Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 1 of 14

1 ROBERT W. FERGUSON WSBA #26004
2 Attorney General 3 NOAH G. PURCELL
WSBA #43492 4 Solicitor General
COLLEEN M. MELODY 5 WSBA #42275
Civil Rights Unit Chief 6 Office of the Attorney General 7 800 Fifth Avenue, Suite 2000
Seattle, WA 98104 8 206-464-7744

9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

10

STATE OF WASHINGTON, 11

CIVIL ACTION NO.

Plaintiff,

12

13
DONALD TRUMP, in his official 14 capacity as President of the United
States; U.S. DEPARTMENT OF 15 (HOMELAND SECURITY; JOHN F.
KELLY, in his official capacity as 16 Secretary of the Department of
Homeland Security; TOM SHANNON, 17 in his official capacity as Acting
Secretary of State; and the UNITED 18 STATES OF AMERICA,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

19

Defendants.

20

I. INTRODUCTION

21

1. The State of Washington ("State") brings this action to protect the State—

22 including its residents, its employers, and its educational institutions—against illegal actions of

23 the President and the federal government. The President's Executive Order of January 27, 2017

24 ("the Executive Order"), is separating Washington families, harming thousands of Washington

25 residents, damaging Washington's economy, hurting Washington-based companies, and

26

COMPLAINT

1

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206)464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 2 of 14

1 undermining Washington's sovereign interest in remaining a welcoming place for immigrants
2 and refugees. The Court should invalidate the portions of the Executive Order challenged here.
3 II. JURISDICTION AND VENUE
4 2. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a).
5 3. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and
6 1391(e)(1). Defendants are United States agencies or officers sued in their official capacities,
7 and a substantial part of the events or omissions giving rise to this claim occurred in King
8 County, within the Western District of Washington.
9 III. PARTIES
10 4. The Governor is the chief executive officer of the State. The Governor is
11 responsible for overseeing the operations of the State and ensuring that its laws are faithfully
12 executed.
13 5. The Attorney General is the chief legal adviser to the State. The Attorney
14 General's powers and duties include acting in federal court on matters of public concern.
15 6. The State has declared that practices that discriminate against any of its
16 inhabitants because of race, creed, color, or national origin are matters of public concern that
17 threaten the rights and proper privileges of the State and harm the public welfare, health, and
18 peace of the people. See Wash. Rev. Code 49.60.010.
19 7. The State's interest in protecting the health, safety, and well-being of its
20 residents, including protecting its residents from harms to their physical or economic health, is
21 a quasi-sovereign interest.
22 8. The State also has an interest in ensuring that its residents are not excluded from
23 the benefits that flow from participation in the federal system, including the rights and
24 privileges provided by the U.S. Constitution and federal law.
25
26

COMPLAINT

2

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206)464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 3 of 14

I 9. The State's interest in preventing and remedying injuries to the public's health,
2 safety, and well-being extends to all of the State's residents, including individuals who suffer
3 indirect injuries and members of the general public.
4 10. According to the most current American Community Survey data from the U.S.
5 Census Bureau, as of 2015, approximately 7,280 non-citizen immigrants from Iran, Iraq, Syria,
6 Somalia, Sudan, Libya, and Yemen reside in the State of Washington-1,409 Iranian
7 immigrants, 2,275 Iraqi immigrants, 360 Libyan immigrants, 2,883 Somalian immigrants, 165
8 Sudanese immigrants, and 187 Syrian immigrants.
9 11. Immigration is an important economic driver in Washington. Many workers in
10 Washington's technology industry are immigrants, and many of those immigrant workers are
11 from Muslim-majority countries. Immigrant and refugee-owned businesses employ 140,000
12 people in Washington. Many companies in Washington are dependent on foreign workers to
13 operate and grow their businesses.
14 12. The technology industry relies heavily on the H-1B visa program, through
15 which highly skilled workers like software engineers are permitted to work in the United
16 States. Washington ranks ninth in the U.S. by number of applications for high-tech visas.
17 Microsoft, a corporation headquartered in Redmond, Washington, is the State's top employer
18 of high-tech—or H-1B visa holders and employs nearly 5,000 people through the program.
19 Other Washington-based companies, including Amazon, Expedia, and Starbucks, employ
20 thousands of H-1B visa holders.
21 13. The market for highly skilled workers and leaders in the technology industry is
22 extremely competitive. Changes to U.S. immigration policy that restrict the flow of people may
23 inhibit these companies' ability to adequately staff their research and development efforts and
24 recruit talent from overseas. If recruiting efforts are less successful, these companies' abilities
25 to develop and deliver successful products and services may be adversely affected.
26

COMPLAINT

3

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206)464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 4 of 14

1 14. Microsoft's U.S. workforce is heavily dependent on immigrants and guest
2 workers. At least 76 employees at Microsoft are citizens of Iran, Iraq, Syria, Somalia, Sudan,
3 Libya, or Yemen and hold U.S. temporary work visas. There may be other employees with
4 permanent-resident status or green cards. These employees may be banned from re-entering the
5 U.S. if they travel overseas or to the company's offices in Vancouver, British Columbia.
6 15. Seattle-based company Amazon also employs workers from every corner of the
7 world. Amazon's employees, dependents of employees, and candidates for employment with
8 Amazon have been impacted by the Executive Order that is the subject of this Complaint.
9 Amazon has advised such employees currently in the United States to refrain from travel
10 outside the United States.
11 16. Bellevue-based company Expedia operates a domestic and foreign travel
12 business. At the time of this filing, Expedia has approximately 1,000 customers with existing
13 flight reservations in or out of the United. States who hold passports from Iran, Iraq, Syria,
14 Somalia, Sudan, Libya, or Yemen. The Executive Order will restrict business, increase
15 business costs, and impact current employees and customers.
16 17. The University of Washington and Washington State University are the two
17 largest public research universities in the State. More than 95 students from Iran, Iraq, Syria,
18 Somalia, Sudan, Libya, and Yemen attend the University of Washington, based in Seattle.
19 More than 135 students from those countries attend Washington State University, based in
20 Pullman.
21 18. Up to 13 individuals were detained at Seattle-Tacoma International Airport
22 .("Sea-Tac Airport") one day after President Trump issued the Executive Order that is the
23 subject of this Complaint.
24 19. An unknown number of Washington residents from the affected countries may
25 have been prevented from, or may be prevented from, traveling to Washington through air,
26

COMPLAINT

4

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 5 of 14

I land, and sea ports of entry across the United States. It is unknown how many additional
2 Washington residents will reach United States ports across the country and be prevented from
3 returning to Washington while the Executive Order in question remains in effect.
4 20. As a result, Washington residents have been separated from their families. One
5 Somali refugee, who has lived in Seattle for 12 years, went to Sea-Tac Airport to pick up her
6 husband who was flying from Somalia through Vienna, but never saw him before he was sent
7 back on a flight to Vienna. Another individual who was detained is related to a Sea-Tac
8 Airport worker. A third detainee, a sister of a blind Iraqi man who lives in Seattle, was
9 prevented from seeing him after 15 years apart.
10 21. Other Washington residents will be unable to travel to Canada to visit family.
11 An Iraqi-born software engineer, who works in Facebook's Seattle office and was in Canada
12 watching his little brother perform in a high school play, received a phone call from his
13 immigration attorney shortly before the Executive Order took effect, advising him to rush back
14 across the border.
15 22. Still other Washington residents will be prevented from being reunited with
16 family members. One Syrian family who recently resettled in Seattle is waiting for an older
17 child still in a refugee camp who was set to arrive next week, but for the Executive Order.
18 23. Defendant Donald Trump is the President of the United States, and issued the
19 January 27, 2017, Executive Order on which Defendants rely for authority to detain and/or
20 remove non-citizen immigrants from Iran, Iraq, Syria, Somalia, Sudan, Libya, and Yemen who
21 are traveling or returning to Washington via air, land, and sea ports across the United States,
22 including Sea-Tac Airport. He is sued in his official capacity.
23 24. Defendant U.S. Department of Homeland Security ("DHS") is a federal cabinet
24 agency responsible for implementing and enforcing the Immigration and Nationality Act. DHS
25 is a Department of the Executive Branch of the United States Government, and is an agency
26

COMPLAINT

5

ATTORNEY GENERAL OF WASHINGTON

800 FiBh Avenue, Suite 2000

Seattle, WA 98104-3188

(206)464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 6 of 14

1 within the meaning of 5 U.S.C. § 552(f). The U.S. Customs and Border Protection is an
2 Operational and Support Component agency within DHS. The U.S. Customs and Border
3 Protection is responsible for detaining and/or removing non-citizen immigrants from Iran, Iraq,
4 Syria, Somalia, Sudan, Libya, and Yemen arriving at air, land, and sea ports across the United
5 States, including Sea-Tac Airport.
6 25. Defendant John F. Kelly is the Secretary of the Department of Homeland
7 Security. He is responsible for implementing and enforcing the Immigration and Nationality
8 Act ("INA"), and oversees the U.S. Customs and Border Protection. He is sued in his official
9 capacity.
10 26. Defendant Tom Shannon is the Acting Secretary of State. The Secretary of State
11 has authority to determine and implement certain visa procedures for non-citizens. He is sued
12 in his official capacity.
13 27. Defendant the United States of America includes all government agencies and
14 departments responsible for the implementation of the INA and detention and/or removal of
15 non-citizen immigrants from Iran, Iraq, Syria, Somalia, Sudan, Libya, and Yemen who are
16 traveling to or returning to Washington via air, land, and sea ports across the United States,
17 including Sea-Tac Airport.
18 IV. ALLEGATIONS
19 28. Prior to his election, Donald Trump campaigned on the promise that he would
20 ban Muslims from entering the United States.
21 29. On December 7, 2015, candidate Trump issued a press release calling for "a
22 total and complete shutdown of Muslims entering the United States." As of the date of this
23 filing, the press release remains available on Trump's campaign website and is attached hereto
24 as Exhibit 1.
25
26

COMPLAINT

6

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 7 of 14

1 30. In defending his decision shortly thereafter, candidate Trump compared the
2 Muslim ban to former President Franklin Roosevelt's decision to intern Japanese Americans
3 during World War II, and stated, "This is a president highly respected by all, [Roosevelt] did
4 the same thing." A media report of this interview is attached hereto as Exhibit 2.
5 31. On June 14, 2016, candidate Trump reiterated his promise to ban all Muslims
6 entering this country until "we as a nation are in a position to properly and perfectly screen
7 those people coming into our country." A transcript of this speech is attached hereto as Exhibit
8 3.
9 32. Asked during a July 24, 2016, interview about whether he was "backing off on
10 his Muslim ban[]," candidate Trump stated, "I actually don't think it's a pull-back. In fact, you
11 could say it's an expansion." A transcript of this interview is attached hereto as Exhibit 4.
12 33. In a foreign policy speech delivered on August 15, 2016, candidate Trump
13 noted that the United States could not "adequate[ly] screen[]" immigrants because it admits
14 "about 100,000 permanent immigrants from the Middle East every year." Trump proposed
15 creating an ideological screening test for immigration applicants, which would "screen out any
16 who have hostile attitudes towards our country or its principles — or who believe that Sharia
17 law should supplant American law." During the speech, he referred to his proposal as
18 "extreme, extreme vetting." A copy of the prepared remarks is attached hereto as Exhibit 5. A
19 video link to the delivered speech is available at: https://www.c-span.org/video/?413977-
20 1/donald-trump-delivers-foreign-policy-address (quoted remarks at 50:46).
21 34. On January 20, 2017, Donald Trump was inaugurated as the President of the
22 United States. In his first television interview as President, he again referred to his plan for
23 "extreme vetting." A transcript of this interview is attached hereto as Exhibit 6.
24 35. On January 27, 2017, one week after being sworn in, President Trump signed an
25 executive order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United
26

COMPLAINT

7

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206)464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 8 of 14

1 States." The Executive Order directs a series of changes to the manner in which non-citizens

2 may seek and obtain entry to the United States. The Executive Order is attached hereto as

3 Exhibit 7.

4 36. Section 3(c) of the Executive Order proclaims that entry of immigrants and

5 nonimmigrants from countries referred to in section 217(a)(12) of the Immigration and

6 Nationality Act, 8 U.S.C. § 1187(a)(12), i.e., Iran, Iraq, Libya, Somalia, Sudan, Syria, and

7 Yemen, "would be detrimental to the interests of the United States." The Executive Order

8 "suspend[s] entry into the United States, as immigrants and nonimmigrants, of such persons for

9 90 days from the date of this order."

10 37. Sections 5(a)—(b) of the Executive Order suspend the U.S. Refugee Admissions

11 Program in its entirety for 120 days and then, upon its resumption, direct the Secretary of State

12 to prioritize refugees who claim religious-based persecution, "provided that the religion of the

13 individual is a minority religion in the individual's country of nationality."

14 38. Section 5(c) of the Executive Order proclaims that entry of Syrian refugees is

15 "detrimental to the interests of the United States" and suspends their entry indefinitely.

16 39. In a January 27, 2017, interview with the Christian Broadcasting Network,

17 President Trump confirmed his intent to prioritize Christians in the Middle East for admission

18 as refugees. A copy of the report of this interview is attached hereto as Exhibit 8.

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

20 President Trump stated that the purpose of the Executive Order was to "establish[] new vetting

21 measures to keep radical Islamic terrorists out of the United States of America." He continued,

22 ,We don't want them here." A media report of these statements is attached hereto as Exhibit 9.

23 V. FIRST CAUSE OF ACTION

24

(Fifth Amendment — Equal Protection)

25

41. The State realleges and incorporates by reference the allegations set forth in

26 each of the preceding paragraphs of this Complaint.

COMPLAINT

8

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206)464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 9 of 14

1 42. The Due Process Clause of the Fifth Amendment prohibits the federal
2 government from denying equal protection of the laws.

43. Sections 3 and 5 of the Executive Order, together with statements made by

4 Defendants concerning their intent and application, target individuals for discriminatory

5 treatment based on their country of origin and/or religion, without lawful justification.

6 44. The Executive Order was motivated by animus and a desire to harm a particular

7 group.

8 45. The discriminatory terms and application of the Executive Order are arbitrary

9 and cannot be sufficiently justified by federal interests.

10 46. Through their actions above, Defendants have violated the equal protection

11 guarantee of the Fifth Amendment.

12 47. Defendants' violation causes ongoing harm to Washington residents.

13 VI. SECOND CAUSE OF ACTION

14

(First Amendment — Establishment Clause)

15

48. The State realleges and incorporates by reference the allegations set forth in

16 each of the preceding paragraphs of this Complaint.

17

49. The Establishment Clause of the First Amendment prohibits the federal

18 government from officially preferring one religion over another.

19

50. Sections 3 and 5 of the Executive Order, together with statements made by

20 Defendants concerning their intent and application, are intended to disfavor Islam and favor

21 Christianity.

22

51. Through their actions above, Defendants have violated the Establishment

23 I Clause of the First Amendment.

24

52. Defendants' violation causes ongoing harm to Washington residents.

25

VII. THIRD CAUSE OF ACTION

(Fifth Amendment — Procedural Due Process) 26

COMPLAINT

9

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206)464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 10 of 14

53. The State realleges and incorporates by reference the allegations set forth in

2 each of the preceding paragraphs of this Complaint.

3 54. The Due Process Clause of the Fifth Amendment prohibits the federal

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

5 55. Where Congress has granted statutory rights and authorized procedures

6 applicable to arriving and present non-citizens, minimum due process rights attach to those

7 statutory rights.

8 56. Sections 3 and 5 of the Executive Order conflict with the statutory rights and

9 procedures directed by Congress. In issuing and implementing the Executive Order,

10 Defendants have violated the procedural due process guarantees of the Fifth Amendment.

11 57. Defendants' violation causes ongoing harm to Washington residents.

12 VIH. FOURTH CAUSE OF ACTION

13

(Immigration and Nationality Act — Discriminatory Visa Procedures)

14

58. The State realleges and incorporates by reference the allegations set forth in

15 each of the preceding paragraphs of this Complaint.

16

59. The Immigration and Nationality Act, 8 U.S.C. § 1152(a)(1)(A), prohibits

17 discrimination in the issuance of immigrant visas on the basis of race, nationality, place of

18 birth, or place of residence.

19

60. Sections 3 and 5 of the Executive Order, together with statements made by

20 Defendants concerning their intent and application, discriminate on the basis of race,

21 nationality, place of birth, and/or place of residence in the issuance of visas, in violation of the

22 Immigration and Nationality Act.

23

61. Defendants' violation causes ongoing harm to Washington residents.

24

IX. FIFTH CAUSE OF ACTION

(Immigration and Nationality Act — Denial of Asylum and Withholding of Removal) 25

26

COMPLAINT

10

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206)464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 11 of 14

I 62. The State realleges and incorporates by reference the allegations set forth in
2 each of the preceding paragraphs of this Complaint.
3 63. The Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), entitles
4 certain non-citizens arriving at Washington ports of entry to apply for asylum and withholding
5 of removal.
6 64. As implemented, the Executive Order suspends all immigrant and
7 nonimmigrant entry into Washington by individuals from seven countries and forecloses their
8 ability to apply for asylum and withholding of removal.
9 65. Defendants' violation causes ongoing harm to Washington residents.
10 X. SIXTH CAUSE OF ACTION
11 (Foreign Affairs Reform and Restructuring Act — Denial of Convention Against Torture Relief)
12 66. The State realleges and incorporates by reference the allegations set forth in
13 each of the preceding paragraphs of this Complaint.
14 67. The Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C. § 1231
15
16 note, implements the United Nations Convention Against Torture, which the United States

ratified in 1994. Pub. L. 105-277, div. G, subdiv. B, title XXII, § 2242. Under the Convention

17

Against Torture, the United States may not involuntarily return any person to a country where

18

there are substantial grounds for believing the person would be in danger of being subjected to

19

torture.

20

68. As implemented, the Executive Order suspends all immigrant and

21

nonimmigrant entry into Washington by individuals from seven countries and forecloses their

22

ability to apply for relief under the Convention Against Torture.

23

69. Defendants' violation causes ongoing harm to Washington residents.

24

XI. SEVENTH CAUSE OF ACTION

25

(Religious Freedom Restoration Act)

26

COMPLAINT

11

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206)464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 12 of 14

1 70. The State realleges and incorporates by reference the allegations set forth in

2 each of the preceding paragraphs of this Complaint.

3 71. The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(a), prohibits the

4 federal government from substantially burdening the exercise of religion, even if the burden

5 results from a rule of general applicability.

6 72. Section 3 of the Executive Order, if implemented, will result in substantial

7 burdens on the exercise of religion by non-citizen immigrants by, for example, preventing

8 them from exercising their religion while in detention, returning to their religious communities

9 in Washington, and/or taking upcoming, planned religious travel abroad. Such burdens on

10 religion violate the Religious Freedom Restoration Act.

11 73. Defendants' violation causes ongoing harm to Washington residents.

12 XII. EIGHTH CAUSE OF ACTION

13

(Procedural Violation of the Administrative Procedure Act)

14

74. The State realleges and incorporates by reference the allegations set forth in

15 each of the preceding paragraphs of this Complaint.

16

75. The Administrative Procedure Act, 5 U.S.C. §§ 553 and 706(2)(D), requires that

17 federal agencies conduct formal rule making before engaging in action that impacts substantive

18 rights.

19

76. In implementing Sections 3 and 5 of the Executive Order, federal agencies have

20 changed the substantive criteria by which individuals from affected countries may enter the

21 United States. Federal agencies did not follow the procedures required by the Administrative

22 Procedure Act before taking action impacting these substantive rights.

23

77. Through their actions above, Defendants have violated the Administrative

24 Procedure Act.

25

78. Defendants' violation causes ongoing harm to Washington residents.

26

COMPLAINT

12

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206)464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 13 of 14

1 XHI. NINTH CAUSE OF ACTION

2

(Substantive Violation of the Administrative Procedure Act)

3

79. The State realleges and incorporates by reference the allegations set forth in

4 each of the preceding paragraphs of this Complaint.

5

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

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

7

81. In implementing Sections 3 and 5 of the Executive Order, federal agencies have

8 taken unconstitutional and unlawful action, as alleged herein, in violation of the Administrative

9 Procedure Act.

10

82. In implementing Sections 3 and 5 of the Executive Order, federal agencies have

11 applied provisions arbitrarily, in violation of the Administrative Procedure Act.

12

83. Defendants' violation causes ongoing harm to Washington residents.

13

XIV. PRAYER FOR RELIEF

14

84. Wherefore, the State of Washington prays that the Court:

15

a. Declare that Sections 3(c), 5(a)—(c), and 5(e) of the Executive Order are

16

unauthorized by and contrary to the Constitution and laws of the United

17

States;

18

b. Enjoin Defendants from implementing or enforcing Sections 3(c), 5(a)-

19

(c), and 5(e) of the Executive Order, including at all United States

20

borders, ports of entry, and in the issuance of visas, pending further

21

orders from this Court;

22

C. Pursuant to Federal Rule of Civil Procedure 65(b)(2), set an expedited

23

hearing within fourteen (14) days to determine whether the Temporary

24

Restraining Order should be extended; and

25

d. Award such additional relief as the interests of justice may require.

26

COMPLAINT

13

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 1 Filed 01/30/17 Page 14 of 14

1 DATED this 30th day of January, 2017. 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

V.
ob Ferguson, WSBA #26004 Attorney General Noah G. Purcell, WSBA #4349 Solicitor General Colleen M. Melody, WSBA #42275 Civil Rights Unit Chief Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744

COMPLAINT

14

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206)464-7744

 
 Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 1 of 27

1 ROBERT W. FERGUSON
Attorney General
2 WSBA #26004
NOAH G. PURCELL
3 WSBA #43492
Solicitor General
4 COLLEEN M. MELODY
WSBA #42275
5 Civil Rights Unit Chief
Office of the Attorney General
6 800 Fifth Avenue, Suite 2000
Seattle, WA 98104
7 206-464-7744

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

STATE OF WASHINGTON,

CIVIL ACTION NO.

10

Plaintiff,

11

MOTION FOR TEMPORARY

v.

RESTRAINING ORDER

12

DONALD TRUMP, in his official

13 capacity as President of the United

Motion Noted: January 30, 2017

States; U.S. DEPARTMENT OF

14 HOMELAND SECURITY; JOHN F.

KELLY, in his official capacity as

15 Secretary of the Department of

Homeland Security; TOM SHANNON,

16 in his official capacity as Acting

Secretary of State; and the UNITED

17 STATES OF AMERICA,

18

Defendants.

19

20

21

22

24

MOTION FOR TEMPORARY

RESTRAINING ORDER
25

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 206-464-774

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 2 of 27

1

TABLE OF CONTENTS

2 I. INTRODUCTION.....................................................................................................1

3 II. FACTUAL BACKGROUND ...................................................................................2

4 III. ARGUMENT ............................................................................................................4

5

A. Standard for Granting Temporary Relief ...........................................................4

6

B. The State is Likely to Prevail on the Merits Because the Executive Order is

Illegal in Many Respects....................................................................................5

7
1. The State is Likely to Prevail on the Merits of Its Claim that the

8

Executive Order Violates the Equal Protection Clause ..............................5

9

a. Standard of Review .............................................................................5

10

b. Strict scrutiny applies..........................................................................6

11

c. The Executive Order fails strict scrutiny ............................................8

12

d. Even Under rational basis review, the Executive Order fails .............9

13

2. The State is Likely to Prevail on the Merits of Its Claim that the

Executive Order Violates the Establishment Clause ................................11

14
3. The State is Likely to Prevail on the Merits of Its Claim that the

15

Executive Order Violates Due Process.....................................................14

16

a. The denial of re-entry to and de facto travel ban on certain legal

permanent residents and visaholders violates their due process

17

rights..................................................................................................14

18

b. The blanket ban on all refugees violates their due process right to

the fair administration of congressionally enacted policies and

19

procedures .........................................................................................18

20

4. The State is Likely to Prevail on the Merits of Its Claim that the

Executive Order Violates the Immigration and Nationality Act ..............19

21

22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

i

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 3 of 27

1

C. The State, its Residents, and its Businesses Are Suffering and Will Continue

to Suffer Irreparable Harm Due to the Executive Order ..................................21

2

D. The Balance of Equities and Public Interest Sharply Favor Preliminary

3

Relief ................................................................................................................23

4 II. CONCLUSION .......................................................................................................24

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

ii

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 4 of 27

1

I. INTRODUCTION

2

Federal courts have no more sacred role than protecting marginalized groups against

3

irrational, discriminatory conduct. Over the last 48 hours, federal courts across the country

have exercised this role, ordering President Trump’s administration to release individuals
4
who were detained pursuant to the President’s Executive Order on immigration and refugees

5

issued late on Friday, January 27. Each of those courts found a significant likelihood that the

6

Executive Order violates federal law. Today, the State of Washington asks this Court to make

7 the same finding and to enter a nationwide temporary restraining order barring enforcement

8 of portions of the order. This relief is necessary to protect the State, its residents, and its

9

businesses from ongoing irreparable harm, and is overwhelmingly in the public interest.

President Trump’s Executive Order bans all refugees from entering the country for
10
120 days, and bans all refugees from Syria indefinitely, whether they be infants,

11

schoolchildren, or grandmothers. Washington families waiting to be reunited with their loved

12

ones have had their dreams of reunification destroyed, as their refugee relatives around the

13 world were taken off airplanes or told they are no longer welcome.

14

The Order also bans nationals from seven countries from entering the United States

15

for 90 days. Though the administration’s interpretation of the Order has changed repeatedly

over the last 48 hours, it has applied the Order to block longtime legal permanent residents
16
from returning to this country, and the Order’s text purports to grant the administration

17

authority to continue denying entry to such residents. This entry ban is harming legal

18

permanent residents who live in Washington, Washington businesses that employ residents

19 from the listed countries, and Washington families whose loved ones are trying to visit them.

20

In addition to suffering these irreparable harms, the State has a strong likelihood of

21

success on its claims. The Executive Order has both the intent and effect of discriminating

based on national origin and religion, in violation of the Constitution. Strict scrutiny applies,
22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

1

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 5 of 27

1 and the order fails utterly. Even if rational basis review applied, the Order would fail because

2 it is motivated by discriminatory animus and bears no relationship to its purported ends.

3

While preventing terrorist attacks is an important goal, the order does nothing to further that

purpose by denying admission to children fleeing Syria’s civil war, to refugees who valiantly
4
assisted the U.S. military in Iraq, or to law-abiding high-tech workers who have lived in

5

Washington for years. The Order also violates the Immigration and Nationality Act.

6

In short, the Order is illegal, is causing and will continue to cause irreparable harm in

7 Washington, and is contrary to the public interest. The Court should fulfill its constitutional

8 role as a check on executive abuse and temporarily bar enforcement of the Order nationwide.

9

II. FACTUAL BACKGROUND

Donald Trump campaigned on the promise that he would ban Muslims from entering
10
the United States. Compl. For Decl. & Inj. Relief (“Compl.”) ¶ 28, ECF No. 1. On December

11

7, 2015, he issued a press release calling for “a total and complete shutdown of Muslims

12

entering the United States.” Compl. ¶ 29. Over the next several months, he defended and

13 reiterated this promise. Compl. ¶¶ 30-32. On August 15, 2016, Trump proposed an

14 ideological screening test for immigration applicants, which he referred to as “extreme

15

vetting.” Compl. ¶ 33.

Following his inauguration, President Trump reaffirmed his commitment to “extreme
16
vetting.” Compl. ¶ 34. Within one week of taking office, President Trump signed an order

17

entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”. Compl.

18

¶ 35. The Order directs a variety of changes to the manner and extent to which non-citizens

19 may obtain admission to the United States. Id. Among other things, it imposes a 120-day

20 moratorium on the refugee resettlement program as a whole; indefinitely suspends the entry

21

of Syrian refugees; and suspends for 90 days entry of all immigrants and nonimmigrants

from seven majority-Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

2

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 6 of 27

1 Compl. ¶¶ 36-38. President Trump subsequently stated that the purpose of the Executive

2 Order was to establish “new vetting measures to keep radical Islamic terrorists out of the

3

United States.” Compl. ¶ 40. He also confirmed his intent to prioritize Christians in the

Middle East for admission as refugees. Compl. ¶ 39.
4
The Executive Order has had immediate and significant effects in Washington. Most

5

urgently, the Order is tearing Washington families apart. Husbands are separated from wives,

6

brothers are separated from sisters, and parents are separated from their children. Compl.

7 ¶¶ 20-22. Some who have waited decades to see family members had that reunion taken

8 without warning or reason. Compl. ¶ 20. While the anecdotal stories are heartbreaking, Decl.

9

of E. Chiang ¶¶ 11-13, the sheer number of people affected is also notable. Over 7,000

noncitizen immigrants from the affected countries reside in Washington. Compl. ¶ 10; Decl.
10
of N. Purcell ¶ 7; Ex. A. These Washingtonians now face considerable uncertainty about

11

whether and when they may travel. Compl. ¶ 21. Additionally, an unknown but large number

12

of Washington residents are originally from these countries but are now U.S. citizens, who

13 wish to be able to receive visits from overseas relatives or see them move here as refugees or

14 otherwise.

15

Washington’s businesses and economy are also impacted. Washington-based travel

company Expedia is incurring costs to assist its customers who are now banned from travel
16
to the United States. Decl. of R. Dzielak ¶¶ 12-14, 20. Washington companies Amazon,

17

Expedia, and Microsoft depend on skilled immigrants to operate and grow their businesses.

18

Compl. ¶¶ 11-12, 14-16; Decl. of A. Blackwell-Hawkins ¶¶ 3-4; Decl. of R. Dzielak ¶¶ 7, 9.

