the attached

4 Declarations, Defendants have acted promptly to comply with the injunction. In particular,

5 Defendants have taken steps to include Security Advisory Opinion (SAO) nationals in this

6 quarter’s upcoming “circuit rides,” and in furtherance of their compliance with the Court’s Order,

7 aim to establish a third-quarter schedule that will include trips to areas where more SAO nationals

8 can be interviewed. These actions and others demonstrate Defendants’ good-faith compliance

9 with the injunction.

10

PROCEDURAL HISTORY

11

On December 23, 2017, the Court preliminarily enjoined Defendants from enforcing two

12 provisions of the October 23, 2017, Memorandum to the President (“Joint Memorandum” or

13 “Agency Memo”). In that PI Order, the Court held that Defendants are enjoined from enforcing

14 those provisions of the Joint Memorandum that “suspend the processing of [following-to-join

15 (FTJ)] refugee applications or suspend the admission of FTJ refugees into the United States” and

16 that “suspend or inhibit, including through the diversion of resources, the processing of refugee

17 applications or the admission into the United States of refugees from SAO countries.” Doe v.

18 Trump, Nos. C17-0178JLR & C17-1707JLR, 2017 WL 6551491, at *26 (W.D. Wash. Dec. 23,

19 2017), appeal docketed, No. 18-35015.

20

Following entry of the PI Order, Defendants filed an emergency motion to stay the

21 injunction pending appeal. The Court denied that emergency motion in a January 9, 2018, Order.

22 See Doe v. Trump, Nos. C17-0178JLR & C17-1707JLR, 2018 WL 341597 (W.D. Wash. Jan. 9,

23 2018) (“Stay Denial Order”). In doing so, the Court suggested that Defendants may have

24 attempted through their motion to “unilaterally modify the preliminary injunction.” Id. at *2. The

25 Court elaborated:

26

DEFS.’ NOTICE OF COMPLIANCE WITH PRELIM. INJ. - 1 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215450F, iDlekdtE0n1t/r1y9: /2168-3,PPaaggee33oof f88

At this point, the court declines to consider the possibility that Defendants’

1

declaration is an improper attempt to excuse noncompliance with the court’s order.

2

The court simply notes that, in the absence of a stay, Defendants’ failure to comply with the preliminary injunction could result in a possible finding of contempt and

3

the possible imposition of sanctions.

4 Id. at *2 n.3.

5

Defendants respectfully submit that they made no attempt to modify the injunction.

6 Defendants hereby offer this Notice to inform the Court of Defendants’ efforts to scrupulously

7 adhere to the Court’s PI Order. The Court ordered “Defendants to take actions that are necessary

8 to undo those portions of the Agency Memo that are enjoined.” Id. at *3. As explained herein, 9 Defendants have done exactly that.1

10

STATEMENT OF COMPLIANCE

11

In support of this Notice of Compliance, Defendants offer two Declarations: the first by

12 Kelly A. Gauger, Acting Director of the Admissions Office of the Bureau of Population,

13 Refugees, and Migration at the Department of State (“Gauger Decl.,” attached hereto as Exhibit

14 A); and the second by Jennifer B. Higgins, Associate Director of the Refugee, Asylum and

15 International Operations Directorate at the Department of Homeland Security (“Higgins Decl.,”

16 attached hereto as Exhibit B).

17

In its Stay Denial Order, the Court observed: “if Defendants sent guidance suspending

18 the admission of FTJ refugees or refugees from SAO countries, they must rescind that guidance.

19 If they issued instructions to de-prioritize the processing of applications from SAO countries, they

20 must reverse those instructions.” Doe, 2018 WL 341597, at *3. As the two attached Declarations

21 explain, both State and USCIS issued prompt guidance directing their personnel to comply with

22 the injunction. On December 24, 2017, State “issued guidance to its implementing partners at the

23 Resettlement Support Centers (RSCs) overseas . . . so that the[se] implementing partners could

24

25

1 The Court also observed in its Stay Denial Order that Defendants’ prior arguments about

the injunction’s scope and impact were “conclusory and unsupported by any evidence.” Doe, 26 2018 WL 341597, at *3. In order to avoid a similar conclusion here, Defendants proffer the two

attached Declarations to substantiate their compliance.

DEFS.’ NOTICE OF COMPLIANCE WITH PRELIM. INJ. - 2 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215450F, iDlekdtE0n1t/r1y9: /2168-3,PPaaggee44oof f88

1 implement the injunction immediately upon opening of business after the federal holiday on

2 December 25, 2017.” Gauger Decl. ¶ 2. “The guidance instructed the RSCs to resume processing

3 all follow-to-join refugees . . . and nationals of . . . the 11 countries on the SAO list who have a

4 bona fide relationship to a person or entity within the United States.” Id. Further, the State

5 Department’s Bureau of Consular Affairs advised consular posts on December 23, 2017, to

6 adjudicate FTJ applications as normal. Id. ¶ 3. USCIS apprised its personnel of the injunction’s

7 immediate impact on December 24, 2017. Higgins Decl. ¶ 2.

8

The Stay Denial Order addressed the agencies’ scheduling of “circuit rides.” State and

9 DHS work closely with one another to schedule circuit rides, through which USCIS officers travel

10 to different locations worldwide to interview refugee applicants. Gauger Decl. ¶ 4; Higgins Decl.

11 ¶ 3. State typically submits requests for circuit rides to USCIS many weeks prior to each quarter

12 of the fiscal year. See Gauger Decl. ¶ 4; Higgins Decl. ¶ 4. After a schedule is set, in-country

13 RSCs slot in refugee applicants for interviews. Gauger Decl. ¶ 4. The schedule for circuit rides

14 occurring in the second quarter of fiscal year 2018 (January 1 through March 31) is appended as

15 Exhibit 1 to the Higgins Declaration.

16

The Court wrote that “nothing in the preliminary injunction requires Defendants to cancel

17 any already-scheduled circuit rides or refugee interviews.” Doe, 2018 WL 341597, at *3.

18 Defendants have accordingly not done so, and instead, have attempted to add SAO nationals to

19 the already-scheduled circuit rides. Specifically, on December 26, 2017, State reached out to the

20 RSCs to inquire whether any SAO nationals might be ready for interviews at locations already

21 included on the second-quarter calendar. Gauger Decl. ¶ 5. “As a result of this request, additional

22 interviews for SAO nationals have been added to the circuit rides to Indonesia and to Nauru and

23 Manus.” Id.

24

The Court added that “[c]omplying with the preliminary injunction . . . require[s]

25 Defendants to restore any circuit rides that they would have scheduled absent the Agency Memo.”

26 Doe, 2018 WL 341597, at *3. As the Higgins Declaration explains, it is not feasible to determine

DEFS.’ NOTICE OF COMPLIANCE WITH PRELIM. INJ. - 3 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215450F, iDlekdtE0n1t/r1y9: /2168-3,PPaaggee55oof f88

1 with particularity what circuit rides or interviews would have been scheduled absent the Joint

2 Memorandum. Higgins Decl. ¶ 4. Preparation for circuit rides is a complicated and time-

3 consuming endeavor involving many factors, and as a result, circuit rides must be scheduled

4 weeks, if not more than a month, in advance. See id. ¶¶ 3-4. USCIS officers must make travel

5 arrangements, obtain visas, obtain and verify necessary vaccinations, secure country clearances,

6 and schedule and deliver site-specific pre-departure trainings and in-country briefings on arrival.

7 Id. ¶ 3. State and USCIS began scheduling second-quarter (January 1 through March 31, 2018)

8 circuit rides in October 2017, long before the injunction took effect. Id. ¶ 4. As a result, these

9 previously scheduled circuit rides did not include locations with relatively high numbers of SAO

10 nationals. Id.

11

Nevertheless, the Government, in furtherance of its compliance with the Court’s PI Order,

12 aims to establish a schedule for its third-quarter circuit rides that would include locations where

13 greater percentages of SAO nationals are ready for interviews, namely, Iraq, Jordan, Turkey, and, 14 potentially Kenya. See Gauger Decl. ¶ 6; Higgins Decl. ¶ 7.2 “Scheduling circuit rides to these

15 locations in the relatively near future is far preferable from a programmatic perspective” to

16 canceling planned circuit rides during the second quarter. Gauger Decl. ¶ 6. Cancellations of

17 already-scheduled circuit rides would “waste resources, slow down the refugee pipeline overall

18 (adversely affecting all refugee applicants), and cause undue hardship for those whose interviews

19 were already scheduled to take place, especially those who have been notified of their upcoming

20 interview.” Id.

21

Adding such locations for third-quarter circuit rides makes sense for an additional reason:

22 it is not feasible for the agencies to add new locations to the second-quarter schedule. As set forth

23 in the Higgins Declaration, all available officers will be participating in the circuit rides already

24 planned for this quarter. See Higgins Decl. ¶ 6. The agencies could not add new locations to the

25

26

2 Once the locations for the third-quarter circuit rides are finalized, Defendants can share

that information with the Court upon the Court’s request.

DEFS.’ NOTICE OF COMPLIANCE WITH PRELIM. INJ. - 4 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215450F, iDlekdtE0n1t/r1y9: /2168-3,PPaaggee66oof f88

1 second-quarter schedule without either reassigning personnel who are carrying out other

2 governmental obligations or canceling already-scheduled circuit rides. See id. Neither possibility

3 is reasonable or appropriate, as both would cause significant inefficiencies and hardship.

4

To summarize: the agencies promptly issued the necessary guidance to inform the field

5 of its obligation to comply with the injunction. The agencies have also taken steps to include

6 SAO nationals in the second-quarter circuit rides as scheduled, and aim to establish a third-quarter

7 schedule that includes locations where greater percentages of SAO nationals are processed

8 because it is not feasible to do so in the second quarter. These actions show the agencies’ good

9 faith commitment to compliance with the PI Order.

10

As the Court has allowed, the 90-day review for SAO countries has continued even as the

11 agencies have implemented the PI Order. Defendants cannot know or determine with certainty

12 the timing or impact of any further policies resulting from that review. Defendants intend to

13 notify the Court of any new policy once a final determination has been made.

14

CONCLUSION

15

For the reasons stated herein, Defendants respectfully submit that they are in compliance

16 with the PI Order.

17 DATED: January 19, 2018 18 19

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General

20

AUGUST E. FLENTJE

Special Counsel 21

22

JENNIFER D. RICKETTS

Director, Federal Programs Branch

23

JOHN R. TYLER

24

Assistant Director, Federal Programs Branch

25

/s/ Joseph C. Dugan

26

MICHELLE R. BENNETT

DANIEL SCHWEI

DEFS.’ NOTICE OF COMPLIANCE WITH PRELIM. INJ. - 5 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215450F, iDlekdtE0n1t/r1y9: /2168-3,PPaaggee77oof f88

KEVIN SNELL

1

JOSEPH C. DUGAN

2

Trial Attorneys U.S. Department of Justice

3

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, NW

4

Washington, DC 20530

Tel: (202) 514-3259

5

Fax: (202) 616-8470

6

Email: joseph.dugan@usdoj.gov

7

Attorneys for Defendants

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DEFS.’ NOTICE OF COMPLIANCE WITH PRELIM. INJ. - 6 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215450F, iDlekdtE0n1t/r1y9: /2168-3,PPaaggee88oof f88

1

CERTIFICATE OF SERVICE

2 I certify that on January 19, 2018, a copy of the foregoing document was electronically
3 filed with the Clerk of the Court using the CM/ECF system, which will send notification of such
4 filing to all counsel of record.
5

6 DATED this 19th day of January, 2018.

7

/s/ Joseph C. Dugan

8

JOSEPH C. DUGAN

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DEFS.’ NOTICE OF COMPLIANCE WITH PRELIM. INJ. - 7 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215950F, iDlekdtE0n1t/r3y1: /2168-4,PPaaggee11oof f55

The Honorable James L. Robart 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 JOHN DOE, et al.,

Civil Action No. 2:17-cv-00178JLR

11

Plaintiffs,

12

v.

13 DONALD TRUMP, et al.,

14

Defendants.

15 JEWISH FAMILY SERVICE OF
16 SEATTLE, et al.,

17

Plaintiffs,

18

v.

19 DONALD TRUMP, et al.,

20

Defendants.

Civil Action No. 2:17-cv-01707JLR
DEFENDANTS’ NOTICE FOLLOWING CONCLUSION OF 90-DAY SAO REFUGEE REVIEW
(RELATING TO BOTH CASES)

21

22

23

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25

26

DEFS.’ NOTICE FOLLOWING CONCLUSION OF 90-DAY SAO REFUGEE REVIEW Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215950F, iDlekdtE0n1t/r3y1: /2168-4,PPaaggee22oof f55

1

Defendants respectfully submit this Notice regarding the conclusion of the 90-day

2 Security Advisory Opinion (SAO) review period prescribed by the October 23, 2017,

3 Memorandum to the President (“Agency Memo” or “Joint Memorandum”). That review period

4 expired by its terms on January 22, 2018 (January 21 was a Sunday).

5

As stated in the Court’s Order of December 23, 2017, the preliminary injunction that

6 barred the suspension of SAO refugee processing did “not apply to Defendants’ efforts to conduct

7 a detailed threat assessment for each SAO country.” Doe v. Trump, No. C17-0178JLR, 2017 WL

8 6551491, at *26 (W.D. Wash. Dec. 23, 2017). Those efforts continued, and on January 29, 2018,

9 the Secretary of Homeland Security signed a memorandum outlining additional security

10 enhancements and recommendations to strengthen the integrity of the U.S. Refugee Admissions

11 Program (USRAP). As the Department of Homeland Security summarized in a related press

12 release, these security enhancements and recommendations include: (1) “Additional screening

13 for certain nationals of high-risk countries”; (2) “Administering the USRAP in a more risk-based

14 manner when considering the overall refugee admissions ceiling, regional allocations, and the

15 groups of applicants considered for resettlement”; and (3) “A periodic review and update of the

16 refugee high-risk country list and selection criteria.” Press Release, Dep’t of Homeland Sec.,

17 DHS Announces Additional, Enhanced Security Procedures for Refugees Seeking Resettlement

18 in the United States (last updated Jan. 31, 2018), https://www.dhs.gov/news/2018/01/29/dhs-

19 announces-additional-enhanced-security-procedures-refugees-seeking-resettlement.

20

As further set forth in the press release, actions will be “undertaken consistent with the

21 nationwide injunction issued by the United States District Court for the Western District of

22 Washington. In addition, any commitments made by the United States to implement the

23 injunction will be honored.” Id.

24

Defendants do not understand the preliminary injunction that is currently in place in this

25 case to prohibit Defendants from implementing these enhancements and recommendations. See

26 Washington v. Trump, No. C17-0141JLR, 2017 WL 1045950, at *3-4 (W.D. Wash. Mar. 16,

DEFS.’ NOTICE FOLLOWING CONCLUSION OF 90-DAY SAO REFUGEE REVIEW - 1 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215950F, iDlekdtE0n1t/r3y1: /2168-4,PPaaggee33oof f55

1 2017) (declining to enforce preliminary injunction against EO-1 to prohibit Defendants from

2 implementing EO-2).

3

Finally, because the 90-day SAO review period has concluded, and because (as

4 Defendants previously represented) the implementation of the additional procedures for

5 following-to-join refugees set forth in the Joint Memorandum is expected to be completed on or

6 about February 1, 2018, the Jewish Family Service case and the claims regarding the Joint

7 Memorandum in the Doe case will soon become moot. The Government expects to file a motion

8 in the U.S. Court of Appeals for the Ninth Circuit seeking remand of the cross-appeals with

9 instructions to dismiss as moot, as well as vacatur of the underlying injunction and dismissal of

10 the appeal as moot.

11 DATED: January 31, 2018 12 13

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General

14

AUGUST E. FLENTJE

Special Counsel 15

16

JENNIFER D. RICKETTS

Director, Federal Programs Branch

17

JOHN R. TYLER

18

Assistant Director, Federal Programs Branch

19

/s/ Joseph C. Dugan

20

MICHELLE R. BENNETT

DANIEL SCHWEI

21

KEVIN SNELL

JOSEPH C. DUGAN

22

Trial Attorneys

23

U.S. Department of Justice Civil Division, Federal Programs Branch

24

20 Massachusetts Avenue, NW

Washington, DC 20530

25

Tel: (202) 514-3259

Fax: (202) 616-8470

26

Email: joseph.dugan@usdoj.gov

DEFS.’ NOTICE FOLLOWING CONCLUSION OF 90-DAY SAO REFUGEE REVIEW - 2 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215950F, iDlekdtE0n1t/r3y1: /2168-4,PPaaggee44oof f55

Attorneys for Defendants 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

DEFS.’ NOTICE FOLLOWING CONCLUSION OF 90-DAY SAO REFUGEE REVIEW - 3 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

CCaassee:21:187-3-c5v0-1050,10728/-2J1L/R201D8o, cIDum: 1e0n7t71215950F, iDlekdtE0n1t/r3y1: /2168-4,PPaaggee55oof f55

1

CERTIFICATE OF SERVICE

2 I certify that on January 31, 2018, a copy of the foregoing document was electronically
3 filed with the Clerk of the Court using the CM/ECF system, which will send notification of such
4 filing to all counsel of record.
5

6 DATED this 31st day of January, 2018.

7

/s/ Joseph C. Dugan

8

JOSEPH C. DUGAN

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

DEFS.’ NOTICE FOLLOWING CONCLUSION OF 90-DAY SAO REFUGEE REVIEW - 4 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259

 
 Case: 18-35015, 03/02/2018, ID: 10785046, DktEntry: 28-1, Page 1 of 14

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JANE DOE, et al., Plaintiffs-Appellees-Cross-Appellants,
v.
DONALD TRUMP, in his official capacity as President of the United States, et al., Defendants-Appellants-Cross-Appellees.

Nos. 18-35015, 18-35026

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS THE APPEAL, AND TO VACATE THE JUDGMENT AND REMAND FOR DISMISSAL, ON GROUNDS OF MOOTNESS
Plaintiffs challenged two expressly temporary and limited policies that have since expired by their own terms while this appeal was pending. Pursuant to wellestablished principles of mootness, this Court should enter the familiar relief recognized by the Supreme Court in Munsingwear and its progeny: vacate the now-moot injunction, and dismiss the appeal and remand for dismissal of plaintiffs’ claims on grounds of mootness. Although plaintiffs attempt to create confusion about the scope of the issues, the district court expressly limited its injunction to the two policies at issue here, and those policies have come to an end, as designed from the outset.
Plaintiffs urge a remand to the district court to consider mootness in the first instance. Although there are no factual disputes to be resolved, and this Court can and

Case: 18-35015, 03/02/2018, ID: 10785046, DktEntry: 28-1, Page 2 of 14
should enter Munsingwear relief of its own accord, the government would not oppose remand if this Court wishes to obtain the district court’s views as to mootness in light of the scope of its own order. In all events, however, the parties agree that this Court need not and should not proceed to consider the merits of this appeal in light of subsequent developments.
1. The district court’s injunction addressed two temporary provisions of the October 23, 2017, Memorandum to the President (Agency Memo; DE# 46-2): (1) the de-prioritization of refugee applications from countries on the Security Advisory Opinion (SAO) list, which expressly expired by its own terms after the predicate 90day review period came to an end on January 22, 2018; and (2) the suspension of processing and admission of following-to-join (FTJ) derivative refugees, which expressly expired by its own terms upon adoption of additional security screening procedures that were implemented on February 1, 2018. Plaintiffs’ responses to the government’s motion in this Court now suggest that they may seek to challenge other policies, but this appeal is not an appropriate vehicle for any such new claims, which cannot affect the mootness analysis in any event.
The Agency Memo was clear about the temporary nature of the two provisions at issue here, and about when they would end. Temporary de-prioritization was put in place while the Departments of State and Homeland Security and the Director National Intelligence “conduct[ed] a detailed threat analysis and review for nationals of these
2

Case: 18-35015, 03/02/2018, ID: 10785046, DktEntry: 28-1, Page 3 of 14
high risk countries [on the SAO list] and stateless persons who last habitually resided in those countries.” Agency Memo 2. “During this review, the Secretary of State and the Secretary of Homeland Security will temporarily prioritize refugee applications from other non-SAO countries.” Ibid. (emphasis added). And that review would end within 90 days. See ibid. (“We will direct our staff to work jointly and with law enforcement agencies to complete the additional review of the SAO countries no later than 90 days from the date of this memorandum * * *.”). Thus, the de-prioritization called for in the Agency Memo was limited to the 90-day period of the threat analysis and review for refugees from countries on the SAO list. Once that review ended, so did the de-prioritization called for in conjunction with the review.
Similarly, the suspension of FTJ refugee processing and admission was adopted as an interim measure until additional security measures could be implemented. See Agency Memo 2. The Agency Memo called for “screening mechanisms for followingto-join refugees that are similar to the processes employed for principal refugees, in order to ensure the security and welfare of the United States.” Id. at 3. Although the FTJ suspension did not have a fixed duration, it would last only until the screening mechanisms were in place, at which time FTJ processing and admission would resume. The Agency Memo was clear that the government “will resume admission of followingto-join refugees once those enhancements have been implemented.” Ibid. As the government explained in its motion, those procedures have been implemented and are
3

Case: 18-35015, 03/02/2018, ID: 10785046, DktEntry: 28-1, Page 4 of 14
in place as of February 1, 2018. Mot. 9. The brief suspension of FTJ refugee processing and admission pending implementation of those procedures has accordingly ended.
Plaintiffs challenged only those two provisions of the Agency Memo, and the district court “clarifie[d]” that plaintiffs “do not seek to enjoin the agencies’ efforts to implement screening mechanisms for FTJ refugees that are similar to or aligned with the processes employed for principal refugees.” Op. 38. Nor did plaintiffs “seek to enjoin the agencies from conducting their 90-day ‘detailed threat analysis and review’ of the SAO countries to determine what additional safeguards the agencies believe are necessary with respect to the admission of refugees from those countries.” Ibid. The injunction accordingly did not prohibit the government from conducting its review of SAO countries or implementing enhanced security screening procedures for FTJ refugees. Because those steps have been completed, and the challenged provisions of the Agency Memo have come to an end by their terms, nothing remains to be enjoined.
2. To be sure, the Agency Memo also contemplated that “additional safeguards” might subsequently be “necessary to ensure that the admission of refugees from these [SAO] countries of concern does not pose a threat to the security and welfare of the United States.” Agency Memo 2. But any such additional safeguards were not part of the Agency Memo; they accordingly were not, and could not have been, the subject of the injunction. Plaintiffs can file a new or amended complaint if they believe that they are harmed by a new policy adopted following the 90-day review. But they
4

Case: 18-35015, 03/02/2018, ID: 10785046, DktEntry: 28-1, Page 5 of 14
cannot avoid mootness by trying to bring a new policy within the scope of the injunction here. Indeed, the new policy recently adopted for SAO countries—requiring additional screening and vetting actions; assessing risk when considering the overall refugee admissions ceiling, regional allocations, and the groups of applicants considered for resettlement; and reviewing and updating the SAO list—is far different than the 90-day de-prioritization ordered by the Agency Memo. See Nielsen Mem. 2.1
The district court also made clear that plaintiffs did not seek to prohibit the government from implementing the additional screening procedures for FTJ refugees. Op. 38. And plaintiffs do not dispute that those security screenings are lawful and permissible.
Thus, there is no basis to interpret the injunction, or plaintiffs’ claims, to address the government’s current policies. Any litigation concerning those new policies must proceed separately. Plaintiffs’ efforts to transform their claims while on appeal cannot alter the mootness of this injunction, which concerned only temporary policies that have since ended by their own terms.
1 The Secretary of Homeland Security set forth her determinations following the 90day review called for in the Agency Memo. The government provided a copy of that memorandum (redacting a small amount of privileged information) to plaintiffs, who attached it to a recent filing in district court. A copy of the memorandum (Nielsen Mem.; DE# 122, Ex. C) is included with this reply.
5

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3. In their responses to the government’s motion, plaintiffs fail to acknowledge the limited scope of their claims and the district court’s injunction. But, as explained above, this interlocutory appeal from the carefully limited preliminary injunction does not address any new policies adopted after the 90-day SAO review and implementation of FTJ screening mechanisms. Plaintiffs cannot overcome mootness by recharacterizing their claims to suggest that they now seek to address a more general “suspension” of SAO or FTJ refugee processing that is somehow separate from the two limited policies in the Agency Memo. JFS Opp. 10-13; Doe Opp. 15-17. Nor can misinterpretations of the government’s statements undercut the limited and temporary nature of the provisions subject to the injunction.2
The injunction on appeal addressed only those two policies in the Agency Memo. Now that the policies have ended, there is no basis to extend the reach of the injunction to policies that have not been alleged, challenged, or litigated, and that are not within the scope of the order on appeal. If plaintiffs allege that there is some new suspension
2 Plaintiffs’ responses are rife with misunderstandings and misrepresentations of the government’s position. For example, in answer to a question about what policy changes would result from the 90-day review of SAO countries, government counsel explained that he could not speculate about any new policy. See JFS Opp. 5 (quoting transcript). That was not a concession that the temporary SAO de-prioritization was somehow unlinked from the 90-day review. See id. at 11. In any event, the new policy makes clear that no similar de-prioritization resulted from the 90-day review. See Nielsen Mem. 3 (following the 90-day SAO review, “the prioritization set forth in the [Agency Memo] is not hereby renewed”).
6

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in place (and there is nothing to support such a claim), they can challenge it in a new suit; but they cannot recharacterize the claims or the injunction in this case to avoid mootness.
Nor is there any basis for uncertainty about whether the temporary policies have actually ended. JFS Opp. 10-13; Doe Opp. 9-10. The 90-day SAO review period has ended by operation of the passage of 90 days, and the corresponding de-prioritization of SAO refugees—which was expressly linked to that review period—came to an end at the same time. See Nielsen Mem. 3. Similarly, the suspension of FTJ refugee processing and admission was expressly limited to the period until additional security measures could be implemented to ensure that FTJ refugees would be subject to the same screening mechanisms as principal refugees. The government has publicly announced the implementation of those procedures, and has explained to applicants that FTJ refugees are now being processed using those procedures. See https://travel.state.gov/content/travel/en/usvisas/immigrate/follow-to-join-refugeesand-asylees.html; http://www.uscis.gov/i-730 (Special Instructions: “New security measures for following-to-join refugees”). Plaintiffs are thus wrong to assert (Doe Opp. 9) that there is no evidence that the government has resumed processing of FTJ refugee applications following the implementation of new screening procedures. Plaintiffs’ bare assertions of uncertainty or disbelief are insufficient to overcome those clear public statements of official (and judicially noticeable) government policy.
7

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4. The specific and limited policies challenged here are not capable of repetition yet evading review. That exception to the mootness doctrine applies only where there is a reasonable expectation that a plaintiff will “be subject to the same action again.” Kingdomware Technologies, Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). Plaintiffs here will not be subject to either the brief de-prioritization pending a specific threat analysis of certain individuals from SAO countries or the temporary suspension of FTJ refugee processing and admission pending implementation of specific security procedures described in the Agency Memo. Those policies cannot occur in the future because the actions on which they were predicated have taken place and come to an end. The review of SAO countries has been completed, and the security mechanisms have been implemented; there is no plausible basis to believe (and plaintiffs do not assert) that they could be repeated.
Plaintiffs assert that a policy similar to the FTJ suspension could conceivably be adopted in the future. Doe Opp. 14. But bare speculation about possible recurrence is not sufficient to overcome mootness. See, e.g., Foster v. Carson, 347 F.3d 742, 748749 (9th Cir. 2003) (“the speculative contingencies present here do not provide us with a basis to pass on Plaintiffs’ significant constitutional challenge to the now-expired [policy]”). And unlike the case plaintiffs cite for the proposition that a slight modification to a challenged policy may not result in mootness, no such policy has been
8

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adopted here. See Associated Gen. Contractors v. California Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013), cited in Doe Opp. 14.
Nor does the natural and intended end of temporary policies by their own terms constitute voluntary cessation warranting an exception to mootness or to the Munsingwear doctrine, as the Supreme Court has repeatedly and recently recognized. See Trump v. Hawaii, 138 S. Ct. 377 (Mem.), No. 16-1540 (Oct. 24, 2017); Burke v. Barnes, 479 U.S. 361, 363 (1987); see also Log Cabin Republicans v. United States, 658 F.3d 1162, 1166 (9th Cir. 2011). The very policies in the Agency Memo that plaintiffs challenged identified the basis for their termination, which was well understood by the district court and the parties from the outset. Notably, the district court’s limited injunction left the government free to continue its underlying policy efforts. It does not matter whether a challenged policy is time-limited (like the SAO de-prioritization) or set to end when another event takes place (like the FTJ suspension). In both cases, the termination of the policy is due to its own terms rather than to postlitigation decisions by a defendant.
5. Plaintiffs suggest that remand is necessary to resolve factual uncertainty. JFS Opp. 10-13; Doe Opp. 8-11. But there is no factual dispute relevant to mootness. The terms of the policies that plaintiffs challenged are clear from the face of the Agency Memo, as well as the limited injunction entered by the district court. The occurrence of the events that triggered the end of those policies is equally clear, based on the
9

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calendar (for SAO) and official public statements (for FTJ). And, as discussed, whether new policies have allegedly been adopted is not relevant to the mootness of the old policies, but rather to whether a new suit may be filed.
Plaintiffs point out that the government has committed to continue efforts it undertook in compliance with the injunction, taking steps to increase opportunities for refugees from SAO countries to apply for admission under USRAP. JFS Opp. 8, 1415. Those commitments were undertaken when the injunction was in place, in a goodfaith effort to ensure compliance even though the terms of the injunction did not specifically require any steps beyond an end to the temporary SAO de-prioritization and FTJ suspension imposed by the Agency Memo. See Op. 64-65 (enjoining the government only from “enforcing [specified] provisions of the Agency Memo”). Although the injunction no longer has ongoing effect, the government intends to follow through with those commitments. But those commitments do not alter the fact that the challenged provisions in the Agency Memo have expired.
Plaintiffs suggest that they doubt whether the government has complied with the injunction. JFS Opp. 12-13; Doe Opp. 8-9. They offer no support, however, for their bare speculation that the government has failed to meet its obligations. Throughout this litigation, the government has acted in good faith and kept the district court informed of its compliance efforts. In any event, if there were any question about compliance during the period when the injunction was in place, any such dispute would not alter
10

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the mootness that has occurred since then. Questions about compliance with the injunction when it was in effect have no relation to the question whether the parties’ dispute over the merits of that injunction is now moot.
Moreover, discovery is unavailable to inquire into compliance based solely on conjecture, in the absence of evidence or even any specific allegation that the government has failed to comply with the injunction. Plaintiffs cannot avoid the injunction’s mootness based on the unrelated question whether the injunction was followed while it was in effect, and especially not when they would need to engage in a fishing expedition to support their unfounded question.
There is no need for resolution of any factual issues, and this Court can and should dispose of the appeal under well-settled principles governing cases that become moot while pending on appeal. Nevertheless, the government does not oppose remand if this Court concludes that uncertainty about the scope of the injunction renders it prudent to remand for the district court to consider the mootness issue in the first instance. That legal issue does not require discovery, and it can be addressed by the parties and the district court promptly by motion.
CONCLUSION Defendants respectfully request that this Court dismiss the appeal, and vacate the district court’s judgment and remand with instructions to dismiss, on grounds of
11

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mootness. In the alternative, the Court should remand for the district court to address mootness in the first instance.
Respectfully submitted, CHAD A. READLER
Acting Assistant Attorney General HASHIM M. MOOPPAN
Deputy Assistant Attorney General /s/ H. Thomas Byron III SHARON SWINGLE H. THOMAS BYRON III
Attorneys, Appellate Staff Civil Division, Room 7529 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 616-5367
MARCH 2018
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CERTIFICATE OF COMPLIANCE I hereby certify that this reply complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-volume limitations of Fed. R. App. P. 27(d)(2)(A). This reply contains 2,722 words, excluding the parts of the reply excluded by Fed. R. App. P. 27(d)(2) and 32(f).
/s/ H. Thomas Byron III H. Thomas Byron III

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CERTIFICATE OF SERVICE I hereby certify that on March 2, 2018, I electronically filed the foregoing reply with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
/s/ H. Thomas Byron III H. Thomas Byron III

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 UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

MAR 29 2018

JOHN DOE, individually and on behalf of all other similarly situated; et al.,
Plaintiffs-Appellees,
and

No. 18-35015

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

D.C. Nos. 2:17-cv-00178-JLR 2:17-cv-01707-JLR
Western District of Washington, Seattle

JANE DOE, individually and on behalf of all other similarly situated,

ORDER

Plaintiff,

v.