19 At least 76 Microsoft employees are originally from the affected countries and hold

20 temporary work visas. Compl. ¶ 14. As a result of the Executive Order, such employees may

21

be banned from reentering the United States if they travel overseas. Id. The Executive Order

will affect these companies’ ability to recruit and retain talented workers, to the detriment of
22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

3

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 7 of 27

1 Washington’s economy and tax base. Compl. ¶ 13; Decl. of R. Dzielak ¶¶ 7, 21; see also

2 Decl. of A. Blackwell-Hawkins ¶¶ 4, 11.

3

The Executive Order is also harming Washington’s educational institutions. More

than 95 immigrants from the affected countries attend the University of Washington. Compl.
4
¶ 17; Decl. of J. Riedinger ¶ 5. More than 130 attend Washington State University. Decl. of

5

A. Chaudhry ¶ 5. The Executive Order is already disrupting students’ personal and

6

professional lives, preventing travel for research and scholarship, and harming the

7 universities’ missions. Decl. of J. Riedinger ¶¶ 6-8; Decl. of A. Chaudhry ¶¶ 6-9.

8

As long as the Executive Order is in place, it will continue to have these serious,

9

pointless effects on Washington’s families, businesses, and educational institutions.

III. ARGUMENT
10
A. Standard for Granting Temporary Relief

11

To obtain a temporary restraining order, the State must establish 1) a likelihood of

12

success on the merits; 2) that irreparable harm is likely in the absence of preliminary relief;

13 3) that the balance of equities tips in the State’s favor; and 4) that an injunction is in the

14 public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L.

15

Ed. 2d 249 (2008); Fed. R. Civ. P. 65(b)(1); Stuhlbarg Int’l Sales Co. v. John D. Brush &

Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). And while the State can establish all of these
16
factors, “[h]ow strong a claim on the merits is enough depends on the balance of harms: the

17

more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can

18

be while still supporting some preliminary relief.” All. for the Wild Rockies v. Cottrell, 632

19 F.3d 1127, 1133 (9th Cir. 2011) (quoting Hoosier Energy Rural Elec. Co-op., Inc. v. John

20 Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009)). Thus, while the State’s claims on

21

the merits are extremely strong, temporary relief would be appropriate even if they were less

clearly meritorious given how sharply the balance of harms tips in the State’s favor.
22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

4

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 8 of 27

1 B. The State is Likely to Prevail on the Merits Because the Executive Order is
Illegal in Many Respects

2

The Executive Order violates multiple provisions of the Constitution and federal

3 statutes. As demonstrated below, the State is highly likely to prevail on the merits.

4

1. The State is Likely to Prevail on the Merits of Its Claim that the

Executive Order Violates the Equal Protection Clause

5

a. Standard of review

6

The Fifth Amendment has an “equal protection component,” Harris v. McRae, 448

7 U.S. 297, 297 (1980), and noncitizens “com[e] within the ambit of the equal protection

8

component of the Due Process Clause,” Kwai Fun Wong v. United States, 373 F.3d 952, 974

(9th Cir. 2004). In equal protection analysis, the court first decides whether a challenged
9
classification burdens a suspect or quasi-suspect class. Ball v. Massanari, 254 F.3d 817, 823
10
(9th Cir. 2001). “If the statute employs a suspect class (such as race, religion, or national

11

origin) or burdens the exercise of a constitutional right, then courts must apply strict scrutiny,

12 and ask whether the statute is narrowly tailored to serve a compelling governmental interest.”

13 Id. “[C]lassifications based on alienage, like those based on nationality or race, are inherently

14

suspect and subject to close judicial scrutiny.” Graham v. Richardson, 403 U.S. 365, 372

(1971) (footnotes omitted); see also City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976)
15
(religion is an “inherently suspect distinction”). If no suspect classification is implicated, the
16
court applies rational basis review, and determines whether the statute is rationally related to

17

a legitimate governmental interest. Ball, 254 F.3d at 823.

18

While courts generally give more latitude to the political branches in the immigration

19 context, see, e.g., Zadvydas v. Davis, 533 U.S. 678, 695 (2001), this does not mean that the

20

political branches can act with impunity. In protecting its borders, this country does not set

aside its values or its Constitution. Id. (the political branches’ “power is subject to important
21

22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

5

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 9 of 27

1 constitutional limitations”); INS v. Chadha, 462 U.S. 919, 941-42 (1983) (Congress must

2 choose “a constitutionally permissible means of implementing” its power over immigration).

3

Here, the Executive Order cannot pass muster under any standard of review. Its

blunderbuss approach—prompted by irrational fear and blind animus—is at odds with the
4
fundamental American promise that all are entitled to equal protection under the law.

5
b. Strict scrutiny applies

6

The Court should apply strict scrutiny to the Executive Order. While courts often

7 defer to the political branches’ reasoned judgments on immigration policy, they do not give a

8 blank check to ignore the law. Here, the State challenges not an act of Congress or a carefully

9

formulated regulation, but an Executive Order that was written largely by the President’s

political advisers without consultation of legal experts or the National Security Council and
10
that flatly discriminates on the basis of national origin and religion, in at least three ways.

11

First, the executive order discriminates based on national origin by singling out

12

people from seven countries for an outright ban on admission to the United States. Notably,

13 the Executive Order on its face applies to lawful permanent residents from the listed

14

countries who live in the United States.1 Lawful permanent residents are accorded the same

15

constitutional protections as United States citizens. See Kwong Hai Chew v. Colding, 344

U.S. 590, 596 (1953); see also Bridges v. Wixon, 326 U.S. 135 (1945) (“[O]nce an alien
16
lawfully enters and resides in this country he becomes invested with the rights guaranteed by

17

the Constitution to all people within our borders. Such rights include those protected by the

18 First and the Fifth Amendments and by the due process clause of the Fourteenth

19 Amendment.”). The Order’s blatant distinction between green-card holders currently residing

20 in the United States on the basis of national origin demands strict scrutiny. “[C]lassifications

21

1 Although administration officials have since suggested that, despite the plain language of the

22

Executive Order, the ban might not be fully implemented against lawful permanent residents, the text of the Executive Order remains in effect regardless of the ever-changing instructions from Defendants.

24

MOTION FOR TEMPORARY RESTRAINING ORDER

6

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 10 of 27

1 . . . based on nationality . . . are inherently suspect and subject to close judicial scrutiny,”

2 Graham, 403 U.S at 372, and are “odious to a free people whose institutions are founded

3

upon the doctrine of equality.” Oyama v. California, 332 U.S. 633, 646 (1948) (quoting

Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).
4
Second, the executive order singles out refugees from Syria for differential treatment,

5

indefinitely suspending their entry whether they be toddlers or grandmothers. Syrian-

6

American families in Washington and across the country awaiting their refugee relatives are

7 left with no idea when their relatives will be allowed to come, solely based on nationality.

8

Third and finally, as discussed in more detail in Part B.2, the Executive Order

9

discriminates based on religion. On its face, the Executive Order requires immigration

officials to “prioritize refugee claims made by individuals on the basis of religious-based
10
persecution, provided that the religion of the individual is a minority religion in the

11

individual’s country of nationality.” Sec. 5(b). As detailed below, comments by President

12

Trump and his advisers make clear that the intent of this provision is to give preference to

13 Christian refugees while disadvantaging Muslim refugees.2 Compl. ¶ 39; Ex. 8. Importantly,

14 the State need not show that intent to discriminate against Muslims “was the sole purpose of

15

the challenged action, but only that it was a ‘motivating factor.’” Arce v. Douglas, 793 F.3d

968, 977 (9th Cir. 2015) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
16
U.S. 252, 265–66 (1977)). That standard is plainly met here based on the evidence presented.

17

There thus can be no dispute that the executive order uses suspect classifications. And

18

it does so not in furtherance of a congressionally authorized purpose, but rather in direct

19 violation of federal law (as discussed in Part B.4), which prohibits discrimination “in the

20 issuance of an immigrant visa because of the person’s . . . nationality.” 8 U.S.C.

21
2 See, e.g., https://twitter.com/realDonaldTrump/status/825721153142521858;
22 http://www.cnn.com/2017/01/27/politics/trump-christian-refugees/index.html; Compl. ¶ 29.

24

MOTION FOR TEMPORARY RESTRAINING ORDER

7

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 11 of 27

1 § 1152(a)(1)(A). In short, this is an extraordinary case that falls well outside the run-of-the-

2 mill immigration context in which deference to the political branches applies. The

3

President’s decision to adopt suspect classifications in violation of federal law deserves strict

scrutiny.
4

c. The Executive Order fails strict scrutiny

5

The Executive Order cannot withstand strict scrutiny. Neither the temporary ban on

6

admission of aliens from certain countries nor the barring of refugees is narrowly tailored to

7 further a compelling government interest.

8

The order cites three rationales to support its temporary ban on admission of nationals

9

of seven countries: “To temporarily reduce investigative burdens on relevant agencies . . . , to

ensure the proper review and maximum utilization of available resources for the screening of
10
foreign nationals, and to ensure that adequate standards are established to prevent infiltration

11

by foreign terrorists or criminals.” Sec. 3(c). The first rationale—essentially a desire to

12

conserve resources by discriminating—is not compelling,3 and in any case the order is not

13 narrowly tailored to achieve any of these goals.

14

To begin with, the Order is profoundly overbroad. Section 3(c) bans those from

15

disfavored countries without any evidence that any individual poses a threat of terrorism. It

sweeps within its ambit infant children, the disabled, long-time U.S. residents, those fleeing
16
terrorism, those who assisted the United States in conflicts overseas, and many others who

17

the government has no reason to suspect are terrorists. The government simply cannot

18

establish any factual basis for presuming that all people from a given country pose such a

19 great risk that an outright entry ban—rather than less extreme measures—is warranted.

20

21

3 Memorial Hospital v. Maricopa Cnty., 415 U.S. 250, 263 (1974) (“a state may not protect the public

22

fisc by drawing an invidious distinction between classes” of people); Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1121 (9th Cir. 2003) (simply saving money is not a compelling interest).

24

MOTION FOR TEMPORARY RESTRAINING ORDER

8

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 12 of 27

1

At the same time, the order is also underinclusive to achieve its purported ends. By

2 way of example, the Executive Order recites the tragic events of September 11, 2001, but

3

imposes no entry restrictions on people from the countries whose nationals carried out those

attacks (Egypt, Lebanon, Saudi Arabia, and the United Arab Emirates). Decl. N. Purcell ¶8;
4
Ex. B. As to admission of refugees, the order claims that a temporary prohibition is necessary

5

“to determine what additional procedures should be taken to ensure that those approved for

6

refugee admission do not pose a threat to the security and welfare of the United States.” Sec.

7 5. Citing no evidence at all, the Order declares that “the entry of nationals of Syria as

8 refugees is detrimental to the interests of the United States.” Sec. 5(c). But assertion is not

9

evidence, and there is no evidence that refugees pose any unique risk to the United States.4

“[S]trict scrutiny requires a direct rather than approximate fit of means to ends.”
10
Hunter ex rel. Brandt v. Regents of Univ. of Cal., 190 F.3d 1061, 1077 (9th Cir. 1999)

11

(internal quotation marks omitted). The Supreme Court has emphasized that equal protection

12

guards against sweeping generalizations about categories of people based on traits such as

13 national origin or religion.5 Here, there is no “fit” between the rationales advanced to support

14 the Executive Order and the means used to further those rationales.

15

d. Even under rational basis review, the Executive Order fails

The State is also likely to prevail on the merits of its equal protection claim should the
16
Court employ rational basis review.

17

18

19

4 A recent and exhaustive study concluded that the chance of an American being killed by a refugee in

a terrorist attack is 1 in 3.64 billion a year. Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, at 2,

20

Cato Institute (Sept. 13, 2016) (Cato Institute).

5 See, e.g., Shaw v. Reno, 509 U.S. 630, 647 (1993) (striking down racial gerrymander because “[i]t

21

reinforces the perception that members of the same racial group . . . think alike, share the same political

interests, and will prefer the same candidates at the polls”); City of Richmond v. J.A. Croson Co., 488 U.S. 469,

22

493 (1989) (strict scrutiny “ensures that the means chosen ‘fit’ [a purported] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate . . . prejudice or stereotype”).

24

MOTION FOR TEMPORARY RESTRAINING ORDER

9

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 13 of 27

1

There are “two versions of the rational basis test—traditional rational basis review

2 and a more rigorous rational basis standard.” United States v. Wilde, 74 F. Supp. 3d 1092,

3

1096 (N.D. Cal. 2014). Where “a law neither burdens a fundamental right nor targets a

suspect class,” the classification must be upheld “so long as it bears a rational relation to
4
some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). When a classification does,

5

in fact, “adversely affect[ ] an unpopular group, courts apply a ‘more searching’ rational basis

6

review.” Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 996 (N.D. Cal. 2012)

7 (citing Diaz v. Brewer, 656 F.3d 1008, 1012 (9th Cir. 2011)).

8

“The Constitution’s guarantee of equality ‘must at the very least mean that a bare

9

[legislative] desire to harm a politically unpopular group cannot’ justify disparate treatment

of that group.” United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (quoting Dep’t of
10
Agriculture v. Moreno, 413 U.S. 528, 534-35 (1973)). Thus, courts cast a more skeptical eye

11

toward legislation that “has the peculiar property of imposing a broad and undifferentiated

12

disability on a single named group.” Romer, 517 U.S. at 632. Accordingly, when legislation

13 “seems inexplicable by anything but animus toward the class it affects[,] it lacks a rational

14 relationship to legitimate state interests.” Id. Likewise, the government has no legitimate

15

interest in catering to “mere negative attitudes, or fears” that some residents may have

against a disfavored minority. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S.
16
432, 448 (1985). Simply put, the government “may not avoid the strictures of [equal

17

protection] by deferring to the wishes or objections of some fraction of the body politic.” Id.

18

There is little doubt that the Executive Order is prompted by animus to those of the

19 Islamic faith, which was one of the pillars of President Trump’s campaign. On December 7,

20 2015, President Trump’s Campaign released a statement indicating that “Donald J. Trump is

21

calling for a total and complete shutdown of Muslims entering the United States.” See

Compl. ¶ 29; Ex. 1. The Campaign’s spokesperson thereafter defended President Trump
22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

10

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 14 of 27

1 against criticism as follows: “So what? They’re Muslim.” See Decl. of N. Purcell ¶ 9; Ex. C.

2 In the face of significant criticism, President Trump announced that he would “expand” his

3

proposed blanket ban to “any nation that has been compromised by terrorism” but use

different words to describe it:
4

I actually don’t think it’s a rollback. In fact, you could say it’s an

5

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.

6

Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.

7 Comp. ¶ 32; Ex. 4. Even after issuing the order, President Trump’s statements confirm that it

8 is designed to disfavor Muslims. Compl. ¶ 39; Ex. 8. The bottom line is that the Executive

9

Order is designed to “adversely affect[ ] an unpopular group,” calling for the “court [ to]

apply a ‘more searching’ rational basis review.” Golinski, 824 F. Supp. 2d at 996 (citing
10
Diaz, 656 F.3d at 1012).

11

Even assuming the absence of animus and the application of ordinary rational basis

12

review, the Executive Order bears no “rational relationship to a legitimate governmental

13 purpose.” Romer, 517 U.S. at 635. There is simply no basis to conclude that existing

14 screening procedures are uniquely failing as to individuals from the listed countries or as to

15

refugees. Instead, the Executive Order panders to irrational fears about Muslims and

refugees, and bears no rational relationship to any government interest.
16

2. The State is Likely to Prevail on the Merits of Its Claim that the

17

Executive Order Violates the Establishment Clause

18

The Executive Order violates the Establishment Clause of the First Amendment

because both its purpose and effect are to favor one religion over another. “The clearest
19
command of the Establishment Clause is that one religious denomination cannot be officially

20
preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). Thus, where a law

21

“grant[s] a denominational preference, our precedents demand that we treat the law as

22 suspect and that we apply strict scrutiny in adjudging its constitutionality.” Id. at 246. In

24

MOTION FOR TEMPORARY RESTRAINING ORDER

11

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 15 of 27

1 Larson, the law at issue did not mention any religious denomination by name, but drew a

2 distinction between religious groups based on the percentage of their revenue received from

3

non-members, which had the effect of harming certain religious groups. Id. at 231-32.

Because the law was focused on religious entities and had the effect of distinguishing
4
between them in a way that favored some, the Court applied strict scrutiny. Id. at 246-47.

5

The Court should apply the Larson approach here. The Executive Order’s refugee

6

provisions explicitly distinguish between members of religious faiths, granting priority to

7 “refugee claims made by individuals on the basis of religious-based persecution” only if “the

8 religion of the individual is a minority religion in the individual’s country of nationality.”

9

Section 5(b). President Trump and his advisers have made clear that the very purpose of this

order is to tilt the scales in favor of Christian refugees at the expense of Muslims. Compl.
10
¶ 39; Ex. 8. This case thus involves just the sort of discrimination among denominations that

11

failed strict scrutiny in Larson, and the Executive Order should likewise be invalidated.

12

Even if the Executive Order did not explicitly distinguish between denominations, the

13 Court would still need to apply the three-part “Lemon test” to determine whether the

14 government has violated the Establishment Clause. Lemon v. Kurtzman, 403 U.S. 602 (1971).

15

“First, the statute must have a secular legislative purpose; second, its principal or primary

effect must be one that neither advances nor inhibits religion; finally, the statute must not
16
foster ‘an excessive government entanglement with religion.’ ” Id. at 612. While the

17

government must satisfy all three prongs, here it can satisfy none.

18

First, the Executive Order’s purpose is not “secular” because President Trump’s

19 purpose in issuing this Order—as confirmed by his own public statements—is to “endorse or

20 disapprove of religion.” Wallace v. Jaffree, 472 U.S. 38, 75-76 (1985). In analyzing

21

government purpose, it is “the duty of the courts” to distinguish a “sincere” secular purpose

from one that is either a “sham” or that is “secondary” to a “predominantly religious”
22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

12

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 16 of 27

1 purpose. McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 865 (2005)

2 (internal quotation marks and citations omitted). This duty requires a Court to scrutinize all

3

“probative evidence,” to exercise “common sense,” and to refuse “to turn a blind eye to the

context in which [the] policy arose.” Id. at 866 (alteration in original). In so doing, a court
4
looks carefully at both the “historical context” of the government’s action and “the specific

5

sequence of events leading to [its] passage.” Id. (alteration in original). As the Supreme

6

Court has explained, this inquiry into purpose at times requires invalidation of an action that

7 otherwise would have been constitutional: “One consequence of taking account of the

8 purpose underlying past actions is that the same government action may be constitutional if

9

taken in the first instance and unconstitutional if it has a sectarian heritage.” Id. at 866 n.14.

In short, given that President Trump’s “actual purpose” in issuing this Order is to “endorse or
10
disapprove of religion,” Wallace, 472 U.S. at 75-76, the Order violates the first prong of the

11

Lemon test.

12

The Order also violates Lemon’s second prong, which requires that the “principal or

13 primary effect . . . be one that neither advances nor inhibits religion.” Governmental action

14 violates this prong “if it is sufficiently likely to be perceived by adherents of the controlling

15

denominations as an endorsement, and by the nonadherents as a disapproval, of their

individual religious choices.” Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1256 (9th Cir.
16
2007) (internal quotation marks omitted). The court analyzes this prong “from the point of

17

view of a reasonable observer who is informed . . . [and] familiar with the history of the

18

government practice at issue.” See id. (alteration in original) (internal quotation marks

19 omitted). Thus, the question here is whether an informed, reasonable observer would

20 perceive this Executive Order as an endorsement of one religion, as disapproval of another,

21

or both? In light of the evidence cited above, there is little question that the answer to this

question is in the affirmative.
22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

13

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 17 of 27

1

As to the third prong, the Order “foster[s] ‘an excessive governmental entanglement

2 with religion” by favoring one religious group over another, which “engender[s] a risk of

3

politicizing religion.” Larson, 456 U.S. at 252-53. Selectively burdening those of the Muslim

faith and favoring those of the Christian faith creates improper “entanglement with religion.”
4
In short, because the Executive Order fails the Larson test and every prong of the

5

Lemon test, it emphatically violates the Establishment Clause.

6

3. The State is Likely to Prevail on the Merits of Its Claim that the

Executive Order Violates Due Process
7

The Executive Order violates the procedural due process rights of immigrants and

8

non-immigrants from the seven impacted countries, including those who reside and work in

9

Washington, are professors and students at Washington universities, and want to travel to

10 Washington to visit their families. First, due process requires that the United States at a

11 minimum provide notice and an opportunity to be heard before denying re-entry to legal

12

permanent residents or visaholders with longer term residency rights such as under an H-1B

visa (workers) and f visas (students). Moreover, the United States must provide due process
13
before restricting their vital liberty interests in travelling across United States borders.

14

Second, Congress’s grant of a statutory right to seek asylum or protection under the

15

Convention Against Torture requires that the United States administer those policies and

16 procedures consistent with due process. The Order’s blanket prohibition on all refugees for

17 120 days and on Syrian refugees indefinitely contravenes refugees’ due process rights.

18

a. The denial of re-entry to and de facto travel ban on certain legal permanent residents and visaholders violates their due process

rights
19

Section 3(c) of the Executive Order denies entry to the United States to all persons

20
from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen, including visaholders and legal

21

22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

14

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 18 of 27

1 permanent residents with the legal right to leave and re-enter the United States.6 Under that

2 policy, legal permanent residents and visaholders travelling abroad will be deported if they

3

attempt to re-enter the United States, and those who remain will be forced to refrain from

international travel to avoid that devastating result. This draconian restriction violates the due
4
process rights of those individuals.

5

The Fifth Amendment protects all persons who have entered the United States “from

6

deprivation of life, liberty, or property without due process of law.” Mathews v. Diaz, 426

7 U.S. 67, 69, 77 (1976) (internal citation omitted). This protection applies to all persons

8 within our borders, regardless of immigration status. Id. (Due Process Clause of the Fifth

9

Amendment extends even to those “whose presence in this country is unlawful, involuntary,

or transitory”); Zadvydas v. Davis, 533 U.S. 678, 693 (2001); United States v. Raya-Vaca,
10
771 F.3d 1195, 1202 (9th Cir. 2014). There is “no exception” to this rule. Id., 771 F.3d at

11

1203.

12

A “temporary absence from our shores” does not deprive visaholders and legal

13 permanent residents of their right to due process. Shaughnessy v. United States ex rel. Mezei,

14 345 U.S. 206, 213 (1953) (citing Kwong Hai Chew v. Colding, 344 U.S. 590, 601 (1953)

15

(holding that denial of re-entry to legal permanent resident must comport with due process

where resident had spent four months abroad); Ricketts v. Simonse, No. 16 CIV. 6662 (LGS),
16
2016 WL 7335675, at *2–3 (S.D.N.Y. Dec. 16, 2016) (legal permanent resident who had

17

spent a few weeks abroad and was caught with drugs upon re-entry entitled to due process).

18

Due process requires that legal permanent residents and visaholders not be denied re-

19 entry to the United States without “at a minimum, notice and an opportunity to respond.”

20

21

6 The Executive Order excludes from this restriction only “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).” Executive Order Sec. 3(c). This group is limited

22

essentially to diplomatic visas.

24

MOTION FOR TEMPORARY RESTRAINING ORDER

15

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 19 of 27

1 Raya-Vaca, 771 F.3d at 1204. “Aliens who have entered the United States—whether legally

2 or illegally—cannot be expelled without the government following established procedures

3

consistent with the requirements of due process.” Lanza v. Ashcroft, 389 F.3d 917, 927 (9th

Cir. 2004) (citing Mezei, 345 U.S. at 212). Specifically, due process guarantees that
4
individuals denied re-entry be provided a “full and fair hearing of his [or her] claims” and “a

5

reasonable opportunity to present evidence on his [or her] behalf.” Colmenar v. INS, 210

6

F.3d 967, 971 (9th Cir. 2000); Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011)

7 (same). Although Congress has prescribed certain circumstances under which an individual

8 may be denied re-entry to the United States, those procedures must comport with due

9

process. See, e.g., Pantoja-Gayton v. Holder, 366 F. App’x 739, 741 (9th Cir. 2010) (legal

permanent resident deemed inadmissible upon re-entry for child smuggling, but entitled to a
10
full hearing before an immigration judge to contest that finding).

11

The denial of re-entry to all visaholders and legal permanent residents from the

12

impacted countries, without an opportunity to be heard, is a prima facie violation of those

13 due process principles. The Executive Order provides that all individuals from the impacted

14 countries be denied entry to the United States, irrespective of their immigration status. On its

15

face, the Order bars legal permanent residents from impacted countries from reentry into the

United States if they travel aboard. The Order also denies the rights of H-1B visa holders
16
from re-entry if they travel abroad. As noted, there are a significant number of workers at

17

Washington businesses and students at Washington universities impacted. Similarly, the

18

Order on its face denies the rights to students here on f visas to reenter if they leave the

19 country at any time during their studies. The denial of re-entry to legal permanent residents

20 and such visaholders absent an opportunity to be heard, much less “proceedings conforming

21

to . . . due process of law,” is patently unconstitutional. Shaughnessy, 345 U.S. at 212.

22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

16

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 20 of 27

1

The Order’s impact on the right to travel also violates due process. In determining

2 whether a new policy such as the Order violates due process, “courts must consider the

3

interest at stake for the individual, the risk of an erroneous deprivation of the interest through

the procedures used as well as the probable value of additional or different procedural
4
safeguards, and the interest of the government in using the current procedures rather than

5

additional or different procedures.” Landon v. Plasencia, 459 U.S. 21, 34 (1982) (citing

6

Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976)). Here, the Executive Order deprives

7 noncitizens of the right to travel, a constitutionally protected liberty interest. Kent v. Dulles,

8 357 U.S. 116, 125 (1958) (holding that Secretary of State could not deny passports to

9

Communists on the basis that right to travel abroad is a constitutionally protected liberty

interest). The right to travel “may be as close to the heart of the individual as the choice of
10
what he eats, or wears, or reads,” and is “basic in our scheme of values.” Id. at 126. And for

11

many noncitizens residing in Washington pursuant to H-1B visas, international travel is a

12

central component of their work. See id. (noting that “[t]ravel abroad, like travel within the

13 country, may be necessary for a livelihood”). For visaholders or legal permanent residents

14 with family abroad, the de facto travel ban also denies the right to connect with their families,

15

“a right that ranks high among the interests of the individual.” Id. In contrast to these vital

liberty interests, the denial of re-entry to noncitizens with lawful immigration status does
16
nothing to advance the government’s interest in the “efficient administration of the

17

immigration laws at the border.” Landon, 459 U.S. at 34. The denial of re-entry to all persons

18

from the seven affected countries, irrespective of immigration status, and resulting travel ban

19 violate the due process rights of legal permanent residents and visaholders.

20

21

22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

17

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 21 of 27

1

b. The blanket ban on all refugees violates their due process right to

the fair administration of congressionally enacted policies and

2

procedures

Congress has created a statutory right whereby persons persecuted in their own
3
country may petition for asylum in the United States. U.S.C. § 1158(a)(1) (“[a]ny alien who
4
is physically present in the United States or who arrives in the United States. . . irrespective of

5

such alien’s status, may apply for asylum in accordance with this section”). Federal law

6 prohibits the return of a noncitizen to a country where he may face torture or persecution. See

7 8 U.S.C. § 1231(b); United Nations Convention Against Torture (“CAT”), implemented in

8

the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G, Title

XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231).
9
Congress has established procedures to implement those statutory rights, which includes
10
providing refugees the right to present evidence in support of a claim for asylum or CAT

11

protection, to move for reconsideration of an adverse decision, and to seek judicial review of

12 a final order denying their claims. Lanza v. Ashcroft, 389 F.3d 917, 927 (9th Cir. 2004).

13

In enacting these statutory rights, Congress “created, at a minimum, a constitutionally

14

protected right to petition our government for political asylum.” Haitian Refugee Ctr. v.

Smith, 676 F.2d 1023, 1038 (5th Cir. 1982). The constitutionally protected right to petition
15
for asylum “invoke[s] the guarantee of due process.” Id. at 1039; Andriasian v. I.N.S., 180
16
F.3d 1033, 1041 (9th Cir. 1999); see also Lanza, 389 F.3d at 927 (“The due process afforded

17

aliens stems from those statutory rights granted by Congress and the principle that minimum

18 due process rights attach to statutory rights.”) (internal marks and quotation omitted). Due

19 process requires at a minimum that refugees seeking asylum receive a “full and fair hearing.”

20

Zetino v. Holder, 622 F.3d 1007, 1013 (9th Cir. 2010). It also requires that refugees have the

opportunity to consult with an attorney.
21

22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

18

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 22 of 27

1

The Executive Order violates the due process rights of refugees because it provides

2 no avenue for refugees to have their asylum claims heard. Instead, it explicitly states that the

3

United States will not entertain asylum claims from certain groups for a specified period of

time, regardless of the merits of individual asylum claims. This contravenes the due process
4
requirement that refugees receive a “full and fair hearing” on their claims for relief. Zetino,

5

622 F.3d at 1013. It also denies refugees their constitutionally protected right to the effective

6

assistance of counsel. Jie Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004).

7

Moreover, the denial of refugees’ constitutionally protected right to petition for

8 asylum does nothing to advance the government’s interest in the “efficient administration of

9

the immigration laws at the border.” Landon, 459 U.S. at 34. That interest is satisfied by the

rigorous procedures already in place to vet requests for asylum. Refugees are subject to “the
10
highest level of background and security checks of any category of traveler to the United

11

States,” in a process that often takes years to complete.7 Accordingly, the ban on refugees

12

violates the due process rights of refugees seeking asylum within the United States.

13

4. The State is Likely to Prevail on the Merits of Its Claim that the

Executive Order Violates the Immigration and Nationality Act

14

The State is also likely to establish that Sections 3(c) and 5(c) of the Executive Order

15 violate the Immigration and Nationality Act (INA). Enacted in 1965, 8 U.S.C.

16 § 1152(a)(1)(A) clearly states, “no person shall receive any preference or priority or be

17 discriminated against in the issuance of an immigrant visa because of the person’s race, sex,

18

nationality, place of birth, or place of residence.” By suspending entry of refugees from Syria

indefinitely, and immigrants from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, for
19

20

7 U.S. Dept. of Homeland Security, USCIS, Refugee Processing and Security Screening (2015),

available at https://www.uscis.gov/refugeescreening; see also White House, President Barack Obama,

21

Infographic: The Screening Process for Refugee Entry into the United States (Nov. 2015), available at

https://obamawhitehouse.archives.gov/blog/2015/11/20/infographic-screening-process-refugee-entry-united-

22

states (noting that “[r]efugees undergo more rigorous screening than anyone else we allow into the United States” and are “subject to the highest level of security checks of any category of traveler”).

24

MOTION FOR TEMPORARY RESTRAINING ORDER

19

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 23 of 27

1 90 days, the Executive Order squarely violates the INA. See U.S. v. Ron Pair Enterprises,

2 Inc., 489 U.S. 235, 242, 109 S.Ct. 1026 (1989) (holding the “plain meaning of legislation

3

should be conclusive”). While the INA refers only to discrimination in the “issuance of an

immigrant visa,” the statute would be rendered meaningless if it did not equally prohibit
4
attempts, like President Trump’s, to deny an immigrant’s entry into the country altogether.

5

See Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,, 45 F.3d 469 (D.C.

6

Cir. 1995) (holding that Congress, in enacting section 1152, “unambiguously directed that no

7 nationality-based discrimination shall occur”).

8

Defendants may argue the President has power to suspend the entry of any class of

9

aliens when their entry is detrimental to the interests of the United States. See 8 U.S.C.

§ 1182(f). Such an argument, however, is unavailing. Congress enacted Section 1182 in
10
1952, well before it passed section 1152. Whatever section 1182 meant when it was adopted,

11

the enactment of the INA amendments in 1965, including section 1152, marked a “profound

12

change” in the law by abolishing the national origin quota system, establishing a uniform

13 quota system, and prohibiting discrimination on the basis of race and national origin. Olsen v.

14 Albright, 990 F. Supp. 31 (D.D.C. 1997) (citingPub. L. No. 89-236). Passed alongside the

15

Civil Rights Act of 1964 and the Voting Rights Act of 1965, the legislative history of the

INA Amendments of 1965 “is replete with the bold anti-discriminatory principles of the Civil
16
Rights Era.” Olsen, 990 F.Supp. at 37. It is inconceivable that, in enacting anti-discrimination

17

provisions in 1965, Congress intended to leave the President with the ability to adopt the

18

same sort of overtly discriminatory measures Congress was outlawing. Accepting the

19 President’s approach would take us back to a period in our history when distinctions based

20 on national origin were accepted as the natural order of things, rather than outlawed as the

21

pernicious discrimination that they are. Cf. Chae Chan Ping v. U.S., 130 U.S. 581, 595, 606

(1889) (sustaining the Chinese Exclusion Act because the Chinese “remained strangers in the
22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

20

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 24 of 27

1 land,” constituted a “great danger [to the country]” unless “prompt action was taken to

2 restrict their immigration,” and were “dangerous to [the country’s] peace and security”).

3

C. The State, its Residents, and its Businesses Are Suffering and Will Continue to Suffer Irreparable Harm Due to the Executive Order

4

To obtain preliminary relief, the State must show that irreparable harm is likely

5 before a decision on the merits can be issued. The State meets this test on several grounds.

6

First, because the State has shown a likelihood of success on its Establishment Clause

claim, harm is presumed. See, e.g., Chaplaincy of Full Gospel Churches v. England, 454
7
F.3d 290, 303 (D.C. Cir. 2006) (“[W]here a movant alleges a violation of the Establishment

8

Clause, this is sufficient, without more, to satisfy the irreparable harm prong for purposes of

9

the preliminary injunction determination.”); Parents’ Ass’n of P.S. 16 v. Quinones, 803 F.2d

10 1235, 1242 (2d Cir. 1986) (applying same rule).

11

Second, even aside from the Establishment Clause claim, the State’s complaint,

12

motion, and supporting evidence demonstrate overwhelming irreparable harm. Irreparable

harm is harm “for which there is no adequate legal remedy, such as an award of damages.”
13
Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). The Ninth Circuit’s

14

decision in Arizona Dream Act provides a directly applicable example. Undocumented

15

persons who qualified for the federal Deferred Action for Childhood Arrivals Program

16 (DACA) sought a preliminary injunction against Arizona’s policy of denying driver’s

17 licenses to DACA recipients. Id. at 1057-58. The Ninth Circuit held that irreparable harm

18

existed because the lack of a driver’s license stopped immigrants from getting to work,

thereby hurting their ability to pursue their chosen professions. Id. at 1068. The same harm is
19
experienced by workers or students prevented from entering or returning to the United States.

20
“[A] delay, even if only a few months, pending trial represents . . . productive time

21

irretrievably lost.” Id. (second alteration in original).

22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

21

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 25 of 27

1

The injuries to Washington residents and families are not merely professional and

2 financial, but also profound and irreparable psychological injuries. As detailed in the attached

3

declarations, the Order is resulting in longtime Washington residents being separated from or

kept apart from their families, often in heartbreaking situations. Decl. E. Chiang ¶¶ 5-7, 11-
4
13.

5

Washington businesses are also suffering irreparable injuries. Immigrant and refugee-

6

owned businesses employ 140,000 people in Washington. Washington’s technology industry

7 relies heavily on the H-1B visa program. Nationwide, Washington ranks ninth in the number

8 of applications for high-tech visas. Microsoft, which is headquartered in Washington,

9

employs nearly 5,000 people through the program. Other Washington companies, including

Amazon, Expedia, and Starbucks, employ thousands of H-1B visa holders. Loss of highly
10
skilled workers puts Washington companies at a competitive disadvantage with global

11

competitors. “[I]ntangible injuries, such as damage to ongoing recruitment efforts and

12

goodwill, qualify as irreparable harm.” Rent-A-Center, Inc. v. Canyon Tel. Appliance Rental,

13 Inc., 944 F.2d 597, 603 (9th Cir. 1991).

14

The Executive Order is also causing irreparable harm to Washington’s college

15

students and universities. At the University of Washington, more than ninety-five students

are immigrants from Iran, Iraq, Syria, Somalia, Sudan, Libya, and Yemen. Decl. of J.
16
Riedinger ¶ 5. The number at Washington State University is over 135. Decl. J. Riedinger

17

¶¶ 6-8; Decl. of A. Chaudry 6-10. Because of the Executive Order, these students are missing

18

out on research and educational opportunities, travel to visit their families, study abroad, and

19 other irreplaceable activities that cannot be compensated through money damages. [cite decs]

20 The universities also risk losing current and future students, a harm that cannot be remedied

21

with monetary damages. See Regents of Univ. of Cal. v. Am. Broad. Cos., 747 F.2d 511, 519-

22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

22

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 26 of 27

1 20 (9th Cir. 1984) (loss of ability to recruit athletes, loss of national ranking, and dissipation

2 of alumni goodwill are irreparable harm).

3

D. The Balance of Equities and Public Interest Sharply Favor Preliminary Relief

The Court “must balance the competing claims of injury and must consider the effect
4
on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24.

5

Since this case involves the government, the balance of equities factor merges with the fourth

6

factor, public interest. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2013).

7

The balance tips sharply in favor of the State. The balance of equities and public

8 interest always favor “prevent[ing] the violation of a party’s constitutional rights.” Melendres

9

v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (internal quotation marks omitted). In addition,

the State has shown irreparable, concrete harm to Washington residents, businesses, students,
10
and universities. Meanwhile, as detailed above, the overbreadth and underbreadth of the

11

order mean that it does little if anything to further its alleged purpose of preventing terrorism.

12

And the requested relief is narrowly tailored to affect only those parts of the Order causing

13 the State harm. While the State seeks a nationwide injunction, that relief is appropriate for

14 two reasons: (1) Congress and the courts have emphasized the importance of uniformity in

15

applying immigration policies nationwide; and (2) nationwide relief is necessary to ensure

that State residents and those traveling to meet them are not stopped at other ports of entry
16
around the country or interfered with by officials in Washington, DC, on their way to

17

Washington State. See, e.g., Texas v. United States, 787 F.3d 733, 768-69 (5th Cir. 2015)

18 (affirming nationwide injunction to ensure uniformity and provide full relief).

19

20

21

22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

23

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3 Filed 01/30/17 Page 27 of 27

1

II. CONCLUSION

2

Sometimes federal courts are the only entities that can immediately halt abuses by the

executive branch. This is such a case. The State asks this Court to play its constitutional role
3
and grant a nationwide temporary restraining order until such time as the Court can further
4
consider the merits.

5

DATED this 30th day of January, 2017.

6
Respectfully submitted,
7

8

s/ Robert W. Ferguson

ROBERT W. FERGUSON

9

Attorney General WSBA #26004

NOAH G. PURCELL

10

WSBA #43492

Solicitor General

11

COLLEEN M. MELODY

WSBA #42275

12

Civil Rights Unit Chief Office of the Attorney General

800 Fifth Avenue, Suite 2000

13

Seattle, WA 98104

206-464-7744

14

noahp@atg.wa.gov

15

16

17

18

19

20

21

22

24

MOTION FOR TEMPORARY RESTRAINING ORDER

24

25

ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

Case 2:17-cv-00141-JLR Document 3-1 Filed 01/30/17 Page 1 of 4

Case 2:17-cv-00141-JLR Document 3-1 Filed 01/30/17 Page 2 of 4

Case 2:17-cv-00141-JLR Document 3-1 Filed 01/30/17 Page 3 of 4

Case 2:17-cv-00141-JLR Document 3-1 Filed 01/30/17 Page 4 of 4

 
 Case 2:17-cv-00141-JLR Document 4 Filed 01/30/17 Page 1 of 3

1 ROBERT W. FERGUSON WSBA #26004
2 Attorney General 3 NOAH G. PURCELL
WSBA #43492 4 Solicitor General
COLLEEN M. MELODY 5 WSBA #42275
Civil Rights Unit Chief 6 Office of the Attorney General 7 800 Fifth Avenue, Suite 2000
Seattle, WA 98104 8 206-464-7744

9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

10

STATE OF WASHINGTON, 11

CIVIL ACTION NO.

Plaintiff,

12 v.
13 DONALD TRUMP, in his official
14 capacity as President of the United

DECLARATION OF NOAH G. PURCELL IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

States; U.S. DEPARTMENT OF

15 HOMELAND SECURITY; JOHN F.

KELLY, in his official capacity as

16 Secretary of the Department of

Homeland Security; TOM

17 SHANNON, in his official capacity

as Acting Secretary of State; and the

18 UNITED STATES OF AMERICA,

19

Defendants.

20
21 1.
22 2.
23
24
25

Pursuant to 28 U.S.C. § 1746(2), I, Noah G. Purcell, hereby declare as follows: I am over the age of eighteen and competent to testify. I am the Solicitor General for the State of Washington. I make this declaration as a representative of the State of Washington (“State”) in support of the Motion for Temporary Restraining Order filed concurrently herewith.

26

1

ATTORNEY GENERAL OF WASHINGTON

Civil Rights Unit

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 442-4492

Case 2:17-cv-00141-JLR Document 4 Filed 01/30/17 Page 2 of 3

1 3.

Pursuant to Western District of Washington Local Rule 65(b)(1), on January 30, 2017, I

2 caused an attorney on my staff to call the offices of the United States Attorney for the

3 Western District of Washington to provide notice of the State’s intent to file a Motion

4 for Temporary Restraining Order later that afternoon, and to note it for hearing on

5 January 30, 2017, the same day.

6 4.

Counsel for the State spoke with Kerry Keef, Civil Chief, United States Attorney’s

7 Office, Western District of Washington, 700 Stewart Street, Suite 5220, Seattle,

8 Washington 98101, (206) 553-7970.

9 5.

Ms. Keef advised that Defendants will be represented by attorneys within the Federal

10 Programs Division of the United States Department of Justice in Washington, D.C.

11 6.

No one from the Federal Programs Division has contacted counsel for the State.

12 7.

A member of my staff queried and downloaded publicly available data from the U.S.

13 Census website regarding the number of non-citizen immigrants from Iran, Iraq, Libya,

14 Somalia, Sudan, Syria, and Yemen (the seven (7) countries listed in the President’s

15 Executive Order on immigration) residing in the State of Washington. Attached hereto

16 as Purcell Declaration Exhibit A is a table prepared by my staff member reflecting

17 that data.

18 8.

Attached hereto as Purcell Declaration Exhibit B is a true and correct copy of an

19 online printout of a news article from NPR dated January 27, 2017 titled “Trump’s

20 Immigration Freeze Omits Those Linked To Deadly Attacks in U.S.”

21 9.

Attached hereto as Purcell Declaration Exhibit C is a true and correct copy of an

22 online printout of a news article dated December 9, 2015 titled “Trump spokeswoman:

23 ‘So What? They’re Muslim.”

24 I declare under penalty of perjury that the foregoing is true and correct.
25

26 ///

2

ATTORNEY GENERAL OF WASHINGTON

Civil Rights Unit

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 442-4492

Case 2:17-cv-00141-JLR Document 4 Filed 01/30/17 Page 3 of 3

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

Executed this 30th day of January, 2017.

s/ _Noah G. Purcell

__________

Noah G. Purcell, WSBA #43492

Solicitor General

Office of the Attorney General

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

3

ATTORNEY GENERAL OF WASHINGTON

Civil Rights Unit

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 442-4492

Case 2:17-cv-00141-JLR Document 5 Filed 01/30/17 Page 1 of 4

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

10

STATE OF WASHINGTON,

11

12

v.

Plaintiff,

DECLARATION OF ASIF CHAUDHRY

13

DONALD TRUMP, in his official

capacity as President of the United States;

14

U.S. DEPARTMENT OF HOMELAND

SECURITY; JOHN F. KELLY, in his

15

official capacity as Secretary of the

Department of Homeland Security; TOM

16

SHANNON, in his official capacity as

Acting Secretary of State; and the

17

UNITED STATES OF AMERICA,

18

Defendants.

19

20

I, Asif Chaudhry, hereby declare and affirm:

21

1. I am the Vice President for International Programs at Washington State

22 University (WSU), Washington State’s land grant institution and the second largest public

23 research university in the Pacific Northwest. I have held this position since June 2015. Prior to

24 my current role at WSU, I spent my career working for the United States Government as a Senior

25 Foreign Service Officer, holding numerous leadership positions in the Departments of State,

26 Defense, and Agriculture. These positions included Vice President of the Commodity Credit

DECLARATION OF ASIF CHAUDHRY

1

ATTORNEY GENERAL OF WASHINGTON 332 French Administration Building PO Box 641031 Pullman, WA 99164-1031 (509) 335-2636

Case 2:17-cv-00141-JLR Document 5 Filed 01/30/17 Page 2 of 4

1 Corporation, Foreign Policy Advisor to the Chief of the United States Navy at the Pentagon, and

2 U.S. Ambassador to the Republic of Moldova. I have personal knowledge of the facts set forth

3 in this declaration, and I am competent to testify about them.

4

2. As Vice President for International Programs at WSU, I have responsibility for

5 WSU’s international research activities, study abroad programs, international students, and

6 student and faculty exchanges. I am the chief international relations officer at WSU and am

7 responsible for the role of International Programs in carrying out WSU’s mission of global

8 engagement, which is “To apply knowledge through local and global engagement that will

9 improve quality of life and enhance the economy of the state, nation, and world.” I also manage

10 WSU’s programs focusing on establishing strategic partnerships with governments and

11 educational institutions across the globe.

12

3. WSU’s global presence includes active research programs in dozens of countries

13 worldwide and study abroad programs in over 70 countries worldwide. The University also has

14 matriculated undergraduate, graduate, and professional students and visiting scholars from many

15 countries worldwide.

16

4. I have reviewed the Executive Order entitled “Protecting the Nation from Foreign

17 Terrorist Entry Into the United States,” which temporarily bars entry into this country of any

18 person who is a citizen of any one of seven countries–Syria, Iraq, Iran, Somalia, Sudan, Libya,

19 and Yemen.

20

5. WSU currently has approximately 136 undergraduate and graduate students who

21 are citizens of these listed countries. These students are here under valid student visas. I believe

22 that the presence of these students, scholars, and faculty on our campus serves to build

23 international understanding among all the members of our community. Their presence also

24 enriches the educational experience of all WSU students.

25

6. The implementation of the Executive Order has already had a negative impact on

26 the lives of students and faculty from the listed countries. The fact that they will not be able to

DECLARATION OF ASIF CHAUDHRY

2

ATTORNEY GENERAL OF WASHINGTON 332 French Administration Building PO Box 641031 Pullman, WA 99164-1031 (509) 335-2636

Case 2:17-cv-00141-JLR Document 5 Filed 01/30/17 Page 3 of 4

1 travel outside of the U.S. will affect both their personal and professional lives. It will also

2 negatively impact WSU by limiting the scope of academic activities in which these members of

3 the WSU community will be able to engage.

4

7. There are many specific examples of the immediate impact the Executive Order

5 has already had on WSU students and faculty. One of many examples includes graduate students

6 doing atmospheric research, who need to travel outside the U.S. in order to conduct critical

7 fieldwork and attend conferences. These students, like many others, are working hard on

8 projects to improve people’s lives in the U.S., their home countries, and other countries. By

9 denying them re-entry into the U.S., the Executive Order restricts their ability to fully participate

10 in their programs of study and also negatively impacts the academic program and unit as a whole,

11 which is dependent on their research.

12

8. Another example over this past weekend is a student who was heading to WSU

13 to work with faculty on irrigation water conservation research. She had gone through an

14 11-month approval process but was turned away in Amsterdam because of the Executive Order.

15 Not only was the student heartbroken, but her important research has been put on hold.

16

9. The Executive Order also impacts major university-wide initiatives. Like other

17 peer institutions nation-wide, WSU has been working on expanding its international student

18 population to increase diversity and enrich the experience of all students. In fact, WSU recently

19 launched a major initiative to do so, partnering with other entities to create a new international

20 student center. The success of this enterprise is dependent on the ability of students from many

21 countries world-wide to travel to the U.S. and to WSU.

22

10. These are only a few examples of the difficulties being faced by the WSU

23 community as a result of the Executive Order. Based on my experience in international

24 education and research, I am concerned that the Executive Order will have a significant negative

25 effect on the willingness of students, scholars, and faculty from other majority Muslim countries

26

DECLARATION OF ASIF CHAUDHRY

3

ATTORNEY GENERAL OF WASHINGTON 332 French Administration Building PO Box 641031 Pullman, WA 99164-1031 (509) 335-2636

Case 2:17-cv-00141-JLR Document 5 Filed 01/30/17 Page 4 of 4

1 to apply to come to a U.S. university to advance their scholarship and their academic careers.

2 The cumulative effects of these restrictions will have a significant impact on WSU.

3

I declare under penalty of perjury under the laws of the State of Washington that the

4 foregoing is true and complete to the best of my knowledge.

5

Dated this 30th day of January, 2017.

6

7

__________________________________

Asif Chaudhry, Ph.D. 8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

DECLARATION OF ASIF CHAUDHRY

4

ATTORNEY GENERAL OF WASHINGTON 332 French Administration Building PO Box 641031 Pullman, WA 99164-1031 (509) 335-2636

Case 2:17-cv-00141-JLR Document 6 Filed 01/30/17 Page 1 of 4

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

7 STATE OF WASHINGTON,

8

Plaintiff,

9

v.

DECLARATION OF AYESHA BLACKWELL-HAWKINS, ESQ.

10 DONALD TRUMP, in his official
capacity as President of the United
11 States; U.S. DEPARTMENT OF
HOMELAND SECURITY; JOHN F.
12 KELLY, in his official capacity as
Secretary ofthe Department of
13 Homeland Security; TOM SHANNON,
in his official capacity as Acting
14 Secretary of State; and the UNITED
STATES OF AMERICA,
15
Defendants.
16

17

Pursuant to 28 U.S.C. § 1746(2), Ayesha Blackwell-Hawkins hereby declares as

18

follows:

1. I am over the age of eighteen and competent to testify.
19
2. I am Senior Manager of Mobility and Immigration at Amazon.com, Inc. and its

20
subsidiaries ("Amazon"). I manage the team that is responsible for providing

21

immigration supp01t for employees and their dependent families and ensuring lawful

22

DECLARATION OF

1

AYESHA BLACKWELL

Case 2:17-cv-00141-JLR Document 6 Filed 01/30/17 Page 2 of 4

1
immigration to and from the various countries in which Amazon operates. I have

2

been employed in this capacity since 2009.

3

3. Amazon employs more than 40,000 employees in the State of Washington and more

4

than 180,000 employees in the United States. Our employees come to us from every

5

comer of the United States and every comer of the world.

4. From the very beginning, Amazon has been committed to equal rights, tolerance, and
6
diversity - and we always will be. As we've grown the company, we' ve worked hard 7
to attract talented people from all over the world, and we believe this is one of the

8

things that makes Amazon great - a diverse workforce helps us build better products

9

for customers.

10

5. The Executive Order, "Protecting the Nation from Foreign TelTorist Entry into the

1 1

United States, signed by President Trump on January 27, 2017 (the "Executive

Order") immediately - and negatively - impacted employees, dependents of
12
employees, and candidates for employment with Amazon.
13
6. Because the Executive Order suspends entry into the United States of "aliens from

14

countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12)" it is

15

unclear whether it applies to only citizens of identified countries or anyone born in

16

those countries irrespective of their culTent citizenship or visa status. It is also unclear

17

whether the suspension applies to employees with dual citizenship (in both an

identified and non-identified counh·y). In order to comply with the order and to
18
ensure the safety of our employees, we assume the Executive Order covers both 19
scenarios.

20

7. Amazon is currently aware of 49 employees born in one of the countries identified in

21

the Executive Order. 47 in that group currently have citizenship in another country.

22

The remaining two employees hold pe1manent residence in another country. These

DECLARATION OF

2

AYESHA BLACKWELL

Case 2:17-cv-00141-JLR Document 6 Filed 01/30/17 Page 3 of 4

1
employees work in the United States lawfully pursuant to Jl, H-lB, E-3, TN, LPR

2

and L-1 A visas.

3

8. One example of an impacted employee is a senior Amazon lawyer who was born in

4

Libya but has been a UK citizen for many years. This employee had plans to travel to

5

the United States for business during the month of February. We have instructed the

employee to cancel her plans and remain in the UK rather than risk being denied
6
entry to the United States.
7
9. Amazon is also currently aware of 10 dependents of Amazon employees born in one

8

of the countries identified in the Executive Order. These dependents live in the

9

United States lawfully pursuant to H-lB, L-lB, E-3, LPR, F-1 OPT, and TN visas.

10

10. We reached out to impacted Amazon employees and dependents and recommended

11

that they refrain from travel outside of the United States until further notice. Fmiher,

we have advised any such individuals who are living outside of the United States,
12
with current plans to visit the US for business or personal reasons, to cancel those
13
plans until the entry restrictions are lifted.

14

11. Amazon is also currently aware of 7 candidates for employment who have received

15

offers for employment with Amazon. All of these candidates were born in Iran, but

16

are currently citizens of Ge1many, Canada, and Australia. We are currently assessing

17

alternatives that could include placement in countries other than the United States.

12. The Executive Order has impacted more than just Amazon employees, dependents,
18
and candidates. Asghar Farhadi, the Iranian director of the film, The Salesman, is 19
similarly prohibited under the language of the Executive Order from attending the

20

Academy Awards in Los Angeles, where his film is a nominee for Best Foreign Film.

21

Amazon's subsidiary, Amazon Studios, is the distributor of the film.

22

DECLARATION OF

3

AYESHA BLACKWELL

Case 2:17-cv-00141-JLR Document 6 Filed 01/30/17 Page 4 of 4

1
13. Finally, my team is continuing to receive of inquiries from employees who are not

2

immediately impacted, but who are seriously concerned about their ability to travel

3

and the potential expansion of the Executive Order.

4

I declare under penalty of pe1jury that the foregoing is true and correct.

5 Ill

6 Ill

7 Ill 8

3~of Executed this

January, 2017.

9

10

11

12

13

14

15

16

17

18

19

20

21

22

DECLARATION OF

4

AYESHA BLACKWELL

Case 2:17-cv-00141-JLR Document 7 Filed 01/30/17 Page 1 of 5

Case 2:17-cv-00141-JLR Document 7 Filed 01/30/17 Page 2 of 5

Case 2:17-cv-00141-JLR Document 7 Filed 01/30/17 Page 3 of 5

Case 2:17-cv-00141-JLR Document 7 Filed 01/30/17 Page 4 of 5

Case 2:17-cv-00141-JLR Document 7 Filed 01/30/17 Page 5 of 5

Case 2:17-cv-00141-JLR Document 8 Filed 01/30/17 Page 1 of 7

l

2

3

4

s

6

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8
l I
9 10 11 12 13 14 15 16 17

STATE OF WASHINGTON
Plaintiff,
V.
DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of the Department of Homeland Security; TOM SHANNON, in his official capacity as Acting Secretary of State; and the {?JNITED STATES OF
AMERICA
Defendants.

No.
DECLARATION OF EMILY CHIANG

18
I, Emily Chiang, declare as follows:
19
1. I am over the age of eighteen, am competent to testify to the matters below, and
20
declare based on personal knowledge.
21
2. I am the Legal Director of the American Civil Liberties Union of Washington
22
("ACLU-WA").
23

DECLARATION OF EMILY CHIANG - l

AMERICAN Civn. LIBERTIES UNION OF WASHINGTON FOUNDATION 901 F?FTHAVENtJE#630
SEATTLE, WA 98164 (206) 624-2184

Case 2:17-cv-00141-JLR Document 8 Filed 01/30/17 Page 2 of 7

l

3. IoverseeandadministertheLegalDepartmentoftheACLU-WA,includingall

2 l l active litigation and intake.

3

4. SincePresidentDonaldTrumpsignedhisExecutiveOrderonJanuary27,2017,

4 l l ?Protecting the Nation from Foreign Terrorist Entry into the United States,? our office has

s ll received numerous calls and emails from affected individuals requesting assistance.

6

s. We have been contacted by people who are ell route to the United States who are

7 ll concerned that they or their friends and family members will be detained or not permitted to

B l l enter the country.

9

6. We have been contacted by people who have themselves been detained at one of

10 ll Washington State's borders or told that entry into the United States would not be permitted.

11

7. We have been contacted by people living in Washington whose families have

12 II been separated because of the ban on refugee admissions. These individuals have vulnerable

13 l i family members who may have been approved entry prior to the Executive Order but are

l4 il currently barred from entering the country due to the Executive Order.

15

8. We have been contacted by people with lawful status who are citizens of the

l O l l impacted countries with plans to travel internationally in the future and are uncertain whether

17 l l they will be allowed to reenter the country after they travel abroad.

18

9. We have been contacted by people who have decided to stay overseas rather than

19 l l risk ending up in the United States immigration detention system.

20

10. AwomanfromafamilyofSyrianrefugeescontactedus.Herfamilyhadrecently

21 I I filed a family reunification petition that would have allowed her mother, father, and three

22 l i siblings to come to Washington State from Jordan. The complainant was also going to visit her

23 l l family in Jordan but is now afraid to leave the United States out of fear that she will not be

DECLARATION OF EMILY CHIANG - 2

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 FIFTH AVENUE #630
SEATTLE, WA 98164 (206) 624-2184

Case 2:17-cv-00141-JLR Document 8 Filed 01/30/17 Page 3 of 7

1 l l allowed to return and would therefore be separated from her family members already in

2 l l Washington State.

3

11. WewerecontactedbyamanwhohaslivedinWashingtonStatesincel996and

4 ll whose parents have lived here since 2011. His mother is a Syrian national and was returning

s l l from a trip to see her father (his grandfather), who was recently diagnosed with cancer. Her

0 ll return date is January 30, 2017. Out of concern that she might be refused entry into the country

7 ll or detained, her flight destination was changed from Los Angeles, California to Vancouver, B.C..

B ll The complainant was concerned that his mother would not be allowed to enter the country at the

9 ll border crossing in Blaine, Washington. Because his mother is 75 years old, he is planning on a

10 ll long tertn stay in Vancouver if she is not allowed entry. However, he has a young son and

ll?? family that he would be separated from during that time and employment that will not

12 l l accommodate long-term telecommuting.

13

12. WewerecontactedbyanIraqirefugeewhohaslivedinWashingtonStatefortwo

14 ll years. When President Trump signed the Executive Order she was distraught because she had

15 l l planned to travel in March to visit her fianc6-who she has not seen in over two years. Even

16 l l though her trip was planned a long time ago, she is now concerned that she may not be able to

17 l l reenter the country if she goes to see him.

18

13. AnIranianwomancontactedusbecauseshewasexpectingavisitfromher

1 g ll mother in three weeks. The process of getting a visa for her mother who lives in Iran was long

20 l l and arduous. It took six months to get an appointment with the embassy. Her appointment was

21 l l in August and she finally received her visa in early January. The complainant was excited to

22 i l have her mother visit her in Washington State-a visit that will no longer be possible because of

23 I I the Executive Order. She was also planning to visit her elderly grandmother in Iran this summer

DECLARATION OF EMILY CHIANG - 3

AMERICAN CIVIL LIBERTIES UNI0'N OF WASHINGTON FOUNDATION 901 FIFTHAVENUE#630
SEATTLE, WA 98164 (206) 624-2184

Case 2:17-cv-00141-JLR Document 8 Filed 01/30/17 Page 4 of 7

1 ll but now she is afraid to leave the country out of fear that, even though she is a lawful permanent 2 i l resident, she might not be allowed reentry.