DONALD J. TRUMP, President of the United States; et al.,

Defendants-Appellants.

JEWISH FAMILY SERVICE OF SEATTLE; et al.,
Plaintiffs-Appellants,
v.
DONALD J. TRUMP, President of the United States; et al.,
Defendants-Appellees.

No. 18-35026
D.C. Nos. 2:17-cv-00178-JLR 2:17-cv-01707-JLR

Before: SILVERMAN, CHRISTEN, and FRIEDLAND, Circuit Judges. The motion to dismiss these cross-appeals as moot, vacate the district court’s

AC/MOATT

judgment, and remand with instructions to dismiss the underlying claims as moot (Docket Entry No. 24) is denied without prejudice to renewing the arguments concerning mootness following their presentation to the district court. The alternate request to remand to the district court to address mootness is granted. These appeals are remanded to the district court to address mootness in the first instance.
Each party shall bear its own costs on appeal. REMANDED.

AC/MOATT

2

 
 Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 1 of 30

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10

JOHN DOES, et al.,

CASE NO. C17-0178JLR

11

Plaintiffs,

v. 12

DONALD TRUMP, et al., 13

Defendants. 14

JEWISH FAMILY SERVICES, et

15

al.,

ORDER GRANTING MOTION FOR DISCOVERY AND DENYING MOTION TO DISMISS WITHOUT PREJUDICE
(RELATING TO BOTH CASES)
CASE NO. C17-1707JLR

16

Plaintiffs,

17

v.

18

DONALD TRUMP, et al.,

Defendants. 19

20

I. INTRODUCTION

21

Before the court are two motions: (1) Consolidated Plaintiffs Jewish Family

22 Services of Seattle, Jewish Family Services of Silicon Valley, Allen Vaught, Afkab

ORDER - 1

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 2 of 30

1 Mohamed Hussein, John Does 1-3 and 7, and Jane Does 4-6’s (collectively, “JFS

2 Plaintiffs”) motion to reinstate their request for limited discovery1 (2d MFD (Dkt.

3 # 131));2 and (2) Defendants President Donald Trump, United States Department of State

4 (“DOS”), Secretary of State Mike Pompeo, United States Department of Homeland

5 Security (“DHS”), DHS Secretary Kirstjen M. Nielsen, United States Customs and

6 Border Protection (“USCBP”), Commissioner of USCBP Kevin McAleenan, Field

7 Director of the Seattle Field Office of USCBP Michele James, Office of the Director of

8 National Intelligence, Director of National Intelligence (“DNI”) Daniel Coats’s

9 (collectively, “Defendants”) motion to dismiss and dissolve the preliminary injunction as

10 moot (MTD (Dkt. # 145)).3 Plaintiffs John Doe, Episcopal Diocese of Olympia, Joseph

11 Doe, James Doe, Council on American Islamic Relations – Washington, Jack Doe, Jason

12 Doe, and Jeffrey Doe (collectively, “Doe Plaintiffs”) join JFS Plaintiffs’ motion. (See

13 5/7/18 Order (Dkt. # 141) (granting Doe Plaintiffs’ motion for joinder).) The court has

14 considered the motions, all submissions filed in support of and in opposition to both

15 //

16 1 The motion that JFS Plaintiffs seek to reinstate is Plaintiffs’ cross-motion for limited
17 expedited discovery on compliance with the preliminary injunction. (See 1st MFD (Dkt. # 121).)

18

2 The court consolidated this matter with cause number C17-1707JLR. (See 11/29/17

Order (Dkt. # 61).) All references in this order to the docket are to cause number C17-0178JLR

19 unless the docket number is preceded by “17-1707.” For example, if the docket number in the

citation is“17-1707 Dkt. # 1,” then the docket reference is to cause number C17-1707JLR.

20 3 Under Federal Rule of Civil Procedure 25(d), Secretary of State Pomeo is automatically

21 substituted for former Secretary of State Rex Tillerson, DHS Secretary Nielsen is automatically substituted for Acting DHS Secretary Elaine Duke, and Commissioner McAleenan is now the

22

Commissioner of USCBP rather than the Acting Commissioner. See Fed. R. Civ. P. 25(d). The court DIRECTS the Clerk to make these substitutions and corrections on the docket.

ORDER - 2

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 3 of 30

1 motions, the relevant portions of the record, and the applicable law. Being fully advised,4

2 the court GRANTS JFS Plaintiffs and Doe Plaintiffs’ (collectively, “Plaintiffs”) motion

3 for limited discovery as more fully described herein and DENIES Defendants’ motion to

4 dismiss and dissolve the preliminary injunction as moot without prejudice to refiling, if

5 appropriate, following the conclusion of limited jurisdictional discovery.

6

II. BACKGROUND

7 A. 8

The President’s First Three Executive Orders On January 27, 2017, President Trump signed Executive Order 13769 (“EO1”),

9 which suspended for 90 days entry into the United States for nationals of seven

10 Muslim-majority countries; suspended the U.S. Refugee Admissions Program 11 (“USRAP”) for 120 days; and indefinitely barred Syrian refugees from entering the 12 United States.5 Following a nationwide preliminary injunction against EO1, see, e.g., 13 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), the President rescinded EO1 and 14 replaced it with Executive Order 13780 (“EO2”).6 EO2 suspended for another 90 days

15 the entry of nationals from six Muslim-majority countries and suspended all refugee 16 admissions for 120 days. See EO2 §§ 2(c), 6(a). The Ninth Circuit enjoined EO2 before

17

18 4 No party requests oral argument on either motion (see MTD at 1; 2d MFD at 1), and the
19 court determines that oral argument is not necessary for its disposition of the motions, see Local Rules W.D. Wash. LCR 7(b).
20 5 See Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into
21 the United States,” 82 Fed. Reg. 8,977 (Jan. 27, 2017) (“EO1”).

22

6 See Executive Order 13780, “Protecting the Nation from Foreign Terrorist Entry into the United States,” 82 Fed. Reg. 13,209 (Mar. 6, 2017) (“EO2”).

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Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 4 of 30

1 it took effect. See Hawaii v. Trump, 859 F.3d 741, 757, 760 (9th Cir. 2017) (per curiam),

2 vacated as moot, --- U.S. ---, 137 S. Ct. 377 (2017). However, the Supreme Court

3 allowed Defendants to suspend the entry into the country of immigrants from the six

4 Muslim-majority countries and to suspend USRAP, but only for immigrants and refugees

5 without a “bone fide relationship” to a person or entity in the United States. See Trump v.

6 IRAP, --- U.S. ---, 137 S. Ct. 2080, 2087-89 (2017).

7

When EO2’s 90-day ban on immigrants from six Muslim-majority countries

8 expired, President Trump issued a Proclamation (“EO3”) that, among other things,

9 indefinitely banned immigrants from seven countries—six of which are Muslim-majority

10 countries.7 On June 26, 2018, the Supreme Court held that President Trump permissibly

11 exercised his “broad discretion” under 8 U.S.C. 1182(f) of the Immigration and

12 Nationality Act (“INA”) in issuing EO3. See Trump v. Hawaii, --- U.S. ---, 138 S. Ct.

13 2392, 2407-10 (2018).

14 B. 15

The Fourth Executive Order & the Agency Memo In the meantime, on October 24, 2017, EO2’s 120-day suspension of refugee

16 admissions expired. (See PI Order (Dkt. # 92) at 8.) On the same day, President Trump

17 issued Executive Order 13815 (“EO4”), entitled “Resuming the United States Refugee 18 Admissions Program with Enhanced Vetting Capabilities.”8 Although EO4’s title

19

20

7 See Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting

Attempted Entry into the United States by Terrorists or Other Public-Safety Threats,” 82 Fed.

21 Reg. 45,161 (Sept. 24, 2017).

22

8 See Executive Order 13815, “Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities,” 82 Fed. Reg. 50,055 (Oct. 24, 2017).

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Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 5 of 30

1 indicates that refugee admissions have resumed, the accompanying memorandum—

2 known as the “Agency Memo”—imposed another ban on certain categories of refugees.

3 (See Lin Decl. (Dkt. # 46) ¶ 3, Ex. B (attaching a copy of the Agency Memo).)9 The

4 Agency Memo was dated one day before EO4, but was also released on October 24,

5 2017. (See id.)

6

First, the Agency Memo suspended indefinitely “following-to-join” (“FTJ”)

7 derivative refugees.10 Every year, approximately 2,500 refugees in the United States are

8 able to reunite with their immediate family members through the FTJ process. (Agency

9 Memo at 2 n.1.) The Agency Memo states that most FTJ refugee applicants do not

10 currently undergo the same security procedures as the principal refugee who has already

11 resettled in the United States. (Id. at 2-3.) The Secretaries of DOS and DHS and the DNI

12 determined that FTJ refugees should not be admitted to the United States until additional

13 screening procedures were in place. (Id. at 3.)

14

15

16

9An addendum attached to the Agency Memo, entitled “Addendum to Section 6(a) 17 Memorandum,” refers to the review of USRAP directed by Section 6(a) of EO2. (See Burman

Decl. (17-1707 Dkt. # 43) ¶ 3, Ex. B (attaching “Agency Memo Addendum”).)

18

10 Under the INA, subject to numerical limits that the President sets annually, the

19 Secretary of DHS may admit “any refugee who is not firmly resettled in any foreign country, is

determined to be of special humanitarian concern to the United States, and is admissible (except

20 as otherwise provided under ([8 U.S.C. § 1157(c)(3)]) as an immigrant.” 8 U.S.C. § 1157(c)(1). Refugees admitted under this provision are “principal refugees.” See 8 C.F.R. § 207.7(a).

21 “Derivative refugees” are the spouses and unmarried minor children of an admitted principal refugee. See id. When derivative refugees travel to join a principal refugee more than four

22

months after the principal refugee’s admission, they are FTJ derivative refugees, rather than “accompanying” derivative refugees. See id.

ORDER - 5

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 6 of 30

1

Second, the Agency Memo suspended for at least 90-days the entry of refugees

2 who are “nationals of, and stateless persons who last habitually resided in, 11 particular

3 countries previously identified as posing a higher risk to the United States through their

4 designation on the Security Advisory Opinion (SAO) list.” (Id. at 2-3; see also Agency

5 Memo Addendum at 1.) The Agency Memo does not identify the countries designated

6 on the SAO list, but they are believed to be Egypt, Iran, Iraq, Libya, Mali, North Korea,

7 Somalia, South Sudan, Sudan, Syria, and Yemen. (See PI Order at 10-11 n.6; 11/16/17

8 Smith Decl. (17-1707 Dkt. # 44) ¶ 3.) The Agency Memo required DOS and DHS to

9 “conduct a review and analysis” of USRAP for refugees from SAO countries for an

10 additional 90 days—notwithstanding the agencies’ previous review of USRAP pursuant

11 to EO1 and EO2. (See id.) In addition, the Agency Memo diverted resources dedicated

12 to processing refugees who are citizens of (or stateless persons who last resided in) SAO

13 countries and reallocated those resources to processing refugee applicants from non-SAO

14 countries. (Id.) Although the review was to last for 90 days, Defendants conceded in

15 oral argument that the Agency Memo does not direct the government to resume

16 processing and admitting SAO refuges after the 90-day review is complete. (See Tr. of

17 12/21/17 Hr’g (Dkt. # 113) at 38:1-5 (“I mean, perhaps the government will conclude at

18 the end of the 90 days that refugee admissions may resume in March, or perhaps the

19 //

20 //

21 //

22 //

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Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 7 of 30

1 government will decide that further security measures are needed for certain countries.

2 We just don’t know.”).)11

3 C. 4

The Preliminary Injunction JFS Plaintiffs filed suit and Doe Plaintiffs amended their complaint to challenge

5 the Agency Memo’s suspension of FTJ and SAO refugee admissions (see TAC (Dkt.

6 # 42); Compl. (17-1707 Dkt. # 1)); and Plaintiffs moved for a preliminary injunction

7 blocking those provisions of the Agency Memo (see Doe PI Mot. (Dkt. # 45); JFS PI

8 Mot. (17-1707 Dkt. # 42)). On November 29, 2017, the court consolidated the two

9 actions. (See 11/29/17 Order.) On December 23, 2017, the court granted both JFS

10 Plaintiffs’ and Doe Plaintiffs’ motions and enjoined Defendants from enforcing (1)

11 “those provisions of the Agency Memo that suspend the processing of FTJ refugee

12 applications or suspend the admission of FTJ refugees into the United States,” and (2)

13 “those provisions . . . that suspend or inhibit, including through the diversion of

14 resources, the processing of applications or the admission into the United States of

15 refugees from SAO countries.” (PI Order at 64-65.) The court, however, limited its

16 preliminary injunction to refugees “with a bona fide relationship to a person or entity

17 within the United States.” (Id. at 65.)

18

19 11 In response to Plaintiffs citing this portion of the record, Defendants contend that they

20 “have never suggested that there was any suspension apart from the 90-day SAO de[-]prioritization that the [c]ourt enjoined.” (Def. MTD Reply (Dkt. # 150) at 9 n.3.) This

21 statement misses the mark. The salient point is not whether the suspension was initially linked to the 90-day review, but rather whether there is any direction in the Agency Memo to resume

22

processing and admitting SAO refugees at the end of the 90-day review. Defendants’ admission confirms that there was not.

ORDER - 7

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 8 of 30

1

Within a few days, Defendants moved for an “emergency” stay of the injunction

2 pending appeal. (MFS (Dkt. # 95).) In that motion, Defendants narrowly interpreted the

3 court’s injunction. (See id. at 4-6.) Defendants asserted that they were not required to

4 undo any actions taken or decisions made prior to December 23, 2017, to implement the

5 SAO or FTJ suspensions. See id. On January 9, 2018, the court denied Defendants’

6 motion (1/9/18 Order (Dkt. # 106) at 7-16) and rejected their cramped interpretation of

7 the court’s preliminary injunction (id. at 5-7). The court admonished Defendants for

8 attempting “to unilaterally modify the preliminary injunction” and ordered them to

9 “restore the status quo prior to the issuance of the Agency Memo with respect to the

10 processing of applications from FTJ refugees and refugees from SAO countries.” (Id. at

11 5-6.) On January 4, 2018, Defendants filed a notice of appeal concerning the court’s

12 preliminary injunction. (NOA (Dkt. # 99).)

13 D. Defendants’ Notices of Compliance with the Preliminary Injunction

14

On January 19, 2018, Defendants filed a notice of compliance with the court’s

15 preliminary injunction. (See 1/19/18 Notice (Dkt. # 114).) The notice described certain

16 steps Defendants had taken in response to the court’s orders. (See generally id.) The

17 notice referenced guidance that Defendants had sent to DOS and USCIS personnel in late

18 December 2017 and early January 2018 “directing their personnel to comply with the 19 injunction.” (Id. at 2-3.) However, Defendants have not produced copies of the guidance 20 they sent (see JFS MTD Resp. (Dkt. # 146) at 4), and Defendants sent all of the guidance 21 referenced in their January 19, 2018, notice prior to the court’s January 9, 2018, order, in 22 which the court rejected Defendants’ narrow interpretation of the preliminary

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Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 9 of 30

1 injunction.12 (See id.; see also 1/9/18 Order at 5-6). Finally, the notice described

2 Defendants’ efforts to comply with the preliminary injunction in the scheduling of

3 “circuit rides” through which USCIS officers travel to locations worldwide to interview

4 refugee applicants.13 (1/19/18 Notice at 3-5.)

5

On January 31, 2018, Defendants filed a second notice announcing that they had

6 completed the 90-day SAO refugee review on January 22, 2018, and they expected to

7 finish implementing the additional procedures for FTJ refugees referenced in the Agency

8 Memo on or about February 1, 2018. (See 1/31/18 Notice (Dkt. #119) at 1-2.) In the

9 notice, Defendants stated that they “do not understand the preliminary injunction . . . to

10 prohibit [them] from implementing these enhancements and recommendations.” (Id. at

11 1.) Defendants also asserted that as a result of these two events—the completion of the

12 SAO refugee review and the near-completion of enhanced procedures for FTJ refugee

13 //

14

15

12 The guidance Defendants sent included: (1) guidance issued on December 23, 2017,

16

by the Bureau of Consular Affairs to consular posts overseas (1/19/18 Gauger Decl. (Dkt. # 114-1) ¶ 3); (2) guidance issued on December 24, 2017, by the Office of Admissions at the

Bureau of Population, Refugees, and Migration (“PRM”) to implementing partners at 17 Resettlement Support Centers (“RSCs”) overseas (id. ¶ 2); (3) instructions issued on December

24, 2017, by the Refugee, Asylum and International Operations (“RAIO”) Directorate at USCIS

18 to RAIO officers ordering them to release all FTJ cases previously on hold and process those

cases under procedures in effect prior to the Agency Memo (1/19/18 Higgins Decl. (Dkt.

19 # 114-2) ¶ 2); and (4) a January 4, 2018, DOS cable with guidance on FTJ refugees sent to all

diplomatic and consular posts (1/19/18 Gauger Decl. ¶ 3).

20 13 The efforts related to circuit rides included: (1) an inquiry on December 26, 2017,

21 from the Office of Admissions at PRM to the RSCs, which led to additional interviews of SAO nationals during second-quarter circuit rides (1/19/18 Higgins Decl. ¶ 5; 1/19/18 Gauger Decl. ¶

22

5); and (2) plans to add locations to third-quarter circuit rides where large SAO populations are ready for interviews (1/19/18 Gauger Decl. ¶ 7; 1/19/18 Higgins Decl. ¶ 7).

ORDER - 9

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 10 of 30

1 processing—Plaintiffs’ claims concerning the Agency Memo would “soon be moot.” (Id.

2 at 2.)

3 E. Secretary Nielsen’s Memorandum

4

On or about January 29, 2018, DHS Secretary Nielsen issued a memorandum (“the

5 Nielsen Memo”) announcing three “determinations” she had made based on the DHS’s

6 SAO review as ordered by the Agency Memo. (See MTD, Ex. 2 (Dkt. # 145-2) (“Nielsen

7 Memo”) at 2-3.) She determined that (1) “[a]dditional screening and vetting” are

8 required for “certain nationals of high-risk countries”; (2) the USRAP “should continue

9 to be administered in a risk-based manner”; and (3) the “SAO list and selection criteria

10 should be reviewed and updated.” (Id.) The Nielsen Memo also stated that “[t]he 90-day

11 review of SAO countries, as provided in the . . . [Agency Memo], is no longer in effect

12 by its terms, and the prioritization set forth in the Memorandum is not hereby renewed.”

13 (Id. at 4.)

14

Defendants produced a redacted copy of the Nielsen Memo to Plaintiffs on

15 February 8, 2018. (Keaney Decl. (Dkt. # 122) ¶¶ 3-4, Exs. B-C.) Plaintiffs requested

16 that Defendants reconsider the redaction, and if they refused, to state the basis for the

17 redaction. (Id. ¶ 5, Ex. D.) On February 13, 2018, Defendants refused to reconsider the

18 redaction and asserted that the redaction was based on the law enforcement privilege. 19 (Id. ¶ 6, Ex. E.) 20 // 21 // 22 //

ORDER - 10

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 11 of 30

1 F. Plaintiffs’ Evidence of Non-Compliance with the Preliminary Injunction

2

1. Communications from the DOS

3

Plaintiffs submit email communications from DOS that they contend contradict

4 Defendants’ assertions of compliance with the preliminary injunction. (See Doe MTD

5 Resp. (Dkt. # 147) at 10-11.) First, on January 8, 2018, Congresswoman Pramila

6 Jayapal’s Manager for Constituent Services sent an email to PRM on behalf of a

7 constituent to inquire about the refugee petitions of the constituent’s mother and six

8 siblings. (5/4/18 Mohamed Decl. (Dkt. # 139) ¶ 3.) On January 12, 2018, the DOS

9 Congressional Liaison responded that the case had been “conditionally approved for

10 refugee resettlement by DHS/USCIS in Nov[ember] 2015,” but was now “on temporary

11 hold following the issuance of an Executive Order on October 24, 2017[,] that directed

12 [DOS] and DHS to review the refugee processing procedures for nationals of 11

13 countries, which includes this case.” (Id. ¶ 4, Ex. A.)

14

Second, on April 4, 2018, the same DOS Congressional Liaison14 wrote to a staff

15 member of Congressman Mark Vessey’s office that the refugee about whom the staff

16 member had inquired had been fully approved in September 2017. (5/3/18 Doe 1 Decl. 17 (Dkt. # 132) ¶ 3, Ex. A.)15 However, the Liaison continued that “USRAP was unable to

18 complete final processing of the case prior to the Oct[ober] 24, 2017[,] Executive Order

19

20 14 Defendants represent that the same DOS employee authored both the January 12, 2018,
21 and April 4, 2018, emails. (Def. 2d MFD Resp. (Dkt. # 142) at 4.)

22

15 Mr. Doe 1’s declaration contains two paragraphs numbered “3.” (See 5/3/18 Doe 1 Decl. at 2.) The paragraph number three referenced above is the second such paragraph.

ORDER - 11

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 12 of 30

1 directing the temporary suspension of the movement of nationals from eleven countries,

2 including Iraq, until a further review of the procedures for processing these cases was

3 completed.” (Id.) The Liaison also stated that the “suspension ended on Jan[uary] 22,

4 2018” (id.), which is the same day Defendants state in their January 31, 2018, notice to

5 the court that they completed the 90-day SAO refugee review (see 1/31/18 Notice at 1-2).

6

Those DOS communications to two different Congressional offices make no

7 reference to the preliminary injunction or any implementation thereof. (See id.; 5/4/18

8 Mohamed Decl. ¶ 4, Ex. A.) In response, Defendants submit the declaration of Kelly A.

9 Gauger, the Acting Director of the Admissions Office of PRM of DOS. (See 5/14/18

10 Gauger Decl. (Dkt. # 142-1).) She reiterates that “the requirements of the December 23,

11 2017, [preliminary] injunction . . . were immediately sent to PRM’s implementing

12 partners at the [RSCs] overseas so that the RSCs could resume processing . . . applicants

13 within the scope of the injunction at the start of the next business day.” (Id. ¶ 5.) She

14 also states that the representations in the DOS Congressional Liaison’s emails “are

15 incorrect and the result of inadvertent error.” (Id. ¶ 6.) Defendants do not, however,

16 submit a declaration from the DOS Congressional Liaison himself explaining the content

17 of his emails, his sources, or his methods of inquiry. (See generally Dkt.)

18

2. Statistical Evidence

19

JFS Plaintiffs also submit statistical evidence indicating a precipitous drop in

20 refugee admissions during 2018 despite the court’s preliminary injunction and order

21 requiring Defendants to “restore the status quo prior to the issuance of the Agency Memo

22 with respect to the processing of applications from FTJ refugees and refugees from SAO

ORDER - 12

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 13 of 30

1 countries.” (See 1/19/18 Order at 5; see generally PI Order.) For example, in the first

2 four months following the preliminary injunction, the admission of refugees from SAO

3 countries remained at a standstill. Although in fiscal years 2016 and 2017 refugees from

4 SAO countries comprised 43.5 percent of the refugee admissions under the USRAP (see

5 1/29/18 Smith Decl. (Dkt. # 118) ¶ 5), between October 1, 2017, and April 1, 2018, only

6 4.2 percent of the total refugees admitted under the USRAP were from SAO countries

7 (see 5/3/18 Smith Decl. (Dkt. # 133) ¶ 4). Further, between December 23, 2017—the

8 date of the preliminary injunction—and April 1, 2018, the percentage of refugees from

9 SAO countries dropped even further. (See id. ¶ 5). Following the court’s preliminary

10 injunction, the percentage of SAO nationals dropped to just 2.7 percent of all refugee

11 admissions.16 (See id.)

12

Defendants do not dispute these statistics but rather attribute them to (1) the

13 effects of the Agency Memo prior to the preliminary injunction and (2) the government’s

14 enhanced screening and vetting protocols implemented as a result of the 120-day review

15 authorized by EO2 and the 90-day review authorized by the Agency Memo. (See

16 generally Def. 2d MFD Resp. at 5-6.)

17

3. Defendants’ Record of Compliance with Prior Preliminary Injunctions

18

JFS Plaintiffs also point to the government’s record of compliance with other

19 preliminary injunctions issued in response to EO1. (See JFS MTD Resp. (Dkt. # 146) at

20 //

21

22

16 Doe Plaintiffs represent that there is no publicly available data on FTJ refugee admissions. (Doe MTD Resp. (Dkt. # 147) at 12.)

ORDER - 13

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 14 of 30

1 12 n.9.) On January 18, 2018, the Office of the Inspector General (“OIG”) of DHS

2 issued a report regarding DHS’s implementation of EO1 and CPB’s response to various

3 court orders enjoining the implementation of EO1. See Office of the Inspector Gen.,

4 Dep’t of Homeland Sec., DHS Implementation of Executive Order # 13769 (Jan. 18,

5 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-01/OIG-18-37-Jan18.pdf.

6 The report “highlights” its findings as follows:

7

Regarding [CBP’s] compliance with multiple federal court orders that were

issued between the January 27, 2017 release of [EO1] and the February 3,

8

2017 nation-wide injunction in Washington v. Trump, we found that at the

ports of entry, CBP largely complied with court orders, albeit with some

9

delay and confusion as to the scope of some orders. But while CBP complied

with court orders at U.S. ports of entry as to travelers who had already

10

arrived, CBP was aggressive in preventing affected travelers from boarding

aircraft bound for the United States. We believe those actions violated two

11

separate court orders that enjoined CBP from this activity.

12 Id.

13

Defendants do not dispute the contents of the OIG’s report, but instead argue that

14 they are entitled to a presumption that they have discharged their duties properly. (See

15 Def. MTD Reply at 7 n.2.) Defendants also highlight that the OIG “did not substantiate

16 any claims of misconduct on the part of CPB Officers . . . at the ports of entry,” and that

17 “at the port of entry, CPB largely complied with court orders, albeit with some delay and

18 confusion as to the scope of some orders.” (See id.)

19 G. Remand from the Ninth Circuit

20

On February 6, 2018, following the completion of the 90-day SAO refugee review

21 on January 22, 2018, and the implementation of additional procedures for FTJ refugees

22 on or about February 1, 2018 (see 1/31/18 Notice at 1-2), Defendants moved to dismiss

ORDER - 14

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 15 of 30

1 as moot their appeal (and Plaintiffs’ cross-appeal) in the Ninth Circuit. See Doe v.

2 Trump, No. 18-35026 (9th Cir.), Dkt. # 24 at 2. On March 29, 2018, the Ninth Circuit

3 denied Defendants’ motion to dismiss and instead granted Plaintiffs’ request to remand

4 the consolidated case so that this court could address the issue of mootness in the first

5 instance. (3/29/18 9th Cir. Ord. (Dkt. # 126); 9th Cir. Mandate (Dkt. # 144).)

6

While their appeal was pending, Defendants filed a motion to stay the proceedings

7 here. (See MTS (Dkt. # 110).) Plaintiffs responded with a motion seeking limited

8 discovery on Defendants’ compliance with the preliminary injunction. (See 1st MFD.)

9 In response to the Ninth Circuit’s remand order, the court indicated that it was likely to

10 deny as moot Defendants’ motion to stay and removed both that motion and Plaintiffs’

11 motion for limited discovery from the court’s calendar. (4/10/18 Order (Dkt. # 128) at 2.)

12 The court also ordered the parties to file a joint status report proposing how the court

13 should proceed on remand to address the issue of mootness. (Id. at 3.) In accordance

14 with their joint status report (JSR (Dkt # 129)), JFS Plaintiffs filed their present motion to

15 reinstate their request for limited discovery on compliance (see 2d MFD), in which Doe

16 Plaintiffs joined (see 5/7/18 Order), and Defendants filed their motion to dismiss based

17 on mootness (see MTD). The court now considers both motions.

18

III. ANALYSIS

19 A. Legal Standard

20

A party may move to dismiss an action for lack of subject matter jurisdiction.

21 Fed. R. Civ. P. 12(b)(1). A federal court does not have jurisdiction “to give opinions

22 upon moot questions or abstract propositions, or to declare principles or rules of law

ORDER - 15

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 16 of 30

1 which cannot affect the matter in issue in the case before it.” Church of Scientology of

2 Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653

3 (1895)). Thus, mootness deprives federal courts of subject matter jurisdiction because

4 federal courts are empowered to hear only cases and controversies. U.S. Const. art. III

5 § 2; DeFunis v. Odegaard, 416 U.S. 312, 316 (1974).

6

“A claim is moot if it has lost its character as a present, live controversy.”

7 Rosemere Neighborhood Ass’n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169, 1172-73 (9th

8 Cir. 2009) (quoting Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th

9 Cir. 1997)). To determine mootness, “the question is not whether the precise relief

10 sought at the time the application for an injunction was filed is still available. The

11 question is whether there can be any effective relief.” NW Envtl. Def. Ctr. v. Gordon,

12 849 F.2d 1241, 1244-45 (9th Cir. 1988) (quoting Garcia v. Lawn, 805 F.2d 1400, 1403

13 (9th Cir. 1986)). If a course of action is mostly completed but “changes can still be made

14 to help alleviate any adverse effects,” the case is not moot. Tyler v. Cuomo, 236 F.3d

15 1124, 1137 (9th Cir. 2000). A case becomes moot “only when it is impossible for a court

16 to grant any effectual relief whatever to the prevailing party.” Chafin v. Chafin, 133 S.Ct.