3

14. OnJanuary28,2017,theACLUofWashingtonwiththeNorthwestImmigrant

4 li Rights Project filed an emergency Writ of Habeas Corpus for the release of two individuals who

s l l were detained at the Seattle-Tacoma International Airport. Judge Thomas Zilly ordered their

0 l l immediate release. Exhibit A.

7 l l I declare under penalty of perjury of the laws of the state of Washington that the foregoing is tme

3 li and correct.

9 li EXECUTED on 30th day of January, 2017.
10 11 12 13

ff
Emily Chiang, VSBA No. 5500: 517
ACLU of Washington Founidati6n 901 Fifth Avenue, Suite 630
Seattle, Washington 98164 Telephone: 206-624-2184
echiang@aclu-wa.org

14

15

16

17

18

19

20

21

22

23

DECLARATION OF EMILY CHIANG - 4

AMERICAN CIVIL LIBERTIES U'sxos op WASmNGTON FOUNDATION 901 FIFTH AVENUE #630
SEATTLE, WA 98164 (206) 624-2184

Case 2:17-cv-00141-JLR Document 8 Filed 01/30/17 Page 5 of 7
Chiang Declaration Exhibit A

Case 2:17-cv-0012461-TJLSRZ Document 85 Filed 01/3208/17 Page 61 of 72

1 Matt Adams Glenda Aldana Madrid
2 NORTHWEST IMMIGRANT RIGHTS PROJECT

3 615 Second Ave., Ste. 400 Seattle, WA 98104
4 (206) 957-8611

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8 _______________________________________

9 John DOE 1, John DOE 2

)

10

)

Petitioners,

)

11

v.

)

12

) Case No.: C17-126

Donald TRUMP; President of the United States )

13 of America; John F. Kelly, Secretary of the

) Agency No. A

14 Department of Homeland Security;

)

DEPARTMENT OF HOMELAND SECURITY; ) ORDER GRANTING EMERGENCY

15 KEVIN K. MCALEENAN, Acting

) MOTION FOR STAY OF REMOVAL

16 Commissioner of Customs and Border

)

17 18

Protection; CUSTOMS AND BORDER

)

PROTECTION; and the UNITED STATES OF

) )

AMERICA,

)

19

)

Respondents. 20

) )

21

)

) 22

23
ORDER- 1 -
24 P e t i t i o n f o r W r i t o f H a b e a s C o r p u s
25

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 Tel: 206 957-8611

26

27

28

Case 2:17-cv-0012461-TJLSRZ Document 85 Filed 01/3208/17 Page 72 of 72

1

2

THIS MATTER HAVING COME TO THE COURT UPON PETITIONERS’

3 EMERGENCY ORDER FOR STAY OF REMOVAL, AND THE COURT HAVING
4 CONSIDERED THE EMERGENCY PETITION FOR WRIT OF HABEAS CORPUS, 5
DOCKET NO. 1, AND THE MOTION FOR EMERGENCY STAY, DOCKET NO. 2, 6 7 HEREBY GRANTS THE FOLLOWING ORDER:

8 1. THE COURTS GRANTS A STAY OF REMOVAL.
9

10

2. DEFENDANTS ARE ENJOINED FROM REMOVING JOHN DOE I AND

11 JOHN DOE II FROM THE UNITED STATES PENDING FURTHER ORDER
12

13

OF THE COURT.

14

3. The Court SETS a hearing for 10:00 a.m. on Friday, February 3, 2017, to

15

determine whether to lift the stay.

16

DATED this 28th day of January, 2017.

17

18 19

A

20

Thomas S. Zilly

21

United States District Judge

22

23
ORDER- 2 -
24 P e t i t i o n f o r W r i t o f H a b e a s C o r p u s
25

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 Tel: 206 957-8611

26

27

28

Case 2:17-cv-00141-JLR Document 9 Filed 01/30/17 Page 1 of 4

Case 2:17-cv-00141-JLR Document 9 Filed 01/30/17 Page 2 of 4

Case 2:17-cv-00141-JLR Document 9 Filed 01/30/17 Page 3 of 4

Case 2:17-cv-00141-JLR Document 9 Filed 01/30/17 Page 4 of 4

 
 Case 2:17-cv-00141-JLR Document 17 Filed 02/01/17 Page 1 of 8

1

2

3

4

THE HONORABLE JAMES L. ROBART

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

8

STATE OF WASHINGTON,

9

Plaintiff,

NO. 2:17-cv-00141-JLR

10

v.

PLAINTIFF STATE OF

11

WASHINGTON’S

DONALD TRUMP, in his official capacity

SUPPLEMENTAL BRIEF

12 as President of the United States; U.S.

REGARDING STANDING

DEPARTMENT OF HOMELAND

13 SECURITY; JOHN F. KELLY, in his

official capacity as Secretary of the

14 Department of Homeland Security; TOM

SHANNON, in his official capacity as

15 Acting Secretary of State; and the UNITED

STATES OF AMERICA,

16

Defendants.

17

18

19

20

21

22

23

24

25

26

SUPPLEMENTAL BRIEF REGARDING STANDING

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 17 Filed 02/01/17 Page 2 of 8

1

TABLE OF CONTENTS

2 I. INTRODUCTION.....................................................................................................1
3 II. ARGUMENT ............................................................................................................1
4 A. Washington Is Suffering Injuries From the Order .............................................1
5 1. Washington is Suffering Injuries to its Proprietary Interests .....................2
6 2. Washington Is Suffering Injury As Parens Patriae ...................................3
7 B. Causation and Redressability Are Clear ............................................................5
8 III. CONCLUSION .........................................................................................................6
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

SUPPLEMENTAL BRIEF REGARDING STANDING

i

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 17 Filed 02/01/17 Page 3 of 8

1

I. INTRODUCTION

2

The State of Washington has standing to challenge the Executive Order on at least two

3 independent grounds. First, the State has standing to sue to redress injuries to its proprietary

4 interests. The Order will reduce state tax revenue, harm the educational mission of state

5 universities, make it impossible for state employees and students to travel, and impose

6 significant costs on state agencies. The State also has standing to sue to protect the well-being

7 of its residents. Washington has a profound interest in protecting its residents from the harms

8 caused by the irrational discrimination embodied in the Order. The Order is causing these

9 harms, and invalidating the portions challenged here will redress them. The State has standing.

10

II. ARGUMENT

11

To have standing, a plaintiff must generally show (1) an “injury in fact” that is concrete

12 and particularized and actual or imminent; (2) that the injury is fairly traceable to the

13 challenged action; and (3) that the injury will likely be redressed by a favorable decision. Lujan 14 v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The State can show all three.1

15 A. Washington Is Suffering Injuries From the Order

16

In proving injury, states “are not normal litigants.” Massachusetts v. EPA, 549 U.S.

17 497, 518 (2007). Like any party, states can invoke federal jurisdiction to protect proprietary

18 interests. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601-02

19 (1982) (explaining proprietary interests); Davis v. EPA, 348 F.3d 772, 778 (9th Cir. 2003). But

20 States also have broad authority to sue as parens patriae to protect “quasi-sovereign” interests,

21 including interests in the well-being of residents. Snapp, 458 U.S. at 602-04. Washington has

22 standing here on both independent grounds.

23

24

1 To the extent the Court addresses Washington’s standing as a jurisdictional issue, at this early stage in

25

the proceedings all plausible allegations in the complaint must be taken as true and all reasonable inferences drawn in the State’s favor. Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015). For

26

purposes of its underlying TRO motion, Washington must show a “substantial likelihood” of standing. Id. As set out herein, Washington amply demonstrates a substantial likelihood of establishing standing.

SUPPLEMENTAL BRIEF REGARDING STANDING

1

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 17 Filed 02/01/17 Page 4 of 8

1

1. Washington is Suffering Injuries to its Proprietary Interests

2

Washington is currently suffering concrete, adverse impacts to its proprietary interests

3 from the Order that will continue in the absence of the requested relief.

4

As an initial matter, the level of economic injury necessary to establish a State’s

5 proprietary standing is low. Courts have repeatedly found that any non-trivial economic

6 impacts constitute a concrete, particularized injury sufficient to show standing. For example, in

7 Texas v. United States, 787 F.3d 733 (5th Cir. 2015), the Fifth Circuit held that Texas could

8 challenge a federal immigration directive based solely on the cost of issuing driver’s licenses to

9 the beneficiaries (approximately $130 per license).2 Id. at 748. The Ninth Circuit found a

10 sufficient economic interest for proprietary standing in lost tourist revenues caused by

11 “aesthetic damage” from increased traffic. City of Sausalito v. O’Neill, 386 F.3d 1186, 1199

12 (9th Cir. 2004).

13

Here, the harms to Washington’s proprietary interests are significant and wide-ranging.

14

First, Washington will lose significant tax revenue because of the Order. Washington

15 receives substantial sales tax revenue every year from travelers from the countries impacted by

16 the Order’s travel ban. Ex. A, ¶¶ 3-8 (Decl. of Oline). Washington also stands to lose tax

17 revenue from Washington businesses harmed by the Order, id. ¶ 6; ECF No. 7, ¶¶ 9, 11-12

18 (Decl. of Dzielak), as well as revenue from legal, non-citizen residents who are being

19 prevented from returning to their homes and jobs, see ECF No. 8, ¶¶ 6-14 (Decl. of Chiang).

20 Losing these tax revenues is a real, tangible, and immediate harm, even putting aside the

21 Order’s longer-term consequences for Washington’s economy. Amended Comp. ¶¶ 12-17, 24-

22 25.

23

Washington also operates several world-class public universities that are suffering

24 adverse impacts from the Order. Several hundred faculty, staff, and students at state higher

25

26

2 For purposes of the standing inquiry, the Court also flatly declined to weigh any “countervailing economic benefits” created by the challenged program that might offset injury. Texas, 787 F.3d at 750.

SUPPLEMENTAL BRIEF REGARDING STANDING

2

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 17 Filed 02/01/17 Page 5 of 8

1 education institutions are here on visas from the listed countries, while others are long-term

2 permanent residents from the affected countries. See ECF No. 9, ¶¶ 5, 7-8 (Decl. of Riedinger);

3 ECF No. 5, ¶ 5 (Decl. of Chaudhry); Ex. B, ¶¶ 4-10 (Second Decl. of Riedinger); Ex. C, ¶¶ 4, 6

4 (Decl. of Boesenberg). The order has stranded a member of the WSU faculty overseas, Ex. D,

5 ¶ 6 (Second Decl. of Chaudhry), and will prevent a member of the UW faculty from serving as

6 the keynote speaker at a conference overseas. Ex. B, ¶ 5. Both universities have expended

7 significant resources to sponsor scholars from the affected countries to perform research and

8 teaching, and the Order will prevent several of those individuals from coming to the

9 universities or staying there. Ex. B, ¶¶ 9-10; Ex. D, ¶ 7. Students and faculty from the listed

10 countries will be prevented from participating in planned travel outside the country to conduct

11 research and attend conferences. ECF No. ¶ 7; Ex. D, ¶¶ 3-4; Ex. B, ¶¶ 6, 8. These harms to

12 faculty, staff, and students damage the universities’ missions and reduce their attractiveness to

13 international students. ECF No. 5, ¶¶ 2, 9-10.3

14

In sum, these (and other4) direct impacts cement the injury-in-fact required for

15 proprietary standing. Far from being speculative, these impacts are occurring now. Indeed, the

16 impacts shown here likely understate the State’s proprietary harm, as they reflect only what the

17 State has been able to document in the three business days since the Order was issued. See,

18 e.g., Ex. B, ¶ 7.

19

2. Washington Is Suffering Injury As Parens Patriae

20

Washington’s interests go beyond the proprietary. Under the doctrine of parens patriae,

21 States have standing to protect “quasi-sovereign” interests, including “the health and well-

22
3 See also, e.g., Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487 (9th Cir.1995) (holding that

23 school had standing to challenge harm to students that impacted school); Ohio Ass’n of Indep. Schs. v. Goff, 92
F.3d 419, 422 (6th Cir. 1996) (same). It is irrelevant that the suit might also benefit some other than Washington

24 and its residents. See, e.g., Sprint Commc’ns Co. v. APCC Servs., Inc, 554 U.S. 269, 287 (2008) (“[F]ederal courts
routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit.”).

25

4 For example, the State expects the Order to reduce its ability to recruit employees for key positions in

the State workforce. Ex. E, ¶¶ 7-8 (Decl. of Schumacher). The State also expects the Order to increase costs in its

26

child welfare system by needlessly separating children from their parents and making it more difficult for the State to reunify families. Ex. F, ¶¶ 6-19 (Decl. of Strus).

SUPPLEMENTAL BRIEF REGARDING STANDING

3

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 17 Filed 02/01/17 Page 6 of 8

1 being” of their residents, whether “physical [or] economic.” Snapp, 458 U.S. at 607. To invoke

2 parens jurisdiction, a state must articulate a “quasi-sovereign” interest, identify an interest

3 apart from those of particular private parties, and allege injury to a “sufficiently substantial” 4 segment of its population. Snapp, 485 U.S. at 593. That standard is met here.5

5

First, the health and well-being of residents is a quasi-sovereign interest. Snapp, 458

6 U.S. at 607. There can be no question that many state residents are suffering grievous harms to

7 their well-being, including those originally from the listed countries who: were temporarily

8 overseas at the time of the ban and are being prevented from returning to their homes, jobs, and

9 families in Washington; live here and wish to travel overseas for work or to visit family; or live

10 here and are unable to receive visits from their friends and family. ECF No. 8, ¶¶ 6-14;

11 Amended Complaint ¶¶ 18-23, 31-36. The ban is also affecting those who live here as refugees

12 and whose family members are now being barred from joining them, as well as religious

13 nonprofits here that serve refugees as part of their religious mission and are being denied that

14 ability. Id. ¶¶ 11, 18, 21, 23, 31, 33, 36.

15

Washington’s goal in ending these harms extends well beyond those of a “nominal”

16 party. Washington has a profound interest in preventing the very real harms—both physical

17 and economic—caused by discriminatory treatment. This interest is uniquely represented by

18

19

5 Washington anticipates that the United States may assert that Massachusetts v. Mellon, 262 U.S. 447

(1923), bars parens patriae actions against the federal government. This argument fails for two reasons. First,

20 Mellon’s supposed bar on parens actions was all but eradicated by the Supreme Court’s Massachusetts v. EPA

decision. There, the Court affirmed States’ “special solicitude” in matters of standing and rebuffed the dissent’s

21 Mellon arguments by pointing out “the long development of cases permitting States ‘to litigate as parens patriae

to protect quasi sovereign interests . . . .’ ” Massachusetts v. EPA, 549 U.S. at 520 & n.17. The Court also stated

22 that “Mellon itself disavowed any such broad reading,” because it expressly noted it had not been called upon to

determine whether claims involving quasi-sovereign interests were barred. Id., 549 U.S. at 520 n.17. In rejecting

23 the federal government’s argument based on Mellon just months ago, the Eastern District of Washington held that
it “cannot ignore” Massachusetts v. EPA’s rebuff of Mellon. See Hanford Challenge v. Moniz, __ F.Supp.3d __,

24 2016 WL 6902416, at *3 (E.D. Wash. Nov. 3, 2016). Second, even if Mellon would otherwise apply, its
limitations on standing are prudential only and can be overridden by Congress. Maryland People’s Counsel v.

25

F.E.R.C., 760 F.2d 318, 322 (D.C. Cir. 1985). Here, Washington’s claims include two statutory causes of action expressly allowing States to sue the federal government. See Amended Comp. ¶¶ 91-105; 5 U.S.C. § 702

26

(granting the right to sue the United States based on adverse agency actions); 42 U.S.C. § 2000bb-1(a) (granting the right to sue the United States based upon alleged burdens on the exercise of religion).

SUPPLEMENTAL BRIEF REGARDING STANDING

4

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 17 Filed 02/01/17 Page 7 of 8

1 the State, which has a strong “state interest in securing residents from the harmful effects of

2 discrimination.” Snapp, 458 U.S. at 609; see also Wash. Rev. Code 49.60.010 (“The legislature

3 hereby finds and declares that practices of discrimination against any of its inhabitants because

4 of race, creed, color, [or] national origin . . . are a matter of state concern, that such

5 discrimination threatens not only the rights and proper privileges of its inhabitants but menaces

6 the institutions and foundation of a free democratic state.”); People v. Peter & John’s Pump

7 House, Inc., 914 F. Supp. 809, 813 (N.D.N.Y. 1996).

8

Finally, the impacts here are sufficiently broad to support parens standing. There are no

9 “definitive limits on the proportion of the population” that a state must allege to be adversely

10 affected. Snapp, 458 U.S. at 607. And states can establish sufficient impacts by reference to the

11 “indirect effects of the injury” implicating a group broader than just those residents directly 12 involved.6 See id. Here, the Order’s impacts are extremely broad. Washington is home to

13 thousands of immigrants from the affected countries and refugees. Amended Comp. ¶¶ 11, 31.

14 The Order affects not just those individuals, but also their friends, families, neighbors, and

15 employers. Id. ¶¶ 15-17, 21-23, 31-36. It also affects all Washingtonians, who have

16 emphatically rejected the discrimination embodied in the Order. See, e.g.,Wash. Rev. Code

17 49.60.010.

18 B. Causation and Redressability Are Clear

19

There can be no meaningful dispute that the harms described above are being caused by

20 the Executive Order. It is because of the violations of the equal protection, due process, and

21 establishment clauses, as well as the statutory violations, embodied in that Order that

22 Washington is suffering these harms. The harms cannot be traced to any other source.

23

24

25

6 This is especially true in cases of discrimination. See, e.g., Commonwealth of Mass. v. Bull HN Info.

Sys., Inc., 16 F. Supp. 2d 90, 98 (D. Mass. 1998) (“Discrimination of any kind . . . corrodes the social fabric and

26

fosters intolerance and inequality.”); Peter & John’s Pump House, 914 F. Supp. at 813 (finding jurisdiction where “[t]he State alleges discrimination that has a destructive societal effect”).

SUPPLEMENTAL BRIEF REGARDING STANDING

5

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 17 Filed 02/01/17 Page 8 of 8

1

There can also be no meaningful dispute that this Court has power to redress these

2 harms. Invalidating the challenged aspects of the Executive Order would restore the status quo,

3 allowing State residents to return home, travel for work and to visit family, and reunite with

4 loved ones, and would prevent the ongoing proprietary harms the State is suffering. See, e.g.,

5 Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 849 (9th Cir. 2010) (restoration of status quo

6 establishes causation and redressability elements of standing).

7

III. CONCLUSION

8

Washington has established standing. The State is suffering harm to its proprietary

9 interests and as parens patriae. The Order is causing the harm. This Court can redress it. The

10 State respectfully asks this Court to enjoin this harm as soon as possible.

11

DATED this 1st day of February, 2017.

12 Respectfully submitted,
13

14

s/ Robert W. Ferguson

ROBERT W. FERGUSON

15

Attorney General

WSBA #26004

16

NOAH G. PURCELL

WSBA #43492

17

Solicitor General

COLLEEN M. MELODY

18

WSBA #42275

Civil Rights Unit Chief

19

Office of the Attorney General

800 Fifth Avenue, Suite 2000

20

Seattle, WA 98104

206-464-7744 21

22

23

24

25

26

SUPPLEMENTAL BRIEF REGARDING STANDING

6

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

 
 Case 2:17-cv-00141-JLR Document 52 Filed 02/03/17 Page 1 of 7

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9
STATE OF WASHINGTON, et al., 10
Plaintiffs,
11 v.

CASE NO. C17-0141JLR
TEMPORARY RESTRAINING ORDER

12
DONALD J. TRUMP, et al.,

13

Defendants.

14 I. INTRODUCTION
15 Before the court is Plaintiffs State of Washington and State of Minnesota's
16 (collectively, "the States") emergency motion for a temporary restraining order ("TRO").
17 (TRO Mot. (Dkt. ## 3, 19 (as amended)).) The court has reviewed the motion, the
18 complaint (Compl. (Dkt. # 1)), the amended complaint (FAC (Dkt. # 18)), all the
19 submissions of the parties related to the motion, the relevant portions of the record, and
20 the applicable law. In addition, the court heard the argument of counsel on February 3,
21 II
22

ORDER-1

Case 2:17-cv-00141-JLR Document 52 Filed 02/03/17 Page 2 of 7

1 2017. (See Min. Entry (Dkt. #51).) Having considered all of the foregoing, the court

2 GRANTS the States' motion as set forth below.

3

II. PROCEDURAL BACKGROUND

4

On January 30, 2017, the State of Washington filed a complaint seeking

5 declaratory and injunctive relief against Defendants Donald J. Trump, in his official

6 capacity as President of the United States, the United States Department of Homeland

7 Security ("DHS"), John F. Kelly, in his official capacity as Secretary ofDHS, Tom

8 Shannon, in his official capacity as Acting Secretary of State, and the United States of

9 America (collectively, "Federal Defendants"). (See Compl.) On February 1, 2017, the

10 State ofWashington filed an amended complaint adding the State of Minnesota as a

11 plaintiff. (See FAC.) The States seek declaratory relief invalidating portions of the

12 Executive Order of January 27, 2017, entitled "Protecting the Nation from Foreign

13 Terrorist Entry into the United States" ("Executive Order") (see FAC Ex. 7 (attaching a

14 copy of the Executive Order)), and an order enjoining Federal Defendants from enforcing

15 those same portions of the Executive Order. (See generally FAC at 18.)

16

The States are presently before the court seeking a TRO against Federal

17 Defendants. (See generally TRO Mot.) The purpose of a TROis to preserve the status

18 quo before the court holds a hearing on a motion for preliminary injunction. See Granny

19 Goose Foods, Inc. v. Bhd. OfTeamsters & Auto Truck Drivers Local No. 70 ofAlameda

20 City, 415 U.S. 423, 439 (1974); Am. Honda Fin. Corp. v. Gilbert Imports, LLC, No.

21 CV-13-5015-EFS, 2013 WL 12120097, at *3 (E.D. Wash. Feb. 22, 2013) ("The purpose

22 II

ORDER-2

Case 2:17-cv-00141-JLR Document 52 Filed 02/03/17 Page 3 of 7

1 of a TRO is to preserve the status quo until there is an opportunity to hold a hearing on

2 the application for a preliminary injunction ....") (internal quotation marks omitted).

3

Federal Defendants oppose the States' motion. (See generally Resp. (Dkt. #50).)

4

III. FINDINGS OF FACT & CONCLUSIONS OF LAW

5

As an initial matter, the court finds that it has jurisdiction over Federal Defendants

6 and the subject matter of this lawsuit. The States' efforts to contact Federal Defendants

7 reasonably and substantially complied with the requirements of Federal Ru1e of Civil

8 Procedure 65(b). See Fed. R. Civ. P. 65(b). Indeed, Federal Defendants have appeared,

9 argued before the court, and defended their position in this action. (See Not. of App.

10 (Dkt. ## 20, 21); Min. Entry; see generally Resp.;)

11

The standard for issuing a TRO is the same as the standard for issuing a

12 preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434

13 U.S. 1345, 1347 n.2 (1977). A TROis "an extraordinary remedy that may only be

14 awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat.

15 Res. Def Council, Inc., 555 U.S. 7, 24 (2008). "The proper legal standard for

16 preliminary injunctive relief requires a party to demonstrate (1) 'that he is likely to

17 succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of

18 preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an

19 injunction is in the public interest."' Stormans, Inc. v. Selecky, 586 F .3d 1109, 1127 (9th

20 Cir. 2009) (citing Winter, 555 U.S. at 20).

21

As an alternative to this test, a preliminary injunction is appropriate if "serious

22 questions going to the merits were raised and the balance of the hardships tips sharply in

ORDER- 3

Case 2:17-cv-00141-JLR Document 52 Filed 02/03/17 Page 4 of 7

1 the plaintiffs favor," thereby allowing preservation oftbe status quo when complex legal

2 questions require further inspection or deliberation. All. for the Wild Rocldes v. Cottrell,

3 632 F.3d 1127, 1134-35 (9th Cir. 2011). However, the "serious questions" approach

4 supports the court's entry of a TRO only so long as the plaintiff also shows that there is a

5 likelihood of irreparable injury and that the injunction is in the public interest. Id. at

6 1135. The moving party bears the burden of persuasion and must make a clear showing

7 that it is entitled to such relief. Winter, 555 U.S. at 22.

8

The court finds that the States have satisfied these standards and that the court

9 should issue a TRO. The States have satisfied the Winter test because they have shown

10 that they are likely to succeed on the merits of the claims that would entitle them to relief;

11 the States are likely to suffer irreparable harm in the absence of preliminary relief; the

12 balance ofthe equities favor the States; and a TRO is in the public interest. The court

13 also finds that the States have satisfied the "alternative" Cottrell test because they have

14 established at least serious questions going to the merits of their claims and that the

15 balance of the equities tips sharply in their favor. As the court noted for the Winter test,

16 the States have also established a likelihood of irreparable injury and that a TRO is in the

17 public interest.

18

Specifically, for purposes of the entry of this TRO, the court finds that the States

19 have met their burden of demonstrating that they face immediate and irreparable injury as

20 a result of the signing and implementation of the Executive Order. The Executive Order

21 adversely affects the States' residents in areas of employment, education, business,

22 family relations, and freedom to travel. These harms extend to the States by virtue of

ORDER-4

Case 2:17-cv-00141-JLR Document 52 Filed 02/03/17 Page 5 of 7

1 their roles as parens patriae of the residents living within their borders. In addition, the

2 States themselves are harmed by virtue of the damage that implementation of the

3 Executive Order has inflicted upon the operations and missions of their public

4 universities and other institutions of higher learning, as well as injury to the States'

5 operations, tax bases, and public funds. These harms are significant and ongoing.

. 6 Accordingly, the court concludes that a TRO against Federal Defendants is necessary

7 until such time as the court can hear and decide the States' request for a preliminary

8 injunction.

9

IV. TEMPORARY RESTRAINING ORDER

10

It is hereby ORDERED that:

11

1. Federal Defendants and all their respective officers, agents, servants,

12

employees, attorneys, and persons acting in concert or participation with them

13

are hereby ENJOINED and RESTRAINED from:

14

(a) Enforcing Section 3(c) of the Executive Order;

15

(b) Enforcing Section 5(a) of the Executive Order;

16

(c) Enforcing Section 5(b) of the Executive Order or proceeding with any

17

action that prioritizes the refugee claims of certain religious minorities;

18

(d) Enforcing Section 5(c) of the Executive Order;

19

(e) Enforcing Section 5(e) of the Executive Order to the extent Section 5(e)

20

purports to prioritize refugee claims of certain religious minorities.

21

2. This TROis granted on a nationwide basis and prohibits enforcement of

22

Sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order (as described in

ORDER- 5

Case 2:17-cv-00141-JLR Document 52 Filed 02/03/17 Page 6 of 7

1

the above paragraph) at all United States borders and ports of entry pending

2

further orders from this court. Although Federal Defendants argued that any

3

TRO should be limited to the States at issue (see Resp. at 30), the resulting

4

partial implementation of the Executive Order "would undermine the

5

constitutional imperative of 'a uniform Rule of Naturalization' and Congress's

6

instruction that 'the immigration laws of the United States should be enforced

7

vigorously and uniformly."' Texas v. United States, 809 F.3d 134, 155 (5th

8

Cir. 2015) (footnotes omitted) (quoting U.S. CONST. art. I,§ 8, cl. 4

9

(emphasis added) and Immigration and Reform Control Act of 1986, Pub. L.

10

No. 99-603, § 115(1), 100 Stat. 3359,3384 (emphasis added)).1

11

3. No security bond is required under Federal Rule of Civil Procedure 65(c).

12

4. Finally, the court orders the parties to propose a briefing schedule and noting

13

date with respect to the States' motion for a preliminary injunction no later

14

than Monday, February 6, 2017 at 5:00p.m. The court will promptly schedule

15

a hearing on the States' motion for a preliminary injunction, if requested and

16

necessary, following receipt of the parties' briefing.

17

v. CONCLUSION

18

Fundamental to the work of this court is a vigilant recognition that it is but one of

19 three equal branches of our federal government. The work of the court is not to create

20 policy or judge the wisdom of any particular policy promoted by the other two branches.

21

22

1An equally divided Supreme Court affirmed Texas v. United States, 809 F.3d 134, in
United States v. Texas,--- U.S.----, 136 S. Ct. 2271 (2016) (per curiam).

ORDER-6

Case 2:17-cv-00141-JLR Document 52 Filed 02/03/17 Page 7 of 7

1 That is the work of the legislative and executive branches and of the citizens of this
2 country who ultimately exercise democratic control over those branches. The work of the

3 Judiciary, and this court, is limited to ensuring that the actions taken by the other two 4 branches comport with our country's laws, and more importantly, our Constitution. The 5 narrow question the court is asked to consider today is whether it is appropriate to enter a 6 TRO against certain actions taken by the Executive in the context of this specific lawsuit.

7 Although the question is narrow, the court is mindful of the considerable impact its order

8 may have on the parties before it, the executive branch of our government, and the

9 country's citizens and residents. The court concludes that the circumstances brought

10 before it today are such that it must intervene to fulfill its constitutional role in our tripart

11 government. Accordingly, the court concludes that entry of the above-described TROis

12 necessary, and the States' motion (Dld. ## 2, 19) is therefore GRANTED.

I<D

13

Dated this a_day of February, 2017.