17 1017, 1023 (2013) (citation omitted). The party alleging mootness bears a “heavy”

18 burden to establish that the court can provide no effective relief. See Karuk Tribe of Cal.

19 v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (quoting Forest Guardians v.

20 Johanns, 450 F.3d 455, 461 (9th Cir. 2006)).

21

When a party requests discovery to respond to a motion to dismiss on

22 jurisdictional grounds, the court ordinarily should grant discovery “where pertinent facts

ORDER - 16

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 17 of 30

1 bearing on the question of jurisdiction are controverted or where a more satisfactory

2 showing of the facts is necessary.” Laub v. U.S. Dep’t of the Interior, 342 F.3d 1080,

3 1093 (9th Cir. 2003) (quoting Butcher’s Union Local No. 498 v. SDC Inv., Inc., 788 F.2d

4 535, 540 (9th Cir. 1986)) (discussing discovery in the context of standing). On the other

5 hand, “a refusal to grant discovery to establish jurisdiction is not an abuse of discretion

6 when ‘it is clear that further discovery would not demonstrate facts sufficient to

7 constitute a basis for jurisdiction.’” Id. (quoting Wells Fargo & Co. v. Wells Fargo

8 Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977)).

9

“It is well-established that ‘[t]he burden is on the party seeking to conduct

10 additional discovery to put forth sufficient facts to show that the evidence sought exists.”

11 Gager v. United States, 149 F.3d 918, 922 (9th Cir. 1998) (quoting Conkle v. Jeong, 73

12 F.3d 909, 914 (9th Cir. 1995)). However, a plaintiff seeking jurisdictional discovery

13 need not “first make a prima facie showing that jurisdiction actually exists.’” Hall v.

14 United States, No. 16-CV-02395-BAS-RBB, 2017 WL 3252240, at *4 (S.D. Cal. July 31,

15 2017) (quoting NuboNau, Inc. v. NB Labs, Ltd., No. 10-cv-2631-LAB-BGS, 2011 WL

16 5237566, at *3 (S.D. Cal. Oct. 31, 2011)). “Such a showing is necessary to survive a

17 motion to dismiss, and ‘[i]t would . . . be counter intuitive to require a plaintiff, prior to

18 conducting discovery, to meet the same burden that would be required in order to defeat a

19 motion to dismiss.’” NuboNau, Inc., 2011 WL 5237566, at *3 (quoting Orchid

20 Biosciences, Inc. v. St. Louis Univ., 198 F.R.D. 670, 673 (S.D. Cal. 2001)).

21 //

22 //

ORDER - 17

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 18 of 30

1 B. Preliminary Motion to Strike

2

Although Defendants do not agree that limited discovery is warranted, Defendants

3 did not object to Plaintiffs moving to reinstate their prior motion for discovery. (See JSR

4 at 1-2; see also Def. 2d MFD Resp. at 1, 3.) However, Defendants object that Plaintiffs

5 seek “far more than . . . reinstatement,” and improperly “attempt to supplement a

6 fully-briefed motion without leave of court.” (Def. 2d MFD Resp. at 1; see also id. at 3-

7 4.) Defendants ask the court to strike Plaintiffs’ motion for this reason. (Id. at 1 (“The

8 [c]ourt should strike JFS Plaintiffs’ anomalous filing on procedural grounds.”).)

9

The court declines to strike Plaintiffs’ motion. “Motions to strike are disfavored

10 and ‘should not be granted unless it is clear that the matter to be stricken could have no

11 possible bearing on the subject matter of the litigation.’” Harper v. Collection Bureau of

12 Walla Walla, Inc., No. C06-1605-JCC, 2007 WL 4287293, at *3 (W.D. Wash. Dec. 4,

13 2007) (quoting Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal.

14 1991)). In their motion, Plaintiffs bring to the court’s attention evidence that came to

15 light only after Plaintiffs filed the underlying discovery motion. (See 2d MFD at 3-4

16 (discussing a recently discovered email from DOS Congressional Liaison and statistical

17 evidence from the first half of 2018).) As discussed below, that evidence is relevant to

18 the issues before the court. See infra § III.C. Further, Defendants suffer no prejudice

19 because they have had a full opportunity to respond to the new material in Plaintiffs’

20 motion. (See generally Def. 2d MFD Resp.); Liberty Mut. Fire Ins. Co. v. City of Seattle,

21 No. C15-1039-JCC, 2016 WL 5792691, at *1 n.1, 2 n.2 (W.D. Wash. Oct. 4, 2016)

22 (denying the plaintiff’s request to strike an argument and “new evidence” on grounds that

ORDER - 18

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 19 of 30

1 there was no prejudice to the plaintiffs in considering either the evidence or the

2 argument). Accordingly, the court denies Defendants’ request to strike Plaintiffs’

3 motion.17

4 C. The Parties’ Motions

5

Defendants argue that the Agency Memo provisions at issue expired while the

6 cross-appeals of the court’s preliminary injunction were pending. (MTD at 1-2.)

7 Accordingly, they argue that the court should dissolve the preliminary injunction and 8 dismiss as moot Plaintiffs’ underlying claims concerning the Agency Memo. (Id.)

9 Specifically, Defendants argue that both the 90-day SAO review and the period to

10 implement additional screening procedures for FTJ refugee applicants are over. (Id. at 4.) 11 They also argue that the “temporary guidance that was the subject of the injunction has

12 been superseded by [the Nielsen Memo].” (Id.)

13

With regard to the SAO provisions, Defendants assert that the Agency Memo

14 “makes plain” that the suspension18 of SAO refugee applications was only to occur

15

16

17 Doe Plaintiffs also move to strike Defendants’ argument that President Trump should

be dismissed as a named defendant. (See Doe Surreply (Dkt. # 152); Def. MTD Reply at 16-17.) 17 However, as discussed below, the court declines to reach the substance of Defendants’ motion to

dismiss until after Plaintiffs conduct limited discovery, see infra § III.C, and therefore, the court

18 need not resolve Doe Plaintiffs’ motion to strike.

19

18 The parties dispute whether the Agency Memo results in a “suspension” or a

“de-prioritization” of SAO refugee admissions. (Compare JFS MTD Resp. (Dkt. # 146) at 2

20 (describing the Agency Memo’s effect on SAO refugee admissions as a “de-prioritization”), with MTD at 1 (“The Agency Memo . . . directs a process that results in a suspension of the

21 processing and admission of SAO refugees.”).) The Agency Memo states that during DOS and DHS’s “detailed threat analysis and review” for nationals from SAO countries, the agencies “will

22

temporarily prioritize refugee applications from other non-SAO countries” and will “take resources that may have been dedicated to processing [SAO refugees] and . . . will reallocate

ORDER - 19

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 20 of 30

1 during the SAO review period. (Id. at 9.) The 90-day review period expired on January

2 22, 2018—exactly 90 days following the Agency Memo’s October 23, 2017, issuing date.

3 (Id.) One week later, DHS Secretary Nielsen issued a memorandum to USCIS setting

4 forth her determinations following the 90-day SAO review, which included “certain

5 screening and vetting enhancements” that USCIS would implement. (See Nielsen Memo

6 at 2-3.) She also stated that “the prioritization set forth in the [Agency Memo] is not

7 hereby renewed.” (Id. at 3.) Thus, Defendants assert that the passage of the 90-review

8 period, along with the Nielsen Memo, moots JFS Plaintiffs’ claims concerning the

9 Agency Memo. (MTD at 9.)

10

Defendants also assert that the FTJ implementation period concluded on February

11 1, 2018. (Id. at 10.) On that day, “USCIS and [DOS] implemented new procedures to

12 ensure that all individuals admitted as refugees receive similar, thorough vetting—

13 whether they are principal refugees, accompanying family members, or [FTJ] refugees.”

14 (Id. (quoting I-730, Refugee/Asylee Relative Petition, U.S. Citizenship & Immigration

15 Serv., https://www.uscis.gov/i-730 (last updated June 18, 2018)); see also 5/14/18

16 Higgins Decl. (Dkt. # 142-2) ¶ 8).) Defendants argue that with the enhanced screening

17 mechanisms in place, the processing of FTJ refugee applications and admissions would

18

19

them to process applicants from non-SAO countries.” (Agency Memo at 2.) Further, “[w]hile

20 the review is underway,” the DHS Secretary “will admit on a case-by-case basis only [SAO] refugees whose admission is deemed to be in the national interest and poses no threat to the

21 security or welfare of the United States.” (Id.) Whether this action is called a “de-prioritization” or a “suspension” of SAO refugee admissions, the result was the same—a precipitous fall in the

22

number of SAO refugee admissions following the Agency Memo’s implementation. See supra § II.F.2.

ORDER - 20

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 21 of 30

1 have resumed by February 1, 2018, even without the court’s preliminary injunction. (Id.)

2 Defendants argue that the Agency Memo expressly states that the government “will

3 resume admission of [FTJ] refugees once those enhancements have been implemented,”

4 and accordingly, Doe Plaintiffs’ claims are now moot. (Id. at 11 (quoting Agency Memo

5 at 3).)

6

JFS and Doe Plaintiffs respond that Defendants fail to carry their burden of

7 establishing mootness. (JFS MTD Resp. at 7-13; Doe MTD Resp. (Dkt. # 147) at 7-14.)

8 Plaintiffs also argue that their claims fall within two well-established exceptions to the

9 mootness doctrine: (1) voluntary cessation;19 and (2) capable of repetition yet evading

10 review.20 (JFS MTD Resp. at 13-17; Doe MTD Resp. at 14-22.) Finally, both sets of

11 //

12

13

19 Under the voluntary cessation exception to mootness, a case is not moot if a challenged

policy is “abandoned voluntarily and might reasonably recur.” United States v. Brandau, 578

14 F.3d 1064, 1068 (9th Cir. 2009); see also Knox v. Serv. Emps. Int’l Union Local 1000, 567 U.S. 298, 307 (2012) (“The voluntary cessation of challenged conduct does not ordinarily render a

15 case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.”). The case may nevertheless be moot, however, if the

16

record shows (1) “with assurance that there is no reasonable expectation” that the alleged violation can recur, and (2) “interim relief or events have completely and irrevocably eradicated

the effects of the alleged violation.” Brandau, 578 F.3d at 1068 (quoting Smith v. Univ. of 17 Wash., Law Sch., 233 F.3d 1188, 1194 (9th Cir. 2000)). “The ‘heavy burden of persuading’ the

court that the challenged conduct cannot reasonably be expected to start up again lies with the

18 party asserting mootness.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528

U.S. 167 (2000) (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199,

19 203 (1968) (alterations omitted)).

20

20 This exception to mootness “applies where ‘(1) the challenged action is in its duration

too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable

21 expectation that the same complaining party will be subject to the same action again.” Fed. Election Comm’n v. Wis. Right To Life, Inc., 551 U.S. 449, 462 (2007) (quoting Spencer v.

22 Kemna, 523 U.S. 1, 17 (1998) (internal quotation marks and brackets omitted)).

ORDER - 21

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 22 of 30

1 Plaintiffs also argue in their responses and in their discovery motion that they are entitled

2 to jurisdictional discovery prior to court considering Defendants’ mootness argument.

3 (JFS MTD Resp. at 17-18; Doe MTD Resp. at 22; see generally 2d MFD.)

4

The court addresses the last issue—Plaintiffs’ demand for jurisdictional

5 discovery—first. The court does so because if such discovery is warranted, the court

6 should defer considering the substance of Defendants’ motion and Plaintiffs’ responses

7 thereto until such time as that discovery is complete.21 Plaintiffs assert that evidence they

8 have uncovered so far “raise[s] serious concerns about Defendants’ compliance with th[e]

9 [c]ourt’s injunction.” (2d MFD at 2-3.) This evidence includes two emails from a DOS

10 Congressional Liaison indicating that the refugee applications, about which two separate

11 Congressional offices had inquired, although “approved,” had not been processed due to

12 the suspensions directed by the Agency Memo. (See 5/4/18 Mohamed Decl. ¶¶ 3-4, Ex.

13 A; 5/3/18 Doe 1 Decl. ¶ 3, Ex. A); see supra § II.F.1. Neither email, sent in January and

14 April, 2018, respectively, refers to the court’s preliminary injunction barring enforcement

15 of these provisions of the Agency Memo. (See id.) Although the DOS Congressional

16 Liaison had been informed about the October 24, 2017, Agency Memo, he was

17 apparently not informed about the December 23, 2017, preliminary injunction. In

18

19 21 Defendants argue that “[a]ny consideration of discovery should . . . be deferred until

20 after this [c]ourt adjudicates whether this case is moot and whether the [c]ourt has jurisdiction. (Def. 2d MFD Resp. at 2.) Defendants’ assertion places the proverbial cart before the horse. If

21 Defendants were correct, jurisdictional discovery would never be warranted. The Ninth Circuit’s decision in Laub forestalls that conclusion. See 342 F.3d at 1093 (ruling that a district court

22

should ordinarily grant discovery where relevant jurisdictional facts “are controverted or where a more satisfactory showing of the facts is necessary.”).

ORDER - 22

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 23 of 30

1 response, the Acting Director of the Admissions Office of PRM of the DOS attests that

2 the requirements of the December 23, 2017, preliminary injunction were sent promptly to

3 PRM’s implementing partners. (5/4/18 Gauger Decl. ¶ 5.) However, at a minimum, the

4 emails from the DOS Congressional Liaison raise concerns about the scope and

5 effectiveness of that communication.

6

Further, although the court does not impugn the testimony of the Acting Director,

7 the declaration nevertheless contains hearsay within hearsay. See United States v.

8 Pena-Gutierrez, 222 F.3d 1080, 1087-88 (9th Cir. 2000) (noting that an alien’s statement

9 to an immigration officer was hearsay-within-hearsay when the statement was contained

10 in the immigration officer’s report); see also Sana v. Hawaiian Cruises, Ltd., 181 F.3d

11 1041, 1045 (9th Cir. 1999) (stating that for hearsay-within-hearsay to be admissible,

12 “each layer of hearsay must satisfy an exception to the hearsay rule”). For example, the

13 Acting Director states that she “reviewed the emails” and “confirmed with the [DOS]

14 Congressional Liaison that these responses were not reviewed by anyone else prior to

15 being sent . . . to Congress.” (Id. ¶ 3.) She further attests that the “representations in the

16 emails . . . are incorrect and the result of an inadvertent error by the [DOS] Congressional

17 Liaison.” (Id. ¶ 6.) The court is puzzled why Defendants did not provide a declaration

18 from the Congressional Liaison himself to explain the sources of his information and the

19 apparent error in his emails, rather than rely on inadmissible hearsay testimony. See Fed.

20 R. Evid. 802. Defendants’ reliance on hearsay testimony is even more puzzling because

21 the Acting Director’s declaration indicates that she contacted the DOS Congressional

22 Liaison and therefore presumably could have obtained his declaration.

ORDER - 23

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 24 of 30

1

In addition to the emails, Plaintiffs also produce statistical evidence that the

2 admission of SAO refugees actually declined following the preliminary injunction. See

3 supra § II.F.2. Defendants do not dispute those statistics, but rather attribute them to the

4 effects of the Agency Memo prior to the preliminary injunction and the government’s

5 enhanced screening and vetting protocols. (See generally Def. 2d MFD Resp. at 5-6.)

6 Although the court might expect that the processing and admission of FTJ and SAO

7 refugees would not reach the levels that existed prior to the issuance of the Agency

8 Memo on October 24, 2017, the further drop of SAO refugee admissions following the

9 preliminary injunction deserves further inquiry.

10

Finally, although not singularly dispositive, the court notes Defendants’ failure to

11 fully comply with certain injunctions concerning EO1—including the preliminary

12 injunction this court issued in Washington v. Trump.22 See supra § II.F.3. The court will

13 not ignore that failure in evaluating Plaintiffs’ evidence. Thus, considering all this

14 evidence, the court concludes that Plaintiffs meet their burden of demonstrating that facts

15 bearing on the court’s jurisdiction are controverted and a more satisfactory showing of

16 facts is necessary. See Laub, 342 F.3d at 1093.

17

In Laub, the Ninth Circuit found the district court improperly denied jurisdictional

18 discovery when the plaintiffs supported their request with documents suggesting their

19 claim was “arguable.” See 342 F.3d at 1092-93. There, the plaintiffs requested discovery

20

21

22

22 See Washington v. Trump, No. C17-0141JLR, 2017 WL 462040, at *1 (W.D. Wash. Feb. 3, 2017), appeal dismissed, No. 17-35105, 2017 WL 3774041 (9th Cir. Mar. 8, 2017).

ORDER - 24

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 25 of 30

1 after the government asserted that its land and water acquisitions were independent of a

2 government water management program and thus not subject to an injunction. See id. at

3 1083, 1092-93. The Ninth Circuit found that “public documents offered by [the]

4 [p]laintiffs suggest[ed] that there [wa]s at least an arguable claim that the federal

5 government play[ed] a significant enough role in the [water management] program” to

6 render the government’s actions subject to federal requirements. Id. at 1093. Though

7 noting that the offered documents might “be insufficient in themselves to establish

8 jurisdiction,” the court found that granting the plaintiffs’ request for discovery “would

9 create a ‘reasonable probability’ that the outcome of the factual motion to dismiss would

10 be different.” Id. (quoting Martel v. Cty. of L.A., 56 F.3d 933, 995 (9th Cir. 1995) (en

11 banc)). Thus, the Ninth Circuit held that the district court erred in denying jurisdictional

12 discovery “[b]ecause additional discovery would be useful to establish federal subject

13 matter jurisdiction, and because the extent of federal involvement in the challenged

14 transactions [wa]s contested.” Id.

15

Here, jurisdictional discovery is appropriate because additional facts regarding

16 Defendants’ efforts to implement the preliminary injunction and their efforts to restore

17 the status quo following its imposition would be useful to the court’s consideration of

18 mootness. (See 1/9/18 Order at 6 (“Defendants are required to restore the status quo prior

19 to the issuance of the Agency Memo with respect to the processing of applications from

20 FTJ refugees and refugees from SAO countries.”).) Plaintiffs have demonstrated a bona

21 fide factual dispute concerning the existence and effectiveness of Defendants’ steps to

22 discontinue the enjoined aspects of the Agency Memo. Until that factual dispute is

ORDER - 25

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 26 of 30

1 resolved, dismissing on mootness grounds would be inappropriate. As in Laub, although

2 the evidence proffered by Plaintiffs at this point might “be insufficient in [itself] to

3 establish jurisdiction,” it is sufficient to establish at least a “reasonable probability” that

4 jurisdictional discovery could alter the outcome of the mootness question. See 342 F.3d

5 at 1093.

6

Defendants argue that the Government is “presume[d] . . . [to] have properly

7 discharged [its] official duties . . . in the absence of clear evidence to the contrary.”

8 United States v. Chem. Found., 272 U.S. 1, 14-15 (1926). (See Def. 2d MFD Resp. at 3.)

9 “Nevertheless, . . . the presumption is not conclusive and can be rebutted.” Hirsch v.

10 Clark, No. NC 83-0097A, 1984 WL 6209, at *2 (D. Utah Aug. 29, 1984). There is scant

11 case authority describing the type of “clear evidence” necessary to rebut the presumption.

12 Here, the court concludes that the emails and statistical evidence Plaintiffs submit is

13 sufficient to rebut the presumption. See, e.g., McDonough v. Anola Cty., 799 F.3d 931,

14 948 (8th Cir. 2015) (ruling that, whatever weight the presumption that public officers

15 have properly discharged their official duties might have at the motion to dismiss phase,

16 drivers who claimed that government employees had improperly accessed their personal

17 information sufficiently rebutted the presumption by alleging high volumes and

18 suspicious timing of accesses and by pointing to the legislative auditor’s report finding

19 that at least half of law enforcement officers in Minnesota were misusing personal

20 information in the database). The court concludes only that there is a factual dispute

21 about which Plaintiffs are entitled to make further inquiry—not that Defendants failed to

22 properly discharge their duties.

ORDER - 26

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 27 of 30

1

Defendants also argue that they have provided ample discovery to Plaintiffs

2 concerning their compliance with the preliminary injunction, including (1) Defendants’

3 notices of compliance filed with the court (1/19/18 Notice; 1/31/18 Notice); see supra

4 § II.D, (2) a partially redacted copy of the Nielsen Memo, see supra § II.E, and (3) a

5 declaration from the Associate Director of RAIO at USCIS attesting that the FTJ

6 implementation period concluded as of February 1, 2018 (see 5/14/18 Higgins Decl.).

7 (See Def. MTD Reply at 14.) As JFS Plaintiffs point out, however, with the exception of

8 some limited information concerning circuit rides, Defendants have provided only

9 minimal information about the specific actions they took to implement the SAO and FTJ

10 suspensions before they were enjoined and the specific actions they took after the

11 preliminary injunction to return the processing of FTJ and SAO refugee applications to

12 the status quo that existed prior to the Agency Memo. (See JFS MTD Resp. at 4.)

13 Similarly, although Defendants issued guidance to those government offices involved in

14 USRAP to apprise them of the preliminary injunction, Defendants have not produced

15 copies of that guidance. Moreover, the record reflects that Defendants’ guidance was

16 issued prior to January 9, 2018—that is, at a time when Defendants “d[id] not understand

17 the preliminary injunction to require affirmative action to undo any of the steps that were

18 taken to implement the [Agency Memo] prior to” the preliminary injunction. (See MFS

19 at 4.) In any event, the court “cannot rely on [Defendants’] statement[s] alone” in

20 determining mootness. See Halet v. Wend Inv. Co., 672 F.2d 1305, 1308 (9th Cir. 1982)

21 (quoting Concentrated Phosphate, 393 U.S. at 203) (holding that the defendants’

22 statement that they would not engage in future violations, standing alone, ‘cannot suffice

ORDER - 27

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 28 of 30

1 to satisfy the heavy burden of persuasion’ resting on those claiming mootness”). In this

2 instance, permitting Plaintiffs to engage in limited jurisdictional discovery is warranted.

3

For the foregoing reasons, the court concludes that jurisdictional discovery is

4 appropriate.23 Accordingly, the court denies without prejudice Defendants’ motion to

5 dismiss to allow Plaintiffs the opportunity to conduct limited jurisdictional discovery on

6 the issue of mootness. See, e.g., Nino v. United States, No. 12-cv-0469-WQH-BGS, 2015

7 WL 5032644, at *2 (S.D. Cal. Aug. 25, 2015) (denying a motion to dismiss for lack of

8 subject matter jurisdiction after “grant[ing] the parties ninety days of jurisdictional

9 discovery in order to address factual issues relevant to jurisdiction”); Guerrero v. United

10 States, No. CV-12-00370-TUC-RCC, 2012 WL 12842348, at *4 (D. Ariz. Dec. 19, 2012)

11 (denying defendant’s motion to dismiss plaintiff’s claim for lack of subject matter

12 jurisdiction to allow plaintiff “limited . . . discovery on [a] specific jurisdictional issue”).

13

In their original motion for discovery, Plaintiffs sought “document requests . . .

14 limited to the following categories of documents:

15

• Documents relating to the implementation of the Agency

Memo as it relates to follow-to-join refugees and refugees who are

16

nationals of (and stateless persons who last habitually resided in) the

SAO countries;

17

18

23 Plaintiffs also ask the court to compel Defendants to produce the redacted phrase from

19 the Nielsen Memo. (See 1st MFD at 5.) Defendants assert that the phrase is protected under the

law enforcement privilege. (See id.) “[T]he U.S. Supreme Court and the Ninth Circuit have yet

20 to recognize or reject a ‘law enforcement privilege.’” Shah v. Dep’t of Justice, 714 F. App’x 657, 659 (9th Cir. 2017). The issue is not sufficiently briefed by the parties for the court to rule

21 on the issue—either with respect to Plaintiffs’ need for the material or the basis for Defendants’ invocation of the privilege. Accordingly, the court denies Plaintiffs’ request to compel

22

production of the redacted phrase without prejudice to raising the issue again if warranted after Plaintiffs complete the discovery in this order.

ORDER - 28

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 29 of 30

1

• Documents relating to actions taken by Defendants to comply with

this Court’s preliminary injunction dated December 23, 2017 and

2

order denying Defendants’ motion for stay pending appeal (ECF No.

106);

3

• Documents relating to actions taken by Defendants as a result of the

end of the 90-day review for SAO countries and as a result of the

4

implementation of the additional vetting procedures for follow-to-join

refugees; and

5

• Policy documents and data relating to the processing of refugee

applications and admission of refugees to the United States from

6

October 23, 2017 to the date of production.

7 (1st MTD at 4-5.) The court specifically limits Plaintiffs to requesting document within

8 these four categories. The court further cautions Plaintiffs to narrowly craft their requests

9 so that the requests are “proportional to the needs of the case” in which discovery is

10 limited to issues pertaining to mootness. See Fed. R. Civ. P. 26(b)(1) (listing factors for

11 determining proportionality). Plaintiffs also raise the possibility of “additional discovery,

12 such as depositions,” if appropriate after the production of documents. (1st MFD at 6.)

13 The court declines to foreclose this possibility, but again cautions Plaintiffs that any such

14 request must be narrowly tailored and proportional in light of the limited purpose of the

15 authorized discovery.

16

The court grants Plaintiffs 90 days in which to conduct their jurisdictional

17 discovery on mootness. The parties must file any related discovery motions within 60

18 days of the filing date of this order—30 days prior to the jurisdictional discovery cutoff.

19 Although the court is available to resolve intractable disputes, the court encourages the

20 parties to work cooperatively to implement this order and to expeditiously complete the

21 discovery authorized herein. If, however, discovery disputes arise that require court

22 intervention, the court requires the parties to utilize the procedures set forth in Local Rule

ORDER - 29

Case 2:17-cv-00178-JLR Document 155 Filed 07/27/18 Page 30 of 30

1 LCR7(i) before resorting to formal motions practice. See Local Rules W.D. Wash. LCR

2 7(i). After Plaintiffs have conducted limited jurisdictional discovery on mootness,

3 Defendants may renew their motion to dismiss.

4

IV. CONCLUSION

5

For the reasons stated herein, the court DENIES without prejudice Defendants’

6 motion to dismiss and dissolve the preliminary injunction (Dkt. # 145) and GRANTS

7 Plaintiffs’ motion to reinstate their motion for limited discovery (Dkt. # 131) and their

8 underlying motion for discovery (Dkt. # 121).

9

Dated this 27th day of July, 2018.

10

11

A

12 JAMES L. ROBART

13

United States District Judge

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ORDER - 30

 
 Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 1 of 41

1

THE HONORABLE JAMES L. ROBART

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3

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9 10 JOHN DOE, et al.,

11

12

v.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

CASE NO. C17-0178JLR

Plaintiffs,

STIPULATED DISMISSAL PURSUANT TO F.R.C.P. 41(A)(1)(A)(II)

13 DONALD TRUMP, et al.,

14

Defendants.

15 16 JEWISH FAMILY SERVICES, et al.,

CASE NO. C17-1707JLR

17

18

v.

Plaintiffs,

(RELATING TO BOTH CASES)

19 DONALD TRUMP, et al., 20 21

Defendants.

22

23

24

25

26

STIPULATED DISMISSAL (2:17-cv-00178-JLR)

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 2 of 41

1 IT IS HEREBY STIPULATED AND AGREED by and between all parties, through their
2 respective counsel, that the above-captioned actions are voluntarily dismissed, with prejudice,
3 against all Defendants, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Each party
4 shall bear its own fees and costs, and Plaintiffs may enforce the terms of the Settlement
5 Agreement entered into in this case (attached as Exhibit A) as described therein.
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

STIPULATED DISMISSAL - 1 Case No. 2:17-cv-00178-JLR

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 3 of 41

1 RESPECTFULLY SUBMITTED BY:

2 s/ Lauren Watts Staniar

3

David Burman, WSBA No. 10611 Lauren Watts Staniar, WSBA No. 48741

4 Tyler Roberts, WSBA No. 52688 Perkins Coie LLP

5 1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099 6 Telephone: 206.359.8000

7

Facsimile: 206.359.9000 dburman@perkinscoie.com

8 lstaniar@perkinscoie.com troberts@perkinscoie.com
9

Max S. Wolson, Pro Hac Vice 10 National Immigration Law Center

11 3450 Wilshire Blvd, #108-62 Los Angeles, CA 90010

12 Tel: (213) 639-3900 Fax: (213) 639-3911
13 wolson@nilc.org

14 Lauren E. Aguiar, Pro Hac Vice

15 Mollie M. Kornreich, Pro Hac Vice Abigail E. Davis, Pro Hac Vice

16 Four Times Square

New York, NY 10036 17 Tel: (212) 735-3000

18

Fax: (212) 735-2000 lauren.aguiar@probonolaw.com

19 mollie.kornreich@probonolaw.com abigail.sheehan@probonolaw.com

20

21

22

23

24

25

26

DATED this 10th day of February, 2020
s/ Mariko Hirose Mariko Hirose, Pro Hac Vice Deepa Alagesan, Pro Hac Vice Linda Evarts, Pro Hac Vice Kathryn C. Meyer, Pro Hac Vice International Refugee Assistance Project 40 Rector Street, 9th Floor New York, NY 10006 Tel: (646) 459-3044 mhirose@refugeerights.org dalagesan@refugeerights.org levarts@refugeerights.org kmeyer@refugeerights.org
Justin B. Cox, Pro Hac Vice International Refugee Assistance Project PO Box 170208 Atlanta, GA 30317 Tel: (678) 279-5441 jcox@refugeerights.org
Melissa S. Keaney, Pro Hac Vice International Refugee Assistance Project PO Box 2291 Fair Oaks, CA 95628 Tel: (916) 546-6125 mkeaney@refugeerights.org
Elizabeth Sweet, Pro Hac Vice Mark Hetfield, Pro Hac Vice HIAS, Inc. 1300 Spring Street, Suite 500 Silver Spring, MD 20910 Tel: 301-844-7300 liz.sweet@hias.org mark.hetfield@hias.org
Counsel for Plaintiffs Jewish Family Service, et al.

STIPULATED DISMISSAL - 2 Case No. 2:17-cv-00178-JLR

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 4 of 41

1

2 AMERICAN CIVIL LIBERTIES UNION 3 OF WASHINGTON FOUNDATION

4 By: /s/ Lisa Nowlin Lisa Nowlin, WSBA # 51512

5

P.O. Box 2728

Seattle, WA 98111

6

Tel.: (206) 624-2184

7

Email: lnowlin@aclu-wa.org

8

Attorneys for Plaintiffs

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KELLER ROHRBACK L.L.P.

By: /s/ Lynn Lincoln Sarko By: /s/ Tana Lin By: /s/ Derek W. Loeser By: /s/ Alison S. Gaffney
Lynn Lincoln Sarko, WSBA # 16569 Tana Lin, WSBA # 35271 Derek W. Loeser, WSBA # 24274 Alison S. Gaffney, WSBA # 45565 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Tel.: (206) 623-1900 Fax: (206) 623-3384 Email: lsarko@kellerrohrback.com
tlin@kellerrohrback.com dloeser@kellerrohrback.com agaffney@kellerrohrback.com

By: /s/ Laurie B. Ashton

N

Laurie B. Ashton (admitted pro hac vice)

3101 North Central Avenue, Suite 1400

Phoenix, AZ 85012-2600

Tel.: (602) 248-0088

Fax: (602) 248-2822

Email: lashton@kellerrohrback.com

By: /s/ Alison Chase

e

Alison Chase (admitted pro hac vice)

1129 State Street, Suite 8

Santa Barbara, CA 93101

Tel.: (805) 456-1496

Fax: (805) 456-1497

Email: achase@kellerrohrback.com

Attorneys for Plaintiffs/Cooperating Attorneys for the American Civil Liberties Union of Washington Foundation

STIPULATED DISMISSAL - 3 Case No. 2:17-cv-00178-JLR

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 5 of 41

1 JOSEPH H. HUNT
2 Assistant Attorney General
3 AUGUST E. FLENTJE 4 Special Counsel

5 JENNIFER D. RICKETTS Director, Federal Programs Branch
6

7

JOSHUA E. GARDNER Special Counsel, Federal Programs Branch

8

9 __/s/ Joshua Kolsky______________ JOSHUA KOLSKY
10 KEVIN SNELL 11 Trial Attorneys
U.S. Department of Justice 12 Civil Division, Federal Programs Branch
1100 L Street, NW 13 Washington, DC 20005
Tel: (202) 305-7664 14 Fax: (202) 616-8470 15 Email: joshua.kolsky@usdoj.gov

16 Counsel for Defendants

17

18

19

20

21

22

23

24

25

26

STIPULATED DISMISSAL - 4 Case No. 2:17-cv-00178-JLR

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 6 of 41
Exhibit A

Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 7 of 41
SETTLEMENT AGREEMENT
This Settlement Agreement (“Settlement Agreement”) is entered into between all
Plaintiffs in Doe et al. v. Trump et al., No. 17-0178 (W.D. Wash) (“Doe Case”), all Plaintiffs in
Jewish Family Service of Seattle et al. v. Trump et al., No. 17-1707 (W.D. Wash.) (“JFS Case”),1
(hereinafter collectively referred to as “Plaintiffs” and “Cases”), and all Defendants in the
Cases.2 Plaintiffs and Defendants are referred to herein as “the Parties.” Plaintiffs in the Doe
Case filed a third amended complaint on November 6, 2017 (ECF No. 42), and Plaintiffs in the
JFS Case filed a complaint on November 13, 2017 (ECF No. 1 in Docket Number 17-1707).3
The Cases relate to Executive Order 13,815, 82 Fed. Reg. 50,055 (Oct. 24, 2017), and an
accompanying memorandum by Defendants Secretary of State, Secretary of Homeland Security,
and Director of National Intelligence that was dated October 23, 2017 (“Agency Memo”).
The Parties mutually desire to resolve all of the claims asserted by Plaintiffs in the Cases
without the need for further litigation, and without any admission of liability by any party. The
Parties do hereby settle all claims, issues, complaints, or actions that Plaintiffs have or could
have asserted in the Case in which they are Plaintiffs against Defendants, or any of Defendants’
employees, including but not limited to past and present U.S. Government officials and
1 The settling Plaintiffs in the Doe Case are the Episcopal Diocese of Olympia, Joseph Doe, Jeffrey Doe, and, for purposes of this Settlement Agreement, includes Sophonie Bizimana, a declarant in the Doe Case. Plaintiffs in the JFS Case are Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, Allen Vaught, Afkab Mohamed Hussein, John Doe 1, John Doe 2, John Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, and John Doe 7. The identities of the pseudonymous plaintiffs, which Defendants agree to use only for the purposes of implementing and enforcing this Settlement Agreement, are listed in Exhibit B to this Agreement.
2 Defendants in the Doe Case are Donald Trump, in his official capacity as President of the United States; U.S. Department of Homeland Security; Chad Wolf, in his official capacity as Acting Secretary of Homeland Security; U.S. Customs and Border Protection; Mark A. Morgan, in his official capacity as Acting Commissioner of U.S. Customs and Border Protection; Adele Fasano, in her official capacity as Field Director of the Seattle Field Office of U.S. Customs and Border Protection; U.S. Department of State; Michael Pompeo, in his official capacity as Secretary of State; the Office of the Director of National Intelligence; and Joseph Maguire, in his official capacity as Acting Director of National Intelligence. Defendants in the JFS Case are Donald Trump, in his official capacity as President of the United States; U.S. Department of Homeland Security; Chad Wolf, in his official capacity as Acting Secretary of Homeland Security; U.S. Department of State; Michael Pompeo, in his official capacity as Secretary of State; the Office of the Director of National Intelligence; and Joseph Maguire, in his official capacity as Acting Director of National Intelligence.
3 The Cases were consolidated (ECF No. 61). Unless otherwise specified, ECF citations herein refer to civil docket number 17-0178 (W.D. Wash.).
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employees, including but not limited to past and present U.S. Government officials and employees, prior to the date that this Settlement Agreement is executed by the Parties (“Effective Date.”).
1. Consideration by Defendants: In consideration for the promises of Plaintiffs set forth herein, Defendants agree as follows:
a. The U.S. Department of State (“State”) and United States Citizenship and Immigration Services (“USCIS”) shall prioritize the processing of the cases identified in Exhibit A,4 to the extent the individuals who are included in such cases have not been granted or denied refugee admission or have pending Requests for Review (“Pending Cases”). Unless otherwise stated herein, prioritization means moving an individual to the front of other similarly situated cases in the processing queue for each applicable processing step; non-similarly situated cases are urgent cases based on medical or other urgent humanitarian needs. In the context of interviews, prioritization means offering the individual the opportunity to have an interview at the next time a circuit ride is deployed to the individual’s location or, where possible, conducting the re-interview by videoconference. The Pending Cases in Exhibit A include I-590, Registration as Classification for a Refugee, cases in which one or more case members require a Security Advisory Opinion (“SAO case”), and cases that involve an I-730, Refugee/Asylee Relative Petition cases (“FTJ case”). The Pending Cases in Exhibit A are comprised of the following cases: i. Seven (7) FTJ cases and forty-one (40) SAO cases identified in Exhibit A-Part 1
by case number and number of individuals who are included in each case. These cases are the cases that remain pending as of January 17, 2020 of the cases that were designated Ready for Departure in State’s Worldwide Refugee Admissions Processing System (“WRAPS”) on October 23, 2017;
4 Exhibit A has been designated as confidential under the January 31, 2019 Stipulated Protective Order. See Doe, Dkt. No. 177.
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ii. Fifty-eight (58) FTJ cases identified in Exhibit A-Part 2 by case number and number of individuals who are included in each case. These cases are cases that remain pending as of January 17, 2020 of the cases that were designated “pending completion granted” in USCIS’s Case and Activity Management for International Operations (“CAMINO”) database as of December 23, 2017;
iii. Two (2) FTJ cases identified in Exhibit A-Part 3 by case number and number of individuals who are included in each case. These cases are cases that remain pending as of January 17, 2020 of the cases that, according to the USCIS CAMINO database, had a medical clearance expire between October 23, 2017 and February 1, 2018;
iv. Twenty-eight (28) FTJ cases identified in Exhibit A-Part 4 by case number and number of individuals who are included in each case. These cases are cases that remain pending as of January 17, 2020 of the cases that, according to the USCIS CAMINO database, had a security clearance expire between October 23, 2017 and February 1, 2018;
v. Fourteen (14) SAO cases identified in Exhibit A-Part 5 by case number and number of individuals who are included in each case. These cases are cases that remain pending as of January 17, 2020 of the thirty-two (32) cases previously selected by Plaintiffs from among those in the digital stamping queue in State’s WRAPS system between October 23, 2017 and February 1, 2018;
vi. The six (6) cases listed in Exhibit A-Part 6: cases UG-941117, UG-762618, UG762628, UG-762624 and UG-762607, which are the case numbers of Doe Case plaintiff Sophonie Bizimana and case numbers associated with that case, and case
3

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number KE-529632, which is the case number associated with Doe Case plaintiff Jeffrey Doe;5 vii. The seven (7) cases listed in Exhibit A-Part 7. Case numbers EG-109707, IZ212849, EG-113835, IZ-138422, IZ-303562, KE569925, and KE-569926, which are the cases of JFS Case plaintiffs Doe 1, Doe 2, Doe 4, Doe 5, Doe 7, and Afkab Mohamed Hussein; and viii. The twenty-two (22) cases identified in Exhibit A-Part 8, by case number and number of individuals who are included in each case. These cases are cases that remain pending as of January 17, 2020 of the thirty-three (33) cases that had an assurance to Plaintiffs Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, and the Episcopal Diocese of Olympia on October 23, 2017 or January 31, 2018. b. For SAO cases within Exhibit A, the Bureau of Population, Refugees, and Migration at State (“State/PRM”) shall prioritize the remaining processing steps for such cases, as applicable. Specifically, State/PRM will: (1) instruct Resettlement Support Centers (“RSCs”) to upgrade the urgency level to level one for these cases; (2) instruct RSCs to request any pending security checks where security checks are needed; (3) ask the United States government agencies who provide information to State and USCIS in support of refugee vetting (“Vetting Support Agencies”) to prioritize the Pending Cases for whom security checks are or have been requested, with the understanding that State/PRM cannot require a Vetting Support Agency to complete a security check in any particular timeframe; (4) instruct RSCs to prioritize medical exams where such exams are required; and (5) request resettlement agencies to promptly submit an assurance within one week of receiving medical information.
5 Should Doe case plaintiff Joseph Doe provide Defendants with the refugee case number for his mother within 60 days of the Effective Date, Defendants will make a good faith effort to prioritize the processing of her case in accordance with the terms of this Agreement, to the extent that the refugee case number is valid and to the extent that her case was already pending on the Effective Date.
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c. For FTJ cases within Exhibit A that are processed in Kenya, Burundi, Uganda or Thailand, State/PRM shall prioritize the remaining processing steps for such cases, as applicable. Specifically, State/PRM will: (1) instruct RSCs to upgrade the urgency level to level one for these cases; (2) instruct RSCs to work with USCIS to facilitate scheduling of interviews; (3) instruct RSCs to request any pending security checks where security checks are needed; (4) ask the Vetting Support Agencies to prioritize the Pending Cases for whom security checks are or have been requested, with the understanding that State/PRM cannot require a Vetting Support Agency to complete a security check in any particular timeframe; (5) instruct RSCs to prioritize medical exams where such exams are required; and (6) request resettlement agencies to promptly submit an assurance within one week of receiving medical information.
d. For FTJ cases within Exhibit A that are not processed in Kenya, Burundi, Uganda or Thailand, State/PRM shall prioritize the following processing step: request resettlement agencies to promptly submit an assurance within one week of receiving medical information.
e. For FTJ cases within Exhibit A that are processed by USCIS, USCIS will prioritize the remaining processing steps for such cases, as applicable. Specifically, USCIS will: (1) prioritize interviewing or re-interviewing these cases; (2) ask the Vetting Support Agencies to prioritize these cases that are pending security checks with the understanding that USCIS cannot require a Vetting Support Agency to complete a security check in any particular timeframe, or, for cases pending SAOs, coordinate with State to request prioritization; (3) prioritize requesting medical exams on these cases; (4) prioritize submitting these cases for assurances; and (5) prioritize preparation or submission of these cases for travel documentation.6
6 For the case of Plaintiff Afkab Mohamed Hussein, in addition to any other prioritization required by this Settlement Agreement, USCIS will prioritize consideration of Mr. Hussein’s child born in January 2020 to be authorized for parole into the United States, provided that an application for parole is submitted to USCIS within 120 days of the Effective Date.
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f. For any FTJ cases within Exhibit A that are processed by the Bureau of Consular Affairs at State (“State/CA”), State/CA will prioritize the remaining processing steps for such cases, as applicable. Specifically, State/CA will: (1) instruct consular sections to expedite the scheduling of interviews for these cases; (2) instruct consular sections to request any pending security checks for these cases where security checks are needed; (3) ask the Vetting Support Agencies to prioritize these cases for whom security checks are or have been requested, with the understanding that State/CA cannot require a Vetting Support Agency to complete a security check in any particular timeframe; (4) instruct consular sections to request and prioritize medical exams for these cases where such exams are required; and (5) request resettlement agencies to promptly submit an assurance for these cases within one week of receiving medical information.
g. For any Pending Cases that are pending USCIS and/or State review of derogatory information and/or pending final decision on the refugee adjudication or follow-to-join refugee travel eligibility determination or I-730 petition, USCIS and/or State will prioritize review of these cases before other similarly situated cases. Resolving security checks may include talking to and receiving responses from other partners. For those still pending security checks from Vetting Support Agencies, USCIS and/or State will ask the Vetting Support Agencies to prioritize those cases with the understanding that USCIS and/or State cannot require a Vetting Support Agency to complete a security check in any particular timeframe.
h. For any Pending Case that is eligible to submit a Request for Review (“RFR”) and that may be denied after December 3, 2019, the individuals included in such case will have 90 days after receipt of the Notice of Ineligibility for Resettlement to submit an RFR which will be reviewed by USCIS. These RFRs, and the RFR associated with case number IZ-138422, will be prioritized by USCIS for review and adjudication ahead of others that are similarly situated. USCIS does not agree to prioritize any
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subsequent RFR submitted by an individual after that individual has already submitted one RFR. 2. Good-Faith Processing. The Parties agree that State and USCIS will undertake the prioritized processing under this Settlement Agreement in good faith and Defendants will not retaliate against any individual because of this Settlement Agreement. 3. Any Admissions of Refugees. The Parties agree that this Settlement Agreement does not entitle any individual to admission, including any individual included in any of the Pending Cases. Any individual included in a Pending Case who is admitted to the United States as a result of the Settlement Agreement shall be admitted as a refugee and counted as part of the numerical limitation for admission of refugees set by Presidential Determination No. 2017-3 of September 29, 2017, 82 FR 49083 (Presidential Determination on Refugee Admissions for Fiscal Year 2018).7 The resettlement agencies resettling the Pending Cases under the Settlement Agreement, including but not limited to those affiliated with organizational plaintiffs Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, and the Episcopal Diocese of Olympia, shall be paid for each Pending Case that is resettled as provided under, and to the extent required by, the cooperative agreements in place with the agencies as of the Effective Date. 4. Notice. Beginning ninety (90) days from the Effective Date, and every ninety (90) days thereafter until each individual included in a Pending Case is either admitted to the United States or is denied refugee resettlement, and any RFRs that have been filed within ninety (90) days of a denial pursuant to paragraph 1(h) above are adjudicated, State and USCIS shall provide Plaintiffs written notice that includes the following regarding the Pending Cases for each Part of Exhibit A: the number of cases and individuals admitted, the number of cases and individuals denied, and the number of cases and individuals remaining to be processed.
7 To the extent that any individual included in a Pending Case was admitted to the United States prior to the Effective Date, that individual will be counted as part of the numerical limitation for admission of refugees set by the Presidential Determination for the fiscal year in which the individual was admitted.
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Decisions on any RFRs on cases covered by this settlement will also be included in the report. Within twenty-eight (28) days of the last case listed in Exhibit A either being admitted to the United States or denied, and the resolution of any RFRs that have been filed within ninety (90) days of a denial pursuant to paragraph 1(h) above, State and USCIS shall serve a notice to Plaintiffs’ counsel informing them that they have completed all consideration that Defendants agreed to perform herein (hereinafter referred to as “Notice of Completion”). At that point, Defendants will have satisfied their obligations under this Settlement Agreement.
5. Consideration by Plaintiffs. In consideration of the promises of Defendants set forth in this Settlement Agreement, Plaintiffs hereby release, waive, acquit, and forever discharge Defendants from, and are hereby forever barred and precluded from prosecuting, any and all claims, causes of action, or requests for any monetary, declaratory, and/or injunctive relief (whether in administrative or judicial proceedings), whether presently known or unknown, that have been or could have been asserted in the Case in which they are Plaintiffs by reason of, with respect to, in connection with, or which arise out of, any matters alleged in the Case in which they are Plaintiffs that the Plaintiffs in the Case have against the United States government, or any Defendants. For purposes of this Settlement Agreement, Sophonie Bizimana is considered a plaintiff in the Doe Case.
6. Waiver of Fees and Costs. The Parties and Parties’ Counsel release and forever discharge all claims against the other Party for monetary relief they have asserted or could have asserted in these Cases for attorneys’ fees, costs, and expenses incurred to date and through the Effective Date, including but not limited to fees or expenses associated with this Settlement Agreement.
7. No Appeal or Review of Prior Orders. The Parties agree that they shall not seek appellate or mandamus review or reconsideration of any order entered in the Cases.
8. Enforcement. Contemporaneously with the execution of the Settlement Agreement by all Parties, Plaintiffs will file with the Court a Stipulated Dismissal of these Cases pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) in the form of Exhibit C. The Parties agree that upon
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the basis of an alleged breach of this Settlement Agreement, Plaintiffs may file a Motion for Relief from a Judgment or Order pursuant to Fed. R. Civ. P. 60(b)(6) with the Court seeking relief from the Court’s November 13, 2019 Orders of Dismissal (ECF No. 202 in civil docket number 17-0178 (W.D. Wash) and ECF No. 105 in civil docket number 17-1707 (W.D. Wash.)) and the Stipulated Dismissal, subject to the limitations prescribed below. The exclusive procedure to bring a claim to enforce the terms and conditions of this Settlement Agreement pursuant to this paragraph shall be as follows:
a. Prior to filing any motion pursuant to this Paragraph, counsel for Plaintiffs shall submit a written notice alleging a breach of this Settlement Agreement to counsel for Defendants. Such notice shall be submitted by first-class mail and electronic mail, and shall specify the basis for the alleged breach, including the case number(s) and refugee(s) as to which a breach is asserted, shall describe with particularity all of the facts and circumstances supporting such claim to the extent they are reasonably known to Plaintiffs, and shall state that Plaintiffs intend to seek relief from the Court through a motion filed under Fed. R. Civ. P. 60(b)(6) as set forth in Paragraph 8, supra. Plaintiffs shall not inform the Court of their allegation(s) at that time.
b. Plaintiffs may not file a Rule 60(b)(6) motion unless they have provided notice of any alleged breach by Defendants within sixty (60) calendar days of Plaintiffs receiving notice of, or becoming aware of, the alleged breach.
c. Defendants shall have a period of thirty (30) calendar days after the receipt of such notice described in Paragraph 8(a) to take appropriate action to resolve the alleged breach. The initiation of action to resolve an alleged breach may constitute such “appropriate action,” even if the action is not completed within the thirty (30) calendar day period. If requested to do so, Plaintiffs shall provide to Defendants any information and materials available to Plaintiffs that support the violation alleged in the notice.
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d. If any assertion of breach by a Plaintiff is not resolved after consultation between the Parties’ counsel within the thirty (30) calendar day period set forth in Paragraph 8(c), or if prior to the expiration of such thirty (30) calendar day period, counsel for Defendants advise counsel for Plaintiffs that no further action will be taken by Defendants, Plaintiffs may seek relief from the Court as set forth in this Paragraph (Paragraph 8). Under no other circumstances may Plaintiffs seek such relief from the Court.
e. If Defendants are reasonably prevented from or delayed in performing any of the obligations set forth in Paragraph 1, supra, by the existence of extraordinary circumstances as designated in writing by Defendants with notice to Plaintiffs’ counsel, the period set forth in Paragraph 8(c) shall be extended for a reasonable time.
i. The extension set forth in Paragraph 8(e) shall be for a minimum of thirty (30) calendar days beyond the period set forth in Paragraph 8(c) without requiring action by any party other than Defendants, and may be longer than thirty (30) calendar days beyond that period pursuant to written agreement among the Parties.
ii. If, upon request by Defendants for an extension of the period set forth in Paragraph (c) by more than thirty (30) calendar days upon a designation of extraordinary circumstances, as set forth in Paragraph 8(e), Plaintiffs decline to agree to such extension, Defendants shall nonetheless be permitted to oppose the filing for a Motion for Relief from Judgment pursuant to Fed. R. Civ. P. 60(b)(6) as set forth in Paragraph 8, supra, upon the grounds of such extraordinary circumstances. f. Insofar as a motion asserted pursuant to this Paragraph is consistent with the requirements and limitations herein, Defendants hereby agree not to oppose the filing of such motion and to agree that a breach of the Settlement Agreement is sufficient to constitute a “reason that justifies relief” under Fed. R. Civ. P. 60(b)(6). Other than
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Defendants’ agreement that a breach of the Settlement Agreement is sufficient to constitute a “reason that justifies relief” under Fed. R. Civ. P. 60(b)(6), Defendants’ non-opposition to the filing of such motion shall not be deemed to waive any available defenses to the substance of such motion, including without limitation any right or authority to contend that no breach of this Settlement Agreement has occurred.
g. Plaintiffs’ right to seek relief pursuant to Paragraph 8 as to any and all assertions of breach of this Settlement Agreement shall be subject to the limitations period set forth in Paragraph 8(b), and any and all assertions of breach shall be forever waived if not asserted within the applicable limitations period.
h. Notwithstanding the limitation period set forth in Paragraph 8(b), Plaintiffs’ right to seek relief as to any assertion of breach of this Settlement Agreement pursuant to Paragraph 8 of this Settlement Agreement shall terminate sixty (60) calendar days after State and USCIS provide Plaintiffs the Notice of Completion under Paragraph 4. 9. No Admission of Liability. This Settlement Agreement is not and shall not be construed as an admission by Defendants of the truth of any allegation or the validity of any argument or claim asserted in the Cases, or of Defendants’ liability therein. Furthermore, the Parties shall not offer into evidence the terms of the Settlement Agreement in any civil, criminal or administrative action or proceeding other than proceedings that may be necessary to consummate or enforce this Settlement Agreement. 10. No Assignment. Plaintiffs represent and warrant that they are the sole and lawful owners of all right, title and interest in and to every claim and other matter which they purport to release herein, and that they have not heretofore assigned or transferred, or purported or attempted to assign or transfer to any person or entity any claims or other matters herein released. The Plaintiffs shall indemnify Defendants, and any of their departments, components and current or former employees, whether in their official or individual capacities, against, and defend and hold harmless from, any claims arising out of or relating to any such assignment or transfer of any claims or other matters released herein.
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11. Entire Agreement. This Settlement Agreement contains the entire agreement between the Parties, and the Parties acknowledge and agree that no promise or representation not contained in this Settlement Agreement has been made to them, and they acknowledge and represent that this Settlement Agreement contains the entire understanding between the Parties, and contains all terms and conditions pertaining to the compromise and settlement of the disputes referenced herein. No statement, remark, agreement, or understanding, oral or written, that is not contained herein shall be recognized or enforced, nor does this Settlement Agreement reflect any agreed-upon purpose other than the desire of the Parties to reach a full and final conclusion of the Cases and to resolve the Cases without the time and expense of further litigation.
12. Rule of Construction. The Parties through their counsel have negotiated the terms of this Settlement Agreement. Any rule of construction providing that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Settlement Agreement. This Settlement Agreement shall be construed as if drafted by both Parties.
13. Collateral Use of Settlement Agreement Prohibited. The Parties have entered into this Settlement Agreement as a compromise measure to resolve all issues of controversy between them. The terms of this Settlement Agreement, its substance, the negotiations leading up to the Settlement Agreement, and the information exchanged by the Parties in the course of those negotiations may not be offered, taken, construed or introduced as evidence by the Parties for any purpose, either in the Cases or in any pending or subsequent proceeding of any nature, except that in any subsequent action involving the enforcement, construction, or application of this Settlement Agreement, a copy of the Settlement Agreement may be presented to verify its contents.
14. Headings. The headings in this Settlement Agreement are for the convenience of the Parties only and shall not limit, expand, modify, or aid in the interpretation or construction of this Settlement Agreement.
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15. Amendments; Waivers. This Settlement Agreement cannot be modified or amended except by an instrument in writing, agreed to and signed by the Parties or their counsel, nor shall any provision hereof be waived other than by a written waiver, signed by the Parties or their counsel. Express waiver of any one provision shall not be deemed a waiver of any other provision.
16. Binding Nature of Settlement Agreement. This Settlement Agreement constitutes a final resolution of all claims brought by Plaintiffs in the Case in which they are Plaintiffs arising from acts allegedly taken against Plaintiffs in that Case by Defendants occurring prior to the Effective Date. This Settlement Agreement shall be binding upon and inure to the benefit of the Plaintiffs and the Defendants and their respective heirs, executors, successors, assigns, entities, and personal representatives, including any person, entity, department, or agency succeeding to the interests or obligations of any party hereto, or having an interest herein.
17. Severability. The provisions of this Settlement Agreement shall be deemed severable, and any invalidity or unenforceability of any one or more of its provisions shall not affect the validity or enforceability of the other provisions herein.
18. Execution. This Settlement Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall be deemed one and the same instrument. Facsimiles and electronic versions of signatures shall constitute acceptable, binding signatures for purposes of this Settlement Agreement.
19. Authorization. The Parties hereby warrant, represent, and guarantee that the person(s) executing this Settlement Agreement on their behalves are fully authorized to execute, deliver and perform this Settlement Agreement.
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Exhibit A -- Summary

Each case is only counted once in the below numbers. Thus, if a case appears on multiple tabs, it will only be counted on the first tab on which it is included. The below displays the total number of cases on each tab excluding cases that have already appeared on an earlier tab.

Totals for Each Tab

Cases

Inds

Part 1

47

112

Part 2

56

60

Part 3

1

1

Part 4

19

23

Part 5

14

42

Part 6

6

18

Part 7

4

4

Part 8

20

55

Grand Total

167

315

Data extracted from the Worldwide Refugee Admissions Processing System (WRAPS). RPC/rpt_PRM/Litigation Reports/Litigation Exhibit A Parts 1-8 Report Run Date: 1/17/2020 9:39:47 AM

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Exhibit A -- Lead Sheet
Part 1 FTJ and SAO cases designated Ready for Departure in WRAPS on October 23, 2017 7 FTJ cases (defined as Follow to Join cases) and 40 SAO cases (defined as Refugee cases) identified in Exhibit A-Part 1 by case number and number of individuals who are included in each case. These cases are the cases that remain pending as of January 17, 2020 of the cases that were designated Ready for Departure in State's Worldwide Refugee Admissions Processing System ('WRAPS') on October 23, 2017 Part 2 FTJ cases which were designated "pending completion granted" in CAMINO as of December 23, 2017 58 FTJ cases identified in Exhibit A-Part 2 by case number and number of individuals who are included in each case. These cases are cases that remain pending as of January 17, 2020 of the cases that were designated 'pending completion granted' in USCIS's Case and Activity Management for International Operations ('CAM NO') database as of December 23, 2017 Part 3 FTJ cases which according to CAMINO, had a medical clearance expire between October 23, 2017 and February 1, 2018 2 FTJ cases identified in Exhibit A-Part 3 by case number and number of individuals who are included in each case. These cases are cases that remain pending as of January 17, 2020 of the cases that, according to the USCIS CAM NO database, had a medical clearance expire between October 23, 2017 and February 1, 2018 Part 4 FTJ cases according to CAMINO, had a security clearance expire between October 23, 2017 and February 1, 2018 28 FTJ cases identified in Exhibit A-Part 4 by case number and number of individuals who are included in each case. These cases are cases that remain pending as of January 17, 2020 of the cases that, according to the USCIS CAM NO database, had a security clearance expire between October 23, 2017 and February 1, 2018 Part 5 Cases previously selected by Plaintiffs from among those in the digital stamping queue in WRAPS between October 23, 2017 and February 1, 2018. 14 SAO cases identified in Exhibit A-Part 5 by case number and number of individuals who are included in each case. These cases are cases that remain pending as of January 17, 2020 of the thirty-two (32) cases previously selected by Plaintiffs from among those in the digital stamping queue in State’s WRAPS system between October 23, 2017 and February 1, 2018 Part 6 Cases of the Doe Case plaintiffs The 6 are the case numbers associated with Doe Case plaintiff Jeffrey Doe and Sophonie Bizimana
Part 7 Cases of JFS Case plaintiffs Doe The 7 cases listed in Exhibit A-Part 7 are the cases of JFS Case plaintiffs Doe 1, Doe 2, Doe 4, Doe 5, Doe 7, and Afkab Mohamed Hussein Part 8 Cases assured to 3 organizational plaintiffs - Plaintiffs Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, and the Episcopal Diocese of Olympia on October 23, 2017 or January 31, 2018. The 22 cases identified in Exhibit A-Part 8, by case number and number of individuals who are included in each case. These cases are cases that remain pending as of January 17, 2020 of the thirty-three (33) cases that had an assurance to Plaintiffs Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, and the Episcopal Diocese of Olympia on October 23, 2017 or January 31, 2018
Data extracted from the Worldwide Refugee Admissions Processing System (WRAPS). RPC/rpt_PRM/Litigation Reports/Litigation Exhibit A Parts 1-8 Report Run Date: 1/17/2020 9:39:47 AM

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Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 35 of 41
Exhibit A -- Part 8

Part 8 Cases assured to 3 organizational plaintiffs - Plaintiffs Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, and the Episcopal Diocese of Olympia on October 23, 2017 or January 31, 2018.

Case Number ET-944193 KE-529632* KE-565736 KU-101009 KU-101010 KU-101029 KU-101030 KU-101031 R-118486 R-119806 R-121453 IZ-143071 IZ-303562* IZ-303623 JO-124030 JO-129361 JO-129362 KE-563457 TC-101056 TU-405215 TU-405216 TU-408124 Total Cases Total Inds

Case Size Plaintiff Name

1

Episcopal Diocese of Olympia

13

Episcopal Diocese of Olympia

4

Episcopal Diocese of Olympia

9

Episcopal Diocese of Olympia

1

Episcopal Diocese of Olympia

9

Episcopal Diocese of Olympia

1

Episcopal Diocese of Olympia

1

Episcopal Diocese of Olympia

1

Jewish Family Services of Silicon Valley

1

Jewish Family Services of Silicon Valley

1

Jewish Family Services of Silicon Valley

5

Jewish Family Services of Silicon Valley

1

Plaintiffs Jewish Family Service of Seattle

1

Plaintiffs Jewish Family Service of Seattle

2

Plaintiffs Jewish Family Service of Seattle

1

Plaintiffs Jewish Family Service of Seattle

1

Plaintiffs Jewish Family Service of Seattle

3

Plaintiffs Jewish Family Service of Seattle

5

Plaintiffs Jewish Family Service of Seattle

1

Plaintiffs Jewish Family Service of Seattle

3

Plaintiffs Jewish Family Service of Seattle

4

Plaintiffs Jewish Family Service of Seattle

22

69

Data extracted from the Worldwide Refugee Admissions Processing System (WRAPS). RPC/rpt_PRM/Litigation Reports/Litigation Exhibit A Parts 1-8 Report Run Date: 1/17/2020 9:39:47 AM

Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 36 of 41

Exhibit B: Identities of Pseudonymous Plaintiffs

Doe et al. v. Trump et al., No. 17-0178 (W.D. Wash) (“Doe Case”)

Pseudonym

Real name

Joseph Doe

Joseph Doe

Jeffrey Doe

Jeffrey Doe

Jewish Family Service of Seattle et al. v. Trump et al., No. 17-1707 (W.D. Wash.)