14

15

JAMES L. ROBART United tates District Judge

16

17

18

19

20

21

22

ORDER-7

 
 Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 1 of 19

1

ROBERT W. FERGUSON 2 WSBA #26004

3

Attorney General NOAH G. PURCELL

4 WSBA #43492 Solicitor General

5 COLLEEN M. MELODY

WSBA #42275 6 Civil Rights Unit Chief

7

Office of the Attorney General 800 Fifth Avenue, Suite 2000

8 Seattle, WA 98104 206-464-7744

9

The Honorable James L. Robart

10

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

11

STATE OF WASHINGTON and 12 STATE OF MINNESOTA,

CIVIL ACTION NO. 2:17-cv-00141-JLR

13

Plaintiffs,

14

v.

15 DONALD TRUMP, in his official capacity as President of the United
16 States; U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F.
17 KELLY, in his official capacity as Secretary of the Department of
18 Homeland Security; TOM SHANNON, in his official capacity as Acting
19 Secretary of State; and the UNITED STATES OF AMERICA,
20
Defendants. 21

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

22

I. INTRODUCTION

23

1. The States of Washington and Minnesota (“States”) bring this action to protect

24 the States—including their residents, employers, and educational institutions—against illegal

25 actions of the President and the federal government. The President’s Executive Order of

26 January 27, 2017 (“the Executive Order”), is separating families, harming thousands of the

FIRST AMENDED COMPLAINT

1

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 2 of 19

1 States’ residents, damaging the States’ economies, hurting State-based companies, and

2 undermining both States’ sovereign interest in remaining a welcoming place for immigrants

3 and refugees. The Court should invalidate the portions of the Executive Order challenged here.

4

II. JURISDICTION AND VENUE

5

2. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a).

6

3. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and

7 1391(e)(1). Defendants are United States agencies or officers sued in their official capacities.

8 The State of Washington is a resident of this judicial district and a substantial part of the events

9 or omissions giving rise to this First Amended Complaint occurred within the Western District

10 of Washington.

11

4. The States bring this action to redress harms to their proprietary interests and

12 their interests as parens patriae, as well as under their authority pursuant to 5 U.S.C. § 702 and

13 42 U.S.C. § 2000bb-1(a).

14

III. PARTIES

15

PLAINTIFF STATE OF WASHINGTON

16

5. The Governor is the chief executive officer of the State of Washington. The

17 Governor is responsible for overseeing the operations of the State of Washington and ensuring

18 that its laws are faithfully executed.

19

6. The Attorney General is the chief legal adviser to the State of Washington. The

20 Attorney General’s powers and duties include acting in federal court on matters of public

21 concern.

22

7. Washington has declared that practices that discriminate against any of its

23 inhabitants because of race, creed, color, or national origin are matters of public concern that

24 threaten the rights and proper privileges of the State and harm the public welfare, health, and

25 peace of the people. See Wash. Rev. Code 49.60.010.

26

FIRST AMENDED COMPLAINT

2

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 3 of 19

1

8. Washington’s interest in protecting the health, safety, and well-being of its

2 residents, including protecting its residents from harms to their physical or economic health, is

3 a quasi-sovereign interest.

4

9. Washington also has an interest in ensuring that its residents are not excluded

5 from the benefits that flow from participation in the federal system, including the rights and

6 privileges provided by the U.S. Constitution and federal law.

7

10. Washington’s interest in preventing and remedying injuries to the public’s

8 health, safety, and well-being extends to all of Washington’s residents, including individuals

9 who suffer indirect injuries and members of the general public.

10

11. According to the most current American Community Survey data from the U.S.

11 Census Bureau, as of 2015, approximately 7,280 non-citizen immigrants from Iran, Iraq, Syria,

12 Somalia, Sudan, Libya, and Yemen reside in Washington—1,409 Iranian immigrants, 2,275

13 Iraqi immigrants, 360 Libyan immigrants, 2,883 Somalian immigrants, 165 Sudanese

14 immigrants, and 187 Syrian immigrants.

15

12. Immigration is an important economic driver in Washington. Many workers in

16 Washington’s technology industry are immigrants, and many of those immigrant workers are

17 from Muslim-majority countries. Immigrant and refugee-owned businesses employ 140,000

18 people in Washington. Many companies in Washington are dependent on foreign workers to

19 operate and grow their businesses.

20

13. The technology industry relies heavily on the H-1B visa program, through

21 which highly skilled workers like software engineers are permitted to work in the United

22 States. Washington ranks ninth in the U.S. by number of applications for high-tech visas.

23 Microsoft, a corporation headquartered in Redmond, Washington, is the State’s top employer

24 of H-1B visa holders and employs nearly 5,000 people through the program. Other

25 Washington-based companies, including Amazon, Expedia, and Starbucks, employ thousands

26 of H-1B visa holders.

FIRST AMENDED COMPLAINT

3

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 4 of 19

1

14. The market for highly skilled workers and leaders in the technology industry is

2 extremely competitive. Changes to U.S. immigration policy that restrict the flow of people may

3 inhibit these companies’ ability to adequately staff their research and development efforts and

4 recruit talent from overseas. If recruiting efforts are less successful, these companies’ abilities

5 to develop and deliver successful products and services may be adversely affected.

6

15. Microsoft’s U.S. workforce is heavily dependent on immigrants and guest

7 workers. At least 76 employees at Microsoft are citizens of Iran, Iraq, Syria, Somalia, Sudan,

8 Libya, or Yemen and hold U.S. temporary work visas. There may be other employees with

9 permanent-resident status or green cards. These employees may be banned from re-entering the

10 U.S. if they travel overseas or to the company’s offices in Vancouver, British Columbia.

11

16. Seattle-based company Amazon also employs workers from every corner of the

12 world. Amazon’s employees, dependents of employees, and candidates for employment with

13 Amazon have been impacted by the Executive Order that is the subject of this First Amended

14 Complaint. Amazon has advised such employees currently in the United States to refrain from

15 travel outside the United States.

16

17. Bellevue-based company Expedia operates a domestic and foreign travel

17 business. At the time of the filing of the Complaint, Expedia had approximately 1,000

18 customers with existing flight reservations in or out of the United States who hold passports

19 from Iran, Iraq, Syria, Somalia, Sudan, Libya, or Yemen. The Executive Order will restrict

20 business, increase business costs, and impact current employees and customers.

21

18. Washington is also home to individuals and nonprofit religious organizations

22 that, as part of their religious beliefs and/or mission, provide services to refugees and

23 immigrants in Washington and throughout the world.

24

19. Up to 13 individuals were detained at Seattle-Tacoma International Airport

25 (“Sea-Tac Airport”) one day after President Trump issued the Executive Order that is the

26 subject of this First Amended Complaint.

FIRST AMENDED COMPLAINT

4

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 5 of 19

1

20. An unknown number of Washington residents from the affected countries may

2 have been prevented from, or may now be prevented from, traveling to Washington through

3 air, land, and sea ports of entry across the United States. It is unknown how many additional

4 Washington residents will reach United States ports across the country and be prevented from

5 returning to Washington while the Executive Order remains in effect.

6

21. As a result of the Executive Order, Washington residents have been separated

7 from their families. One Somali refugee, who has lived in Seattle for 12 years, went to Sea-Tac

8 Airport to pick up her husband who was flying from Somalia through Vienna, but never saw

9 him before he was sent back on a flight to Vienna. Another individual who was detained is

10 related to a Sea-Tac Airport worker. A third detainee, the sister of a blind Iraqi man who lives

11 in Seattle, was prevented from seeing him after 15 years apart.

12

22. Other Washington residents will be unable to travel to Canada to visit family.

13 An Iraqi-born software engineer, who works in Facebook’s Seattle office and was in Canada

14 watching his little brother perform in a high school play, received a phone call from his

15 immigration attorney shortly before the Executive Order took effect, advising him to rush back

16 across the border.

17

23. Still other Washington residents will be prevented from being reunited with

18 family members. One Syrian family who recently resettled in Seattle is waiting for an older

19 child still in a refugee camp who was set to arrive next week, but for the Executive Order.

20

24. In addition to affecting Washington residents, families, and businesses, the

21 Executive Order harms Washington’s proprietary interests.

22

25. In 2015, travelers from the Middle East spent approximately $96 million in

23 Washington. This spending generated more than $6 million in State tax revenue and more than

24 $2 million in local tax revenue.

25

26. Washington also has a proprietary interest in securing the best possible

26 employees. Washington agencies and institutions of higher education (including the University

FIRST AMENDED COMPLAINT

5

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 6 of 19

1 of Washington and Washington State University) employ a number of people from the affected

2 countries who are here on visas and will be affected by the Executive Order. These employees

3 were hired because of their specialized skills and qualifications.

4

27. Washington expends time and funds to sponsor H-1B employees. Washington

5 wastes that time and money, and loses the value of employee labor, if employees are not able

6 to fully work and travel due to the Executive Order.

7

28. The University of Washington and Washington State University are the two

8 largest public universities in the State. More than 95 students from Iran, Iraq, Syria, Somalia,

9 Sudan, Libya, and Yemen attend the University of Washington, based in Seattle. More than

10 135 students from those countries attend Washington State University, based in Pullman.

11 Affected students also attend Washington colleges, community colleges, and technical

12 colleges.

13

29. The Executive Order prohibits these students from traveling abroad for research

14 or scholarship, and may cause some to leave the universities. Future students from these

15 countries may be prevented from enrolling. These harms damage the educational mission of

16 Washington’s institutions of higher education.

17

PLAINTIFF STATE OF MINNESOTA

18

30. Lori Swanson is the chief legal officer of the State of Minnesota. Her powers

19 and duties include filing lawsuits in federal court on behalf of the State of Minnesota.

20

31. The Executive Order has had immediate and significant effects in Minnesota.

21 According to the American Community Survey data from the U.S. Census Bureau, as of 2015,

22 over 400,000 of Minnesota’s approximately 5.4 million residents were born outside the United

23 States, including more than 30,000 from Somalia, Sudan, Iran, Iraq, Syria, and Yemen. These

24 Minnesotans now face considerable uncertainty about whether they may travel overseas or

25 whether relatives may visit or move here.

26

FIRST AMENDED COMPLAINT

6

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 7 of 19

1

32. The Executive Order is also harming Minnesota’s educational institutions. For

2 example, at the University of Minnesota, the State’s largest public research university,

3 immigrants have been a vital part of the University’s student body, faculty and staff, research,

4 scholarship, and innovation. Currently, across the five campuses, there are approximately 120

5 students and international scholars from Iran, Iraq, Syria, Somalia, Sudan, Libya, or

6 Yemen. These individuals are now restricted from traveling outside the United States for

7 research and academic collaborations or other personal reasons, since they have no reasonable

8 expectation of being able to return to continue their studies. Several of these individuals were

9 anticipating the arrival of their families for various reasons this spring, among them the

10 celebration of graduations, which may no longer be possible due to the Executive Order.

11

33. The University of Minnesota student-body, faculty, and staff also includes

12 refugees who have expressed concern about reunifying with family members. Others who

13 immigrated to the United States years ago and still maintain close ties to families and friends in

14 their home countries have also expressed concern.

15

34. Likewise, at Macalester College, a nationally ranked liberal arts college in

16 St. Paul, Minnesota, the executive order has negatively affected students from Syria and Libya,

17 as well as domestic students from Somalia, who may be unable to visit family and friends or

18 participate in study abroad programs.

19

35. Minnesota’s businesses and economy are also impacted. For example, the Mayo

20 Clinic, an internationally-known healthcare institution that treats patients who travel to it for

21 healthcare services from around the world, has publicly stated that approximately 80 staff,

22 physicians, and scholars have ties to the affected countries.

23

36. Many travel plans to and from Minnesota have been disrupted. For example, a

24 4-year-old Somali girl, who was separated from her mother and two sisters shortly after being

25 born in a refugee camp in Uganda, was scheduled to arrive on January 30, 2017. Her mother

26 had received visas for herself and her other two daughters, but she was pregnant when they

FIRST AMENDED COMPLAINT

7

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 8 of 19

1 were approved, so her newborn was not covered. She was told that her whole family would

2 have to start the visa process over if she tried to get one for her youngest daughter or she could

3 move to the United States and apply for reunification which would take less than one year.

4 Four years later, the youngest daughter finally received a visa to come to the United States.

5 The young girl was at the airport in Uganda on January 30, 2017, ready to board the plane, but

6 she was not allowed due to the Executive Order.

7

DEFENDANTS

8

37. Defendant Donald Trump is the President of the United States, and issued the

9 January 27, 2017, Executive Order on which Defendants rely for authority to detain, remove,

10 or refuse admission to non-citizen immigrants from Iran, Iraq, Syria, Somalia, Sudan, Libya,

11 and Yemen who are traveling or returning to the States via air, land, and sea ports across the

12 United States, including Sea-Tac Airport and Minneapolis-St. Paul International Airport. He is

13 sued in his official capacity.

14

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

15 agency responsible for implementing and enforcing the Immigration and Nationality Act

16 (“INA”). DHS is a Department of the Executive Branch of the U.S. Government, and is an

17 agency within the meaning of 5 U.S.C. § 552(f). The U.S. Customs and Border Protection is an

18 Operational and Support Component agency within DHS. The U.S. Customs and Border

19 Protection is responsible for detaining and/or removing non-citizen immigrants from Iran, Iraq,

20 Syria, Somalia, Sudan, Libya, and Yemen arriving at air, land, and sea ports across the United

21 States, including Sea-Tac Airport and Minneapolis-St. Paul International Airport.

22

39. Defendant John F. Kelly is the Secretary of the Department of Homeland

23 Security. He is responsible for implementing and enforcing the INA, and oversees the U.S.

24 Customs and Border Protection. He is sued in his official capacity.

25

26

FIRST AMENDED COMPLAINT

8

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 9 of 19

1

40. Defendant Tom Shannon is the Acting Secretary of State. The Secretary of State

2 has authority to determine and implement certain visa procedures for non-citizens. He is sued

3 in his official capacity.

4

41. Defendant the United States of America includes all government agencies and

5 departments responsible for the implementation of the INA and responsible for the admission,

6 detention, removal of non-citizen immigrants from Iran, Iraq, Syria, Somalia, Sudan, Libya,

7 and Yemen who are traveling to or returning to the States via air, land, and sea ports across the

8 United States, including Sea-Tac Airport and Minneapolis-St. Paul International Airport.

9

IV. ALLEGATIONS

10

42. Prior to his election, Donald Trump campaigned on the promise that he would

11 ban Muslims from entering the United States.

12

43. On December 7, 2015, candidate Trump issued a press release calling for “a

13 total and complete shutdown of Muslims entering the United States.” As of the date of this

14 filing, the press release remains available on Trump’s campaign website and is attached hereto

15 as Exhibit 1.

16

44. In defending his decision shortly thereafter, candidate Trump compared the

17 Muslim ban to former President Franklin Roosevelt’s decision to intern Japanese Americans

18 during World War II, and stated, “This is a president highly respected by all, [Roosevelt] did

19 the same thing.” A media report of this interview is attached hereto as Exhibit 2.

20

45. On June 14, 2016, candidate Trump reiterated his promise to ban all Muslims

21 entering this country until “we as a nation are in a position to properly and perfectly screen

22 those people coming into our country.” A transcript of this speech is attached hereto as Exhibit

23 3.

24

46. Asked during a July 24, 2016, interview about whether he was “backing off on

25 his Muslim ban[],” candidate Trump stated, “I actually don’t think it’s a pull-back. In fact, you

26 could say it’s an expansion.” A transcript of this interview is attached hereto as Exhibit 4.

FIRST AMENDED COMPLAINT

9

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 10 of 19

1

47. In a foreign policy speech delivered on August 15, 2016, candidate Trump

2 noted that the United States could not “adequate[ly] screen[]” immigrants because it admits

3 “about 100,000 permanent immigrants from the Middle East every year.” Trump proposed

4 creating an ideological screening test for immigration applicants, which would “screen out any

5 who have hostile attitudes towards our country or its principles – or who believe that Sharia

6 law should supplant American law.” During the speech, he referred to his proposal as

7 “extreme, extreme vetting.” A copy of the prepared remarks is attached hereto as Exhibit 5. A

8 video link to the delivered speech is available at: https://www.c-span.org/video/?413977-

9 1/donald-trump-delivers-foreign-policy-address (quoted remarks at 50:46).

10

48. On January 20, 2017, Donald Trump was inaugurated as the President of the

11 United States. In his first television interview as President, he again referred to his plan for

12 “extreme vetting.” A transcript of this interview is attached hereto as Exhibit 6.

13

49. On January 27, 2017, one week after being sworn in, President Trump signed an

14 executive order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United

15 States.” The Executive Order directs a series of changes to the manner in which non-citizens

16 may seek and obtain entry to the United States. The Executive Order is attached hereto as

17 Exhibit 7.

18

50. Section 3(c) of the Executive Order proclaims that entry of immigrants and

19 nonimmigrants from countries referred to in section 217(a)(12) of the Immigration and

20 Nationality Act, 8 U.S.C. § 1187(a)(12), i.e., Iran, Iraq, Libya, Somalia, Sudan, Syria, and

21 Yemen, “would be detrimental to the interests of the United States.” The Executive Order

22 “suspend[s] entry into the United States, as immigrants and nonimmigrants, of such persons for

23 90 days from the date of this order.”

24

51. Sections 5(a)–(b) of the Executive Order suspend the U.S. Refugee Admissions

25 Program in its entirety for 120 days and then, upon its resumption, direct the Secretary of State

26

FIRST AMENDED COMPLAINT

10

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 11 of 19

1 to prioritize refugees who claim religious-based persecution, “provided that the religion of the

2 individual is a minority religion in the individual’s country of nationality.”

3

52. Section 5(c) of the Executive Order proclaims that entry of Syrian refugees is

4 “detrimental to the interests of the United States” and suspends their entry indefinitely.

5

53. In a January 27, 2017, interview with the Christian Broadcasting Network,

6 President Trump confirmed his intent to prioritize Christians in the Middle East for admission

7 as refugees. A copy of the transcript of this interview is attached hereto as Exhibit 8.

8

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

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

10 measures to keep radical Islamic terrorists out of the United States of America.” He continued,

11 “We don’t want them here.” A media report of these statements is attached hereto as Exhibit 9.

12

55. That same day, a Deputy Assistant Secretary for Visa Services at the U.S.

13 Department of State, Edward J. Ramotowski, issued a letter which, subject to limited

14 exceptions, “provisionally revoke[d] all valid nonimmigrant and immigrant visas of nationals

15 of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.” The letter is attached hereto as

16 Exhibit 10.

17

56. Also that day, the U.S. Department of State and some U.S. embassies and

18 consulates abroad posted a notice online advising immigrant visa applicants that visa issuance

19 had been suspended and visa interviews cancelled. The online notice is attached hereto as

20 Exhibit 11. A copy of the notice posted in the U.S. embassy in Iraq is attached hereto as

21 Exhibit 12.

22

57. On January 28, 2017, a spokeswoman for DHS stated that lawful permanent

23 residents, or green card holders, would be barred from entry pursuant to the Executive Order.

24 A media report of these statements is attached hereto as Exhibit 13.

25

26

FIRST AMENDED COMPLAINT

11

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 12 of 19

1

58. On January 29, 2017, DHS reversed its decision through a statement by

2 Secretary Kelly that purported to exempt lawful permanent residents from the Executive Order.

3 The statement is attached hereto as Exhibit 14.

4

59. Two days later, however, on January 31, 2017, the U.S. Customs and Border

5 Protection, a DHS sub-agency, issued a statement entitled “Protecting the Nation from Foreign

6 Terrorist Entry into the United States.” Although it repeated Secretary Kelly’s earlier

7 statement, it also confirmed in its “Questions and Answers” section that the Executive Order

8 applies to lawful permanent residents and that their entry would depend on receipt of a

9 “national interest waiver[] consistent with the provisions of the Executive Order.” The

10 statement is attached hereto as Exhibit 15.

11

60. On January 29, 2017, President Trump issued a statement defending the

12 Executive Order, stating “[t]his is not a Muslim ban.” The statement is attached hereto as

13 Exhibit 16.

14

61. President Trump’s statement conflicts with the statement made by his

15 cybersecurity advisor the day before. In an interview with Fox News on January 28, 2017,

16 Rudolph Giuliani confirmed that the Executive Order was crafted to be a “legal” ban on

17 Muslims. Specifically, Giuliani stated that Trump asked him for a “Muslim ban” and instructed

18 Giuliani to “put a commission together” to “show [Trump] the right way to do it legally.” A

19 media report of Giuliani’s statements is attached hereto as Exhibit 17. A video of Giuliani’s

20 statements is also available at: https://youtu.be/l9GKL6i38pI.

21

V. FIRST CAUSE OF ACTION

(Fifth Amendment – Equal Protection) 22

62. The States reallege and incorporate by reference the allegations set forth in each 23

of the preceding paragraphs of this First Amended Complaint. 24

63. The Due Process Clause of the Fifth Amendment prohibits the federal 25

government from denying equal protection of the laws. 26

FIRST AMENDED COMPLAINT

12

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 13 of 19

1

64. Sections 3 and 5 of the Executive Order, together with statements made by

2 Defendants concerning their intent and application, target individuals for discriminatory

3 treatment based on their country of origin and/or religion, without lawful justification.

4

65. The Executive Order was motivated by animus and a desire to harm a particular

5 group.

6

66. The discriminatory terms and application of the Executive Order are arbitrary

7 and cannot be sufficiently justified by federal interests.

8

67. Through their actions above, Defendants have violated the equal protection

9 guarantee of the Fifth Amendment.

10

68. Defendants’ violation causes ongoing harm to the States and their residents.

11

VI. SECOND CAUSE OF ACTION

(First Amendment – Establishment Clause) 12

69. The States reallege and incorporate by reference the allegations set forth in each 13

of the preceding paragraphs of this First Amended Complaint. 14

70. The Establishment Clause of the First Amendment prohibits the federal 15

government from officially preferring one religion over another. 16

71. Sections 3 and 5 of the Executive Order, together with statements made by 17

Defendants concerning their intent and application, are intended to disfavor Islam and favor 18

Christianity. 19

72. Through their actions above, Defendants have violated the Establishment 20

Clause of the First Amendment. 21

73. Defendants’ violation causes ongoing harm to the States and their residents. 22

VII. THIRD CAUSE OF ACTION

23

(Fifth Amendment – Procedural Due Process)

24

74. The States reallege and incorporate by reference the allegations set forth in each

25 of the preceding paragraphs of this First Amended Complaint.

26

FIRST AMENDED COMPLAINT

13

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 14 of 19

1

75. The Due Process Clause of the Fifth Amendment prohibits the federal

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

3

76. Where Congress has granted statutory rights and authorized procedures

4 applicable to arriving and present non-citizens, minimum due process rights attach to those

5 statutory rights.

6

77. Sections 3 and 5 of the Executive Order conflict with the statutory rights and

7 procedures directed by Congress. In issuing and implementing the Executive Order,

8 Defendants have violated the procedural due process guarantees of the Fifth Amendment.

9

78. Defendants’ violation causes ongoing harm to the States and their residents.

10

VIII. FOURTH CAUSE OF ACTION

(Immigration and Nationality Act – Discriminatory Visa Procedures) 11

79. The States reallege and incorporate by reference the allegations set forth in each 12

of the preceding paragraphs of this First Amended Complaint. 13

80. The Immigration and Nationality Act, 8 U.S.C. § 1152(a)(1)(A), prohibits 14

discrimination in the issuance of immigrant visas on the basis of race, nationality, place of 15

birth, or place of residence. 16

81. Sections 3 and 5 of the Executive Order, together with statements made by 17

Defendants concerning their intent and application, discriminate on the basis of race, 18

nationality, place of birth, and/or place of residence in the issuance of visas, in violation of the 19

Immigration and Nationality Act. 20

82. Defendants’ violation causes ongoing harm to the States and their residents. 21

IX. FIFTH CAUSE OF ACTION

22

(Immigration and Nationality Act – Denial of Asylum and Withholding of Removal)

23

83. The States reallege and incorporate by reference the allegations set forth in each

24 of the preceding paragraphs of this First Amended Complaint.

25

26

FIRST AMENDED COMPLAINT

14

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 15 of 19

1

84. The Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), entitles

2 certain non-citizens arriving at the States’ ports of entry to apply for asylum and withholding

3 of removal.

4

85. As implemented, the Executive Order suspends all immigrant and

5 nonimmigrant entry into the States by individuals from seven countries and forecloses their

6 ability to apply for asylum and withholding of removal.

7

86. Defendants’ violation causes ongoing harm to the States and their residents.

8

X. SIXTH CAUSE OF ACTION

(Foreign Affairs Reform and Restructuring Act – Denial of Convention Against Torture

9

Relief)

10

87. The States reallege and incorporate by reference the allegations set forth in each

11 of the preceding paragraphs of this First Amended Complaint.

12

88. The Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C. § 1231

13 note, implements the United Nations Convention Against Torture, which the United States

14 ratified in 1994. Pub. L. 105-277, div. G, subdiv. B, title XXII, § 2242. Under the Convention

15 Against Torture, the United States may not involuntarily return any person to a country where

16 there are substantial grounds for believing the person would be in danger of being subjected to

17 torture.

18

89. As implemented, the Executive Order suspends all immigrant and

19 nonimmigrant entry into the States by individuals from seven countries and forecloses their

20 ability to apply for relief under the Convention Against Torture.

21

90. Defendants’ violation causes ongoing harm to the States and their residents.

22

XI. SEVENTH CAUSE OF ACTION

23

(Religious Freedom Restoration Act)

91. The States reallege and incorporate by reference the allegations set forth in each 24

of the preceding paragraphs of this First Amended Complaint. 25

26

FIRST AMENDED COMPLAINT

15

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 16 of 19

1

92. The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(a), prohibits the

2 federal government from substantially burdening the exercise of religion, even if the burden

3 results from a rule of general applicability.

4

93. Section 3 of the Executive Order, if implemented, will result in substantial

5 burdens on the exercise of religion by non-citizen immigrants by, for example, preventing

6 them from exercising their religion while in detention, returning to their religious communities

7 in the States, and/or taking upcoming, planned religious travel abroad. Such burdens on

8 religion violate the Religious Freedom Restoration Act.

9

94. Sections 3 and 5 of the Executive Order also will result in substantial burdens

10 on the exercise of religion by individuals and religious organizations in Washington that

11 provide services to refugees and immigrants as part of their religious beliefs/mission.

12

95. Defendants’ violation causes ongoing harm to the States and their residents.

13

XII. EIGHTH CAUSE OF ACTION

(Procedural Violation of the Administrative Procedure Act) 14
96. The States reallege and incorporate by reference the allegations set forth in each 15
of the preceding paragraphs of this First Amended Complaint. 16
97. The Administrative Procedure Act, 5 U.S.C. §§ 553 and 706(2)(D), requires that 17
federal agencies conduct formal rule making before engaging in action that impacts substantive 18
rights. 19
98. In implementing Sections 3 and 5 of the Executive Order, federal agencies have 20
changed the substantive criteria by which individuals from affected countries may enter the 21
United States. Federal agencies did not follow the procedures required by the Administrative 22
Procedure Act before taking action impacting these substantive rights. 23
99. Through their actions above, Defendants have violated the Administrative 24
Procedure Act. 25
100. Defendants’ violation causes ongoing harm to the States and their residents. 26

FIRST AMENDED COMPLAINT

16

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 17 of 19

1

XIII. NINTH CAUSE OF ACTION

(Substantive Violation of the Administrative Procedure Act) 2

101. The States reallege and incorporate by reference the allegations set forth in each

3

of the preceding paragraphs of this First Amended Complaint.

4

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

5

action that is arbitrary, unconstitutional, and contrary to statute.

6

103. In implementing Sections 3 and 5 of the Executive Order, federal agencies have

7

taken unconstitutional and unlawful action, as alleged herein, in violation of the Administrative

8

Procedure Act.

9

104. In implementing Sections 3 and 5 of the Executive Order, federal agencies have

10

applied provisions arbitrarily, in violation of the Administrative Procedure Act.

11

105. Defendants’ violation causes ongoing harm to the States and their residents.

12

XIV. TENTH CAUSE OF ACTION

13

(Tenth Amendment)

14

106. The States reallege and incorporate by reference the allegations set forth in each

15 of the preceding paragraphs of this First Amended Complaint.

16

107. The Tenth Amendment reserves all powers not enumerated in the Constitution

17 to the states and prohibits the federal government from commandeering state legislative

18 processes.

19

108. The Tenth Amendment prohibits the federal government from directly

20 compelling states to enact and enforce federal law.

21

109. Sections 3 and 5 of the Executive Order, together with statements made by

22 Defendants concerning their intent and application, target individuals for discriminatory

23 treatment based on their country of origin and/or religion, without lawful justification.

24

110. The States and their employers, housing providers, and businesses have long

25 been prohibited by their States’ laws from discriminating against people based on national

26 origin and religion in employment, housing, and in places of public accommodation.

FIRST AMENDED COMPLAINT

17

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 18 of 19

1

111. The Executive Order effectively mandates that the States engage in

2 discrimination based on national origin and/or religion, thereby rescinding the States’ historic

3 protection of civil rights and religious freedom.

4

112. Through their actions above, Defendants have violated the Tenth Amendment.

5

113. Defendants’ violation causes ongoing harm to the States.

6

XV. PRAYER FOR RELIEF

7

114. Wherefore, the States pray that the Court:

8

a. Declare that Sections 3(c), 5(a)–(c), and 5(e) of the Executive Order are

9

unauthorized by and contrary to the Constitution and laws of the United

10

States;

11

b. Enjoin Defendants from implementing or enforcing Sections 3(c), 5(a)–

12

(c), and 5(e) of the Executive Order, including at all United States

13

borders, ports of entry, and in the issuance of visas, pending further

14

orders from this Court;

15

c. Pursuant to Federal Rule of Civil Procedure 65(b)(2), set an expedited

16

hearing within fourteen (14) days to determine whether the Temporary

17

Restraining Order should be extended; and

18

d. Award such additional relief as the interests of justice may require.

19

20

21

22

23

24

25

26

FIRST AMENDED COMPLAINT

18

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 18 Filed 02/01/17 Page 19 of 19

I DATED this 1st day of February, 2017.
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
FIRST AMENDED COMPLAINT

y fabNi

Noah G. PBbrcell, WSI)A #f3492

Colleen M. Melody-,-WSB #42275

Civil Rights Unit Chief

Anne E. Egeler, WSBA #202 8"

Deputy Solicitor

`~

Marsha Chien, WSBA #47020

Patricio A. Marquez, WSBA #47693

Assistant Attorneys General

Office of the Attorney General

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Noahp@atg.wa.gov

LORI SWANSON Attorney General State of Minnesota

19

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206)464-7744

 
 Case 2:17-cv-00141-JLR Document 19 Filed 02/01/17 Page 1 of 2

1

2

3

4

5

THE HONORABLE JAMES L. ROBART

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

STATE OF WASHINGTON and

NO. 2:17-cv-00141-JLR

10 STATE OF MINNESOTA,

11

Plaintiffs,

12

v.

13 DONALD TRUMP, in his official capacity as President of the United States; U.S.
14 DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his
15 official capacity as Secretary of the Department of Homeland Security; TOM
16 SHANNON, in his official capacity as Acting Secretary of State; and the UNITED
17 STATES OF AMERICA,

NOTICE OF AMENDED CITATIONS

18

Defendants.

19

20

Plaintiff State of Washington hereby provides notice of amended citations in the

21 attached Amended Motion for Temporary Restraining Order. The Amended Motion for

22 Temporary Restraining Order is amended solely to add the case information and conform the

23 paragraph citations to the correct paragraphs in the First Amended Complaint for Declaratory

24 and Injunctive Relief filed February 1, 2017. No other changes have been made.

25

26

NOTICE OF AMENDED CITATIONS

1

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 19 Filed 02/01/17 Page 2 of 2

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
NOTICE OF AMENDED CITATIONS

Respectfully submitted,
s/ Noah G. Purcell___________ ROBERT W. FERGUSON WSBA #26004 Attorney General NOAH G. PURCELL WSBA #43492 Solicitor General COLLEEN M. MELODY WSBA #42275 Civil Rights Unit Chief Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 noahp@atg.wa.gov

2

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

 
 Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 2 of 15

1 Honorable James L. Robart
2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 STATE OF WASHINGTON,
11

12

13

v.

Plaintiff,

14 DONALD TRUMP, in his official capacity as
President of the United States; U.S. 15 DEPARTMENT OF HOMELAND
16 SECURITY; JOHN F. KELLY, in his official capacity as Secretary of the Department of
17 Homeland Security; TOM SHANNON, in his official capacity as Acting Secretary of State;
18 and the UNITED STATES OF AMERICA,

No. 2:17-cv-00141
BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON

19

Defendants.

20

21
I. INTRODUCTION 22

23

The United States Constitution forbids the government from discriminating on the basis

24 of national origin or religion. And yet, on January 27, 2017, President Donald J. Trump (the

25 “President”) issued an Executive Order (the “Order”) that banned from entering the United

26 States all individuals from seven Muslim-majority countries: Iraq, Iran, Libya, Somalia, Sudan,

27

BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 1 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 3 of 15

1 Syria, and Yemen—and gave preference to the processing of Christian refugees from these

2 countries over Muslim refugees. Order §§ 3(c), 5(b). The Order also suspends indefinitely the

3 entry of all Syrian refugees. Order § 5(d). The Order is driven by animus toward Muslims, as
4 confirmed by the President’s own public statements and the lack of any rational justification for
5 the categorical exclusion of individuals from the seven identified nations, where approximately
6 7 96% of the citizens practice Islam.1

8

The Order, and its implementation by DHS, profoundly, directly, and irreparably harms

9 Washington residents. The blanket ban on all individuals from the affected countries has

10 destabilized and fundamentally altered the lives of many Washington residents and their
11 families, including those seeking to visit, study, work, or secure refuge in Washington. U.S. 12
citizens and legal permanent residents are unable to maintain and secure their relationships with 13
their families out of fear they or their families will be detained or denied entry at our borders. 14
15 Washington workers and students with valid H1-B, F-1, and J-1 visas will lose their right to live,

16 work, and study here if they travel abroad. And the ban will obstruct the resettlement and

17 reunification of refugee families.

18

In light of the substantial nature of the injuries at stake, amicus curiae the American Civil

19 Liberties Union of Washington (“ACLU-WA”) respectfully urges the Court to grant the State’s
20 motion for a Temporary Restraining Order and spare Washington residents and families from
21
further irreparable harm. 22

23

24

25

26

27

1 See Central Intelligence Agency, The World Factbook, Religions, available at https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html.

BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 2 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 4 of 15

1

II. INTEREST OF AMICUS CURIAE

2

ACLU-WA is a statewide, nonpartisan, nonprofit organization of over 50,000 members,

3 dedicated to preserving civil liberties. ACLU-WA’s interests in joining as amici curiae are
4 described in its concurrently filed Motion for Leave to Participate as Amicus Curiae.
5 ACLU-WA has become a focal point to which many people harmed by the Executive
6 7 Order have turned in Washington State. ACLU-WA has set-up a special email address to allow
8 persons affected by the travel ban to communicate the impacts of the ban on their lives.2 ACLU-

9 WA has also reached out to ask Washingtonians to thank and support the State’s action in filing

10 its lawsuit to overturn the ban.3 To date, over 12,000 people have signed the thank you letter.4

11

III. ARGUMENT

12

A. The Order’s Discrimination on the Basis of Religion and National Origin

13

Irreparably Harms Washington Residents.

14

Since the President issued the Executive Order on January 27, its effects have

15 reverberated across our community. Numerous individuals have contacted ACLU-WA to report
16 or seek advice on how best to curtail harm to themselves, their families, and their loved ones
17
directly impacted by the Order. Washington residents feel uncertain about the future and 18

19 question the stability of their employment, education, and right to travel freely. It is in the public

20 interest to issue interim injunctive relief to prevent this substantial and ongoing harm to

21 Washington residents and their families. See Preminger v. Principi, 422 F.3d 815, 826 (9th Cir.

22 2005) (courts consider the public interest in determining whether to issue interim injunctive
23 relief).
24

25

26 2 See http://www.aclu-wa.org/.

27

3 See https://action.aclu.org/secure/thank_bob_ferguson. 4 Id.

BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 3 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 5 of 15

1

1. The Order Affects Large and Diverse Cross-Sections of Washington Residents and

Visitors.

2

3

The Order is far-reaching and destructive. It impacts over 21,000 Washington

4 residents, including 14,953 from King County alone.5 Specifically, the Order causes direct

5 serious injury to the following categories of people:

6

 U.S. citizens with family or loved ones abroad. The Order impedes the ability

7 of U.S. citizens to have friends and family from the seven affected countries come visit or live
8 with them in Washington. Under the ban, U.S. citizens cannot secure CR-1 or CR-2 visas to
9
have their spouses or stepchildren join them in the United States. Family or loved ones from the 10

11 seven affected countries cannot secure tourist, work, or student visas to come to Washington, nor

12 can they be sponsored for immigrant visas by their U.S. citizen relatives.

13

 Legal permanent residents with family or loved ones abroad. The ban

14 similarly obstructs the ability of legal permanent residents to have their family or loved ones visit
15 or join them in Washington.
16  Legal permanent residents who wish to travel abroad for vacation, work,
17
18 study, or to reconnect with family or loved ones. Although Defendants have—as of today—

19 officially ended application of the Order to legal permanent residents, many Washingtonians

20 were adversely affected prior to the changes, the Order has been inconsistently applied and

21 enforced as to legal permanent residents, and legal permanent residents continue to live in fear
22 that they will not be permitted to return to the country should they leave.
23  Employees of Washington companies with H-1B visas whose employment
24
25 requires international travel. The ban also restricts the ability of individuals working in

26 5 Gene Falk, “More than 21,000 Washington residents are from countries banned by Trump,” Seattle Times (Feb. 1,

27

2017), available at http://www.seattletimes.com/seattle-news/data/trumps-travel-ban-affects-more-than-21000-stateresidents/.

BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 4 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 6 of 15

1 Washington pursuant to H-1B to travel as needed for their employment. This has a profound

2 effect on Washington companies, including Amazon and Expedia, which employ a significant

3 number of skilled workers under the H-1B visa program in positions that require international

4 travel. It also denies these H-1B visa-holders the opportunity to visit their families and loved
5 ones in the seven affected countries.
6

7

 Students with F-1 visas studying at Washington schools who desire to travel

8 abroad. The ban similarly impacts the ability of F-1 visa-holders to travel abroad for study,

9 travel, or to reconnect with their families.6

10

 Individuals currently participating in J-1 visa exchange visitor programs in

11 Washington. The ban also restricts the ability of individuals currently experiencing and
12 engaging with U.S. society and culture through the J-visa exchange program to travel abroad.7
13

14

 Refugees residing in Washington who wish to reconnect with their families

15 abroad. The ban impedes the right of refugees residing in Washington to either have their

16 families join them or to travel abroad to reconnect with their families.

17

 Refugees fleeing persecution and conflict who wish to resettle in Washington.

18 As the State asserted, it is the policy of the State of Washington to provide refuge to those
19 fleeing persecution and conflict. The blanket ban on all refugees for a period of time, on
20
refugees from the seven affected countries, and on refugees from Syria indefinitely is 21

22 inconsistent with that policy. The ban also creates uncertainty and instability for refugees

23

24 6 The F-1 visa program permits individuals to enter the United States to attend private elementary school, high

25 school, seminary, conservatory, or university or college. State Dept., U.S. Visas, Student Visa, available at
https://travel.state.gov/content/visas/en/study-exchange/student.html.

26

7 For-profit, non-profit, and state and local government entities in Washington sponsor exchange visitors through that program. J-1 visa-holders contribute to our communities, including as professors, research scholars, teachers,

27

au pairs, and physicians. State Dept., J-1 Visa: Exchange Visitor Program, available at https://j1visa.state.gov/wpcontent/uploads/2016/06/FactSheet_J1Visa.pdf.

BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 5 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 7 of 15

1 currently residing in Washington who have and are eligible for or have begun the process of

2 applying for asylum.

3

2. The Order Separates and Destabilizes Washington Families.

4 The Order harms U.S. citizens and legal permanent residents who have family or loved
5 ones abroad. ACLU-WA has been contacted by many Washington residents who as a result of
6

7 the Order are now unable to see their families and loved ones. See Declaration of Emily Chiang

8 (“Chiang Decl.”); Second Declaration of Emily Chiang (“Second Chiang Decl.”). The people

9 reaching out to ACLU-WA reflect the serious harm the Order has had on real people in

10 Washington State and will continue to have until and unless it is enjoined.

11

For example, one citizen residing in Washington contacted ACLU-WA to express that

12 the ban was obstructing her ability to reunite with her husband and her stepdaughter, who after
13 two years of vetting had finally obtained CR-1 and CR-2 visas to join her in Washington.8
14

15 Second Chiang Decl. ¶ 5. Her husband and stepdaughter are from Iran. Id. She fears that the

16 ban will force her to leave the United States to start a life with her family elsewhere. Id. She is

17 torn between her husband and stepdaughter, who are banned from entering the United States, and

18 her ailing mother, who is in Washington and unable to travel. Id.
19 Another individual feared for his mother, who was returning on January 30, 2017 from a
20 trip abroad to see his grandfather in light of a recent cancer diagnosis. Chiang Decl. ¶ 11. His
21 mother is a Syrian national and has lived in Washington since 2011. Id. She changed her return
22
23 flight from Seattle to Vancouver, British Columbia for fear of being denied reentry due to the

24 ban. Id. Due to his mother’s age, the individual saw no option but to join his mother in

25 8 A CR-1 visa provides conditional permanent resident status to foreign citizens who have been married to a U.S.

26

citizen for less than two years. Dept. of State, U.S. Visas, Directory of Visa Categories, available at https://travel.state.gov/content/visas/en/immigrate/family/immediate-relative.html. A CR-2 visa provides

27 conditional permanent resident status to the foreign national children or stepchildren of a U.S. citizen. Id.

BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 6 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 8 of 15

1 Vancouver if she is not soon permitted to re-enter the United States. Id. This would require him

2 to leave his family in Washington behind and would jeopardize his employment, which will not
3 accommodate long-term telecommuting. Id. 4
By way of further example, ACLU-WA was contacted by a U.S. citizen and her husband, 5
a Syrian citizen who holds a CR-1 visa. Second Chiang Decl. ¶ 6. The couple is currently in 6 7 Germany after finishing graduate education programs in Europe. Id. They had planned to return
8 to the United States on February 4, 2017, but now fear that they will be denied entry to the

9 United States and will be unable to reunite with their family, all of whom live in Washington.

10 Id. They are uncertain where they will work or live because their work contracts have ended and
11 they moved out of their residence in anticipation of their return to the United States. Id. 12
Another individual called seeking legal help for his brother, who had a flight from 13
Vancouver International Airport arriving at Seattle-Tacoma International Airport on January 28, 14
15 2017. Second Chiang Decl. ¶ 7. His brother holds an Iranian passport but is a Canadian

16 permanent resident and had obtained a work visa to join his family in the United States. Id.

17

On January 28, a Yemeni citizen, a pharmacist, born in Saudi Arabia, who was coming to

18 visit his wife and three children in the United States was nearly deported upon his arrival. Only
19 through the legal intervention of this Court was the pharmacist able to be released to the waiting
20 arms of his wife and children.9
21 The risks imposed by the ban are heightened for legal permanent residents, who are
22
23 unable to visit family or loved ones because they rightfully fear that they will be denied entry if

24 they travel abroad and then attempt to re-enter the United States. One individual contacted

25

26 9 Nina Shapiro, “‘I actually wept:’ Lawyers’ frantic efforts stop a plane, allow 2 men to enter U.S. at Sea-Tac,”

27

Seattle Times (Jan. 31, 2017), available at http://www.seattletimes.com/seattle-news/frantic-effort-at-sea-tac-tostop-flight-allow-2-men-to-enter-us/.

BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 7 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 9 of 15

1 ACLU-WA regarding her ailing mother, who is a legal permanent resident but has been

2 undergoing cancer treatment in Iraq, where it is less expensive. Second Chiang Decl. ¶ 8. Her
3 mother’s health has improved and she had hoped that her mother could rejoin her in the United 4
States. Id. She had planned to travel abroad in two weeks to visit her mother and bring her 5
home to the United States, but due to the ban she is fearful that they will be denied re-entry 6 7 because they were both born in Iraq. Id. Her fear is compounded by her concern for her young
8 daughter, who planned to stay behind in Washington and would be entirely alone if her mother

9 and grandmother were unable to return. Id.

10

A legal permanent resident from Iran contacted ACLU-WA with similar concerns.

11 Chiang Decl. ¶ 13. She was expecting a visit in three weeks from her mother, who had obtained
12 the necessary visa. Id. Her mother is now unable to visit due to the ban. Id. She was also
13
planning to visit her elderly grandmother in Iran this summer, but she is now afraid to leave the 14

15 country out of fear that, even though she is a lawful permanent resident, she might not be

16 allowed reentry. Id.

17

Refugees who have obtained refuge in Washington also fear that the ban will impede

18 their ability to have their families rejoin them. A Syrian refugee family reached out to ACLU-
19 WA to seek help for their son, daughter, and son-in-law who had obtained the necessary
20 approval to rejoin their family in Washington on January 30, 2017. Second Chiang Decl. ¶ 9.
21 They were turned away at the airport in Turkey due to the Order. Id. They had already given up
22
23 their housing and employment in anticipation of their move to the United States. Id. They are

24 from Aleppo, Syria and are afraid to return due to the conflict there, especially because the

25 daughter is pregnant. Id. 26

27
BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 8 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 10 of 15

1

Another Syrian refugee was also concerned that she would be unable to reunite with her

2 family. Chiang Decl. ¶ 10. Some of her family members live in Washington but her mother,
3 father, and three siblings are currently in Jordan. Id. They have recently filed a reunification 4
petition to come to the United States. Id. She had planned to visit them in Jordan in the interim, 5
but is now afraid to leave the United States out of fear that she will not be allowed to return and 6 7 would therefore be separated from her family members already in Washington State. Id. The 8 Order is separating other Syrian refugee families as well.10 Another Iraqi refugee contacted

9 ACLU-WA who had planned to travel abroad in March to visit her fiancée, who she has not seen

10 since she resettled in Washington two years ago. Chiang Decl. ¶ 12. She is now very concerned
11 that she will be denied re-entry to the United States if she leaves. Id. 12
For each of these heartbreaking stories, there are no doubt countless other families in 13
Washington being torn apart by the Order. While purporting to advance national security, the 14
15 ban in fact advances only invidious discrimination and the irreparable disruption of

16 Washingtonians’ lives. The State’s Motion for a temporary restraining order should be granted.

17

3. The Order Harms Washington’s Students and Universities.

18

As detailed in the Declarations of Asif Chaudhry and Jeffrey Reidinger, there are at least

19 232 students from the seven identified countries who are studying at the State’s premier public
20 universities under valid student visas. Although these students have been accepted by
21
Washington’s universities, pay their tuition, and possess lawful student visas, their rights to 22

23 travel freely have been arbitrarily rescinded by the Order. These students now face the untenable

24 choice of foregoing their rights to see their families for years, or risking that they may not be

25

26 10 Vernal Coleman, “Syrian refugee couple’s fear came true: President Trump’s ban blocks their children,” Seattle

27

Times (Jan. 31, 2017), available at http://www.seattletimes.com/seattle-news/politics/syrian-refugee-couples-fearcame-true-president-trumps-ban-blocks-their-children/.

BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 9 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 11 of 15

1 able to continue their studies if they travel and are not allowed to re-enter. Their research and

2 study opportunities will be limited as they are unable to leave the country without fear of being

3 banned from returning, despite their possession of valid visas. The uncertainty and fear of these

4 Washington students is substantial and irreparable, and supports entry of a temporary restraining
5 order.
6

7

B. There is No Evidence That the Order Will Reduce or Prevent Terrorism.

8

Though the Order invokes the September 11, 2001 attacks as a justification for the ban,

9 no one from the seven identified countries was involved in those attacks. See Order § 1.11

10 Indeed, no individual from the affected countries has been implicated in any terror attack on the
11 United States since.12 Moreover, the Order does not exclude individuals from the countries 12
whose citizens are known to have perpetrated the September 11 attacks, countries considered a 13
higher threat to national security by the State Department, or countries where individuals who 14
15 have in fact carried out terrorism in the United States are from. Of the ten countries with the

16 most terrorist attacks in 2015, eight—Afghanistan, Pakistan, India, Nigeria, Egypt, the

17 Philippines, and Bangladesh—are not affected by the Order.13 Three of the countries with the

18 “most active” branches of the Islamic State of Iraq and the Levant (“ISIL”)—Afghanistan,
19 Pakistan, and Egypt—are also unaffected by the Order.14 20
“Preventing terrorism” is but a pretext for the Order’s true purpose of excluding Muslims 21
from the United States. In the face of these facts, there is no countervailing public interest in 22

23

24 11 Charlez Kurzman, “Muslim-American Involvement with Violent Extremism, 2016,” Dept. of Sociology, Univ. of
North Carolina, Chapel Hill (Jan. 26, 2017), available at

25 https://sites.duke.edu/tcths/files/2017/01/Kurzman_Muslim-
American_Involvement_in_Violent_Extremism_2016.pdf.

26

12 Id. 13 National Consortium for the Study of Terrorism and Responses to Terrorism, Country Reports on Terrorism 2015,

27

at *5 (June 2016), available at https://www.state.gov/documents/organization/257738.pdf. 14 Id. at *3.

BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 10 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 12 of 15

1 “national security” advanced by the Order that would counsel against an injunction. To the

2 contrary, the only evidence before the Court is of the substantial public interest in restoring the
3 constitutional rights of Washingtonians and enjoining the Order. 4
IV. CONCLUSION 5
The Constitution’s guarantee of equality “must at the very least mean that a bare 6 7 [government] desire to harm a politically unpopular group cannot” justify disparate treatment of
8 that group. United States v. Windsor, 133 S. Ct. 2675, 2693, 186 L. Ed. 2d 808 (2013) (quoting

9 Department of Agriculture v. Moreno, 413 U.S. 528, 534–535, 93 S.Ct. 2821, 37 L.Ed.2d 782

10 (1973)). Here, the Executive Order violates the Constitution’s guarantee of equality and

11 significantly harms a politically unpopular group: Muslims from the seven identified countries.
12 That harm is felt by hundreds if not thousands of individuals in Washington. And that harm is
13
profound and irreparable. 14

15

Accordingly, ACLU-WA respectfully requests that the Court enter a temporary

16 restraining order enjoining the enforcement of the Order to protect from irreparable harm

17 Washington residents, companies, and individuals seeking to visit, study, work, or secure refuge

18 in Washington.
19 DATED this 2nd day of February, 2017.
20

21

22

23

24

25

26

27
BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 11 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 13 of 15

1

Respectfully submitted,

2

3

By /s Paul J. Lawrence Paul J. Lawrence, WSBA No. 13557

4

Kymberly K. Evanson, WSBA No. 39973

Alanna E. Peterson, WSBA No. 46502

5

PACIFICA LAW GROUP LLP

1191 Second Avenue, Suite 2000

6

Seattle, Washington 98101

7

(206) 245-1700 paul.lawrence@pacificalawgroup.com

8

kymberly.evanson@pacificalawgroup.com

alanna.peterson@pacificalawgroup.com

9

10

Cooperating Attorneys for Amicus Curiae the

11

American Civil Liberties Union of Washington

12 By /s Emily Chiang

13

Emily Chiang, WSBA No. 50517

ACLU OF WASHINGTON FOUNDATION

14

901 Fifth Avenue, Suite 630

15

Seattle, Washington 98164

(206) 624-2184

16

echiang@aclu-wa.org

17

Counsel for Amicus Curiae the American Civil

18

Liberties Union of Washington

19

20

21

22

23

24

25

26

27
BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 12 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 14 of 15

1

CERTIFICATE OF SERVICE

2 I hereby certify that on this 2nd day of February, 2017, I electronically filed the foregoing

3 document with the United States District Court ECF system, which will send notification of such

4 filing to the following:

5

6

Robert W. Ferguson Marsha J. Chien

7

Anne E. Egeler

Patricio A. Marquez

8

Colleen M. Melody

 via facsimile  via overnight courier  via first-class U.S. mail  via email service agreement  via electronic court filing  via hand delivery

Noah Guzzo Purcell

9

WASHINGTON STATE OFFICE OF THE ATTORNEY

10

GENERAL 1125 Washington Street SE

11

PO Box 40100

Olympia, WA 98504-0100

12

Phone: 360.753.7085 - DD

Email: bobf@atg.wa.gov

13

Email: marshac@atg.wa.gov

14

Email: AnneE1@atg.wa.gov Email: PatricioM@atg.wa.gov

15

Email: colleenm1@atg.wa.gov

Email: noahp@atg.wa.gov

16

Attorneys for Plaintiff

17

Arjun Garg



18

Michelle R. Bennett

US Department of Justice

 via facsimile  via overnight courier

19

Civil Division, Federal Programs Branch

 via first-class U.S. mail

20 Massachusetts Ave. NW

 via email service agreement

20

Washington, DC 20530

 via electronic court filing

Phone: 202-305-8613

21

Email: Arjun.garg@usdoj.gov

 via hand delivery

22

Email: michelle.bennett@usdoj.gov

23

Attorneys for Defendants Donald J. Trump,

U.S. Department of Homeland Security, John F.

24

Kelly, Tom Shannon, and United States of

25

America

26

27
BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 13 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

Case 2:17-cv-00141-JLR Document 26-1 Filed 02/02/17 Page 15 of 15

1

Angelo J. Calfo

Kristin W. Silverman

2

Calfo Eakes & Ostrovsky, PLLC

3

1301 Second Avenue, Suite 2800 Seattle, WA 98101-3808

4

Phone: 206-407-2200

Email: angelic@calfoeakes.com

5

Email: kristins@calfoeakes.com

  via facsimile  via overnight courier  via first-class U.S. mail  via email service agreement  via electronic court filing  via hand delivery

6

Attorneys for Amicus Americans United for

7

Church and State

8

Signed at Seattle, Washington this 2nd day of February, 2017.

9

10

11

_____________________________ Katie Dillon

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27
BRIEF OF AMICUS CURIAE THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON - 14 (Cause No. 2:17-cv-00141)

PACIFICA LAW GROUP LLP
1191 SECOND AVENUE SUITE 2000
SEATTLE, WASHINGTON 98101-3404 TELEPHONE: (206) 245.1700 FACSIMILE: (206) 245.1750

 
 Case 2:17-cv-00141-JLR Document 42-2 Filed 02/02/17 Page 2 of 11

1

THE HONORABLE JAMES L. ROBART

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 STATE OF WASHINGTON,
10 Plaintiff,
11 v.
12 DONALD TRUMP, in his official capacity as
13 President of the United States; U.S. DEPARTMENT OF HOMELAND
14 SECURITY; JOHN F. KELLY, in his official capacity as Secretary of the Department of
15 Homeland Security; TOM SHANNON, in his official capacity as Acting Secretary of State;
16 and the UNITED STATES OF AMERICA,

No. 2:17-cv-00141-JLR
BRIEF OF THE SERVICE EMPLOYEES INTERNATIONAL UNION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF STATE OF WASHINGTON

17

Defendants.

18

19

20

21

22

23

24

25

26

27

28

007000-18 934330 V1

1918 EIGHTH AVENUE, SUITE 3300 SEATTLE, WASHINGTON 98101

Case 2:17-cv-00141-JLR Document 42-2 Filed 02/02/17 Page 3 of 11

1

The Service Employees International Union (“SEIU”) respectfully submits this amicus

2 curiae brief in support of Plaintiff State of Washington’s Motion for a Temporary Restraining 3 Order (“Motion”)1 seeking to enjoin portions of President Donald J. Trump’s January 27, 2017

4 Executive Order banning entry into the United States of individuals based on national origin

5 (“Executive Order”).

6

I. INTRODUCTION

7

The profoundly adverse and discriminatory effects of the Executive Order are already

8 wreaking havoc on the State of Washington and its residents—including SEIU members.

9 Because the Executive Order bans individuals from seven predominately Muslim countries from

10 entering the United States, and is plainly driven by animus against Muslims, the Executive Order

11 violates the Constitution’s ban on discrimination based on national origin and religion. The

12 Executive Order cannot satisfy even the deferential rational basis test, as it does nothing to

13 further its purported goal of protecting the U.S. from terrorist attacks. Heavily-vetted children

14 fleeing war-torn countries pose no more threat of terrorism to this country than did Jewish people

15 fleeing Czarist Russia. The Executive Order also violates the Due Process Clause of the

16 Constitution by denying lawful permanent residents and visa-holders the ability to enter

17 Washington without notice and the opportunity to be heard, and others of the statutory right to

18 seek asylum. Finally, the Executive Order violates the Immigration and Nationality Act’s

19 prohibition on discrimination in the issuance of visas based on nationality, place of birth, or 20 place of residence.2 Consistent with our nation’s laws, the Executive Order cannot stand.

21

The SEIU respectfully urges that the Court grant the State of Washington’s Motion in

22 order to prevent the ongoing harm to the State, its businesses, and its citizenry. The SEIU writes

23 to further document the immediate and irreparable harm to its Washington State members and

24 their families and communities. As the illustrative examples demonstrate, the Executive Order

25 (if allowed to stand) will impose immediate and irreparable harm to hard-working Washington

26 residents who have played by the rules and pose no threat to the safety of this country’s citizens.

27
1 ECF No. 3.

28

2 8 U.S.C. § 1152(a)(1)(A).

BRIEF OF SEIU AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF STATE OF WASHINGTON - 1 Case No. 2:17-cv-00141-JLR
007000-18 934330 V1

1918 EIGHTH AVENUE, SUITE 3300 SEATTLE, WASHINGTON 98101

Case 2:17-cv-00141-JLR Document 42-2 Filed 02/02/17 Page 4 of 11

1

II. STATEMENT OF INTEREST OF AMICUS CURIAE

2

The Service Employees International Union (“SEIU”) is an international labor

3 organization representing approximately two million working men and women in the United

4 States and Canada employed in the private and public sectors. Many of the SEIU’s members are

5 foreign-born U.S. citizens, lawful permanent residents, or immigrants authorized to work in the

6 United States. Many of SEIU’s members have mixed-status families. SEIU has members who

7 are directly affected by the Executive Order barring entry into the United States based on

8 national origin.

9

III. ARGUMENT

10

The impact of the Executive Order on the SEIU and its members is profound and

11 highlights the State’s pressing interest in protecting its citizens and preserving its tax base.3 The

12 SEIU has over 118,000 members in Washington State in five local chapters, including the Public

13 School Employees of Washington (representing over 28,600 public school employees); SEIU

14 Healthcare 1199NW (over 29,000 nurses and healthcare workers across the state); SEIU Local

15 775 (over 40,000 long-term care workers providing in-home and nursing home care in

16 Washington and Montana); SEIU Local 6 (over 4,000 janitors, security officers, stadium and

17 airport workers); and SEIU Local 925 (17,000 education, governmental, and non-profit workers).