Pseudonym

Real name

John Doe 1

Doe 1

John Doe 2

Doe 2

John Doe 3

Doe 3

Jane Doe 4

Doe 4

Jane Doe 5

Doe 5

Jane Doe 6

Doe 6

John Doe 7

Doe 7

Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 37 of 41
Exhibit C

1

The Honorable James L. Robart

2

3

4

5

6

7

8

9 10 JOHN DOE, et al.,

11

12

v.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

CASE NO. C17-0178JLR

Plaintiffs,

STIPULATED DISMISSAL PURSUANT TO F.R.C.P. 41(A)(1)(A)(II)

13 DONALD TRUMP, et al.,

14

Defendants.

15 16 JEWISH FAMILY SERVICES, et al.,

CASE NO. C17-1707JLR

17

18

v.

Plaintiffs,

(RELATING TO BOTH CASES)

19 DONALD TRUMP, et al., 20 21

Defendants.

22

23

24

25

26

STIPULATED DISMISSAL (2:17-cv-00178-JLR)

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 38 of 41

1 IT IS HEREBY STIPULATED AND AGREED by and between all parties, through their
2 respective counsel, that the above-captioned actions are voluntarily dismissed, with prejudice,
3 against all Defendants, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Each party
4 shall bear its own fees and costs, and Plaintiffs may enforce the terms of the Settlement
5 Agreement entered into in this case (attached as Exhibit A) as described therein.
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

STIPULATED DISMISSAL - 1 Case No. 2:17-cv-00178-JLR

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 39 of 41

1 RESPECTFULLY SUBMITTED BY:

2 s/ Lauren Watts Staniar

3

David Burman, WSBA No. 10611 Lauren Watts Staniar, WSBA No. 48741

4 Tyler Roberts, WSBA No. 52688 Perkins Coie LLP

5 1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099 6 Telephone: 206.359.8000

7

Facsimile: 206.359.9000 dburman@perkinscoie.com

8 lstaniar@perkinscoie.com troberts@perkinscoie.com
9

Max S. Wolson, Pro Hac Vice 10 National Immigration Law Center

11 3450 Wilshire Blvd, #108-62 Los Angeles, CA 90010

12 Tel: (213) 639-3900 Fax: (213) 639-3911
13 wolson@nilc.org

14 Lauren E. Aguiar, Pro Hac Vice

15 Mollie M. Kornreich, Pro Hac Vice Abigail E. Davis, Pro Hac Vice

16 Four Times Square

New York, NY 10036 17 Tel: (212) 735-3000

18

Fax: (212) 735-2000 lauren.aguiar@probonolaw.com

19 mollie.kornreich@probonolaw.com abigail.sheehan@probonolaw.com

20

21

22

23

24

25

26

DATED this __th day of February, 2020
s/ Mariko Hirose Mariko Hirose, Pro Hac Vice Deepa Alagesan, Pro Hac Vice Linda Evarts, Pro Hac Vice Kathryn C. Meyer, Pro Hac Vice International Refugee Assistance Project 40 Rector Street, 9th Floor New York, NY 10006 Tel: (646) 459-3044 mhirose@refugeerights.org dalagesan@refugeerights.org levarts@refugeerights.org kmeyer@refugeerights.org
Justin B. Cox, Pro Hac Vice International Refugee Assistance Project PO Box 170208 Atlanta, GA 30317 Tel: (678) 279-5441 jcox@refugeerights.org
Melissa S. Keaney, Pro Hac Vice International Refugee Assistance Project PO Box 2291 Fair Oaks, CA 95628 Tel: (916) 546-6125 mkeaney@refugeerights.org
Elizabeth Sweet, Pro Hac Vice Mark Hetfield, Pro Hac Vice HIAS, Inc. 1300 Spring Street, Suite 500 Silver Spring, MD 20910 Tel: 301-844-7300 liz.sweet@hias.org mark.hetfield@hias.org
Counsel for Plaintiffs Jewish Family Service, et al.

STIPULATED DISMISSAL - 2 Case No. 2:17-cv-00178-JLR

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 40 of 41

1

2 AMERICAN CIVIL LIBERTIES UNION 3 OF WASHINGTON FOUNDATION

4 By: /s/ Lisa Nowlin Lisa Nowlin, WSBA # 51512

5

P.O. Box 2728

Seattle, WA 98111

6

Tel.: (206) 624-2184

7

Email: lnowlin@aclu-wa.org

8

Attorneys for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

KELLER ROHRBACK L.L.P.
By: /s/ Lynn Lincoln Sarko By: /s/ Tana Lin By: /s/ Derek W. Loeser By: /s/ Alison S. Gaffney
Lynn Lincoln Sarko, WSBA # 16569 Tana Lin, WSBA # 35271 Derek W. Loeser, WSBA # 24274 Alison S. Gaffney, WSBA # 45565 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Tel.: (206) 623-1900 Fax: (206) 623-3384 Email: lsarko@kellerrohrback.com
tlin@kellerrohrback.com dloeser@kellerrohrback.com agaffney@kellerrohrback.com
By: /s/ Laurie B. Ashton Laurie B. Ashton (admitted pro hac vice) 3101 North Central Avenue, Suite 1400 Phoenix, AZ 85012-2600 Tel.: (602) 248-0088 Fax: (602) 248-2822 Email: lashton@kellerrohrback.com
By: /s/ Alison Chase Alison Chase (admitted pro hac vice) 1129 State Street, Suite 8 Santa Barbara, CA 93101 Tel.: (805) 456-1496 Fax: (805) 456-1497 Email: achase@kellerrohrback.com
Attorneys for Plaintiffs/Cooperating Attorneys for the American Civil Liberties Union of Washington Foundation

STIPULATED DISMISSAL - 3 Case No. 2:17-cv-00178-JLR

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00178-JLR Document 205 Filed 02/10/20 Page 41 of 41

1 JOSEPH H. HUNT
2 Assistant Attorney General
3 AUGUST E. FLENTJE 4 Special Counsel

5 JENNIFER D. RICKETTS Director, Federal Programs Branch
6

7

JOSHUA E. GARDNER Special Counsel, Federal Programs Branch

8

9 /s/ Joshua Kolsky______________ JOSHUA KOLSKY
10 KEVIN SNELL 11 Trial Attorneys
U.S. Department of Justice 12 Civil Division, Federal Programs Branch
1100 L Street, NW 13 Washington, DC 20005
Tel: (202) 305-7664 14 Fax: (202) 616-8470 15 Email: joshua.kolsky@usdoj.gov

16 Counsel for Defendants

17

18

19

20

21

22

23

24

25

26

STIPULATED DISMISSAL - 4 Case No. 2:17-cv-00178-JLR

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
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 Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 1 of 16

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 JOHN DOE, et al.,
10
v. 11

Plaintiffs,

CASE NO. C17-0178JLR
ORDER DENYING MOTION FOR STAY PENDING APPEAL

12

DONALD TRUMP, et al.,

(RELATING TO BOTH CASES)

13

Defendants.

14

JEWISH FAMILY SERVICES, et al.,

15 v.

Plaintiffs,

16

DONALD TRUMP, et al.,

17

Defendants.

CASE NO. C17-1707JLR

18

I. INTRODUCTION

19

Before the court is Defendants Donald Trump, United States Department of State,

20 Rex Tillerson, United States Department of Homeland Security (“DHS”), United States

21 Customs and Border Protection, Kevin McAleenan, Michele James, Office of the

22

ORDER - 1

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 2 of 16

1 Director of National Intelligence, Elaine Duke, and Daniel Coats’s (collectively,

2 “Defendants” or “the Government”) emergency motion for a stay pending the appeal of

3 the court’s December 23, 2017, order granting Plaintiffs’ motions for preliminary

4 injunctions in the consolidated cases. (MFS (Dkt. # 95); see also PI Order (Dkt. # 92).)

5 The court directed Plaintiffs in the two consolidated cases1 to file separate responses to

6 Defendants’ motion. (12/30/17 Order (Dkt. # 97).) The court has considered the motion,

7 Plaintiffs’ responses (JFS Resp. (Dkt. # 100); Doe Resp. (Dkt. # 101)), the relevant

8 portions of the record, and the applicable law. Being fully advised, the court DENIES the

9 motion.

10

II. BACKGROUND

11

On December 23, 2017, the court issued a preliminary injunction in the

12 consolidated cases against certain aspects of Executive Order No. 13,815 (“EO-4”), 82

13 Fed. Reg. 50,055 (Oct. 27, 2017), and its accompanying memorandum to President

14 Trump, from Secretary of State Tillerson, Acting Secretary of DHS Duke, and Director of

15 National Intelligence (“DNI”) Coats. (See generally PI Order; see also Lin Decl. (Dkt.

16 # 46) ¶ 3, Ex. B (attaching a copy of the memorandum) (hereinafter, “Agency Memo”).)

17 //

18

1 Plaintiffs in Doe, et al. v. Trump, et al., No. C17-0178JLR (W.D. Wash.), include John

Doe, Joseph Doe, James Doe, Jack Doe, Jason Doe, Jeffrey Doe, Episcopal Diocese of Olympia,

19 and Council on American Islamic Relations–Washington (collectively, “Doe Plaintiffs”).

Plaintiffs in Jewish Family Services, et al. v. Trump, et al., No. C17-1707JLR (W.D. Wash.),

20 include Afkab Mohamed Hussein, Allen Vaught, John Does 1-3, Jane Does 4-6, John Doe 7, Jewish Family Service of Seattle (“JFS-S”), and Jewish Family Services of Silicon Valley (“JFS-

21

SV”) (collectively, “JFS Plaintiffs”). On November 29, 2017, the court consolidated these two cases under Case No. C17-0178JLR. (Min. Order (Dkt. #61).) Notations of docket entries in

22

this order that are preceded by “17-1707” are docket entries in Case No. C17-1707JLR. Otherwise, docket entry notations refer to entries in Case No. C17-0178JLR.

ORDER - 2

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 3 of 16

1 The preliminary injunction enjoins Defendants2 “from enforcing those provisions of the

2 Agency Memo that suspend the processing of [following-to-join (“FTJ”)] refugee

3 applications or suspend the admission of FTJ refugees into the United States” and “those

4 provisions of the Agency Memo that suspend or inhibit, including through the diversion

5 of resources, the processing of refugee applications or the admission into the United

6 States of refugees from [Security Advisory Opinion (“SAO”) list] countries.” (PI Order

7 at 64-65.)

8

On December 27, 2017, Defendants filed a motion asking the court to reconsider

9 certain aspects of the preliminary injunction related to SAO countries. (MTR (Dkt.

10 # 93).) Defendants’ motion asked the court to reconsider its ruling that a bona fide

11 relationship with an American organization includes refugee applicants covered by a

12 formal assurance from a refugee resettlement agency. (See generally id.; see also PI

13 Order at 63 n.31.) At the request of the court, Plaintiffs filed a consolidated response.

14 (MTR Resp. (Dkt. # 98); 12/29/17 Order (Dkt. # 94).) On January 5, 2018, the court

15 denied Defendants’ motion for reconsideration. (1/5/18 Order (Dkt. # 103).)

16

Meanwhile, on December 29, 2017, Defendants filed a second motion, which they

17 denominated as an “emergency motion” for a stay of the preliminary injunction pending

18 an appeal. (See MFS.) The court again directed Plaintiffs to file a response to

19 Defendants’ motion, but this time allowed Doe Plaintiffs and JFS Plaintiffs to file

20 separately. (See 12/30/17 Order (Dkt. # 97).) Doe Plaintiffs and JFS Plaintiffs filed their

21 2 The preliminary injunction applies to all Defendants except for President Trump. (See
22 PI Order at 64 n.32.)

ORDER - 3

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 4 of 16

1 responses on January 4, 2018. (See JFS Resp.; Doe Resp.) On the same day, Defendants

2 filed a notice of appeal of the court’s preliminary injunction. (Notice of Appeal (Dkt.

3 # 99).) Finally, on January 5, 2018, Defendants filed a “notice,” which asked the court to

4 stay that portion of the preliminary injunction that Defendants unsuccessfully challenged

5 in their motion for reconsideration. (Notice re: MFS (Dkt. # 104).) The court now

6 considers Defendants’ emergency motion for a stay.

7

III. ANALYSIS

8

In analyzing Defendants’ motion, the court first considers its own jurisdiction to

9 decide the motion. Next, the court considers certain statements in Defendants’ motion,

10 which impliedly modify the court’s preliminary injunction unilaterally. Finally, the court

11 considers the merits of Defendants’ motion to stay.

12 A. Jurisdiction

13

Because Defendants filed a notice of appeal (see Notice of Appeal), the court first

14 considers its own jurisdiction to decide Defendants’ emergency motion for a stay pending

15 appeal. “While a preliminary injunction is pending on appeal, a district court lacks

16 jurisdiction to modify the injunction in such a manner as to ‘finally adjudicate substantial

17 rights directly involved in the appeal.’” A & M Records v. Napster, Inc., 284 F.3d 1091,

18 1099 (9th Cir. 2002) (quoting Newton v. Consolidated Gas Co., 285 U.S. 165, 177

19 (1992)). Nevertheless, Federal Rule of Civil Procedure 62(c) allows the court to issue

20 further orders with respect to an injunction, even during an appeal, in order to preserve

21 the status quo or ensure compliance with its earlier orders. See Nat. Res. Def. Council,

22 Inc. v. Sw. Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). Indeed, “[t]he plain

ORDER - 4

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 5 of 16

1 language of Rule 62(c) allows the district court to ‘suspend, modify, restore, or grant an

2 injunction’ during the pendency of [an] interlocutory appeal, and such action can inure to

3 the benefit of plaintiffs or defendants.” Mayweathers v. Newland, 258 F.3d 930, 935 (9th

4 Cir. 2001) (quoting Fed. R. Civ. P. 62(c)); see also Fed. R. App. P. 8(a)(1) (“A party

5 must ordinarily move first in the district court for the following relief: (A) a stay of

6 the . . . order of a district court pending appeal; . . . or (C) an order suspending,

7 modifying, restoring, or granting an injunction while an appeal is pending.”). Based on

8 these authorities, the court concludes that it has jurisdiction to consider Defendants’

9 emergency motion to stay the preliminary injunction despite the pending appeal. The

10 court’s exercise of jurisdiction, however, may “not ‘materially alter the status of the case

11 on appeal.’” Mayweathers, 258 F.3d at 935 (quoting Nat. Res. Def. Council, Inc., 242

12 F.3d at 1166).

13 B. Defendants’ Attempts to Unilaterally Modify the Preliminary Injunction

14

Defendants declare in their motion they “do not understand the preliminary

15 injunction to require affirmative action to undo any of the steps that were taken to

16 implement the Joint Memorandum prior to December 23.” (MFS at 4; see also id. at 6

17 (“Defendants do not understand the preliminary injunction to require them to take

18 affirmative steps to undo decisions that were made consistent with the [Agency Memo]

19 prior to the preliminary injunction’s issuance.”).) To the extent that this declaration is an

20 attempt to unilaterally modify the preliminary injunction, the court rejects it.3

21 3 At this point, the court declines to consider the possibility that Defendants’ declaration
22 is an improper attempt to excuse noncompliance with the court’s order. The court simply notes

ORDER - 5

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 6 of 16

1

The court’s preliminary injunction requires Defendants to take actions that are

2 necessary to undo those portions of the Agency Memo that are enjoined. For example, if

3 Defendants sent guidance suspending the admission of FTJ refugees or refugees from

4 SAO countries, they must rescind that guidance. If they issued instructions to

5 de-prioritize the processing of applications from SAO countries, they must reverse those

6 instructions. Defendants are required to restore the status quo prior to the issuance of the

7 Agency Memo with respect to the processing of applications from FTJ refugees and

8 refugees from SAO countries. Contrary to Defendants’ assertions (see MFS at 5), this

9 requirement does not transform the preliminary injunction into a mandatory one, see Ariz.

10 Dream Act Coal. v. Brewer, 757 F.3d 1053, 1060-61 (9th Cir. 2014) (holding that an

11 injunction that prohibits the enforcement of a new law or policy is prohibitory, not

12 mandatory, even where the policy has already taken effect prior to filing the lawsuit).

13

In any event, Defendants’ arguments that they should be excused from taking any

14 “affirmative actions” to comply with the preliminary injunction are conclusory and

15 unsupported by any evidence. (See, e.g., MFS at 5 (asserting without evidence that there

16 “is significant doubt about whether it would even be possible for Defendants to undo

17 some of their prior decisions”).) Indeed, the only concrete example that Defendants

18 provide to support their argument relates to certain “circuit rides” that Defendants

19 scheduled for the second quarter of fiscal year 2018 pursuant to the Agency Memo’s

20 directive to divert resources away from processing SAO refugee applications. (See id. at

21

22

that, in the absence of a stay, Defendants’ failure to comply with the preliminary injunction could result in a possible finding of contempt and the possible imposition of sanctions.

ORDER - 6

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 7 of 16

1 4-5.) Defendants posit that they “might” have to cancel the presently scheduled “circuit

2 rides” and refugee applicant interviews if they are required to comply with the

3 preliminary injunction. (See id. at 4-5 (asserting this possibility without evidentiary

4 support).) First, contrary to Defendants’ assertions, nothing in the preliminary injunction

5 requires Defendants to cancel any already-scheduled circuit rides or refugee interviews.

6 Complying with the preliminary injunction, however, does require Defendants to restore

7 any circuit rides that they would have scheduled absent the Agency Memo. Second,

8 Defendants have submitted no evidence that such interviews could not be restored

9 without cancelling previously scheduled interviews. (See MFS; see generally Dkt.)

10 Indeed, the time to submit such evidence, to the extent it exists, would have been when

11 the court was considering Plaintiffs’ motions for preliminary injunction. Thus, the court

12 rejects Defendants’ apparent attempts to unilaterally modify the preliminary injunction

13 and again orders Defendants to comply with the preliminary injunction as written.

14 C. Motion to Stay

15

In the Ninth Circuit, “[t]he standard for evaluating stays pending appeal is similar

16 to that employed by district courts in deciding whether to grant a preliminary injunction.”

17 Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983). Granting a stay is within the

18 court’s discretion, and the party seeking the stay bears the burden of demonstrating “that

19 the circumstances justify the exercise of that discretion.” Washington v. Trump, 847 F.3d

20 1151, 1164 (9th Cir. 2017) (quoting Nken v. Holder, 556 U.S. 418, 433-34 (2009)). The

21 court’s discretion is guided by four factors: “(1) whether the stay applicant has made a

22 strong showing that he is likely to succeed on the merits; (2) whether the applicant will be

ORDER - 7

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 8 of 16

1 irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure

2 the other parties interested in the proceeding; and (4) where the public interest lies.”

3 Nken, 556 U.S. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (internal

4 quotation marks omitted).

5

1. Defendants Fail to Make a Strong Showing that They Are Likely to Succeed

on the Merits

6 Defendants fail to make the necessary “strong showing” that they are likely to

7 succeed on the merits. See id. Defendants offer no new arguments or analysis

8 concerning their likelihood of success on the merits. (See MFS at 10-12.) Instead,

9 Defendants simply rehash arguments this court has already rejected. (See id.) The court

10 has previously explained why (1) the suspension of the FTJ refugee program is

11 inconsistent with 8 U.S.C. § 1157(c)(2)(A) (PI Order at 48-51), (2) the suspension of

12 refugees from SAO countries is inconsistent with the Refugee Act of 1980 (id. at 51-56),

13 and (3) promulgation of the Agency Memo required notice and comment rulemaking

14 under the Administrative Procedures Act (“APA”) (id. at 39-46).4 Nothing in

15 Defendants’ motion for a stay causes the court to reevaluate those rulings.

16 //

17 //

18 //

19

20

4 Defendants assert that the court’s ruling that Plaintiffs are likely to succeed on their

APA rulemaking claim would “threaten agencies’ abilities to take important actions . . . on a

21

timely basis” or to “quickly and continually revise screening procedures” during national emergencies. (See MFS at 12.) However, the court’s ruling does not throw open the door to

22

rulemaking in every instance. For example, the APA contains a “good cause” exception to rulemaking, see 5 U.S.C. § 553(b)(B), which Defendants chose not to invoke here.

ORDER - 8

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 9 of 16

1

2. Defendants Fail to Show Irreparable Harm Absent a Stay or that the Public

Interest Favors a Stay

2

Defendants fail to show that they will be irreparably injured absent a stay or that

3 the public interest favors a stay.5 First, Defendants assert that “[e]ven a single State

4 ‘suffers a form of irreparable injury’ ‘[a]ny time [it] is enjoined by a court from

5 effectuating statutes enacted by representatives of its people.” (MFS at 3 (alterations in

6 original) (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012)).) Here, however, it is

7 Defendants who—based on the Agency Memo—seek to override statutes enacted by

8 Congress. As the court explained in its preliminary injunction, the enjoined Agency

9 Memo provisions concerning FTJ refugees run roughshod over the nondiscriminatory

10 family reunification provision of 8 U.S.C. § 1157(c)(2)(A). (PI Order at 48-51.) In

11 addition, the Agency Memo’s SAO provisions (1) seek to evade the “permanent and

12 systemic procedure” for refugee admission and resettlement that Congress established in

13 the Refugee Act of 1980, (2) rework the Act’s definition of “refugee” under 8 U.S.C.

14 1101(a)(42), and (3) impermissibly alter the admissibility standards set by Congress in 8

15 U.S.C. § 1182(a). (Id. at 51-56.) Where the Government’s actions thwart Congressional

16 intent and undermine Congressionally-enacted statutes, the public interest is best served

17 by curtailing those actions. See Hawaii v. Trump, --- F.3d ----, 2017 WL 6554184, at *23

18 (9th Cir. 2017) (“Hawaii III”) (“It is axiomatic that the President must exercise his

19 //

20 5 As the court noted when ruling on Plaintiffs’ preliminary injunction motions, when the

21

Government is a party, analysis of the public interest element tends to overlap with other elements central to the court’s analysis. (See PI Order at 59.) Accordingly, although the public

22

interest and irreparable harm to Defendants in the absence of a stay are separate factors, the court considers them together here.

ORDER - 9

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 10 of 16

1 executive powers lawfully. When there are serious concerns that the President has not

2 done so, the public interest is best served by ‘curtailing unlawful executive action.’”)

3 (quoting Texas v. United States, 809 F.3d 134, 187 (5th Cir. 2015), aff’d by an equally

4 divided court, --- U.S. ---, 136 S. Ct. 2271 (2016)).

5

Further, although the Government has a “compelling” interest in national security,

6 see Haig v. Agee, 453 U.S. 280, 307 (1981),6 Defendants cannot simply rely on

7 unspecified security concerns, see Ziglar v. Abbasi, --- U.S. ---, 137 S. Ct. 1843, 1862

8 (2017) (explaining that “national-security concerns must not become a talisman used to

9 ward off inconvenient claims—a ‘label’ used to ‘cover a multitude of sins’”).7 Here,

10 although the Agency Memo states that the Secretaries who authored it continue to have

11 indeterminate, general “concerns” regarding the admission of nationals, and stateless

12 persons who last habitually resided in, SAO list countries (Agency Memo (Dkt. # 46-2) at

13 2), Defendants offer no evidence in support of their assertion that the preliminary

14 injunction poses national security harms (see generally Dkt.). Indeed, there is no

15 //

16 //

17

6 See also Hawaii v. Trump, 859 F.3d 741, 784 (9th Cir.), cert. granted sub nom. Trump 18 v. Int’l Refugee Assistance Project, --- U.S. ---, 137 S. Ct. 2080 (2017), and cert. granted,
judgment vacated on other grounds as moot, --- U.S. ---, 138 S. Ct. 377 (2017), and vacated on
19 other grounds as moot, 874 F.3d 1112 (9th Cir. 2017) (“Hawaii I”) (“National security is undoubtedly a paramount public interest.”).

20 7 See also Hawaii III, 2017 WL 6554184, at *22 (holding that in the absence of

21

“sufficient findings that the ‘entry of certain classes of aliens would be detrimental to the national interest,’” national security interests did not outweigh harm to plaintiffs); Washington,

22

847 F.3d at 1168 (similarly holding that the Government’s general interest in combatting terrorism, without more, was insufficient to outweigh likely harm to the plaintiffs).

ORDER - 10

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 11 of 16

1 evidence in the record that either SAO or FTJ refugees pose a security threat.8

2 Countering Defendants’ general and unspecified concerns, Plaintiffs offer detailed

3 testimony from numerous former national security officials concretely describing how the

4 Agency Memo will harm our national security and foreign policy interests. (See Joint

5 Decl. Former Nat’l Sec. Officers.) Based on the record before it, the court cannot

6 conclude that Defendants have met their burden of establishing that the public interest

7 favors a stay.

8

In addition, Defendants’ own actions undermine their position that they or the

9 public interest will be harmed absent a stay. Defendants assert that they have tracked

10 down Joseph Doe’s family and that a “[p]roposed interim guidance” of the U.S.

11 Citizenship and Immigration Services (“USCIS”) would allow travel to the United States

12 of Joseph’s family and all other FTJ refugee applicants who obtained valid travel

13 documents on or before October 24, 2017—the day that Defendants issued EO-4 and the

14 Agency Memo.9 (MFS at 9; Smith Decl. ¶¶ 2-4.) Indeed, Defendants state that they

15 //

16

8 “During the four decades from 1975 to the end of 2015, over three million refugees

have been admitted to the United States. Despite this number, only three refugees have killed 17 people in terrorist attacks on U.S. soil during this period. None of these refugees were from the

11 listed countries in the [Agency Memo].” (Joint Decl. Former Nat’l Sec. Officers (17-1707

18 Dkt. # 46) ¶ 12.)

19

9 Defendants state that the proposed interim guidance “was in the process of being

reviewed for clearance before the Preliminary Injunction was issued.” (Smith Decl. (Dkt.

20 # 95-1) ¶ 2.) But Defendants did not so inform the court while it was considering the preliminary injunction. Further, the declaration describes the interim guidance as merely

21

“[p]roposed.” (Id. ¶ 2.) Thus, although USCIS may have processed Joseph Doe’s wife and children “[b]ased on the proposed USCIS guidance,” it is unclear if USCIS has generally

22

adopted the interim guidance with respect to processing all FTJ refugee applicants who had received valid travel documents prior to October 24, 2017. (See id. ¶ 3.)

ORDER - 11

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 12 of 16

1 expect to know the date of travel booking for Joseph’s family by January 2, 2018.10

2 (Smith Decl. ¶ 4.) Thus, Defendants have decided to admit certain FTJ refugees,

3 including those from SAO countries, prior to implementation of the additional screening

4 procedures for FTJ refugees or completion of the additional threat analysis of SAO

5 countries that the Agency Memo prescribes. This decision undermines Defendants’

6 position that the preliminary injunction impairs national security or that Defendants will

7 be irreparably harmed absent a stay. Defendants’ decision to permit Joseph Doe’s

8 family, as well as other FTJ and SAO refugees, to travel to the United States so long as

9 they received their travel papers prior to October 24, 2017, confirms that the government

10 will suffer no irreparable harm by allowing such refugee admissions during the pendency

11 of their appeal.

12

Finally, Defendants again rely on the Supreme Court’s December 4, 2017, stay

13 orders in Trump v. Hawaii, No. 17A550, 2017 WL 5987406 (U.S. Dec. 4 2017), and

14 //

15

10 Defendants may be attempting to moot Joseph Doe’s claims by creating an exception

16

for him. (See MFS at 9; see also Doe Resp. at 8-10 (asserting that such attempts are unavailing).) Although the court need not rule on this issue for purposes of determining the

present motion to stay, the court notes that Joseph seeks to represent a class. (See Mot. for Class 17 Cert. (Dkt. # 19).) Mootness of a named plaintiff’s claim after class certification does not moot

the action. Haro v. Sebelius, 747 F.3d 1099, 1110 (9th Cir. 2014) (citing Sosna v. Iowa, 419

18 U.S. 393, 401 (1975)). Further, where the named plaintiff’s claim is transitory such that the trial

court does not have sufficient time to rule on a motion for class certification before the proposed

19 representative’s individual claim expires, the ‘relation back’ doctrine preserves the merits of the

case for judicial resolution. See id.; see also Pitts v. Herbst, Inc., 653 F.3d 1081, 1090-91 (9th

20 Cir. 2011) (“[A]lthough [the plaintiff’s] claims are not inherently transitory as a result of being time sensitive, they are acutely susceptible to mootness in light of the defendant’s tactic of

21

picking off lead plaintiff’s with a Rule 68 offer to avoid a class action. . . . The result is the same: a claim transitory by its very nature and one transitory by virtue of the defendant’s litigation

22

strategy share the reality that both claims would evade review.” (internal quotation marks, citations, and alterations omitted)).

ORDER - 12

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 13 of 16

1 Trump v. Hawaii, No. 17A560, 2017 WL 5987435 (U.S. Dec. 2017), to argue that their

2 national security interests outweigh Plaintiffs’ interests and that the court should impose a

3 stay here as well. (MFS at 2.) Defendants’ reliance on these two stay orders is

4 misplaced. First, the court has already declined to speculate on the reasons for the

5 Supreme Court’s December 4, 2017, stay orders, which involved preliminary injunctions

6 against portions of Presidential Proclamation No. 9,645, 82 Fed. Reg. 45,161 (Sept. 27,

7 2017) (“EO-3”), and were devoid of any analysis. (See PI Order at 61-62 n.30.)

8

Second, the balancing of the equities here is necessarily different here than in the

9 cases challenging EO-3. This case involves refugees—individuals “who are fleeing

10 danger” and “who have been persecuted by actual terrorists”—and their families or other

11 individuals or organizations in the United States with whom those refugees have a bona

12 fide relationship. (See Joint Decl. Former Nat’l Sec. Officers ¶ 14.f; see also id. ¶ 17.)

13 The two cases stayed by the Supreme Court on December 4, 2017, challenged EO-3 and

14 did not involve refugees or those here in the United States with a bona fide relationship to

15 refugees. Further, in this case, Defendants have acknowledged that they will process the

16 applications of FTJ refugees and refugees from SAO countries so long as the refugees

17 received their travel papers prior to October 24, 2017. As discussed above, this

18 acknowledgement undermines Defendants’ assertion of national security concerns

19 regarding the admission of FTJ and SAO refugees pending Defendants’ appeal and

20 necessarily affects the balancing of equities in this case in a manner not applicable to the

21 cases challenging EO-3.

22 //

ORDER - 13

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 14 of 16

1

Moreover, the EO-3 cases before the Supreme Court involved entry prohibitions

2 by the President and specific authorities that Congress granted the President in 8 U.S.C.

3 §§ 1182(f) and 1185(a)(1). Those authorities and the unique role the President may play

4 based on those authorities is not at issue here. (See PI Order at 51 (discussing statutory

5 authorities invoked in this case).) Indeed, the restrictions at issue here were put into

6 place by agency officials after the President found that his suspension of entry of refugees

7 was no longer necessary. (Compare EO-4 § 3(a) (“Presidential action to suspend the

8 entry of refugees under [United States Refugee Assistance Program (“USRAP”)] is not

9 needed at this time to protect the security and interests of the United States and its

10 people.”), with Agency Memo at 2-3 (suspending the processing of applications and entry

11 of refugees from SAO countries for 90 days and FTJ refugees indefinitely).)

12

Third, Defendants again ignore the Supreme Court’s earlier, reasoned opinion

13 denying a stay in relevant part in Trump v. International Refugee Assistance Project, ---

14 U.S. ---, 137 S. Ct. 2080, 2089 (2017) (“IRAP”). IRAP, like this case, involved a

15 purportedly temporary ban on refugees contained in Executive Order No. 13,780, 82 Fed.

16 Reg. 13,209 (Mar. 9, 2017) (“EO-2”), which the Government justified by indicating its

17 desire to study and upgrade vetting procedures. IRAP, 137 S. Ct. at 2084. Nevertheless,

18 the Supreme Court denied a stay of the injunctions on EO-2 as to the same refugees

19 protected by the preliminary injunction here—those with a bona fide relationship to

20 Untied States persons or entities. Id. at 2089. Thus, for all of the foregoing reasons, the

21 court again rejects Defendants’ argument that the Supreme Court’s December 4, 2017,

22 //

ORDER - 14

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 15 of 16

1 stay orders concerning EO-3 require this court to balance the equities in Defendants’

2 favor or to impose a stay on the preliminary injunction in this litigation as well.

3

Based on the foregoing analysis, the court concludes that Defendants have failed

4 to demonstrate that they will be irreparably injured absent a stay or that the public interest

5 favors a stay.

6

3. Issuance of the Stay Will Substantially Injure the Other Interested Parties

7

Defendants’ contentions concerning a lack of injury to individual Plaintiffs in the

8 event of a stay pending appeal again reiterate arguments that this court has already

9 rejected. (Compare Mot. at 6-10 with PI Order at 12-16, 20-25, 56-57.) Defendants

10 provide the court with no basis to reevaluate its prior rulings that Plaintiffs will be

11 irreparably harmed in the absence of a preliminary injunction. Further, Defendants

12 ignore the harm to organizational Plaintiffs, such as JFS-S and JFS-SV, in their motion

13 seeking a stay. (See generally MFS.) These organizational Plaintiffs would also suffer

14 substantial harm in the event of a stay. (See PI order at 25-28.) The court concludes that

15 Defendants failed to demonstrate that this factor favors a stay.

16

Having evaluated all the factors that guide its exercise of discretion, the court

17 denies Defendants’ motion for a stay. In addition, for the same reasons as stated herein

18 and in its order denying Defendants’ motion for reconsideration (see 1/5/18 Order), the

19 court also denies Defendants’ request in their January 5, 2018, notice for a more limited

20 stay concerning those refugees who have a bona fide relationship with an entity in the

21 United States through a resettlement assurance agency (see Notice re: MFS).

22 //

ORDER - 15

Case 2:17-cv-00178-JLR Document 106 Filed 01/09/18 Page 16 of 16

1

IV. CONCLUSION

2

Based on the analysis and authority cited above, the court DENIES Defendants’

3 motion to stay the court’s preliminary injunction order pending appeal (Dkt. # 95) and

4 their request for a more limited in stay contained in their January 5, 2018, notice (Dkt.

5 # 104).

6

Dated this 9th day of January, 2018.

7

8

A

9

JAMES L. ROBART

United States District Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

ORDER - 16

 
 U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:17-cv-00178-JLR

Doe et al v. Donald Trump, President of The United States et al Assigned to: Judge James L. Robart Case in other court: 9th Circuit Court of Appeals, 18-
35026 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 02/07/2017 Date Terminated: 11/13/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
Jane Doe individually and on behalf of all other similarly situated TERMINATED: 05/08/2017

represented by Alison Chase KELLER ROHRBACK LLP 801 GARDEN STREET, SUITE 301 SANTA BARBARA, CA 93101 805-456-1496 Email: achase@kellerrohrback.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alison Gaffney KELLER ROHRBACK LLP (WA) 1201 3RD AVE STE 3200 SEATTLE, WA 98101-3052 206-623-1900 Email: agaffney@kellerrohrback.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek W Loeser KELLER ROHRBACK 1201 3RD AVE STE 3200 SEATTLE, WA 98101-3052 206-623-1900 Email: dloeser@kellerrohrback.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Chiang ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 SEATTLE, WA 98164 206-624-2184 Email: echiang@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie B. Ashton KELLER ROHRBACK LLP 3101 NORTH CENTRAL AVENUE, STE 1400 PHOENIX, AZ 85012-2600 602-248-0088 Email: lashton@kellerrohrback.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tana Lin KELLER ROHRBACK LLP (WA) 1201 3RD AVE STE 3200 SEATTLE, WA 98101-3052 206-623-1900 Email: tlin@kellerrohrback.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy C Williams-Derry KELLER ROHRBACK LLP (WA) 1201 3RD AVE STE 3200 SEATTLE, WA 98101-3052 206-623-1900 Email: awilliamsderry@kellerrohrback.com TERMINATED: 03/05/2019
La Rond Baker KING COUNTY DPD 710 SECOND AVE STE 200 SEATTLE, WA 98104

Plaintiff
John Doe individually and on behalf of all other similarly situated

206-263-6884 Email: lbaker@kingcounty.gov TERMINATED: 07/10/2017
Lynn Lincoln Sarko KELLER ROHRBACK LLP (WA) 1201 3RD AVE STE 3200 SEATTLE, WA 98101-3052 206-623-1900 Fax: 206-623-3384 Email: lsarko@kellerrohrback.com ATTORNEY TO BE NOTICED
represented by Alison Chase (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alison Gaffney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Derek W Loeser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie B. Ashton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lisa Nowlin ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728

Plaintiff Episcopal Diocese of Olympia

SEATTLE, WA 98111 206-623-1900 Email: lnowlin@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tana Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy C Williams-Derry (See above for address) TERMINATED: 03/05/2019
La Rond Baker (See above for address) TERMINATED: 07/10/2017
Lynn Lincoln Sarko (See above for address) ATTORNEY TO BE NOTICED
represented by Alison Chase (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alison Gaffney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Derek W Loeser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie B. Ashton

Plaintiff Joseph Doe

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tana Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy C Williams-Derry (See above for address) TERMINATED: 03/05/2019
La Rond Baker (See above for address) TERMINATED: 07/10/2017
Lynn Lincoln Sarko (See above for address) ATTORNEY TO BE NOTICED
represented by Alison Gaffney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
La Rond Baker (See above for address) TERMINATED: 07/10/2017
Tana Lin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff James Doe
Plaintiff Julia Doe TERMINATED: 05/08/2017
Plaintiff Council on American Islamic Relations - Washington

represented by Alison Gaffney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
La Rond Baker (See above for address) TERMINATED: 07/10/2017
Tana Lin (See above for address) ATTORNEY TO BE NOTICED
represented by Alison Gaffney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
La Rond Baker (See above for address) TERMINATED: 07/10/2017
Tana Lin (See above for address) ATTORNEY TO BE NOTICED
represented by Alison Gaffney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
La Rond Baker

Plaintiff Jack Doe
Plaintiff Jason Doe

(See above for address) TERMINATED: 07/10/2017
Tana Lin (See above for address) ATTORNEY TO BE NOTICED
represented by Alison Gaffney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
La Rond Baker (See above for address) TERMINATED: 07/10/2017
Tana Lin (See above for address) ATTORNEY TO BE NOTICED
represented by Alison Gaffney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
La Rond Baker (See above for address) TERMINATED: 07/10/2017
Tana Lin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jeffrey Doe
V. Consol Plaintiff Afkab Mohamed Hussein

represented by Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tana Lin KELLER ROHRBACK 1201 3RD AVE STE 3200 SEATTLE, WA 98101-3052 206-623-1900 Email: tlin@kellerrohrback.com ATTORNEY TO BE NOTICED
represented by Abigail E. Davis 4 TIMES SQUARE 40-310 NEW YORK, NY 10036 212-735-3579 Email: abigail.sheehan@probonolaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Burman PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-8000 Fax: 206-359-9000 Email: dburman@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deepa Alagesan INTERNATIONAL REFUGEE ASSISTANCE PROJECT (NY) ONE BATTERY PARK PLAZA, 4TH FLOOR

NEW YORK, NY 10004 516-838-7044 Fax: 929-999-8119 Email: dalagesan@refugeerights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth G Sweet HIAS 1300 SPRING STREET STE 500 SILVER SPRING, MD 20912 301-844-7300 Email: liz.sweet@hias.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Esther Sung NATIONAL IMMIGRATION LAW CENTER 3450 WILSHIRE BLVD. #108-62 LOS ANGELES, CA 90010 213-639-3900 Email: sung@nilc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin B. Cox INTERNATIONAL REFUGEE ASSISTANCE PROJECT (GA) PO BOX 170208 ATLANTA, GA 30317 516-701-4233 Fax: 929-999-8119 Email: jcox@refugeerights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin NATIONAL IMMIGRATION LAW CENTER

3450 WILSHIRE BLVD #108-62 LOS ANGELES, CA 90010 213-639-3900 Email: tumlin@nilc.org LEAD ATTORNEY PRO HAC VICE
Kathryn C. Meyer INTERNATIONAL REFUGEE ASSISTANCE PROJECT (NY) ONE BATTERY PARK PLAZA, 4TH FLOOR NEW YORK, NY 10004 516-838-1975 Fax: 929-999-8119 Email: kmeyer@refugeerights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren E Aguiar 4 TIMES SQUARE 40-300 NEW YORK, NY 10036 212-735-2235 Email: lauren.aguiar@probonolaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Watts Staniar PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-3316 Email: LStaniar@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Evarts INTERNATIONAL REFUGEE ASSISTANCE PROJECT (NY) ONE BATTERY PARK PLAZA,

4TH FLOOR NEW YORK, NY 10004 516-838-1655 Fax: 929-999-8119 Email: levarts@refugeerights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose INTERNATIONAL REFUGEE ASSISTANCE PROJECT (NY) ONE BATTERY PARK PLAZA, 4TH FLOOR NEW YORK, NY 10004 516-701-4620 Fax: 929-999-8119 Email: mhirose@refugeerights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark J. Hetfield HIAS 1300 SPRING STREET SUITE 500 SILVER SPRING, MD 20910 301-844-7267 Email: mark.hetfield@hias.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney INTERNATIONAL REFUGEE ASSISTANCE PROJECT PO BOX 2291 FAIR OAKS, CA 95628 916-546-6125 Email: mkeaney@refugeerights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mollie M Kornreich 4 TIMES SQUARE

Consol Plaintiff John Doe 3
Consol Plaintiff Jewish Family Service of Seattle

41-408 NEW YORK, NY 10036 212-735-2775 Email: mollie.kornreich@probonolaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyler S. Roberts PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-6312 Email: troberts@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Abigail E. Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Burman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deepa Alagesan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth G Sweet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Esther Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE
Kathryn C. Meyer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren E Aguiar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Watts Staniar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Consol Plaintiff
Jewish Family Services of Silicon Valley

Mark J. Hetfield (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Max S Wolson NATIONAL IMMIGRATION LAW CENTER PO BOX 34573 WASHINGTON, DC 20043 202-971-9271 Email: wolson@nilc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mollie M Kornreich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyler S. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Abigail E. Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Burman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deepa Alagesan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth G Sweet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Esther Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE
Kathryn C. Meyer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren E Aguiar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Watts Staniar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff Jane Doe 6

Linda Evarts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark J. Hetfield (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mollie M Kornreich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyler S. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Abigail E. Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Burman (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Deepa Alagesan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth G Sweet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Esther Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE
Kathryn C. Meyer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren E Aguiar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Watts Staniar (See above for address) LEAD ATTORNEY

Consol Plaintiff Allen Vaught

ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark J. Hetfield (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mollie M Kornreich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyler S. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Abigail E. Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Burman (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deepa Alagesan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth G Sweet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Esther Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE
Kathryn C. Meyer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren E Aguiar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Watts Staniar (See above for address)

Consol Plaintiff Jane Doe 5

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark J. Hetfield (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mollie M Kornreich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyler S. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Abigail E. Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Burman

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deepa Alagesan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth G Sweet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Esther Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE
Kathryn C. Meyer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren E Aguiar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Watts Staniar

Consol Plaintiff Jane Doe 4

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark J. Hetfield (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mollie M Kornreich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyler S. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Abigail E. Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David J. Burman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deepa Alagesan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth G Sweet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Esther Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE
Kathryn C. Meyer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren E Aguiar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Consol Plaintiff John Doe 7

Lauren Watts Staniar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark J. Hetfield (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mollie M Kornreich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyler S. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Abigail E. Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David J. Burman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deepa Alagesan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth G Sweet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Esther Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE
Kathryn C. Meyer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren E Aguiar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Consol Plaintiff John Doe 2

Lauren Watts Staniar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark J. Hetfield (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mollie M Kornreich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyler S. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Abigail E. Davis (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
David J. Burman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deepa Alagesan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth G Sweet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Esther Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE
Kathryn C. Meyer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren E Aguiar (See above for address) LEAD ATTORNEY PRO HAC VICE

Consol Plaintiff John Doe 1

ATTORNEY TO BE NOTICED
Lauren Watts Staniar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark J. Hetfield (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mollie M Kornreich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyler S. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Abigail E. Davis (See above for address) LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Burman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deepa Alagesan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth G Sweet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Esther Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE
Kathryn C. Meyer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren E Aguiar (See above for address) LEAD ATTORNEY

V. Defendant

PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Watts Staniar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark J. Hetfield (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mollie M Kornreich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyler S. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald J Trump President of the United States

represented by August Flentje DEPARTMENT OF JUSTICE 901 PENNSYLVANIA AVENUE NW ROOM 3613 WASHINGTON, DC 20530 202-514-3309 Email: august.flentje@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arjun Garg US DEPT. OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 MASSACHUSETTS AVE NW WASHINGTON, DC 20530 202-305-8613 Email: arjun.garg@usdoj.gov TERMINATED: 04/06/2018
Joseph C Dugan US DEPT OF JUSTICE CIVIL DEVISION, FEDERAL PROGRAMS BRANCH 1100 L STREET, NW, ROOM 11212 WASHINGTON, DC 20005 202-514-3259 Email: Joseph.Dugan@usdoj.gov TERMINATED: 02/27/2019
Joshua Kolsky US DEPT OF JUSTICE 1101 L STREET NW WASHINGTON, DC 20005 202-305-7664 Email: joshua.kolsky@usdoj.gov ATTORNEY TO BE NOTICED
Kevin Snell US DEPARTMENT OF JUSTICE FEDERAL PROGRAMS BRANCH 20 MASSACHUSETTS AVE NW ROOM 6108 WASHINGTON, DC 20530

Defendant US Department of State
Defendant

202-305-0924 Email: Kevin.Snell@usdoj.gov ATTORNEY TO BE NOTICED
Michelle R. Bennett US DEPARTMENT OF JUSTICE (CIVIL - 20 MASS) CIVIL DIVISION FEDERAL PROGRAMS 20 MASSACHUSETTS AVE NW STE 7300 WASHINGTON, DC 20530 202-305-8902 Email: michelle.bennett@usdoj.gov TERMINATED: 02/27/2019
represented by August Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arjun Garg (See above for address) TERMINATED: 04/06/2018
Joseph C Dugan (See above for address) TERMINATED: 02/27/2019
Joshua Kolsky (See above for address) ATTORNEY TO BE NOTICED
Kevin Snell (See above for address) ATTORNEY TO BE NOTICED
Michelle R. Bennett (See above for address) TERMINATED: 02/27/2019

Rex Tillerson Secretary of State TERMINATED: 07/30/2018
Defendant US Department of Homeland Security
Defendant

represented by August Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arjun Garg (See above for address) TERMINATED: 04/06/2018
Joseph C Dugan (See above for address) TERMINATED: 02/27/2019
Michelle R. Bennett (See above for address) TERMINATED: 02/27/2019
represented by August Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arjun Garg (See above for address) TERMINATED: 04/06/2018
Joseph C Dugan (See above for address) TERMINATED: 02/27/2019
Joshua Kolsky (See above for address) ATTORNEY TO BE NOTICED
Kevin Snell (See above for address) ATTORNEY TO BE NOTICED
Michelle R. Bennett (See above for address) TERMINATED: 02/27/2019

John Kelly Secretary of Homeland Security TERMINATED: 11/07/2017
Defendant US Customs and Border Protection
Defendant Kevin K McAleenan Commissioner of U.S. Customs and Border Protection

represented by Arjun Garg (See above for address) TERMINATED: 04/06/2018
Joseph C Dugan (See above for address) TERMINATED: 02/27/2019
Michelle R. Bennett (See above for address) TERMINATED: 02/27/2019
represented by August Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arjun Garg (See above for address) TERMINATED: 04/06/2018
Joseph C Dugan (See above for address) TERMINATED: 02/27/2019
Joshua Kolsky (See above for address) ATTORNEY TO BE NOTICED
Kevin Snell (See above for address) ATTORNEY TO BE NOTICED
Michelle R. Bennett (See above for address) TERMINATED: 02/27/2019
represented by August Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arjun Garg

Defendant Michele James Field Director of the Seattle Field Office of U.S. Customs and Border Protection
Defendant

(See above for address) TERMINATED: 04/06/2018
Joseph C Dugan (See above for address) TERMINATED: 02/27/2019
Joshua Kolsky (See above for address) ATTORNEY TO BE NOTICED
Kevin Snell (See above for address) ATTORNEY TO BE NOTICED
Michelle R. Bennett (See above for address) TERMINATED: 02/27/2019
represented by August Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arjun Garg (See above for address) TERMINATED: 04/06/2018
Joseph C Dugan (See above for address) TERMINATED: 02/27/2019
Joshua Kolsky (See above for address) ATTORNEY TO BE NOTICED
Kevin Snell (See above for address) ATTORNEY TO BE NOTICED
Michelle R. Bennett (See above for address) TERMINATED: 02/27/2019

Office of the Director of National Intelligence
Defendant Elaine Duke Acting Secretary of Homeland Security TERMINATED: 07/30/2018
Defendant

represented by August Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph C Dugan (See above for address) TERMINATED: 02/27/2019
Joshua Kolsky (See above for address) ATTORNEY TO BE NOTICED
Kevin Snell (See above for address) ATTORNEY TO BE NOTICED
Michelle R. Bennett (See above for address) TERMINATED: 02/27/2019
represented by August Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tana Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arjun Garg (See above for address) TERMINATED: 04/06/2018
Joseph C Dugan (See above for address) TERMINATED: 02/27/2019
Michelle R. Bennett (See above for address) TERMINATED: 02/27/2019

Daniel Coats Director of the Office of the Director of National Intelligence
Defendant Mike Pompeo Secretary of State
Defendant

represented by August Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph C Dugan (See above for address) TERMINATED: 02/27/2019
Joshua Kolsky (See above for address) ATTORNEY TO BE NOTICED
Kevin Snell (See above for address) ATTORNEY TO BE NOTICED
Michelle R. Bennett (See above for address) TERMINATED: 02/27/2019
represented by August Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph C Dugan (See above for address) TERMINATED: 02/27/2019
Joshua Kolsky (See above for address) ATTORNEY TO BE NOTICED
Kevin Snell (See above for address) ATTORNEY TO BE NOTICED
Michelle R. Bennett (See above for address) TERMINATED: 02/27/2019

Kirstjen M Nielsen DHS Secretary
Amicus Amici Curiae TERMINATED: 12/05/2017

represented by August Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tana Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph C Dugan (See above for address) TERMINATED: 02/27/2019
Joshua Kolsky (See above for address) ATTORNEY TO BE NOTICED
Kevin Snell (See above for address) ATTORNEY TO BE NOTICED
Michelle R. Bennett (See above for address) TERMINATED: 02/27/2019
represented by Alan R Kabat BERNABEI & KABAT, PLLC 1400 16TH ST. NW STE 500 WASHINGTON, DC 20036 202-745-1942 Email: kabat@bernabeipllc.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael C Subit FRANK FREED SUBIT & THOMAS 705 2ND AVE STE 1200 SEATTLE, WA 98104-1729 206-682-6711 Fax: 206-682-0401

Amicus National Association for the Advancement of Colored People
Amicus Advocates for Youth
Amicus Chicago Lawyers' Committee for Civil Rights Under Law
Amicus Judge David L Bazelon Center for Mental Health Law
Amicus Mississippi Center for Justice
Amicus National Center for Lesbian Rights
Amicus People for the American Way Foundation
Amicus Southern Coalition for Social Justice

Email: msubit@frankfreed.com ATTORNEY TO BE NOTICED
represented by Michael C Subit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael C Subit (See above for address) ATTORNEY TO BE NOTICED
represented by Michael C Subit (See above for address) ATTORNEY TO BE NOTICED
represented by Michael C Subit (See above for address) ATTORNEY TO BE NOTICED
represented by Michael C Subit (See above for address) ATTORNEY TO BE NOTICED
represented by Michael C Subit (See above for address) ATTORNEY TO BE NOTICED
represented by Michael C Subit (See above for address) ATTORNEY TO BE NOTICED
represented by Michael C Subit (See above for address) ATTORNEY TO BE NOTICED

Amicus Washington Lawyers' Committee for Civil Rights and Urban Affairs
Amicus Muslim Advocates

represented by Michael C Subit (See above for address) ATTORNEY TO BE NOTICED
represented by Aziz Huq MUSLIM ADVOCATES PO BOX 66408 WASHINGTON, DC 20035 202-897-2622 Email: aziz.huq@gmail.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Johnathan J Smith MUSLIM ADVOCATES PO BOX 34440 WASHINGTON, DC 20043 202-897-2622 Email: johnathan@muslimadvocates.org TERMINATED: 02/11/2019 LEAD ATTORNEY PRO HAC VICE
Joseph P. Hoag DAVIS WRIGHT TREMAINE (SEA) 1201 THIRD AVENUE STE 2200 SEATTLE, WA 98101-3045 206-757-8299 Email: JosephHoag@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew W Callahan MUSLIM ADVOCATES PO BOX 34440 WASHINGTON, DC 20043 202-897-2622 Email: matthew@muslimadvocates.org

Amicus
Roderick & Solange MacArthur Justice Center

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya MUSLIM ADVOCATES PO BOX 34440 WASHINGTON, DC 20043 202-897-2622 Email: sirine@muslimadvocates.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amir Ali RODERICK & SOLANGE MACARTHUR JUSTICE CENTER 718 7TH ST NW WASHINGTON, DC 20001 202-869-3434 Email: amir.ali@macarthurjustice.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph P. Hoag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/07/2017

# Docket Text
1 COMPLAINT --Class Action Complaint for Declaratory and Injunctive Relief-- against defendant(s) Donald Trump, President of The United States, John Kelly, Secretary of Homeland Security, Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Protection, Michele James, Field Director of the Seattle Field Office of U.S. Customs and Border Protection, Rex Tillerson, Secretary of State, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State (Receipt # 0981-4758977) Attorney Lynn Lincoln Sarko added to party Jane Doe(pty:pla), Attorney Lynn Lincoln Sarko added to party John Doe(pty:pla), Attorney Lynn Lincoln Sarko added

02/07/2017 02/07/2017 02/07/2017 02/07/2017 02/07/2017 02/08/2017
02/08/2017
02/08/2017

to party Episcopal Diocese of Olympia(pty:pla), filed by Episcopal Diocese of Olympia, John Doe, Jane Doe. (Attachments: # 1 Exhibit Exhibit A - Executive Order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States", # 2 Exhibit Exhibit B Joint Declaration of Madeline K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E. McLaughlin, Lisa O. Monaco, Michael J. Morrell, Janet A. Napolitano, Leon E. Panetta, Susan E. Rice, # 3 Exhibit Exhibit C - Provisional Revocation Letter, # 4 Exhibit Exhibit D - Guidance issued to all employees of the USCIS by the Acting Director of DHS, # 5 Civil Cover Sheet, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons, # 11 Summons, # 12 Summons, # 13 Summons)(Sarko, Lynn) (Entered: 02/07/2017)
2 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by Episcopal Diocese of Olympia (Sarko, Lynn) (Entered: 02/07/2017)
Attorney Tana Lin for Jane Doe,John Doe, Episcopal Diocese of Olympia added; per 1 Complaint. (PS) (Entered: 02/07/2017)
Attorney Amy C Williams-Derry for Jane Doe, John Doe, Episcopal Diocese of Olympia added; per 1 Complaint.(PS) (Entered: 02/07/2017)
Attorney Derek W Loeser for Jane Doe, John Doe, Episcopal Diocese of Olympia added; per 1 Complaint. (PS) (Entered: 02/07/2017)
Attorney Emily Chiang for Jane Doe, John Doe, Episcopal Diocese of Olympia added; per 1 Complaint. (PS) (Entered: 02/07/2017)
3 APPLICATION OF ATTORNEY Alison Chase FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Jane Doe, John Doe, Episcopal Diocese of Olympia (Fee Paid) Receipt No. 0981-4761382 (Sarko, Lynn) (Entered: 02/08/2017)
4 APPLICATION OF ATTORNEY Laurie B. Ashton FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Jane Doe, John Doe, Episcopal Diocese of Olympia (Fee Paid) Receipt No. 0981-4761401 (Sarko, Lynn) (Entered: 02/08/2017)
5 ORDER re 3 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Alison Chase for Jane Doe, John Doe, and for Episcopal Diocese of Olympia, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event

02/08/2017 02/10/2017 02/10/2017 02/10/2017 02/15/2017
03/07/2017

the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 02/08/2017)
6 ORDER re 4 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Laurie B. Ashton for Jane Doe, John Doe, and for Episcopal Diocese of Olympia, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 02/08/2017)
Judge James L. Robart added. (ST) (Entered: 02/10/2017)
7 Summons electronically issued as to defendant(s) Michele James, John Kelly, Kevin McAleenan, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons)(ST) (Entered: 02/10/2017)
NOTICE TO FILER: When opening a new case, the filer is responsible for entering party text exactly as it appears on the complaint. For example, Acting Commissioner of U.S. Customs and Border Protection should have been entered as party text for Kevin McAleenan instead of being entered at the end of the party's name on the case participants screen. If you have questions about party text, please refer to the Attorney's Guide to Opening a Civil Case on the court's website at wawd.uscourts.gov. The docket has now been corrected. Thank you. (ST) (Entered: 02/10/2017)
8 CERTIFICATE OF SERVICE by Plaintiffs Jane Doe, John Doe, Episcopal Diocese of Olympia re 2 Corporate Disclosure Statement, 1 Complaint,,,,, 7 Summons Issued, --Certificate of Service of Complaint, Summons and Corporate Disclosure Statement on the U.S. Attorney's Office, the Attorney General of the United States and Defendants Donald Trump, President of The United States; U.S. Department of State; Rex Tillerson, Secretary of State; U.S. Department of Homeland Security; John Kelly, Secretary of Homeland Security; U.S. Customs and Border Protection; Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Protection; Michele James, Field Director of the Seattle Field Office of U.S. Customs and Border Protection-- (Lin, Tana) (Entered: 02/15/2017)
9 CERTIFICATE OF SERVICE by Plaintiffs Jane Doe, John Doe, Episcopal Diocese of Olympia re 8 Certificate of

03/14/2017
03/21/2017 04/06/2017 04/06/2017 04/07/2017 04/07/2017

Service,,, Supplemental (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Lin, Tana) (Entered: 03/07/2017)
10 AMENDED COMPLAINT for Declaratory and Injunctive Relief against defendant(s) Michele James, John Kelly, Kevin McAleenan, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State Attorney Tana Lin added to party Jack Doe(pty:pla), Attorney Tana Lin added to party Jason Doe(pty:pla), Attorney Tana Lin added to party Julia Doe(pty:pla), Attorney Tana Lin added to party Joseph Doe(pty:pla), Attorney Tana Lin added to party James Doe(pty:pla), Attorney Tana Lin added to party Council on American Islamic Relations - Washington(pty:pla), filed by John Doe, Jane Doe, Episcopal Diocese of Olympia, Joseph Doe, James Doe, Julia Doe, Council on American Islamic Relations - Washington, Jack Doe, Jason Doe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Lin, Tana) (Entered: 03/14/2017)
11 CERTIFICATE OF SERVICE by Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jane Doe, Jason Doe, John Doe, Joseph Doe, Julia Doe, Episcopal Diocese of Olympia re 10 Amended Complaint,,, for Declaratory and Injunctive Relief (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Lin, Tana) (Entered: 03/21/2017)
12 NOTICE of Change of Address/Change of Name of Attorney Alison Chase. Filed by Plaintiffs Council on American Islamic Relations Washington, Jack Doe, James Doe, Jane Doe, Jason Doe, John Doe, Joseph Doe, Julia Doe, Episcopal Diocese of Olympia. (Chase, Alison) Modified Firm Address for Alison Chase on 4/7/2017 (DS). (Entered: 04/06/2017)
13 STIPULATION AND PROPOSED ORDER to Allow Plaintiffs to Proceed Anonymously by parties (Lin, Tana) (Entered: 04/06/2017)
14 STIPULATION AND ORDER TO ALLOW PLAINTIFFS TO PROCEED ANONYMOUSLY by Judge James L. Robart. (PM) (Entered: 04/07/2017)
15 NOTICE of Appearance by attorney La Rond Baker on behalf of Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jane Doe, Jason Doe, John Doe, Joseph Doe, Julia Doe, Episcopal Diocese of Olympia. (Baker, La Rond) (Entered: 04/07/2017)

04/10/2017
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04/11/2017 04/11/2017 04/11/2017 04/11/2017 04/11/2017 04/11/2017 04/11/2017