18

A large percentage of these workers are immigrants. For example, more than 40% of

19 SEIU Local 6’s members are immigrants. The Executive Order will accordingly have an

20 enormous impact on them. As the SEIU chapter states on its website: “Among the members of

21 SEIU Healthcare 1199NW are countless immigrants and refugees, green card holders and legal

22 permanent residents, who care for our community’s patients and mental health clients every

23 day. [President] Trump’s order means these caregivers face travel bans, could be unable to 24 reunite with families, and will face more hate and discrimination in our community.”4

25

SEIU members work in industries that touch Washington residents’ daily lives. They

26 help educate the State’s children, care for the State’s elderly and infirm, keep the schools and

27

3 See Plaintiff State of Washington’s Supplemental Brief Regarding Standing (ECF No. 17) (“Supp. Brief”) at

2-3.

28

4 See http://www.seiu1199nw.org/2017/01/29/standing-up-for-immigrants-and-refugees.

BRIEF OF SEIU AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF STATE OF WASHINGTON - 2 Case No. 2:17-cv-00141-JLR
007000-18 934330 V1

1918 EIGHTH AVENUE, SUITE 3300 SEATTLE, WASHINGTON 98101

Case 2:17-cv-00141-JLR Document 42-2 Filed 02/02/17 Page 5 of 11

1 buildings clean and secure, and—ironically enough—facilitate air travel in and out of the State.

2 The impact on the State from losing these workers is self-evident, and the Executive Order

3 makes the State less secure and less prosperous as long as it stays in effect—and the State is

4 obliged to protect the safety and prosperity of its residents. The risk and danger to SEIU

5 members posed by the Executive Order, and the corresponding negative impacts on the State, are

6 concrete and immediate. Many of SEIU’s members have recounted their stories to SEIU staff.

7 These individuals are fearful and do not want to reveal their identity. Therefore, the illustrative

8 stories recounted here are verified through the Declaration of Trisha Pande, submitted herewith:

9

1. Sara

10

Sara is a 33-year-old registered nurse and member of SEIU 1199NW. She lives

11

in Seattle with her four children. She came to the U.S. from Somalia when she was 12

12

years old. Both Sara and her parents are U.S. citizens; however, almost all of her

13

extended family lives in Somalia.

14

Sara is adversely impacted by the Executive Order because her legitimate fear

15

prevents her from travelling back to Somalia to visit her family. She has spent most of

16

her life in the U.S. and considers this her home and her country. Sara is now afraid that

17

if she leaves the U.S. she will not be able to get back in. Sara is also worried that her

18

relatives will never be able to come to the U.S. and visit her and her children.

19

Sara’s father is currently in Somalia visiting her grandmother. Her father is a

20

diabetic and while he was in Somalia developed a bad foot infection. His treatment in

21

Somalia did not go very well and he needs to return to the U.S. for medical treatment.

22

Sara fears that her father, even though a U.S. citizen, will get detained trying to re-enter

23

the U.S. He is a senior citizen and in need of immediate medical attention and will face

24

serious health risks if he is detained.

25

2. Dasin

26

Dasin was born in Iraq and lived there until 2012. He is Muslim. His father and

27

uncle both worked for the U.S. Army in Iraq for about four years. Dasin helped his

28

father and uncle while they were working for the U.S. Army. When the U.S. Army left

BRIEF OF SEIU AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF STATE OF WASHINGTON - 3 Case No. 2:17-cv-00141-JLR
007000-18 934330 V1

1918 EIGHTH AVENUE, SUITE 3300 SEATTLE, WASHINGTON 98101

Case 2:17-cv-00141-JLR Document 42-2 Filed 02/02/17 Page 6 of 11

1

Iraq it was very dangerous for Dasin and his family. ISIS planted a bomb in front of

2

Dasin’s home. The bomb exploded, injuring Dasin in the face and neck. After he

3

recovered, Dasin and his family went to Turkey as refugees. Dasin had trouble finding

4

work in Turkey because he was a refugee and faced discrimination.

5

Dasin came to the U.S. in 2013 and now lives in Seattle, Washington with his four

6

siblings and his parents. He went to high school and graduated in 2015. He now works

7

part-time as a dispatcher for a large company and part-time as a drive. Dasin is

8

impacted by the Executive Order because he has many family members in Iraq that he

9

can no longer see. Dasin’s family hoped to bring over Dasin’s grandfather,

10

grandmother, and uncle. Dasin fears that if his relatives do not make it to the U.S. they

11

will be killed in Iraq. Dasin also has two close friends, also Iraqi refugees, that he met

12

while living in Turkey. They waited several years before scheduling flights to come to the

13

U.S. this month. However, they had to cancel their flights after the Executive Order.

14

3. Nadia

15

Nadia is 21 years old, and Muslim. She was born in the United States and is a

16

U.S. citizen. Her parents are both U.S. citizens and originally from Somalia. Her mother

17

is a childcare worker and member of the SEIU 925. Nadia is currently studying to

18

become a social worker and working part-time as a caregiver for her grandmother. She

19

lives at home with her two parents and three siblings in Auburn, Washington. Her father

20

is currently in Somalia visiting her extensive family there. She has never visited her

21

family in Somalia because it is too expensive.

22

Nadia is adversely impacted by the Executive Order because she hopes to be

23

married in the U.S. to a Yemeni citizen currently residing in Saudi Arabia. Nadia was

24

introduced to her fiancé through her parents. Nadia’s parents met her fiancé while on

25

pilgrimage in Saudi Arabia. They thought he would be a good match for Nadia and put

26

them in touch. Nadia and her fiancé spoke by phone and video chat for several months

27

before she decided to visit him in Saudi Arabia. Nadia spent more than a month with her

28

fiancé. During the time that she spent in Saudi Arabia with her fiancé, she became

BRIEF OF SEIU AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF STATE OF WASHINGTON - 4 Case No. 2:17-cv-00141-JLR
007000-18 934330 V1

1918 EIGHTH AVENUE, SUITE 3300 SEATTLE, WASHINGTON 98101

Case 2:17-cv-00141-JLR Document 42-2 Filed 02/02/17 Page 7 of 11

1

increasingly drawn to his kindness, thoughtfulness, and great personality, and eventually

2

the couple decided to get married. When Nadia returned to the U.S. in March of 2016,

3

she filed an immigration application for her fiancé, a K-1 “fiancé” visa. She submitted

4

all the paperwork and her fiancé’s application was approved pending a final interview at

5

the U.S. Embassy abroad.

6

Nadia is scared for both herself and her fiancé. She is “scared that [the Executive

7

Order] is something that can happen” in this country. Nadia said she is worried she will

8

have to move to Saudi Arabia to be with her fiancé, and leave her home in the U.S.

9

because it is too “hard to live our lives separately.” Nadia has been unable to see her

10

fiancé, whom she misses dearly, since she was last in Saudi Arabia because the expense

11

of flying to Saudi Arabia. Nadia and her fiancé stay in touch mostly through phone and

12

video chat. Nadia’s fiancé told her he is really scared he will not be able to see her

13

again. He is upset that he is unable to move to the U.S. and start a life with Nadia. Nadia

14

says they both try to stay calm by waiting, praying, and hoping things will work out in the

15

end.

16

4. John

17

John (a pseudonym) lives in a suburb of Seattle with his wife and three children.

18

John came to the United States from Iran in 1978 as a student and was recognized as a

19

religious refugee in 1982. He became a U.S. citizen in 1990.

20

John is adversely impacted by the Executive Order because it affects both his

21

family and his business. John has several relatives living in Iran currently facing

22

religious persecution because they are of the Baha’i faith. John’s parents fled Iran in

23

1982 after three of John’s uncles were killed by an Iranian firing squad. John is now

24

worried that his relatives cannot come to the United States or visit him and his family

25

because of the immigration ban. John also has relatives who are Iranian citizens but

26

reside all over the world. He is also worried that they cannot visit him in the United

27

States.

28
BRIEF OF SEIU AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF STATE OF WASHINGTON - 5 Case No. 2:17-cv-00141-JLR
007000-18 934330 V1

1918 EIGHTH AVENUE, SUITE 3300 SEATTLE, WASHINGTON 98101

Case 2:17-cv-00141-JLR Document 42-2 Filed 02/02/17 Page 8 of 11

1

The Executive Order is also harming John’s business. John and his wife run a

2

small health clinic in Seattle. It is a comprehensive integrative clinic which mixes

3

Western and Eastern medicine. John’s clinic treats about 20 patients from Canada who

4

are Iranian citizens. John sees patients from Canada every Friday at his clinic, and he

5

estimates that those patients comprise about 20 percent of his business. Those patients

6

can no longer come to the clinic from Canada because of the Executive Order. John

7

believes that President Trump put the ban in place “hastily.” As John stated, “everybody

8

has a different story for why they need to come to the U.S . . . it is too simplistic to say

9

that just because you were born in a certain country that you are a terrorist.”

10

5. Halima

11

Halima, a Muslim woman, lives in Seattle, Washington with her husband and

12

children. She came to the United States from Somalia in 2001 as a legal resident, and

13

became a U.S. citizen in 2008. Halima is a caregiver for disabled and elderly patients

14

and has been a member of SEIU Local 775 since 2008. Although Halima and two of her

15

children are U.S. citizens, her husband and her other four children are legal residents

16

(green card holders). Her six children range in age from 17 to 24. One child is in

17

school; two of them attend community college; the other three children are working.

18

The Executive Order has made Halima very worried. She worries about her

19

children every minute that they are away from home. She worries that they may be

20

attacked because of the hateful environment that this Executive Order has created.

21

Halima’s four daughters all wear a hajib, and she is afraid that people will attack them

22

because of the anti-Muslim feelings the Executive Order has fueled.

23

The husband of one of Halima’s friends flew into the Seattle airport on January

24

27, 2017 with an approved visa, but was returned back to Somalia. Her friend, U.S.

25

citizen, was waiting for her husband and couldn’t even see him before he was turned

26

around and sent back to Somalia—even though he was here legally. This incident has

27

terrorized Halima’s entire family. As Halima said, “[i]f they can treat people with green

28
BRIEF OF SEIU AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF STATE OF WASHINGTON - 6 Case No. 2:17-cv-00141-JLR
007000-18 934330 V1

1918 EIGHTH AVENUE, SUITE 3300 SEATTLE, WASHINGTON 98101

Case 2:17-cv-00141-JLR Document 42-2 Filed 02/02/17 Page 9 of 11

1

cards and visas the way they treated these people, who knows if they will come after

2

naturalized citizens next? No one is safe.”

3

The accounts of these SEIU members demonstrate that the Executive Order has an

4 immediate and concrete impact on the well-being of Washington State citizens and is a matter of 5 State concern.5 The Executive Order is separating families for no justifiable reason, causing

6 many of Washington’s citizens—including SEIU members—harm and distress when they face

7 the genuine risk that they will be permanently separated from their loved ones. The State has a

8 singular interest in protecting its citizens from precisely this type of irreparable harm from any

9 source, including the federal government.

10

IV. CONCLUSION

11

Woven throughout the accounts set forth above is a deep and genuine connection to this

12 country, and Washington State—a connection based on the opportunities and freedom that our

13 country affords. Recent events have understandably shaken the faith of the aforementioned

14 individuals, their families and their communities in the current Administration. It now falls to

15 the judiciary to ensure that their faith in America was not misplaced, and that this country’s

16 adherence to fairness, due process, and equal treatment under the law shall endure.

17 DATED this 2nd day of February, 2017. Respectfully submitted,

18

HAGENS BERMAN SOBOL SHAPIRO LLP

19

20

By /s/ Steve W. Berman Steve W. Berman, WSBA #12536

21

By /s/ Andrew M. Volk

Andrew Volk, WSBA #27639

22

HAGENS BERMAN SOBOL

SHAPIRO LLP

23

1918 Eighth Avenue, Suite 3300

24

Seattle, WA 98101 Tel: (206) 623-7292

25

Fax: (206) 623-0594

steve@hbsslaw.com

26

andrew@hbsslaw.com

27
5 See Supp. Brief, at 5 (“practices of discrimination against any of its inhabitants because of race, color, creed,
28 [or] national origin . . . are a matter of state concern”) (quoting Wash. Rev. Code 49.60.010).

BRIEF OF SEIU AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF STATE OF WASHINGTON - 7 Case No. 2:17-cv-00141-JLR
007000-18 934330 V1

1918 EIGHTH AVENUE, SUITE 3300 SEATTLE, WASHINGTON 98101

Case 2:17-cv-00141-JLR Document 42-2 Filed 02/02/17 Page 10 of 11

1

Nicole G. Berner, General Counsel

Debbie Smith, Associate General Counsel

2

Trisha Pande, Law Fellow

3

SERVICE EMPLOYEES INTERNATIONAL UNION 1800 Massachusetts Avenue, NW

4

Washington, DC 20036

5

Counsel for Amicus Curiae Service Employees

International Union 6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
BRIEF OF SEIU AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF STATE OF WASHINGTON - 8 Case No. 2:17-cv-00141-JLR
007000-18 934330 V1

1918 EIGHTH AVENUE, SUITE 3300 SEATTLE, WASHINGTON 98101

Case 2:17-cv-00141-JLR Document 42-2 Filed 02/02/17 Page 11 of 11

1

CERTIFICATE OF SERVICE

2

I hereby certify that on February 2, 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 the

4 following:

5

Michelle R. Bennett, michelle.bennett@usdoj.gov

6

Angelo J. Calfo, angeloc@calfoeakes.com

7

Marsha J. Chien, marshac@atg.wa.gov

8

Ann Elizabeth Egeler, annee1@atg.wa.gov

9

Kymberly K. Evanson, kymberly.evanson@pacificalawgroup.com

10

Robert W. Ferguson, judyg@atg.wa.gov

11

Arjun Garg, Arjun.garg@usdoj.gov

12

Bradley Girard, girard@au.org

13

Richard B. Katskee, katskee@au.org

14

Paul J. Lawrence, paul.lawrence@pacificalawgroup.com

15

Noah Guzzo Purcell, noahp@atg.wa.gov

16

Patricio A. Marquez, PatricioM@atg.wa.gov

17

Colleen M. Melody, colleenm2@atg.wa.gov

18

Kristin W. Silverman, kristins@calfoeakes.com

19

20 DATED: February 2, 2017 21

/s/ Steve W. Berman Steve W. Berman, WSBA #12536

22

23

24

25

26

27

28
BRIEF OF SEIU AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF STATE OF WASHINGTON - 9 Case No. 2:17-cv-00141-JLR
007000-18 934330 V1

1918 EIGHTH AVENUE, SUITE 3300 SEATTLE, WASHINGTON 98101

 
 Case 2:17-cv-00141-JLR Document 45-1 Filed 02/02/17 Page 2 of 12

1

THE HONORABLE JAMES L. ROBART

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

8

STATE OF WASHINGTON,

)

9

)

Plaintiff, )

10

)

v.

)

11

) Case No. 2:17-cv-00141-JLR

DONALD TRUMP, in his official capacity )

12 as President of the United States; U.S.

) PROPOSED BRIEF OF AMICUS

DEPARTMENT OF HOMELAND

) CURIAE LAW PROFESSORS ON

13 SECURITY; JOHN F. KELLY, in his official ) THE SUBJECT OF STATE

capacity as Secretary of the Department of ) STANDING

14 Homeland Security; TOM SHANNON, in his )

official capacity as Acting Secretary of State; )

15 and the UNITED STATES OF AMERICA, )

)

16

Defendants. )

)

17

18

19

20

21

22

23

24

25

26

27
28 PROPOSED BRIEF OF AMICUS CURIAE LAW PROFESSORS
ON THE SUBJECT OF STATE STANDING Case No. 2:17-cv-00141-JLR

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00141-JLR Document 45-1 Filed 02/02/17 Page 3 of 12

1

I. INTERESTS OF AMICUS CURIAE

2

The non-party law professors are Todd Aagaard of Villanova University, Robin Kundis

3 Craig of the University of Utah, Lincoln L. Davies of the University of Utah, Noah Hall of
4 Wayne State University, F. Andrew Hessick of the University of North Carolina, Zygmunt J. B.
5
Plater of Boston College, Alexander T. Skibine of the University of Utah, Lisa Grow Sun of 6

7 Brigham Young University, Joseph P. Tomain of University of Cincinnati, and Amy J.

8 Wildermuth of the University of Utah (“the Law Professors”). The Law Professors research,

9 teach, and write on federal courts, constitutional law, and administrative law. They are scholars

10 who have spent considerable time studying the question of state standing. As such, the Law
11 Professors have a strong interest in ensuring that the Court’s decision on standing is consistent
12 with this complicated, evolving body of law.
13 II. ARGUMENT1
14 A. State Standing Basics
15 Under Article III of the U.S. Constitution, a federal court must examine whether a
16 plaintiff has standing to bring a case before turning to the merits. In this case, the State of
17 Washington has brought suit against a number of federal officials, a federal agency, and the
18 federal government, asserting claims under the U.S. Constitution as well as several federal
19 statutes, including the Administrative Procedure Act. A relevant question in this case is thus
20 whether the State of Washington has Article III standing to sue.
21 Increasingly, courts are faced with the question of whether states have standing to sue
22 the federal government. This question was less common before the advent of the modern
23

24
1 This brief draws from two of the principal drafter’s articles: Amy J. Wildermuth, Why State Standing in
25 Massachusetts v. EPA Matters, 27 J. LAND, RESOURCES, & ENVTL. L. 273 (2007),
http://epubs.utah.edu/index.php/jlrel/article/view/53/46, and Kathryn A. Watts and Amy J. Wildermuth,
26 Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming, 102 NW. U. L. REV. 1029
(2008), 102 NW. U. L. REV. COLLOQUY 1 (2007), available at
27 http://www.law.northwestern.edu/lawreview/Colloquy/2007/17/LRColl2007n17Watts.pdf.

28 PROPOSED BRIEF OF AMICUS CURIAE LAW PROFESSORS
ON THE SUBJECT OF STATE STANDING - 1 Case No. 2:17-cv-00141-JLR

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00141-JLR Document 45-1 Filed 02/02/17 Page 4 of 12

1 administrative state, but now arises more frequently because, as the relations between states

2 and the federal government have become more intertwined, there are more disagreements

3 between them. See Comment, State Standing To Challenge Federal Administrative Action: A

4 Re-Examination of the Parens Patriae Doctrine, 125 U. PA. L. REV. 1069, 1086 (1977).

5 Moreover, states often have a strong interest in ensuring that the federal government complies

6 with statutory and constitutional mandates, particularly given the overlapping nature of many

7 regulatory burdens. See Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in

8 Administrative Law, 2006 SUP. CT. REV. 201, 203, 207–08.

9

The Supreme Court has provided only limited guidance regarding state standing for

10 these cases. The key starting point is Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,

11 458 U.S. 592 (1982). In Snapp, the question before the Court was whether Puerto Rico had

12 standing to sue a number of Virginia apple growers on behalf of its residents, based on

13 allegations that the growers were discriminating against Puerto Rican migrant workers in favor

14 of foreign workers. Id. at 598. The Court began its state standing discussion by dividing the

15 potential interests of a sovereign into three categories:

16

(1) proprietary interests,

17

(2) quasi-sovereign interests, and

18

(3) sovereign interests.

19 Id. at 601–02. The Court then determined that Puerto Rico’s interest in the case was properly

20 characterized as a quasi-sovereign interest and concluded that Puerto Rico could bring the suit

21 on that basis. Id. at 608–09.

22

What is most important about these three categories of interests is that the standing

23 analysis is quite different for each. It is therefore essential in a case involving state standing

24 that the analysis begin with correctly identifying the type of categories at stake.

25

B. Proprietary Interests

26

Proprietary interests are direct interests, such as ownership of land or participation in a

27 business venture. Id. at 601–02. These interests are the same kind of interest that a private party

28 PROPOSED BRIEF OF AMICUS CURIAE LAW PROFESSORS
ON THE SUBJECT OF STATE STANDING - 2 Case No. 2:17-cv-00141-JLR

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00141-JLR Document 45-1 Filed 02/02/17 Page 5 of 12

1 would assert in litigation. Id. As a result, when a state asserts an injury to—or interference

2 with—this kind of interest in litigation, the state should be treated just as a private party would

3 when determining whether Article III standing exists. Cf. Snapp, 458 U.S. 592, 611 (1982)

4 (Brennan, J., concurring) (“At the very least, the prerogative of a State to bring suits in federal

5 court should be commensurate with the ability of private organizations. A private organization

6 may bring suit to vindicate its own concrete interest in performing those activities for which it

7 was formed.”).

8

Courts therefore consistently require that sovereigns asserting a proprietary interest

9 satisfy the well-known requirements of Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992): In

10 order to have standing to bring suit in federal court under Article III, a state must show that (1)

11 it has any injury that is actual and concrete, (2) the injury is traceable to the conduct of the

12 defendant, and (3) a favorable decision will likely redress the injury. Id. at 560–61.

13

Courts often apply Lujan to determine whether a state has standing when proprietary

14 interests are at stake.2 For example, in Hodges v. Abraham, 300 F.3d 432 (4th Cir. 2002), the

15 question was whether the governor of South Carolina—acting in his official capacity on behalf

16 of the state—had standing to bring suit against the Department of Energy for allegedly failing

17 to follow the requirements of the National Environmental Policy Act when it approved the

18 transfer of surplus plutonium. Id. at 436. After reciting the Lujan requirements, the Fourth

19 Circuit took note that the governor’s claimed interest was “not simply in protecting the well-

20 being of South Carolinians,” but rather in preventing injury to the “land, streams, and drinking

21 water of South Carolina.” Id. at 444. Because it was “uncontroverted that at least one state

22 highway runs through [the proposed storage site], and that several streams and wildlife habitats

23 are located near [the proposed storage site],” the court concluded that the alleged injury to the

24

25 2 See, e.g., Idaho By and Through Idaho PUC v. ICC, 35 F.3d 585, 591–92 (D.C. Cir. 1994) (concluding that the
state had standing because it alleged that proposed salvage activities would pollute land owned by the state);
26 California ex rel. Lockyer v. U.S. Dep’t of Agric., 459 F. Supp. 2d 874, 889 (N.D. Cal. 2006) (holding Lujan
requirements were satisfied where the state’s injury was to its “natural resources and . . . specific lands whose
27 resources would be affected by roadless policies”).

28 PROPOSED BRIEF OF AMICUS CURIAE LAW PROFESSORS
ON THE SUBJECT OF STATE STANDING - 3 Case No. 2:17-cv-00141-JLR

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00141-JLR Document 45-1 Filed 02/02/17 Page 6 of 12

1 state’s proprietary interests was sufficient to establish standing under Lujan. Id. at 445. Courts

2 have also found standing when a federal law forces a state to pay money, United States v.

3 Texas, 809 F.3d 134, 155 (5th Cir. 2015) (cost of issuing driving licenses to undocumented

4 aliens), as well as when a federal law deprives a state of expected revenue, Davis v. EPA, 348

5 F.3d 772, 778 (9th Cir. 2003) (loss of federal highway funds).

6

C. Quasi-Sovereign Interests

7

Of the three categories, quasi-sovereign interests are the most difficult to describe. The

8 Court has never precisely defined these interests, leading several scholars to characterize them

9 as “admittedly vague.” 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND

10 PROCEDURE JURIS. 2D § 3531.11, at 31 (1984).

11

What is clear from Snapp is that when a sovereign brings suit based on quasi-sovereign

12 interests, “the State must articulate an interest apart from the interests of particular private

13 parties.” Snapp, 458 U.S. at 607. This separate interest is then generally described as the State’s

14 interest “in the well-being of its populace.” Id. at 602.

15

In Snapp, the Court gave two examples of quasi-sovereign interests: (1) a sovereign’s

16 interest in protecting the health and well-being—“both physical and economic”—of its citizens 17 from injuries such as transboundary pollution;3 and (2) a sovereign’s interest in seeing that its

18 “residents are not excluded from the benefits that flow from participation in the federal

19 system,” such as when railroads conspire to fix freight rates in a manner that discriminates

20 against a particular state’s shippers in violation of federal antitrust law. Id. at 607–08 (citing,

21 among others, Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945)).

22

23

24 3 See Thomas W. Merrill, Global Warming as a Public Nuisance, 30 COLUM. J. ENVTL. L. 293, 303 n.44 (2005)
(listing the following transboundary cases that fit this mold: “North Dakota v. Minnesota, 263 U.S. 365 (1923)
25 (flooding); New York v. New Jersey, 256 U.S. 296 (1921) (water pollution); Georgia v. Tennessee Copper Co.,
206 U.S. 230 (1907) (air pollution in Georgia caused by discharge of noxious gases from the defendant’s plant in
26 Tennessee); Kansas v. Colorado, 185 U.S. 125 (1902) (diversion of water), [sic] Missouri v. Illinois, 180 U.S. 208
(1901) (sought to enjoin defendants from discharging sewage in such a way as to pollute the Mississippi river in
27 Missouri)”).

28 PROPOSED BRIEF OF AMICUS CURIAE LAW PROFESSORS
ON THE SUBJECT OF STATE STANDING - 4 Case No. 2:17-cv-00141-JLR

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00141-JLR Document 45-1 Filed 02/02/17 Page 7 of 12

1

According to Snapp, “the roots” of state quasi-sovereign interests are found “in the

2 common-law concept of the ‘royal prerogative,’” which “included the right or responsibility to

3 take care of persons who ‘are legally unable, on account of mental incapacity.’” Id. at 600

4 (quoting J. CHITTY, PREROGATIVES OF THE CROWN 155 (1820)). As it developed in U.S. law,

5 this prerogative became known as parens patriae standing. If the concept had remained

6 consistent with its common-law roots, the connection to the state’s residents would be quite

7 easy to understand: Parens patriae suits would be permitted because the individuals are unable

8 to bring suit on their own. Modern parens patriae, however, is no longer consistent with the

9 original common-law concept on which it was based. In fact, as the Supreme Court made clear

10 in Snapp, a state may not bring suit as parens patriae to represent persons who are unable to

11 represent themselves. Id. at 600. Accordingly, it is now understood that a sovereign may bring

12 suit as parens patriae on the basis of an injustice to its populace: It may bring suit either to

13 protect the health and well-being of its populace, or it may bring suit based on the denial of

14 benefits assured to its residents by federal law. Snapp, 458 U.S. at 602, 607.

15

This, however, raises another question: If the federal government has a similar duty to

16 protect those same residents, does a state have the right to sue to protect the well-being of its

17 residents from the federal government? Previously, the decision in Massachusetts v. Mellon,

18 262 U.S. 447 (1923), was understood to have erected a bar to such suits: States could not sue

19 the federal government based on their parens patriae interests unless Congress had waived the

20 restriction. See Maryland People’s Counsel v. FERC, 760 F.2d 318, 322 (D.C. Cir. 1985)

21 (Scalia, J.).

22

In Massachusetts v. EPA, 549 U.S. 497 (2007), however, the Court appeared to lift the

23 bar to a state litigating against the federal government when a quasi-sovereign interest is at

24 stake. In doing so, The Court explained:

25

there is a critical difference between allowing a State “to protect her citizens from

the operation of federal statutes” (which is what Mellon prohibits) and allowing a

26

State to assert its rights under federal law (which it has standing to do).

Massachusetts does not here dispute that the Clean Air Act applies to its citizens;

27

it rather seeks to assert its rights under the Act.

28 PROPOSED BRIEF OF AMICUS CURIAE LAW PROFESSORS
ON THE SUBJECT OF STATE STANDING - 5 Case No. 2:17-cv-00141-JLR

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00141-JLR Document 45-1 Filed 02/02/17 Page 8 of 12

1 Id. at 520 n.17. Although many commentators have noted that this passage seems to confuse

2 the different interests a state might have, there has never been any further clarification of the

3 point from the Court. As a result, although Massachusetts v. EPA offered little explanation, it

4 appears that a state can assert Article III standing based on a quasi-sovereign interest of

5 ensuring that its citizens are provided the benefits of federal law, such as when the federal

6 government acts or fails to act in a way that violates federal statutory or constitutional law. See,

7 e.g., Bradford Mank, Should States Have Greater Standing Rights Than Ordinary Citizens?:

8 Massachusetts v. EPA’s New Standing Test for States, 49 WM. & MARY L. REV. 1701, 1769–74

9 (2008); Calvin Massey, State Standing After Massachusetts v. EPA, 61 FLA. L. REV. 249, 264–

10 66 (2009).

11

Once a state asserts a quasi-sovereign interest, the next issue is what further showing, if

12 any, is required in order to establish standing. The Court’s most recent articulation of what is

13 required is found in Massachusetts v. EPA. The Court began by reciting the three Lujan

14 factors—injury-in-fact, causation, and redressability—and went on to analyze each

15 requirement. As the dissenting opinion was quick to point out, however, the Court’s analysis

16 appeared to substantially “[r]elax[]Article III standing requirements.” Massachusetts, 549 U.S.

17 536–37 (Roberts, C.J., dissenting). Instead of a more rigid, traditional analysis of the Lujan

18 factors, the Court provided a “Lujan-lite” analysis, finding that Massachusetts had standing

19 even though its injury—the loss of coastal lands—was remote and whether it would be

20 remedied by the proposed regulations was less than certain. The Court partially acknowledged

21 its “lite” analysis, explaining that states are entitled to “special solicitude” when they assert

22 quasi-sovereign interests. Id. at 520.