16 NOTICE of Appearance by attorney Michelle R. Bennett on behalf of Defendants Michele James, John Kelly, Kevin McAleenan, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Bennett, Michelle) (Entered: 04/10/2017)
17 STIPULATION AND PROPOSED ORDER to Extend Deadlines by parties (Lin, Tana) (Entered: 04/10/2017)
18 STIPULATION AND ORDER to Extend Deadlines re parties' 17 Stipulation; Defendants' deadline to file a response to Amended Complaint is EXTENDED to 4/28/2017; Defendants response to Plaintiff's forthcoming motion for class certification due within fourteen (14) days of Ninth Circuit's ruling in Hawaii v. Trump; Plaintiffs' reply due within seven (7) days after response; by Judge James L. Robart. (SWT) (Entered: 04/11/2017)
19 MOTION to Certify Class , filed by Plaintiffs Jack Doe, James Doe, Jason Doe, Joseph Doe, Julia Doe. Oral Argument Requested. (Attachments: # 1 Proposed Order Proposed Order) Noting Date 5/5/2017, (Lin, Tana) (Entered: 04/11/2017)
20 DECLARATION of Tana Lin filed by Plaintiffs Jack Doe, James Doe, Jason Doe, Joseph Doe, Julia Doe re 19 MOTION to Certify Class (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Lin, Tana) (Entered: 04/11/2017)
21 DECLARATION of Emily Chiang filed by Plaintiffs Jack Doe, James Doe, Jason Doe, Joseph Doe, Julia Doe re 19 MOTION to Certify Class (Lin, Tana) (Entered: 04/11/2017)
22 DECLARATION of Jack Doe filed by Plaintiffs Jack Doe, James Doe, Jason Doe, Joseph Doe, Julia Doe re 19 MOTION to Certify Class (Lin, Tana) (Entered: 04/11/2017)
23 DECLARATION of Jason Doe filed by Plaintiffs Jack Doe, James Doe, Jason Doe, Joseph Doe, Julia Doe re 19 MOTION to Certify Class (Lin, Tana) (Entered: 04/11/2017)
24 DECLARATION of Julia Doe filed by Plaintiffs Jack Doe, James Doe, Jason Doe, Joseph Doe, Julia Doe re 19 MOTION to Certify Class (Lin, Tana) (Entered: 04/11/2017)
25 DECLARATION of Joseph Doe filed by Plaintiffs Jack Doe, James Doe, Jason Doe, Joseph Doe, Julia Doe re 19 MOTION to Certify Class (Lin, Tana) (Entered: 04/11/2017)

04/11/2017 04/12/2017 04/26/2017 04/26/2017
05/08/2017
05/17/2017 05/22/2017 05/26/2017 05/30/2017

26 DECLARATION of James Doe filed by Plaintiffs Jack Doe, James Doe, Jason Doe, Joseph Doe, Julia Doe re 19 MOTION to Certify Class (Lin, Tana) (Entered: 04/11/2017)
27 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT by Judge James L. Robart. Joint Status Report due by 5/17/2017, FRCP 26f Conference Deadline is 4/26/2017, Initial Disclosure Deadline is 5/10/2017. (AD) (Entered: 04/12/2017)
28 STIPULATION AND PROPOSED ORDER Regarding Amending Complaint and Deadlines by parties (Bennett, Michelle) (Entered: 04/26/2017)
29 STIPULATION AND ORDER Regarding Amending Complaint and Deadlines; re parties' 28 Stipulation, by Judge James L. Robart. Defendants need not respond to First Amended Complaint. Plaintiffs shall file a Second Amended Complaint on or before May 8, 2017. Defendants shall respond to Second Amended Complaint on May 22, 2017 or ten (10) days after the Court resolves Defendants' pending stay motions. (SWT) (Entered: 04/26/2017)
30 Second AMENDED COMPLAINT for Declaratory and Injunctive Relief against defendant(s) Michele James, John Kelly, Kevin McAleenan, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, filed by Council on American Islamic Relations - Washington, John Doe, James Doe, Jack Doe, Joseph Doe, Jason Doe, Episcopal Diocese of Olympia. (Attachments: # 1 Exhibit Exhibits A-K)(Lin, Tana) (Entered: 05/08/2017)
31 JOINT STATUS REPORT signed by all parties estimated Trial Days: 10. (Lin, Tana) (Entered: 05/17/2017)
32 ORDER TO SHOW CAUSE directing parties to file separate memoranda why this matter should not be stayed. Show Cause Response due by 5/26/2017. Signed by Judge James L. Robart. (PM) (Entered: 05/22/2017)
33 STIPULATION AND PROPOSED ORDER to Stay Proceedings by parties (Lin, Tana) (Entered: 05/26/2017)
34 STIPULATION AND ORDER STAYING CASE by Judge James L. Robart directing that proceedings in this case are stayed pending the Ninth Circuit's resolution of the appeal in Hawaii v. Trump. The parties shall file a joint status report within ten days of the Ninth Circuit's ruling in Hawaii so that the Court may evaluate the continued appropriateness of a stay at that time. (PM) (Entered: 05/30/2017)

06/22/2017 06/23/2017 07/10/2017 07/14/2017 07/19/2017 11/02/2017 11/02/2017
11/06/2017

35 STIPULATION AND PROPOSED ORDER to Extend Deadline for Submitting Joint Status Report by parties (Bennett, Michelle) (Entered: 06/22/2017)
36 STIPULATION AND ORDER extending the joint status report deadline regarding continued stay of this case. Joint Status Report due by 7/14/2017. Signed by Judge James L. Robart. (PM) (Entered: 06/23/2017)
37 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney La Rond Baker for Plaintiffs Council on American Islamic Relations Washington, Jack Doe, James Doe, Jason Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia. (Chiang, Emily) (Entered: 07/10/2017)
38 JOINT STATUS REPORT signed by all parties estimated Trial Days: 10. (Lin, Tana) (Entered: 07/14/2017)
39 NOTICE of Appearance by attorney Arjun Garg on behalf of Defendants Michele James, John Kelly, Kevin McAleenan, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Garg, Arjun) (Entered: 07/19/2017)
40 STIPULATION AND PROPOSED ORDER to lift stay of proceedings and permit Plaintiffs to file a Third Amended Complaint by parties (Lin, Tana) (Entered: 11/02/2017)
41 STIPULATION AND ORDER lifting stay and permitting Plaintiffs to file a Third Amended Complaint. Plaintiffs' Third Amended Complaint and Motion for Preliminary Injunction due 11/6/2017 by 5:00 p.m.; Response to Motion for Preliminary Injunction due 11/16/2017 by 5:00 p.m.; Reply due 11/22/2017 by 5:00 p.m.. In-court Hearing set for 12/11/2017 at 01:30 PM (P.S.T.) before Judge James L. Robart on Plaintiff's Motion for Preliminary Injunction. Signed by Judge James L. Robart. (PM) (Entered: 11/03/2017)
42 Third AMENDED COMPLAINT for Declaratory and Injunctive Relief against defendant(s) Michele James, John Kelly, Kevin McAleenan, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, Office of the Director of National Intelligence, Elaine Duke, Daniel Coats. Attorney Tana Lin added to party Jeffrey Doe(pty:pla), filed by Council on American Islamic Relations - Washington, John Doe, James Doe, Jack Doe, Joseph Doe, Jason Doe, Episcopal Diocese of Olympia, Jeffrey Doe, Office of the Director of National Intelligence. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit

11/06/2017
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H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Lin, Tana) Modified on 11/7/2017: added Duke and Coats as additional defendants (PM). (Entered: 11/06/2017)
43 DISREGARD. REFILED AS DKT. 45 . MOTION for Permanent Injunction filed by Plaintiffs Council on American Islamic Relations Washington, Jack Doe, James Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 11/22/2017, (Gaffney, Alison) Modified on 11/7/2017 to indicate motion was refiled. (PM). (Entered: 11/06/2017)
44 PRAECIPE TO ISSUE SUMMONS re 42 Amended Complaint,,, by Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia (Lin, Tana) (Entered: 11/06/2017)
45 MOTION for Preliminary Injunction , filed by Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 11/22/2017, (Gaffney, Alison) (Entered: 11/06/2017)
46 DECLARATION of Tana Lin filed by Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia re 45 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Gaffney, Alison) (Entered: 11/06/2017)
47 DECLARATION of Joseph Doe filed by Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia re 45 MOTION for Preliminary Injunction (Gaffney, Alison) (Entered: 11/06/2017)
***Motion terminated: 43 MOTION for Permanent Injunction filed by Council on American Islamic Relations - Washington, Jason Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia, Jack Doe, Jeffrey Doe, James Doe. Incorrect ECF event selected; Refiled as Dkt. 45 , per phone call from counsel. (PM) (Entered: 11/07/2017)
Elaine Duke and Daniel Coats added as Defendants; John Kelly terminated as Defendant per 42 Third Amended Complaint. (PM) (Entered: 11/07/2017)

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11/21/2017 11/21/2017 11/22/2017 11/22/2017

48 Summons Electronically Issued as to defendant Office of the Director of National Intelligence. (PM) (Entered: 11/07/2017)
49 PRAECIPE TO ISSUE SUMMONS re 42 Amended Complaint,,, by Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia (Lin, Tana) (Entered: 11/07/2017)
50 Summons Electronically Issued as to defendant Daniel Coats. (PM) (Main Document 50 replaced on 11/8/2017) (PM). (Entered: 11/08/2017)
NOTICE of Docket Text Modification re 50 Summons Issued : wrong summons uploaded; replaced with correct summons for Daniel Coats. Notice of Electronic Filing resent to all counsel. (PM) (Entered: 11/08/2017)
51 RESPONSE, by Defendants Daniel Coats, Elaine Duke, Michele James, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, to 45 MOTION for Preliminary Injunction . (Attachments: # 1 Declaration of Jennifer B. Higgins)(Bennett, Michelle) (Entered: 11/16/2017)
52 ORDER TO SHOW CAUSE re: consolidation of case with C171707JLR. Parties' Show Cause Response due by 11/29/2017. Signed by Judge James L. Robart. (PM) (Entered: 11/21/2017)
53 NOTIFICATION REGARDING PROPOSED VIDEO RECORDING. All parties have consented to the video recording of the Preliminary Injunction hearing on 12/11/2017 at 1:30 p.m. Unless otherwise ordered by the presiding judge, the proceeding will be video recorded as part of the CAMERAS Pilot Project. (AD) (Entered: 11/21/2017)
54 REPLY, filed by Plaintiffs Council on American Islamic Relations Washington, Jack Doe, James Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia, TO RESPONSE to 45 MOTION for Preliminary Injunction (Lin, Tana) (Entered: 11/22/2017)
55 Supplemental DECLARATION of Tana Lin filed by Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia re 45 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A-H)(Lin, Tana) (Entered: 11/22/2017)

11/22/2017 11/22/2017 11/28/2017
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11/29/2017 11/29/2017

56 Supplemental DECLARATION of Joseph Doe filed by Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia re 45 MOTION for Preliminary Injunction (Lin, Tana) (Entered: 11/22/2017)
57 DECLARATION of Lisa Nowlin filed by Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia re 45 MOTION for Preliminary Injunction (Lin, Tana) (Entered: 11/22/2017)
58 CERTIFICATE OF SERVICE by Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jane Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Julia Doe, Episcopal Diocese of Olympia re 45 MOTION for Preliminary Injunction , 42 Amended Complaint,,, (Attachments: # 1 Exhibit A - Proof of Service on Office of the Director of National Intelligence, # 2 Exhibit B - Proof of Service on Attorney General of the United States)(Lin, Tana) (Entered: 11/28/2017)
59 STIPULATION AND PROPOSED ORDER Regarding Consolidation & Scheduling for Further Proceedings by parties (Bennett, Michelle) (Entered: 11/29/2017)
60 STIPULATION AND ORDER REGARDING CONSOLIDATION AND SCHEDULING FOR FURTHER PROCEEDINGS re consolidating case with C17-1707JLR, Jewish Family Service of Seattle v. Trump. The hearing set for 12/11/2017 is VACATED, and a hearing to address issues raised in both Jewish Family Services and Doe is set for 12/21/2017 at 09:00 AM in Courtroom 14106 before Judge James L. Robart. Signed by Judge James L. Robart. (PM) (Entered: 11/29/2017)
61 MINUTE ORDER re C17-0178JLR and C17-1707: Pursuant to the parties' stipulations, these cases are hereby consolidated. All future pleadings or other filings in either action shall be filed in Case No. C17-0178JLR. All future pleadings or other filings in the consolidated case shall identify in the caption whether the pleading or filing pertains to one or both of the cases. Authorized by Judge James L. Robart. (PM) (Entered: 11/29/2017)
62 NOTICE OF JOINDER Doe Plaintiffs' Notice Joining the Motion for Preliminary Injunction in Jewish Family Service of Seattle v. Trump Dkt. #42 in C17-1707JLR ; filed by Plaintiffs Jeffrey Doe, Joseph Doe. (Lin, Tana) Modified on 11/30/2017 to cite case and docket number of motion (PM). (Entered: 11/29/2017)

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NOTICE of Docket Text Modification re 62 Notice of Joinder: edited text to cite case and docket number of motion for preliminary injunction re: C17-1707JLR, Dkt #42, Jewish Family Service of Seattle v. Trump. (PM) (Entered: 11/30/2017)
63 NOTICE of Appearance by attorney Michael C Subit on behalf of Amici Curiae National Association for the Advancement of Colored People, Advocates for Youth, Chicago Lawyers' Committee for Civil Rights Under Law, Judge David L. Bazelon Center for Mental Health Law, Mississippi Center for Justice, National Center for Lesbian Rights, People for the American Way Foundation, Southern Coalition for Social Justice, and Washington Lawyers' Committee for Civil Rights and Urban Affairs(Subit, Michael) Modified on 12/5/2017 to add individual names of amicus parties (PM). (Entered: 12/04/2017)
64 Stipulated MOTION for Leave to File Amici Curiae Brief, filed by Amicus Amici Curiae National Association for the Advancement of Colored People, Advocates for Youth, Chicago Lawyers' Committee for Civil Rights Under Law, Judge David L. Bazelon Center for Mental Health Law, Mississippi Center for Justice, National Center for Lesbian Rights, People for the American Way Foundation, Southern Coalition for Social Justice, and Washington Lawyers' Committee for Civil Rights and Urban Affairs. (Attachments: # 1 Amici Curiae Brief, # 2 Proposed Order) Noting Date 12/4/2017, (Subit, Michael) Modified on 12/5/2017 to add names of parties (PM). (Entered: 12/04/2017)
65 ORDER granting National Association for the Advancement of Colored People, Advocates for Youth, Chicago Lawyers' Committee for Civil Rights Under Law, Judge David L. Bazelon Center for Mental Health Law, Mississippi Center for Justice, National Center for Lesbian Rights, People for the American Way Foundation, Southern Coalition for Social Justice, and Washington Lawyers' Committee for Civil Rights and Urban Affairs' (Amiei Curiae) 64 Stipulated Motion for Leave to File Amici Curiae Brief. Signed by Judge James L. Robart. (PM) (Entered: 12/05/2017)
66 MOTION to File Amicus Brief, filed by Amicus Parties Muslim Advocates, Roderick & Solange MacArthur Justice Center. (Originally posted in C17-1707JLR, Dkt. Nos. #81 and #82) (Attachments: # 1 Proposed Amicus Brief) (PM) (Entered: 12/05/2017)
NOTICE of Docket Text Modification added Amicus parties National Association for the Advancement of Colored People, Advocates for Youth, Chicago Lawyers' Committee for Civil Rights Under Law, Judge David L. Bazelon Center for Mental Health Law, Mississippi Center for Justice, National Center for Lesbian Rights, People for the

12/05/2017 12/05/2017
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12/05/2017 12/05/2017

American Way Foundation, Southern Coalition for Social Justice, and Washington Lawyers' Committee for Civil Rights and Urban Affairs and terminated Amici Curiae as a party. Docket texts of Dkts 63 and 64 edited to add individual names of Amicus parties. (PM) (Entered: 12/05/2017)
67 ORDER granting Amicus parties Muslim Advocates and the Roderick & Solange MacArthur Justice Center's 66 Motion to file Brief in Support of Preliminary Injunction. Signed by Judge James L. Robart. (Clerk's note: order posted in C17-178JLR per direction of Minute Order, Dkt. 61 . (PM) (Entered: 12/05/2017)
68 ORDER DIRECTING SUPPLEMENTAL BRIEFING re Plaintiffs' 45 MOTION for Preliminary Injunction in Doe, et al. v. Trump, C17-178JLR, and in Jewish Family Services, et al. v. Trump, C17-1707JLR. Parties to provide supplemental briefing concerning what impact, if any, the Supreme Court's December 4, 2017, orders have concerning the two pending motions for preliminary injunction. Plaintiffs' briefs due 12/7/2017; Defendants' combined response due 12/11/2017. Signed by Judge James L. Robart. (PM) (Entered: 12/05/2017)
Attorneys Sirine Shebaya, Aziz Huq, Johnathan J Smith, and Matthew W Callahan added for Muslim Advocates; Attorney Amir Ali added for Roderick & Solange MacArthur Justice Center per Orders filed in C171707JLR re: Dkt. Nos. 83-87. (PM) (Entered: 12/05/2017)
NOTICE RE: PRO HAC VICE REQUIREMENT as to attorneys Lynne Bernabie and Alan R. Kabat re: Motion for Leave to File Amici Curiae brief 64 . In order to be placed on the docket as counsel of record, it will be necessary to apply for Pro Hac Vice admission in this case. The fee is $231 per attorney per case. The application shall be e-filed for you by local counsel. Please take a moment to download the admission form from our web site - wawd.uscourts.gov. If you have any questions about admission, e-filing, please call the ECF Support Desk at 1-866323-9293. Thank you. (PM) cc: Kabat and Bernabie via ECF Ad hoc (Entered: 12/05/2017)
69 PRAECIPE by Amicus Parties Muslim Advocates, Roderick & Solange MacArthur Justice Center (Attachments: # 1 Supplement, # 2 Supplement)(Hoag, Joseph) (Entered: 12/05/2017)
70 Amici Curiae BRIEF by Amicus Parties Advocates for Youth, Chicago Lawyers' Committee for Civil Rights Under Law, 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, People for the American Way Foundation,

12/06/2017 12/07/2017 12/07/2017
12/07/2017
12/07/2017 12/07/2017 12/07/2017

Southern Coalition for Social Justice, Washington Lawyers' Committee for Civil Rights and Urban Affairs (Subit, Michael) (Entered: 12/05/2017)
71 Amici Curiae BRIEF in Support of Plaintiffs' Motion for Preliminary Injunction by Amicus Parties Muslim Advocates, Roderick & Solange MacArthur Justice Center (Callahan, Matthew) (Entered: 12/06/2017)
72 APPLICATION OF ATTORNEY Alan R. Kabat FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Amici Curiae (Fee Paid) Receipt No. 0981-5118773 (Subit, Michael) (Entered: 12/07/2017)
73 SUPPLMENTAL BRIEF re 68 Order re: Motion for Preliminary Injunction (Dkt. #42 in C17-1707JLR) by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught (Staniar, Lauren) Modified on 12/7/2017 to add citation to motion (PM). (Entered: 12/07/2017)
74 ORDER re 72 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Alan R Kabat for Amicus Amici Curiae, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 12/07/2017)
75 NOTICE of Appearance by attorney Joseph Dugan on behalf of Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Dugan, Joseph) (Entered: 12/07/2017)
76 Supplemental BRIEF re 68 Order,, in Support of Motion for Preliminary Injunction 45 by Plaintiff Joseph Doe (Lin, Tana) Modified on 12/7/2017 to add link to motion (PM). (Entered: 12/07/2017)
77 RESPONSE by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State in Opposition to Jewish Family Service Plaintiffs' 42 Motion for

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Preliminary Injunction and Response to 73 76 Supplemental Statements Filed in Both Cases (Dugan, Joseph) Modified on 12/8/2017 to add links to Suppl. Statements (PM). (Entered: 12/07/2017)
78 RESPONSIVE BRIEF re 76 Brief, 73 Brief, by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Dugan, Joseph) (Entered: 12/11/2017)
79 REPLY by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught JFS Reply In Support of Motion for Preliminary Injunction (Dkt 42 in 17-1707) (Staniar, Lauren) (Entered: 12/13/2017)
80 DECLARATION of David J. Burman re 79 Reply (non motion), by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught (Attachments: # 1 Exhibit A-T)(Staniar, Lauren) (Entered: 12/13/2017)
81 DECLARATION of Rabbi Berkovitz CEO of Jewish Family Service of Seattle re 79 Reply (non motion), by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught (Staniar, Lauren) (Entered: 12/13/2017)
82 DECLARATION of Mindy Berkowitz Executive Director of Jewish Family Services of Silicon Valley re 79 Reply (non motion), by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught (Staniar, Lauren) (Entered: 12/13/2017)
83 DECLARATION of John Doe 1 re 79 Reply (non motion), by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught (Staniar, Lauren) (Entered: 12/13/2017)
84 DECLARATION of Kate Nordland re 79 Reply (non motion), by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5,

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12/21/2017

Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught (Staniar, Lauren) (Entered: 12/13/2017)
85 DECLARATION of Stephen Poellot re 79 Reply (non motion), by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught (Staniar, Lauren) (Entered: 12/13/2017)
Set/Reset Deadlines: Now that the stay has been lifted in this matter, the court directs the parties to respond to the Order Regarding Initial Disclosures and Joint Status Report (Dkt. # 27 ). Joint Status Report due by 12/22/2017. (AD) (Entered: 12/14/2017)
Attorney Lisa Nowlin added for Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, and Episcopal Diocese of Olympia per 42 Third Amended Complaint. (PM) (Entered: 12/14/2017)
86 NOTICE of Appearance by attorney Michelle R. Bennett on behalf of Defendants Daniel Coats, Elaine Duke, Michele James, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Bennett, Michelle) (Entered: 12/21/2017)
87 MINUTE ENTRY for proceedings held before Judge James L. Robart Dep Clerk: Ashleigh Drecktrah; Pla Counsel: Doe Plaintiffs: Tana Lin, Alison Gaffney, Lisa Nowlin; JFS Plaintiffs: Mariko Hirose, Esther Sung, Lauren Aguiar, David Burman; Def Counsel: Joseph Dugan, August Flentje; CR: Nancy Bauer; Preliminary/Permanent Injunction Hearing held on 12/21/2017. The court hears from counsel re: Plaintiffs John Doe, Joseph Doe, Jack Doe, James Doe, Jason Doe, Jeffrey Doe, Episcopal Diocese of Olympia, Council on American Islamic Relations - Washington's Motion for Preliminary Injunction (Dkt. # 45 in C17-0178JLR) and Plaintiffs Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, John Doe 7, Afkab Mohamed Hussein, Allen Vaught's Motion for Preliminary Injunction (Dkt. # 42 in C17-1707JLR). The court takes the matter under advisement. Written order to follow. The court rescinds the current Joint Status Report deadline. (AD) (Entered: 12/21/2017)
88 AFFIDAVIT of Service of Summons and Complaint on Nancy Wiegand on 12/12/2017, filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of

12/21/2017 12/21/2017
12/21/2017 12/21/2017
12/22/2017 12/23/2017 12/27/2017

Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. (Staniar, Lauren) (Entered: 12/21/2017)
89 AFFIDAVIT of Service of Summons and Complaint on Nancy Wiegand on 12/12/2017, filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. (Staniar, Lauren) (Entered: 12/21/2017)
90 NOTICE of Appearance by attorney Joseph Dugan August E. Flentje on behalf of Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Dugan, Joseph) Modified on 12/22/2017 to correct name of attorney appearing (PM). (Entered: 12/21/2017)
91 Supplemental DECLARATION of Joseph Doe filed by Plaintiff Joseph Doe re 45 MOTION for Preliminary Injunction (Lin, Tana) (Entered: 12/21/2017)
Attorney August E. Flentje for Daniel Coats,August E. Flentje for Elaine Duke,August E. Flentje for Michele James,August E. Flentje for Kevin McAleenan,August E. Flentje for Office of the Director of National Intelligence,August E. Flentje for Rex Tillerson,August E. Flentje for Donald Trump,August E. Flentje for U.S. Customs and Border Protection,August E. Flentje for U.S. Department of Homeland Security,August E. Flentje for U.S. Department of State added; per 90 Notice of Appearance,. (TH) (Entered: 12/21/2017)
NOTICE of Docket Text Modification re 90 Notice of Appearance: corrected name of attorney appearing from Joseph Dugan to August E. Flentje. (PM) (Entered: 12/22/2017)
92 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ISSUING A PRELIMINARY INJUNCTION by Judge James L. Robart. The court GRANTS Plaintiffs' motion in the Doe Case (Dkt. # 45 ), and GRANTS Plaintiffs' motion in the JFS Case (17-1707 Dkt. # 42) except for those refugees who lack a bona fide relationship with a person or entity in the United States. (AD) (Entered: 12/23/2017)
93 MOTION for Reconsideration re 92 Order on Motion for Preliminary Injunction, , filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and

12/29/2017 12/29/2017 12/30/2017 12/30/2017 01/04/2018 01/04/2018

Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Attachments: # 1 Exhibit A (Declaration of Lawrence Bartlett), # 2 Proposed Order) Noting Date 12/27/2017, (Dugan, Joseph) (Entered: 12/27/2017)
94 ORDER re Defendants' 93 (in 2:17-cv-00178-JLR) MOTION for Reconsideration; the court ORDERS Plaintiffs in the consolidated cases to file a joint response to Defendants' motion; Responses due no later than 1/4/2018 at 12:00 p.m. Signed by Judge James L. Robart. (SWT) (Entered: 12/29/2017)
95 Emergency MOTION to Stay re 92 Order on Motion for Preliminary Injunction, , filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Attachments: # 1 Exhibit Attachment A (Declaration of Jennifer L. Smith), # 2 Proposed Order) Noting Date 12/29/2017, (Dugan, Joseph) (Entered: 12/29/2017)
96 NOTICE In Response re 95 Emergency MOTION to Stay re 92 Order on Motion for Preliminary Injunction, ; filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. (Staniar, Lauren) (Entered: 12/30/2017)
97 ORDER DIRECTING BRIEFING ON DEFENDANTS' MOTION FOR A STAY by Judge James L. Robart. Before the court are Defendants' emergency motion for a stay pending appeal (MFS (Dkt. # 95 )) and Plaintiffs' notice in response (Notice (Dkt. # 96 )). Plaintiffs shall file their responsive memoranda to Defendants' motion no later than Thursday, January 4, 2018, at 12:00 p.m. Doe Plaintiffs and JFS Plaintiffs may file separate responses. Defendants shall not file a reply. (AD) (Entered: 12/30/2017)
98 RESPONSE, by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught, to 93 MOTION for Reconsideration re 92 Order on Motion for Preliminary Injunction, . (Staniar, Lauren) (Entered: 01/04/2018)
99 NOTICE OF APPEAL to Ninth Circuit (18-35015) re 92 Order on Motion for Preliminary Injunction, by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S.

Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Dugan, Joseph) Modified on 1/5/2018 to add CCA #(CDA). (Entered: 01/04/2018)

01/04/2018

100 RESPONSE, by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught, to 95 Emergency MOTION to Stay re 92 Order on Motion for Preliminary Injunction, . (Staniar, Lauren) (Entered: 01/04/2018)

01/04/2018

101 RESPONSE, by Plaintiff Joseph Doe, to 95 Emergency MOTION to Stay re 92 Order on Motion for Preliminary Injunction, . (Lin, Tana) (Entered: 01/04/2018)

01/04/2018

102 USCA Case Number 18-35015 for 99 Notice of Appeal, filed by U.S. Department of State, U.S. Department of Homeland Security, Donald Trump, Elaine Duke, U.S. Customs and Border Protection, Kevin McAleenan, Rex Tillerson, Office of the Director of National Intelligence, Michele James, John Kelly, Daniel Coats. (CDA) (Entered: 01/05/2018)

01/05/2018

103 ORDER denying Defendants' 93 Motion for Reconsideration re 92 Order on Motion for Preliminary Injunction. Signed by Judge James L. Robart. (TH) (Entered: 01/05/2018)

01/05/2018

104 NOTICE re 95 Emergency MOTION to Stay re 92 Order on Motion for Preliminary Injunction, ; filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Dugan, Joseph) (Entered: 01/05/2018)

01/08/2018

105 TRANSCRIPT REQUEST by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State for proceedings held on 12/21/2017, Requesting Attorney: Joseph Dugan. (Dugan, Joseph) (Entered: 01/08/2018)

01/09/2018

106 ORDER denying Defendants' 95 Motion to stay the court's preliminary injunction order pending appeal (Dkt. # 95 ) and their request for a more limited in stay contained in their January 5, 2018, notice (Dkt. # 104 ). Signed by Judge James L. Robart.(PM) (Entered: 01/09/2018)

01/11/2018

107 NOTICE OF Cross APPEAL to Ninth Circuit (18-35026) re 92 Order on Motion for Preliminary Injunction, by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. Filing Fee $505, Receipt number 0981-5159253. (Keaney, Melissa) Modified on 1/12/2018 to add CCA # (CDA). (Entered: 01/11/2018)

01/11/2018

108 USCA Case Number 18-35015 and 18-35026 Cross Appeals (for both 17cv178 and 17cv 1707) for 99 Notice of Appeal, filed by U.S. Department of State, U.S. Department of Homeland Security, Donald Trump, Elaine Duke, U.S. Customs and Border Protection, Kevin McAleenan, Rex Tillerson, Office of the Director of National Intelligence, Michele James, John Kelly, Daniel Coats, 107 Notice of Appeal, filed by John Doe 7, Jane Doe 4, John Doe 2, John Doe 3, Jewish Family Services of Silicon Valley, Jane Doe 6, Jane Doe 5, Jewish Family Service of Seattle, Allen Vaught, Afkab Mohamed Hussein, John Doe 1. (CDA) (Entered: 01/12/2018)

01/16/2018

109 ORDER of USCA (18-35015, 18-35026) as to 99 Notice of Appeal, filed by U.S. Department of State, U.S. Department of Homeland Security, Donald Trump, Elaine Duke, U.S. Customs and Border Protection, Kevin McAleenan, Rex Tillerson, Office of the Director of National Intelligence, Michele James, John Kelly, Daniel Coats, 107 Notice of Appeal, filed by John Doe 7, Jane Doe 4, John Doe 2, John Doe 3, Jewish Family Services of Silicon Valley, Jane Doe 6, Jane Doe 5, Jewish Family Service of Seattle, Allen Vaught, Afkab Mohamed Hussein, John Doe 1 (CDA) (Entered: 01/16/2018)

01/16/2018

110 MOTION to Stay District Court Proceedings Pending Disposition of Cross-Appeals, filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Attachments: # 1 Proposed Order) Noting Date 2/2/2018, (Dugan, Joseph) (Entered: 01/16/2018)

01/16/2018

111 MOTION for Extension of Time to Respond to JFS Plaintiffs' Complaint, filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Attachments: # 1 Proposed Order) Noting Date 1/26/2018, (Dugan, Joseph) (Entered: 01/16/2018)

01/17/2018

112 ORDER granting defendants' 111 Motion for Extension of Time to Respond to Plaintiffs' Complaint; Defendants shall answer to Jewish Family Service Plaintiffs' Complaint (Dkt. 1, C17-1707) within fourteen (14) days following the Court's disposition of defendants' motion (dkt. 110 ), signed by Judge James L. Robart. (SWT) (Entered: 01/17/2018)

01/18/2018 113 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of the preliminary injunction hearing held on 12/21/2017 before Judge James L. Robart.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Nancy Bauer, nancy_bauer@wawd.uscourts.gov, 206-370-8506.

Release of Transcript Restriction set for 4/18/2018, (NB) (Entered: 01/18/2018)

01/19/2018

114 NOTICE of Compliance re 92 Order on Motion for Preliminary Injunction,, by Defendants Daniel Coats, Elaine Duke, Michele James, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Attachments: # 1 Exhibit A (Gauger Decl.), # 2 Exhibit B (Higgins Decl.))(Dugan, Joseph) (Entered: 01/19/2018)

01/29/2018

115 RESPONSE, by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught, to 110 MOTION to Stay District Court Proceedings Pending Disposition of Cross-Appeals. (Staniar, Lauren) (Entered: 01/29/2018)

01/29/2018

116 DECLARATION of Christopher Eades filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught

re 110 MOTION to Stay District Court Proceedings Pending Disposition of Cross-Appeals (Staniar, Lauren) (Entered: 01/29/2018)

01/29/2018

117 DECLARATION of Mariko Hirose filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught re 110 MOTION to Stay District Court Proceedings Pending Disposition of CrossAppeals (Staniar, Lauren) (Entered: 01/29/2018)

01/29/2018

118 DECLARATION of Casey Smith filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught re 110 MOTION to Stay District Court Proceedings Pending Disposition of CrossAppeals (Staniar, Lauren) (Entered: 01/29/2018)

01/31/2018

119 NOTICE Following Conclusion of 90-Day SAO Refugee Review ; filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Dugan, Joseph) (Entered: 01/31/2018)

02/02/2018

120 REPLY, filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, TO RESPONSE to 110 MOTION to Stay District Court Proceedings Pending Disposition of CrossAppeals (Attachments: # 1 Exhibit A)(Dugan, Joseph) (Entered: 02/02/2018)

02/15/2018

121 Cross MOTION for Discovery re Limited Expedited Discovery on Compliance with Preliminary Injunction, filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. (Attachments: # 1 Proposed Order) Noting Date 3/2/2018, (Staniar, Lauren) (Entered: 02/15/2018)

02/15/2018

122 DECLARATION of Melissa Keaney filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught re 121 Cross MOTION for Discovery re Limited Expedited Discovery on

Compliance with Preliminary Injunction (Staniar, Lauren) (Entered: 02/15/2018)

02/26/2018

123 RESPONSE, by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, to 121 Cross MOTION for Discovery re Limited Expedited Discovery on Compliance with Preliminary Injunction. (Dugan, Joseph) (Entered: 02/26/2018)

03/02/2018

124 REPLY, filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught, TO RESPONSE to 121 Cross MOTION for Discovery re Limited Expedited Discovery on Compliance with Preliminary Injunction (Staniar, Lauren) (Entered: 03/02/2018)

03/02/2018

125 DECLARATION of Melissa Keaney filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught re 121 Cross MOTION for Discovery re Limited Expedited Discovery on Compliance with Preliminary Injunction (Staniar, Lauren) (Entered: 03/02/2018)

03/29/2018

126 ORDER of USCA (18-35015, 18-35026 NOT THE MANDATE) as to 99 Notice of Appeal, filed by U.S. Department of State, U.S. Department of Homeland Security, Donald Trump, Elaine Duke, U.S. Customs and Border Protection, Kevin McAleenan, Rex Tillerson, Office of the Director of National Intelligence, Michele James, John Kelly, Daniel Coats, 107 Notice of Appeal, filed by John Doe 7, Jane Doe 4, John Doe 2, John Doe 3, Jewish Family Services of Silicon Valley, Jane Doe 6, Jane Doe 5, Jewish Family Service of Seattle, Allen Vaught, Afkab Mohamed Hussein, J ohn Doe 1. The alternate request to remand to the district court to address mootness is granted. These appeals are remanded to the district court to address mootness in the first instance. Each party shall bear its own costs on appeal. REMANDED. (SG) (Entered: 03/30/2018)

04/06/2018

127 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Arjun Garg for Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Garg, Arjun) (Entered: 04/06/2018)

04/10/2018

128 ORDER FOLLOWING REMAND ORDER FROM THE NINTH CIRCUIT COURT OF APPEALS signed by Judge James L. Robart. Pending the filing of the Ninth Circuit's mandate, the court DIRECTS the Clerk to remove the two pending motions on the docket from its calendar (Dkt. ## 110 , 121 ). The court also ORDERS the parties to file a joint status report within three (3) days of the filing of the Ninth Circuit's mandate proposing how the court should proceed on remand in addressing the issue of mootness. (PM) (Entered: 04/10/2018)

05/03/2018 129 JOINT STATUS REPORT signed by all parties estimated Trial Days: 10. (Staniar, Lauren) (Entered: 05/03/2018)

05/03/2018

130 Joint Stipulated MOTION And [Proposed] Order Regarding Further Proceedings, filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. Noting Date 5/3/2018, (Staniar, Lauren) (Entered: 05/03/2018)

05/03/2018

131 MOTION to Reinstate their Cross-Motion for Limited Expedited Discovery on Compliance with Preliminary Injunction, filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. (Attachments: # 1 Proposed Order) Noting Date 5/11/2018, (Keaney, Melissa) (Entered: 05/03/2018)

05/03/2018

132 DECLARATION of John Doe 1 filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught re (92 in 2:17-cv01707-JLR, 131 in 2:17-cv-00178-JLR) MOTION to Reinstate their Cross-Motion for Limited Expedited Discovery on Compliance with Preliminary Injunction (Attachments: # 1 Exhibit A)(Keaney, Melissa) (Entered: 05/03/2018)

05/03/2018

133 DECLARATION of Casey Smith filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught re (92 in 2:17-cv01707-JLR, 131 in 2:17-cv-00178-JLR) MOTION to Reinstate their Cross-Motion for Limited Expedited Discovery on Compliance with Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Keaney, Melissa) (Entered: 05/03/2018)

05/04/2018 134 STIPULATION AND ORDER denying as moot defendants' 110 Motion to Stay District Court Proceedings Pending

Disposition of Cross-Appeal; re parties' 130 Stipulated Motion Re Further Proceedings, signed by Judge James L. Robart.(SWT) (Entered: 05/04/2018)

05/04/2018

135 NOTICE that the following is RE-NOTED: 131 MOTION to Reinstate their Cross-Motion for Limited Expedited Discovery on Compliance with Preliminary Injunction. Filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. Noting Date 5/18/2018, (Alagesan, Deepa) (Entered: 05/04/2018)

05/04/2018

136 Unopposed MOTION TO JOIN JFS PLAINTIFFS MOTION TO REINSTATE THEIR CROSS-MOTION FOR LIMITED EXPEDITED DISCOVERY ON COMPLIANCE WITH PRELIMINARY INJUNCTION MOTION , filed by Plaintiffs Jeffrey Doe, Joseph Doe. Noting Date 5/25/2018, (Lin, Tana) (Entered: 05/04/2018)

05/04/2018

137 DECLARATION of Lisa Nowlin filed by Plaintiffs Jeffrey Doe, Joseph Doe re (95 in 2:17-cv-01707-JLR) Unopposed MOTION TO JOIN JFS PLAINTIFFS MOTION TO REINSTATE THEIR CROSS-MOTION FOR LIMITED EXPEDITED DISCOVERY ON COMPLIANCE WITH PRELIMINARY INJUNCTION MOTION (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lin, Tana) (Entered: 05/04/2018)

05/04/2018

138 DECLARATION of Jay Gairson filed by Plaintiffs Jeffrey Doe, Joseph Doe re (95 in 2:17-cv-01707-JLR) Unopposed MOTION TO JOIN JFS PLAINTIFFS MOTION TO REINSTATE THEIR CROSS-MOTION FOR LIMITED EXPEDITED DISCOVERY ON COMPLIANCE WITH PRELIMINARY INJUNCTION MOTION (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Lin, Tana) (Entered: 05/04/2018)

05/04/2018

139 DECLARATION of Hamdi Mohamed filed by Plaintiffs Jeffrey Doe, Joseph Doe re (95 in 2:17-cv-01707-JLR) Unopposed MOTION TO JOIN JFS PLAINTIFFS MOTION TO REINSTATE THEIR CROSSMOTION FOR LIMITED EXPEDITED DISCOVERY ON COMPLIANCE WITH PRELIMINARY INJUNCTION MOTION (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lin, Tana) (Entered: 05/04/2018)

05/04/2018

140 PROPOSED ORDER (Unsigned) re (95 in 2:17-cv-01707-JLR) Unopposed MOTION TO JOIN JFS PLAINTIFFS MOTION TO REINSTATE THEIR CROSS-MOTION FOR LIMITED EXPEDITED DISCOVERY ON COMPLIANCE WITH PRELIMINARY INJUNCTION MOTION (Lin, Tana) (Entered: 05/04/2018)

05/07/2018

141 ORDER granting Doe Plaintiffs' 136 Motion to Join JFS Plaintiffs' Motion to Reinstate Their Cross-Motion for Limited Discovery on Compliance with Preliminary Injunction Motion, signed by Judge James L. Robart. (SWT) (Entered: 05/07/2018)

05/14/2018

142 RESPONSE, by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, to 131 MOTION to Reinstate their Cross-Motion for Limited Expedited Discovery on Compliance with Preliminary Injunction, 136 Unopposed MOTION TO JOIN JFS PLAINTIFFS MOTION TO REINSTATE THEIR CROSS-MOTION FOR LIMITED EXPEDITED DISCOVERY ON COMPLIANCE WITH PRELIMINARY INJUNCTION MOTION . (Attachments: # 1 Exhibit A (Second Gauger Decl.), # 2 Exhibit B (Second Higgins Decl.))(Dugan, Joseph) (Entered: 05/14/2018)

05/18/2018

143 REPLY, filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught, TO RESPONSE to 131 MOTION to Reinstate their Cross-Motion for Limited Expedited Discovery on Compliance with Preliminary Injunction (Staniar, Lauren) (Entered: 05/18/2018)

05/21/2018

144 MANDATE of USCA (18-35015, 18-35026) as to 99 Notice of Appeal, filed by U.S. Department of State, U.S. Department of Homeland Security, Donald Trump, Elaine Duke, U.S. Customs and Border Protection, Kevin McAleenan, Rex Tillerson, Office of the Director of National Intelligence, Michele James, John Kelly, Daniel Coats, 107 Notice of Appeal, filed by John Doe 7, Jane Doe 4, John Doe 2, John Doe 3, Jewish Family Services of Silicon Valley, Jane Doe 6, Jane Doe 5, Jewish Family Service of Seattle, Allen Vaught, Afkab Mohamed Hussein, John Doe 1: The judgment of this Court, entered March 29, 2018, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. REMANDED. (SG) (Entered: 05/21/2018)

05/25/2018

145 MOTION to Dismiss , filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Attachments: # 1 Exhibit A (Agency Memo),

# 2 Exhibit B (Nielsen Memorandum), # 3 Proposed Order) Noting Date 6/29/2018, (Dugan, Joseph) (Entered: 05/25/2018)

06/19/2018

146 RESPONSE, by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught, to 145 MOTION to Dismiss . Oral Argument Requested. (Staniar, Lauren) (Entered: 06/19/2018)

06/19/2018 147 RESPONSE, by Plaintiff Joseph Doe, to 145 MOTION to Dismiss . (Lin, Tana) (Entered: 06/19/2018)

06/19/2018

148 DECLARATION of AJ de Vries in Support of Doe Plaintiffs' Opposition to Defendants' Motion to Dismiss and Dissolve Preliminary Injunction as Moot filed by Plaintiff Joseph Doe re 145 MOTION to Dismiss (Lin, Tana) (Entered: 06/19/2018)

06/19/2018

149 DECLARATION of Sophonie Bizimana in Support of Doe Plaintiffs' Opposition to Defendants' Motion to Dismiss filed by Plaintiff Joseph Doe re 145 MOTION to Dismiss (Lin, Tana) (Entered: 06/19/2018)

06/29/2018

150 REPLY, filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, TO RESPONSE to 145 MOTION to Dismiss (Attachments: # 1 Exhibit A)(Dugan, Joseph) (Entered: 06/29/2018)

07/02/2018

151 NOTICE of Intent to File Surreply re 150 Reply to Response to Motion to Dismiss 145 , ; filed by Plaintiff Joseph Doe. (Lin, Tana) Modified on 7/3/2018 to add link to motion to dismiss (PM). (Entered: 07/02/2018)

07/03/2018 152 SURREPLY filed by Plaintiff Joseph Doe re 145 MOTION to Dismiss (Lin, Tana) (Entered: 07/03/2018)

07/19/2018

153 ORDER directing Defendants to respond to Doe Plaintiffs' 152 Surreply. Response due no later than Monday, July 23, 2018, at 4:30 p.m. (PDT). Signed by Judge James L. Robart. (PM) (Entered: 07/19/2018)

07/23/2018

154 RESPONSE by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State re 152 Surreply re: Defendants' 145 Motion to Dismiss (Dugan,

Joseph) Modified on 7/24/2018 to add link and description of motion (PM). (Entered: 07/23/2018)

07/27/2018

155 ORDER denying without prejudice Defendants' 145 Motion to dismiss and dissolve the preliminary injunction; granting Plaintiffs' 131 Motion to reinstate their motion for limited discovery and their underlying motion for discovery (Dkt. # 121 ). Signed by Judge James L. Robart. (PM) (Entered: 07/30/2018)

07/30/2018

Pursuant to FRCP 25(d), Secretary of State Mike Pompeo and DHS Secretary Kirstjen M. Nielsen are substituted for Elaine Duke and Rex Tillerson. (PM) (Entered: 07/30/2018)

08/20/2018

156 Stipulated MOTION to Modify Deadline for Discovery Motions, filed by Consol Plaintiffs Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. Noting Date 8/20/2018, (Roberts, Tyler) (Entered: 08/20/2018)

08/21/2018

157 STIPULATION AND ORDER to Modify Deadline for Discovery Motions re parties' 156 Stipulated Motion. Any motions relating to the parties' jurisdictional discovery regarding mootness shall be filed by October 9, 2018. Signed by Judge James L. Robart. (TH) (Entered: 08/21/2018)

08/31/2018

158 NOTICE of Appearance by attorney Kevin Snell on behalf of Defendants Daniel Coats, Michele James, Kevin McAleenan, Kirstjen M. Nielsen, Office of the Director of National Intelligence, Mike Pompeo, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Snell, Kevin) (Entered: 08/31/2018)

08/31/2018

159 Stipulated MOTION and [Proposed] Stipulated Order Pursuant to Fed. R. Evid. 502(d), filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Kirstjen M. Nielsen, Office of the Director of National Intelligence, Mike Pompeo, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. Noting Date 8/31/2018, (Dugan, Joseph) (Entered: 08/31/2018)

09/04/2018

160 STIPULATED ORDER PURSUANT TO FEDERAL RULE OF EVIDENCE 502(d) re: 159 Stipulated Motion. Signed by Judge James L. Robart. (PM) (Entered: 09/04/2018)

09/21/2018

161 Second Stipulated MOTION to Modify Deadline for Discovery Motions, filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish

Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. (Attachments: # 1 Proposed Order) Noting Date 9/21/2018, (Roberts, Tyler) (Entered: 09/21/2018)

09/24/2018

162 ORDER granting the parties' 161 Stipulated Motion to Modify Deadline for Discovery Motions. Motions relating to the parties' jurisdictional discovery regarding mootness shall be filed by 10/15/2018. Signed by Judge James L. Robart. (PM) (Entered: 09/24/2018)

10/12/2018

163 NOTICE of Change of Address/Change of Name of Attorney Joseph Dugan. Filed by Defendants Daniel Coats, Michele James, Kevin McAleenan, Kirstjen M. Nielsen, Office of the Director of National Intelligence, Mike Pompeo, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State. (Dugan, Joseph) Modified address on 10/15/2018 (DS). (Entered: 10/12/2018)

10/12/2018

164 Stipulated MOTION to Set Briefing Schedule on Discovery Disputes, filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. (Attachments: # 1 Proposed Order) Noting Date 10/12/2018, (Roberts, Tyler) (Entered: 10/12/2018)

10/15/2018

165 ORDER granting parties' 164 Stipulated Motion to Set Briefing Schedule on Discovery Disputes. Plaintiffs' Joint Motion to Compel due Monday, October 22, 2018; Defendants' Opposition due Monday, November 5, 2018; Plaintiffs' Joint Reply due Friday, November 9, 2018. Signed by Judge James L. Robart. (TH) (Entered: 10/15/2018)

10/22/2018

166 MOTION to Compel , filed by Consol Plaintiffs Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. Oral Argument Requested. (Attachments: # 1 Proposed Order Granting Plaintiffs' Joint Motion to Compel) Noting Date 11/9/2018, (Roberts, Tyler) (Entered: 10/22/2018)

10/22/2018

167 DECLARATION of Melissa Keaney ISO Plaintiffs' Joint Motion to Compel filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught re 166 MOTION to Compel (Attachments: # 1 List of Exhibits and Attachments, # 2 Exhibits 1-38)(Roberts, Tyler) (Entered: 10/22/2018)

10/22/2018

168 DECLARATION of Youstina Youssef ISO Plaintiffs' Joint Motion to Compel filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught re 166 MOTION to Compel (Roberts, Tyler) (Entered: 10/22/2018)

11/05/2018

169 RESPONSE, by Defendants Daniel Coats, Michele James, Kevin McAleenan, Kirstjen M. Nielsen, Office of the Director of National Intelligence, Mike Pompeo, Donald Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, to 166 MOTION to Compel . (Attachments: # 1 Exhibit AGauger Decl., # 2 Exhibit B - Latta Decl., # 3 Exhibit C - Ingraham Decl., # 4 Exhibit D - Smth Decl., # 5 Exhibit E - Ruppel Decl., # 6 Exhibit F - Defs. Supp. Objs. & Written Resps. First & Third Interrogatories, # 7 Exhibit G - 8/14/2018 Email, # 8 Exhibit H 10/4/2018 Email, # 9 Exhibit I - 10/5/2018 Email, # 10 Exhibit J 10/10/2018 Email, # 11 Exhibit K - 10/11/2018 Email, # 12 Exhibit L 10/12/2018 Email, # 13 Exhibit M - 10/17/2018 Email, # 14 Exhibit N 10/17/2018 Email, # 15 Exhibit O - 10/30/2018 Email)(Snell, Kevin) (Entered: 11/05/2018)

11/09/2018

170 REPLY, filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught, TO RESPONSE to 166 MOTION to Compel (Attachments: # 1 Exhibit 39, # 2 Exhibit 40)(Roberts, Tyler) (Entered: 11/09/2018)

12/20/2018

171 ORDER granting in part and denying in part Plaintiffs' joint 166 Motion to compel discovery. The court further ORDERS Defendants to produce the discovery described in this order and to permit Plaintiffs to conduct the depositions within 45 days of the filing date of this order. Signed by Judge James L. Robart. (PM) (Entered: 12/20/2018)

01/02/2019

172 MOTION to Stay Proceedings in Light of Lapse of Appropriations, filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Kirstjen M Nielsen, Office of the Director of National Intelligence, Mike Pompeo, Rex Tillerson, Donald Trump, U.S. Customs and Border Protection, U.S. Department of State, US Department of Homeland Security. (Attachments: # 1 Proposed Order) Noting Date 1/11/2019, (Dugan, Joseph) (Entered: 01/02/2019)

01/03/2019 173 RESPONSE, by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish

Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught, to 172 MOTION to Stay Proceedings in Light of Lapse of Appropriations. (Attachments: # 1 Exhibit A)(Staniar, Lauren) (Entered: 01/03/2019)

01/28/2019

174 ORDER denying Defendants' 172 Motion to Stay Proceedings. The Court ORDERS the parties to meet and confer by telephone no later than 1/31/2019, to discuss any necessary, short adjustments to the current discovery schedule. Signed by Judge James L. Robart. (SWT) (Main Document 174 replaced on 1/29/2019) (SWT). (Entered: 01/28/2019)

01/29/2019

175 NOTICE of Corrected Image/Document re 174 Order on Motion to Stay. (Service of corrected image is attached). Document replaced to correct signature date. (SWT) (Entered: 01/29/2019)

01/30/2019 176 STIPULATION AND PROPOSED ORDER PROTECTIVE by parties (Staniar, Lauren) (Entered: 01/30/2019)

01/31/2019 177 PROTECTIVE ORDER re parties' 176 Stipulation, by Judge James L. Robart. (SWT) (Entered: 01/31/2019)

01/31/2019

178 STIPULATION AND PROPOSED ORDER regarding adjusting discovery schedule to accommodate depositions by parties (Snell, Kevin) Modified docket text on 2/1/2019 to include full title of document (SWT). (Entered: 01/31/2019)

02/06/2019

179 STIPULATION AND ORDER re parties' 178 Stipulation Regarding Adjusting Discovery Schedule to Accommodate Depositions. Document production to be completed by 2/3/2019 and depositions ordered by the Court to occur by 3/8/2019. Signed by Judge James L. Robart. (LW) (Entered: 02/06/2019)

02/11/2019

180 NOTICE of Change of Address/Change of Name of Attorney Matthew W Callahan. Filed by Amicus Muslim Advocates. (Callahan, Matthew) Modified firm address on 2/11/2019 (DS). (Entered: 02/11/2019)

02/11/2019

181 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Johnathan J Smith for Amicus Muslim Advocates. (Callahan, Matthew) (Entered: 02/11/2019)

02/15/2019

The court directs the parties to submit simultaneous 2-page letter briefs regarding the discovery issues by noon on Tuesday, 2/19/2019. The court sets a Telephone Conference set for Wednesday, 2/20/2019 at 9:00 AM PST before Judge James L. Robart. (AD) (Entered: 02/15/2019)

02/19/2019

182 LETTER from Defendants Concerning Privilege Assertions in Depositions filed by Daniel Coats, Michele James, Kevin McAleenan, Kirstjen M Nielsen, Office of the Director of National Intelligence, Mike Pompeo, Donald J Trump, U.S. Customs and Border Protection, U.S. Department of State, US Department of Homeland Security (Dugan, Joseph) (Entered: 02/19/2019)

02/19/2019

183 LETTER from Letter Brief challenging Defendants' privilege filed by Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Staniar, Lauren) (Entered: 02/19/2019)

02/19/2019

184 MOTION to Seal , filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. (Attachments: # 1 Proposed Order) Noting Date 3/1/2019, (Staniar, Lauren) (Entered: 02/19/2019)

02/19/2019

185 SEALED DOCUMENT Letter Brief challenging Defendants' privilege by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught re 184 MOTION to Seal , 177 Protective Order (Attachments: # 1 Exhibit A)(Staniar, Lauren) (Entered: 02/19/2019)

02/19/2019

186 RESPONSE to Plaintiffs' 184 Motion to Seal and Cross MOTION to Seal , filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Kirstjen M Nielsen, Office of the Director of National Intelligence, Mike Pompeo, Rex Tillerson, Donald J Trump, U.S. Customs and Border Protection, U.S. Department of State, US Department of Homeland Security. (Attachments: # 1 Proposed Order) Noting Date 3/1/2019, (Dugan, Joseph) Modified on 2/20/2019 to edit docket text and add docket entry relationship (TH). (Entered: 02/19/2019)

02/20/2019

187 ORDER granting Plaintiffs' 184 Motion to Seal and Defendants' 186 Cross Motion to Seal. The clerk is directed to maintain the seal on 185 . Signed by Judge James L. Robart.(LW) (Entered: 02/20/2019)

02/20/2019

188 MINUTE ENTRY for proceedings held before Judge James L. Robart Dep Clerk: Ashleigh Drecktrah; Pla Counsel: Justin Cox; Def Counsel: Joseph Dugan; CR: Debbie Zurn; Telephone Discovery

Conference held on 2/20/2019. The court resolves the discovery issues as stated on the record. (AD) (Entered: 02/20/2019)
02/22/2019 189 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Hearing held on 2/20/2019 before Judge James L. Robart.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.

Release of Transcript Restriction set for 5/23/2019, (DZ) (Entered: 02/22/2019)

02/26/2019

190 NOTICE of Appearance by attorney Joshua Kolsky on behalf of Defendants Daniel Coats, Michele James, Kevin McAleenan, Kirstjen M Nielsen, Office of the Director of National Intelligence, Mike Pompeo, Donald J Trump, U.S. Customs and Border Protection, U.S. Department of State, US Department of Homeland Security. (Kolsky, Joshua) (Entered: 02/26/2019)

02/27/2019

191 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Michelle R. Bennett and Joseph C Dugan for Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin McAleenan, Kirstjen M Nielsen, Office of the Director of National Intelligence, Mike Pompeo, Rex Tillerson, Donald J Trump, U.S. Customs and Border Protection, U.S. Department of State, US Department of Homeland Security. (Dugan, Joseph) (Entered: 02/27/2019)

03/05/2019

192 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Amy C Williams-Derry for Plaintiffs Jack Doe, James Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Episcopal Diocese of Olympia. (WilliamsDerry, Amy) (Entered: 03/05/2019)

10/15/2019

193 ORDER directing parties to file a Joint Status Report within seven days of the filing date of this order. Signed by Judge James L. Robart. (SWT) (Entered: 10/15/2019)

10/18/2019

194 APPLICATION OF ATTORNEY Max S. Wolson FOR LEAVE TO APPEAR PRO HAC VICE for Consol Plaintiff Jewish Family Service of Seattle (Fee Paid) Receipt No. 0981-5971167 (Roberts, Tyler) (Entered: 10/18/2019)

10/18/2019

195 ORDER re 194 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Max S Wolson for Plaintiff Jewish Family Service of Seattle, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 10/18/2019)

10/21/2019 196 JOINT STATUS REPORT signed by all parties (Lin, Tana) (Entered: 10/21/2019)

10/22/2019

197 ORDER SETTING A SCHEDULE FOR MOTION PRACTICE. Any motions related to dismissal of this action based on mootness must be filed within thirty (30) days of the date of this order. Signed by Judge James L. Robart. (SWT) (Entered: 10/22/2019)

11/05/2019

Set Hearings: Telephone Conference set for Wednesday, 11/13/2019 at 9:00 AM before Judge James L. Robart. By 9:00 AM Tuesday, 11/12/2019, the parties are directed to file simultaneous letter briefs of no more than two pages addressing the discovery dispute. (AD) (Entered: 11/05/2019)

11/12/2019

198 LETTER from Joshua M. Kolsky filed by Daniel Coats, Michele James, Kevin K McAleenan, Kirstjen M Nielsen, Office of the Director of National Intelligence, Mike Pompeo, Donald J Trump, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of State (Kolsky, Joshua) (Entered: 11/12/2019)

11/12/2019

199 LETTER from Linda Evarts filed by Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Evarts, Linda) (Entered: 11/12/2019)

11/12/2019

200 NOTICE Regarding Status of Settlement Discussions ; filed by Consol Plaintiffs Afkab Mohamed Hussein, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jewish Family Service of Seattle, Jewish Family Services of Silicon Valley, John Doe 1, John Doe 2, John Doe 3, John Doe 7, Allen Vaught. (Staniar, Lauren) (Entered: 11/12/2019)

11/13/2019

201 MINUTE ENTRY for proceedings held before Judge James L. Robart Dep Clerk: Ashleigh Drecktrah; Pla Counsel: Linda Evarts; Def Counsel: Joshua Kolsky; CR: Andrea Ramirez; Telephone Conference held on 11/13/2019. The court hears from counsel re: the parties' Notice Regarding Status of Settlement Discussions (Dkt. # 200 ). For the reasons stated on the record, the discovery dispute as stated in the parties' letter briefs (Dkt. ## 198 , 199 ) is STRICKEN and the court will enter its standard order of dismissal. (AD) (Entered: 11/13/2019)

11/13/2019

202 ORDER OF DISMISSAL: Counsel having notified the Court of settlement of this case, and it appearing that no issue remains for the Court's determination, IT IS ORDERED that this action and all claims asserted herein are DISMISSED with prejudice and without costs to any party. In the event that settlement is not perfected, any party may move to reopen the case within 60 days of the date of this order. Any trial date and pretrial dates previously set are hereby VACATED. Signed by Judge James L. Robart. (AD) (Entered: 11/13/2019)

01/10/2020

203 Stipulated MOTION to Re-Open Cases for Limited Purpose of Formal Approval of Settlement, filed by Defendants Daniel Coats, Elaine Duke, Michele James, John Kelly, Kevin K McAleenan, Kirstjen M Nielsen, Office of the Director of National Intelligence, Mike Pompeo, Rex Tillerson, Donald J Trump, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of State. (Attachments: # 1 Proposed Order) Noting Date 1/10/2020, (Staniar, Lauren) (Entered: 01/10/2020)

01/13/2020

204 ORDER granting in part and denying in part parties' 203 stipulated motion to reopen this matter for the limited purpose of perfecting the settlement agreement. The court declines to reopen this matter but grants the parties an additional 30 days from the filing date of this order to perfect their settlement and file a stipulated dismissal of this matter. In the event settlement is not perfected within that timeframe, any party may move to reopen the case, provided such motion is filed within 30 days of the date of this order. Signed by Judge James L. Robart. (PM) (Entered: 01/13/2020)

02/10/2020 205 STIPULATION (Stipulated Dismissal Pursuant to F.R.C.P. 41(A)(1)(A)(II) by parties (Staniar, Lauren) (Entered: 02/10/2020)

02/10/2020

206 MOTION to Seal Exhibit A to the Settlement Agreement and Redact Portions of Exhibit B to the Settlement Agreement, filed by Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jane Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Julia

Doe, Episcopal Diocese of Olympia. (Attachments: # 1 Proposed Order) Noting Date 2/10/2020, (Staniar, Lauren) (Entered: 02/10/2020)

02/10/2020

207 SEALED DOCUMENT Exhibit A to Settlement Agreement by Plaintiffs Council on American Islamic Relations - Washington, Jack Doe, James Doe, Jane Doe, Jason Doe, Jeffrey Doe, John Doe, Joseph Doe, Julia Doe, Episcopal Diocese of Olympia re 206 MOTION to Seal Exhibit A to the Settlement Agreement and Redact Portions of Exhibit B to the Settlement Agreement, 205 Stipulation (Staniar, Lauren) (Entered: 02/10/2020)

02/10/2020

208 ORDER granting Plaintiffs' unopposed 206 Motion to File Exhibit A to the Settlement Agreement Under Seal and Redact Portions of Exhibit B to the Settlement Agreement. The Court directs the Clerk to maintain the seal on docket no. 207 . Signed by Judge James L. Robart. (PM) (Entered: 02/10/2020)