23

Although the Court provided few tips on how “lite” the analysis should be, it appears

24 that, following Massachusetts v. EPA, some relaxation in application of the Lujan test is in

25 order. In addition, when determining the appropriate injury for this lighter analysis, it seems

26 that either (a) a resident’s interest or (b) a state’s proprietary interest may be used (such as the

27 loss of coastal lands in Massachusetts).
28 PROPOSED BRIEF OF AMICUS CURIAE LAW PROFESSORS
ON THE SUBJECT OF STATE STANDING - 6 Case No. 2:17-cv-00141-JLR

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00141-JLR Document 45-1 Filed 02/02/17 Page 9 of 12

1

D. Sovereign Interests

2

Sovereign interests sufficient for state standing include a state’s “power to create and

3 enforce a legal code, both civil and criminal,” as well as the power to demand “recognition

4 from other sovereigns.” Snapp, 458 U.S. at 601. These are interests unique to the state, not

5 based on injuries that a private party could suffer (proprietary standing), and not based on

6 injuries to the well-being of a state’s populace (quasi-sovereign standing). For example, in West

7 Virginia v. EPA, 362 F.3d 861 (D.C. Cir. 2004), West Virginia and Illinois sought review of the

8 EPA’s rules requiring the states to revise their state implementation plans under the Clean Air

9 Act. Id. at 864. In concluding that there was standing, the D.C. Circuit explained that, because

10 the rules might interfere with the states’ sovereign interest in creating law, the states were not

11 suing as parens patriae but “as states.” Id. at 868.

12

III. APPLICATION TO THIS CASE

13

Based on our review of the preliminary record in this case, we want to offer some

14 general ideas about possible applications. In doing so, we note that the State of Washington is

15 the home to two world-class, research-intensive public institutions of higher education, the

16 University of Washington (“UW”) and Washington State University (“WSU”). Because we are

17 employed by universities like those, and we believe that these examples best illustrate the

18 standing principles in this case, we offer a few thoughts on the state standing analysis when the

19 state’s interest is reflected in its institutions of higher education.

20

One straightforward path to finding standing is under a proprietary interest analysis.

21 Much like the coastal land in Massachusetts, the State of Washington’s interest in its

22 institutions of higher education and their functioning is best viewed as proprietary. As an

23 institution and employer, like other institutions in Washington, the state may have lost revenue,

24 both because students can no longer enroll (thus costing institutions tuition dollars) and because

25 of cancelled trips and events of those within the university. As proprietary interests, these

26 injuries should be analyzed under the traditional Lujan framework. Moreover, if there was a

27 showing of actual financial harm to WU or WSU, as arms of the state, such an injury would be

28 PROPOSED BRIEF OF AMICUS CURIAE LAW PROFESSORS
ON THE SUBJECT OF STATE STANDING - 7 Case No. 2:17-cv-00141-JLR

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00141-JLR Document 45-1 Filed 02/02/17 Page 10 of 12

1 sufficient under the traditional Lujan analysis to find standing on the part of the state to bring

2 the case.

3

On the other end of the spectrum, it does not appear on the face of the complaint that

4 the State of Washington has asserted a sovereign interest in this case. That is, there does not

5 appear to us to be any claim of preemption of state law, or an assertion of interference with the

6 creation or enforcement of state law. As such, at this time, this is an unlikely ground on which

7 to find standing.

8

A less certain but perhaps possible path for finding standing is for the state to claim

9 impacts on its residents in an effort to assert a quasi-sovereign interest. This is a more

10 complicated route because, as discussed above, Massachusetts v. EPA appears to change much

11 with little explanation. Building on what the Court did provide, with a particular focus again on

12 the potential impact on institutions of higher education as an example, a few routes to standing

13 may be possible. First, residents of Washington attending UW and WSU may have had their

14 education impacted by the federal government’s actions. When the federal government

15 restricted the entry of those from listed countries, it reduced the ability of the institutions to

16 attract and retain students and faculty from certain countries. This in turn diminished and

17 devalued the rich and diverse learning environment that is core to the mission of higher

18 education. As the Court held in Grutter, “student body diversity promotes learning outcomes,

19 and better prepares students for an increasingly diverse workforce and society, and better

20 prepares them as professionals.” Grutter v. Gratz, 539 U.S. 306, 330 (2003) (internal citations

21 omitted). In so holding, the Court noted that it has “repeatedly acknowledged the overriding

22 importance of preparing students for work and citizenship, describing education as pivotal to

23 sustaining our political and cultural heritage with a fundamental role in maintaining the fabric

24 of society.” Id. at 331 (internal citations omitted). Actions that impede a Washington resident

25 student’s preparation could create standing if they are found to harm the well-being of the

26 state’s residents.

27
28 PROPOSED BRIEF OF AMICUS CURIAE LAW PROFESSORS
ON THE SUBJECT OF STATE STANDING - 8 Case No. 2:17-cv-00141-JLR

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00141-JLR Document 45-1 Filed 02/02/17 Page 11 of 12

1

Another possibility is the impact on the ability of those residents at the university to do

2 important, often life-saving research. Many researchers must travel to present their work at

3 conferences, which is critical to the progress of research. Even more important, however, is the

4 ability to physically travel to sites where raw data or information is located that is the subject of

5 their research. They also often travel to other labs around the globe to learn new techniques and

6 processes.

7

Any restrictions on travel—particularly this kind of travel, which requires a great deal

8 of advance planning—would slow the progress of research dramatically. While this certainly

9 impacts the world in delaying the progress on life-altering medical research, it directly impacts

10 one’s job performance as a faculty member. If a faculty member cannot perform his research,

11 the ability to attract grant funding to support his work is jeopardized. In addition to the

12 potential loss of salary from the loss of grant funding, the inability of a faculty member to

13 perform the research required for their employment could result in lowered earnings in terms of

14 any base salary provided by the university. If the inability to conduct one’s research continues

15 for a long period, it might also result in termination. See, e.g., Henry Fountain, Science Will

16 Suffer Under Trump’s Travel Ban, Researchers Say, N.Y. TIMES (Jan. 30, 2017),

17 https://www.nytimes.com/2017/01/30/science/scientists-donald-trump-travel-ban.html?_r=0.

18

Both of these examples illustrate possible considerations that a court should analyze as

19 a state’s quasi-sovereign interests, as they reflect the state’s interest in the well-being of its

20 residents. In addition, because the suit asserts federal government violations of law,

21 Massachusetts v. EPA suggests that there is no prohibition—no Mellon bar—to the state

22 bringing the suit against the federal government.

23

As a result, if a state were to assert these injuries and a court accepted them as quasi-

24 sovereign interests, they would be subjected to relaxed requirements with respect to injury-in-

25 fact, causation, and redressability factors under Lujan. And when compared to the standing

26 analysis in Massachusetts—an injury to coastal lands many years in the future, a more

27 attenuated causal chain, and unclear redressability in connecting emissions from new motor

28 PROPOSED BRIEF OF AMICUS CURIAE LAW PROFESSORS
ON THE SUBJECT OF STATE STANDING - 9 Case No. 2:17-cv-00141-JLR

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00141-JLR Document 45-1 Filed 02/02/17 Page 12 of 12

1 vehicles to solving the global climate change problem—the injuries of the sort described above

2 to a student’s learning environment and to a researcher’s ability to do her work would satisfy

3 the special standing requirements for a state asserting quasi-sovereign interests.

4

IV. CONCLUSION

5

Although amici curiae offer no recommendation on the ultimate outcome of this case,

6 we hope the Court will find the foregoing analysis and examples helpful when resolving the

7 issue of state standing.

8

9

10

DATED: February 2, 2017

11

LANE POWELL PC

12

13

By s/Claire Loebs Davis

Claire Loebs Davis, WSBA No. 39812

14

Tiffany Scott Connors, WSBA No. 41740

Jessica N. Walder, WSBA No. 47676

15

1420 5th Avenue, Suite 4200

Seattle, WA 98111

16

Telephone: 206.223.7000

Facsimile: 206.223.7107

17

Attorneys for Proposed Amicus Curiae Law

Professors 18

19

20

21

22

23

24

25

26

27
28 PROPOSED BRIEF OF AMICUS CURIAE LAW PROFESSORS
ON THE SUBJECT OF STATE STANDING - 10 Case No. 2:17-cv-00141-JLR

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

 
 Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 2 of 17

1

THE HONORABLE JAMES L. ROBART

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

8 STATE OF WASHINGTON,

No. 2:17-cv-00141-JLR

9

Plaintiff, BRIEF OF AMICUS CURIAE

10

v.

11 DONALD TRUMP, in his official capacity as

WASHINGTON STATE LABOR COUNCIL

12 President of the United States; U.S.

DEPARTMENT OF SECURITY; JOHN F.

13 KELLY, in his official capacity as Secretary of

the Department of Homeland Security; TOM 14 SHANNON, in his official capacity as Acting

15 Secretary of State; and the UNITED STATES OF AMERICA,

16 Defendants.
17

18

19

I. INTRODUCTION & RELIEF REQUESTED

20

The United States for decades maintained discriminatory immigration laws excluding

21 Chinese laborers and others of Chinese descent; in 2012, the United States House of

22 Representatives passed a resolution acknowledging that “the United States was founded on the

23 principle that all persons are created equal”and formally expressing the regret of the House of
24 Representatives for the Chinese Exclusion Acts. H.R. Res. 683, 112th Cong. (2012).
25

26

After decades of maintaining discriminatory national origin quotas that disfavored non-

European immigrants, Congress enacted the Immigration and Nationality Act Amendments of

BRIEF OF AMICUS CURIAE - 1 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 3 of 17

1 1965, Pub.L. No. 89-236, 79 Stat. 911 (1965), which finally ended “strong overtures of an

2 indefensible racial preference” in our immigration law. John F. Kennedy, A Nation of
3 Immigrants 77 (1964). 4
Acknowledging “the fundamental injustice of the evacuation, relocation, and internment 5
of United States citizens and permanent resident aliens of Japanese ancestry during World War 6 7 II,”in 1988, President Ronald Reagan signed the Civil Liberties Act of 1988 to offer a formal
8 apology, and grant reparations in the amount of $20,000, to each living victim of the Japanese

9 internment resulting from an Executive Order issued in 1942. Civil Liberties Act of 1988, Pub.

10 L. No. 100-383, 102 Stat. 903 (1998). The Act stated that the government “actions were carried
11 out without adequate security reasons… and were motivated largely by racial prejudice, wartime
12 hysteria, and a failure of political leadership.” Id.
13 One week after assuming office, President Donald Trump signed an Executive Order
14
15 fulfilling his campaign promise to enact a “Muslim ban”and to subject immigrant applicants to

16 “extreme vetting.” The Executive Order bans all refugees from entering the country for 120

17 days, bans all refugees from Syria indefinitely, and bans immigrants and non-immigrants from

18 seven majority-Muslim countries from entering the U.S. for 90 days: Iran, Iraq, Libya, Somalia,
19 Sudan, Syria, and Yemen. President Trump defends the Executive Order with rhetoric of
20 national security. Future leaders of our government may well feel compelled to issue formal
21
22 apologies or statements of regret for this unlawful and discriminatory act.

23

The Washington State Labor Council (“WSLC”) submits this brief in support of the State

24 of Washington’s Motion for a Temporary Restraining Order (“TRO”) because the members of its

25 affiliated unions are suffering irreparable harm from the implementation of the Executive Order, 26

BRIEF OF AMICUS CURIAE - 2 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 4 of 17

1 and those members will continue to suffer irreparable harm until and unless the Executive Order

2 is enjoined.

3

II. STATEMENT OF FACTS

4 The WSLC is a state-wide labor council comprised of more than 600 local unions and
5 represents more than 450,000 rank-and-file union members working in Washington State. It is
6

7 widely considered to be the “voice of labor”in Washington State. Declaration of Jeff Johnson

8 (“Johnson Dec.”), ¶ 2. WSLC has a strong interest in advocating for the liberty interests of

9 Washington State workers. Id. Because of the irreparable harm being done to union members in

10 Washington State, which is set forth in detail below, WSLC and other labor leaders have spoken

11 out vehemently against President Trump’s Executive Order. Id., ¶ 4 and Ex. A (statements from

12 labor unions regarding the Executive Order). The WSLC submits this brief to support the State’s
13

efforts to enjoin the unconstitutional, unlawful Executive Order. 14

15

III. ARGUMENT & AUTHORITY

16

The WSLC joins, but will not repeat here, the State’s meritorious argument that the

17 Executive Order violates both the United States Constitution and various federal statutes. It

18 submits this brief separately to add its voice to the chorus of voices seeking to point out to this
19 Court, as well as to the public at large, the truly appalling consequences this misguided and
20 wrongfully-motivated Executive Order will have if not promptly enjoined. The WSLC also
21 22 writes to emphasize that careful review of the history of discriminatory immigration rules
23 demonstrates the significance of the irreparable harm that is being caused in particular by the
24 fact that this Executive Order violates the Immigration Act of 1965— the statute meant to end

25 pernicious discrimination in immigration law.

26

A. Absent injunctive relief, residents of Washington will suffer irreparable

harm because their government, in clear contravention of the Immigration

BRIEF OF AMICUS CURIAE - 3 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 5 of 17

1

Act of 1965, has labelled some of them as being less valuable than others, and

as having no rights.

2

3

“The negative policies the United States government establishes concerning immigrants,

4 non-immigrant visitors and refugees of certain national origins or religions reflects the attitudes

5 the government has of its own citizens of those same national origins and religions –that they

6 are less valued, less than equal. Such policies cause harm to our unions’members that cannot be

7 undone.” Johnson Dec. ¶ 6.
8 In discussing the Immigration Act of 1965, Secretary of State Dean Rusk similarly
9 observed that immigration rules have significant domestic, as well as foreign, meaning:
10

11

[G]iven the fact that we are a country of many races and national origins, that those who

built this country and developed it made decisions about opening our doors to the rest of

12

the world; that anything which makes it appear that we, ourselves, are discriminating in

principle about particular national origins, suggests that we think ... less well of our own

13

citizens of those national origins, than of other citizens....1

14 Attorney General Katzenbach accurately assessed the damage done by discriminatory

15 immigration rules that Act was meant to abolish:

16

I do not know how any American could fail to be offended by a system which presumes

17

that some people are inferior to others solely because of their birthplace.... The harm it

does to the United States and to its citizens is incalculable.” 18

19 Hearings on S. 500 Before the Subcomm. on Immigration and Naturalization of the Senate

20 Comm. on the Judiciary, 89th Cong. 119 (1965) 9.

21

Through this language, the Congress abolished discrimination long codified in statutory

22 national origin quotas which disfavored non-European immigrants. 23

24

25

1 Immigration: Hearings Before Subcomm. No. 1 of the Comm. on the Judiciary, House of Representatives, on H.R. 7700 and 55 Identical Bills, 88th Cong. 901-02 (1964), reprinted in 10A Oscar Trelles & James Bailey, Immigration

26

and Nationality Acts: Legislative Histories and Related Documents, doc. 69A (1979) 390. See also id. at 410 (remarks of Attorney General Robert Kennedy) (noting that the bill “would remove from our law a discriminatory

system of selecting immigrants that is a standing affront to millions of our citizens”).

BRIEF OF AMICUS CURIAE - 4 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 6 of 17

1

Except as specifically provided in paragraph (2) and in sections 1101(a)(27),

1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or

2

priority or be discriminated against in the issuance of an immigrant visa because of the

3

person's race, sex, nationality, place of birth, or place of residence.

4 8 U.S.C. § 1152 (enacted by the Immigration and Nationality Act Amendments of 1965, Pub.L.

5 No. 89-236, 79 Stat. 911 (1965)).

6

Those quotas were introduced into law in 1921, and extended by the Immigration Act of

7 1924, which required a study of the ethnic sources of America’s white population from the
8 origins of settlement; and quotas were derived from the percentages of the U.S. population that
9 were derived from any particular nation. This had the effect of limiting immigration from Asia,
10
11 and non-Protestant eastern and southern Europe. Pub.L. 67-5; 42 Stat. 5 (1921); Pub.L. 67-5; 42

12 Stat. 5 (1924). The Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163 retained

13 modified quotas that again reflected the existing demographic mix of U.S. inhabitants and had no

14 purpose other than to maintain the existing ethnic and religious composition of the national

15 population. See Mary Jane Lapointe, Discrimination in Asylum Law: The Implications of Jean v.
16 Nelson, 62 Ind. L.J. 127, 149 (1986). That discriminatory purpose became the focal point of
17
intense debate which fueled the impetus for the 1965 Act. 18

19

President Harry Truman opposed the discriminatory quota system and when his veto of

20 the 1952 act was overridden, he denounced the national origins quota system as being contrary to

21 American values because it “discriminates, deliberately and intentionally, against many of the

22 peoples of the world.” The President's Veto Message, June 25, 1952, reprinted in The
23 President’s Comm’n on Imm. and Nat., Whom We Shall Welcome 277. President Truman’s 24
Commission on Immigration and National Origin had found that “the major disruptive influence 25
26 in our immigration law is the racism and national discrimination caused by the national origins

system,”and that the present system should be replaced with a “unified quota system, which

BRIEF OF AMICUS CURIAE - 5 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 7 of 17

1 would allocate visas without regard to national origin, race, creed, or color.” The President’s

2 Comm’n on Imm. and Nat., Whom We Shall Welcome 263 (submitted Jan. 1, 1953).

3

In 1958, then Senator John Kennedy published a broadside against the national origin

4 quota system in which he criticized the system for having “strong overtures of an indefensible
5 racial preference.” John F. Kennedy, A Nation of Immigrants 77 (1964). As President, he
6

7 introduced legislation to end the quota system. President Lyndon Johnson strongly advocated

8 for the bill, which was enacted in 1965, as one of three complimentary bills passed early in

9 Johnson's presidency, the others being the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat.

10 241 (1964) and the Voting Rights Act of 1965, Pub.L. No. 89-110, 79 Stat. 437 (1965).2 See
11 Roger Daniels, Coming To America: A History of Immigration And Ethnicity In American Life 12
338 (1990) (observing that the Civil Rights Act, Voting Rights Act and Immigration Act 13
“represent a kind of high-water mark in a national consensus of egalitarianism”); Vernon M. 14 15 Briggs, Jr., Immigration Policy and the American Labor Force 62 (1984) (“Just as overt racism

16 could no longer be tolerated in the way citizens treated their fellow citizens, neither could it be

17 sanctioned in the laws that governed the way in which noncitizens were considered for

18 immigrant status.”). 19

20

21

22

2 Senator Hiram Fong described the purpose of the Act as “seeking an immigration policy reflecting America’s ideal

of the equality of all men without regard to race, color, creed or national origin”which he noted reflected the values

23 of the Civil Rights Act:

24

Last year we enacted the historic Civil Rights Act of 1964, which was designed to wipe out the last

vestiges of racial discrimination against our own citizens . . . . As we move to erase racial discrimination

25

against our own citizens, we should also move to erase racial barriers against citizens of other lands in our

immigration laws.

26

Hearings on S. 500 Before the Subcomm. on Imm. and Nat. of the Senate Comm. on the Judiciary, pt. 1, 89th Cong.,

1st Sess. 44-45 (1965).

BRIEF OF AMICUS CURIAE - 6 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 8 of 17

1

Senator Edward M. Kennedy argued that the national origins quota system was “contrary

2 to our basic principles as a nation.” 111 Cong.Rec. 24, 225 (1965). Senator Joseph Clark
3 insisted that “the national origins quotas and the Asian-Pacific triangle provisions are irrational, 4
arrogantly intolerant, and immoral”and that it was unjust that “[a] brilliant Korean or Indian 5
scientist is turned away, while the northern European is accepted almost without question.” Id. 6 7 at 24, 501. Representative Paul Krebs stated that immigration rules based on national origin
8 were “repugnant to our national traditions,”and that “we must learn to judge each individual by

9 his own worth and by the value he can bring to our Nation.”Id. at 21, 778. Representative

10 Dominick Daniels rejected the national origin quotas that “racism simply has no place in
11 America in this day and age.” Id. at 21, 787. Other senators and officials condemned the 12
national origins quota system as “un-American”' and “totally alien to the spirit of the 13
Constitution,”' and praised the new bill for its recognition of individual rights. Hearings on S. 14
15 500 Before the Subcomm. on Imm. and Nat. of the Senate Comm. on the Judiciary, pt. 1, 89th

16 Cong., 1st Sess. 11 (1965) (statement of Attorney General Katzenbach), 47 (statement of

17 Secretary of State Dean Rusk), 127 (statement of Senator Hugh Scott), 165 (statement of Senator

18 Paul Douglas) and 217 (statement of Senator Robert Kennedy); see also Hearings Before
19 Subcomm. No. 1 of the House Comm. on the Judiciary, 88th Cong., 2d Sess. 723 (1964), where
20 the Secretary-Treasurer of the AFL-CIO, James B. Carey, quotes the AFL-CIO Declaration in
21
22 support of the bill).

23

The Immigration Act of 1965 repealed a system that, in the words of President Johnson,

24 “violated the basic principle of American democracy— the principle that values and rewards each

25 man on the basis of his merit . . . .”T. Aleinikoff & D. Martin, Immigration Process and Policy 26 55 (1985). The Executive Order at issue here denies Syrian refugees, immigrants and the

BRIEF OF AMICUS CURIAE - 7 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 9 of 17

1 resident family members of immigrants of the seven excluded nations precisely that - evaluation

2 on individual merit. Instead, the blanket order works precisely as did the repealed quota system

3 by denying liberty to whole classes of people based on their national origin. The Executive

4 Order therefore violates federal law and should be enjoined on that basis.

5

2. Residents of Washington are also suffering irreparable harm because their

6

government has interfered with their liberties by limiting their movement,

7

their ability to associate with their families, and to work.

8

Lost opportunities to engage in one’s chosen profession, to travel, and to be united or

9 reunited with families and loved ones are all irreparable, because losses of this kind sustained by

10 individuals affected by the Executive Order cannot be remedied by money damages. See, e.g.,
11 Enyart v. Nat’l Conf. of Bar Examiners, Inc., cert. denied, 132 S. Ct. 366, 181 L.Ed.2d 232 12
(2011); Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). In addition to 13
the irreparable harm set forth in the State of Washington’s Motion for a Temporary Restraining 14
15 Order, individuals who live and work in Washington are being subjected to the irreparable harm

16 described herein.

17

Among WSLC’s affiliated unions, unions who have signed a Solidarity Charter with the

18 WSLC and other labor allies are unions whose members are directly impacted by the Executive
19 Order, because they are immigrants or non-immigrant temporary workers from one of the seven
20 banned countries whose ability to travel into and out of the United States is prohibited outright or
21
22 whose inability to re-enter the United States after travelling will put their livelihoods in jeopardy.

23 Johnson Dec., ¶ 6. Members are also affected because the ability of their families to travel into

24 the United States is prohibited temporarily or indefinitely, disrupting the members’family ties,

25 personal freedoms and economic security. Id. The members of unions affiliated or allied with 26 WSLC affected by the ban include hospitality workers, retail employees, health care industry

BRIEF OF AMICUS CURIAE - 8 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 10 of 17

1 workers, laborers, factory workers, and state, county and municipal employees among others. Id.

2 These union members are exceptionally diverse, comprised of an array of races, nationalities,
3 and religions. Id. The negative policies the United States government establishes concerning 4
immigrants, non-immigrant visitors and refugees of certain national origins or religions reflects 5
the attitudes the government has of its own citizens of those same national origins and religions – 6 7 that they are less valued, less than equal. Id. Such policies cause harm to unions’members that
8 cannot be undone. Id.

9

United Automobile, Aerospace and Agricultural Implement Workers of America, Local

10 4121 (“UAW 4121”) represents academic student employees (“ASEs”) at the University of
11 Washington (“UW”). Declaration of David Parsons (“Parsons Dec.”), ¶ 1. Some ASEs are
12 citizens or nationals of one of the seven countries listed in the Executive Order and are present in
13 the U.S. with valid visas. Id., ¶ 3. Many have expressed serious concerns about the impact of
14
15 the Executive Order on their work at and for UW. Id. In particular, since the Executive Order

16 has been issued, impacted ASEs from the seven named countries believe they can and should not

17 travel outside the U.S., and have been advised by UW to avoid any international travel. Id. This
18 impacts in numerous ways these ASEs’ability to perform research and complete their courses of
19 study. Id. At least one ASE conducts research that requires overseas travel, and therefore may 20
be significantly delayed or lose altogether the work completed pursuant to this project, which has 21 22 been in process for years and directly impacts degree completion. Id. For some ASEs, any delay
23 in completing research and course work could jeopardize funding and employment opportunities.
24 Id. Additionally, ASEs are restricted from visiting close family members or friends outside the

25 U.S., which creates significant emotional hardships. Id. 26

BRIEF OF AMICUS CURIAE - 9 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 11 of 17

1

UAW 4121 is aware of at least one ASE who is a citizen or national of one of the seven

2 countries, and is outside the U.S. Id., ¶ 4. If he or she is unable to re-enter the U.S. as a result of
3 the Executive Order, his/her ability to conduct research for UW related to his/her course of study 4
could be limited, and his/her graduate program training sequence could be disrupted. Id. 5
Service Employees International Union 6 Property Services Northwest (“SEIU 6”) has 6 7 historically represented immigrants and refugees employed in the commercial janitorial industry,
8 and its membership often reflects the different flows of immigrants and refugees coming into the

9 U.S. workforce. Declaration of Matt Haney (“Haney Dec.”), ¶ 2. The current membership

10 includes over 350 individuals originally from the seven affected countries in the Executive Order

11 travel ban. Id., ¶ 3. The majority of these members originated from Somalia. Id. The members
12 from these countries tend to save up their money in order to be able to afford to return to their
13 countries of origin for a month or more. Id.
14

15

Since President Trump issued the Executive Order banning all refugees from entering the

16 country for 120 days, banning all refugees from Syria indefinitely, and banning immigrants and

17 non-immigrants from seven majority-Muslim countries from entering the U.S. for 90 days, SEIU

18 6 members who have made travel plans to Somalia have been contacting union representatives at
19 SEIU 6 expressing their fears that they may not be able to return to the U.S., to their families and
20 to their jobs, if they travel now. Id., ¶ 4. One member who has purchased airfare to Somalia
21 22 scheduled to leave February 4, 2017, is now apprehensive of leaving due to fears she will not be
23 able to return because of her Muslim faith, even though she is a U.S. citizen. Id.

24

Additionally, an SEIU 6 member currently on leave in Somalia has contacted union

25 representatives about fears of losing his job and in turn his health coverage, essential to 26

BRIEF OF AMICUS CURIAE - 10 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 12 of 17

1 controlling his chronic health condition, because he will not be able to return to the United States

2 by April 15th as was arranged with his employer. Id., ¶ 5.

3

All of the foregoing harms are irreparable, as they cannot be remedied by money

4 damages. It cannot be disputed that implementation of the Executive Order is causing
5 irreparable injury to individuals living and working in Washington.
6

7

IV. CONCLUSION

8

The harms being suffered as a result of the unlawful and unconstitutional Executive

9 Order are severe, and the need for injunctive relief is urgent. Because each of the elements for

10 injunctive relief are met, the Court should grant the temporary restraining order requested by the

11 State.

12 DATED this 2nd day of February, 2017.
13

s/Jennifer Robbins

14

Jennifer Robbins, WSBA No. 40861

15

s/Dmitri Iglitzin

Dmitri Iglitzin, WSBA No. 17673

16

s/Kathleen Phair Barnard

Kathleen Phair Barnard, WSBA No. 17896

17

Schwerin Campbell Barnard Iglitzin & Lavitt LLP

18 West Mercer Street, Ste 400

18

Seattle, WA 98119-3971

19

(206) 257-6003 robbins@workerlaw.com

20

iglitzin@workerlaw.com

barnard@workerlaw.com

21

22

Counsel for the Washington State Labor Council

23

24

25

26

BRIEF OF AMICUS CURIAE - 11 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 13 of 17

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 14 of 17

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 15 of 17

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 16 of 17

Case 2:17-cv-00141-JLR Document 46-1 Filed 02/02/17 Page 17 of 17

 
 Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 1 of 16

1

HONORABLE JAMES L. ROBART

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 STATE OF WASHINGTON and STATE OF MINNESOTA,
11

12

Plaintiffs,

13

v.

NO. 2:17-cv-00141 JLR
BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE IN SUPPORT OF STATE OF WASHINGTON’S AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER

14 DONALD TRUMP, in his official capacity as

President of the United States; U.S.

15 DEPARTMENT OF HOMELAND

SECURITY; JOHN F. KELLY, in his official 16 capacity as Secretary of the Department of

17

Homeland Security; TOM SHANNON, in his official capacity as Acting Secretary of State;

18 and the UNITED STATES OF AMERICA,

19

Defendants.

20

21

22

23

24

25

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- i (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 2 of 16

TABLE OF CONTENTS 1 2 Introduction......................................................................................................................................1

3 Argument .........................................................................................................................................1

4 I. The Executive Order violates the Establishment Clause. .......................................................2

5

A. The Executive Order fails the Establishment Clause’s Larson Test. ............................3

6

B. The Executive Order fails the Endorsement Test ..........................................................5

7

C. The Executive Order fails all three requirements of the Lemon Test. ...........................8

8 II. The Executive Order violates the Religious Freedom Restoration Act................................11

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 1 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 3 of 16

1

INTRODUCTION

2

President Donald Trump has spent over a year promising to ban Muslims from entering the

3 country. See, e.g., First Am. Compl. ¶¶ 42–61. During that time, he has repeatedly disparaged and

4 attacked an entire religion because he regards it as “hard to separate . . . who is who” between
5 Muslims and terrorists. Transcripts, Anderson Cooper 360 Degrees, CNN (Mar. 9, 2016),
6 http://cnn.it/2jJmaEC. He insisted, for example, that “hundreds of thousands of refugees from the
7 Middle East” would attempt to “take over” and radicalize “our children.” Donald Trump Remarks in Manchester, New Hampshire, C-SPAN 20:05 (June 13, 2016), http://cs.pn/2k7bHGq. He argued
8 that Syrian refugees would “be a better, bigger, more horrible version than the legendary Trojan
9 Horse.” Id. And when he “talked about the Muslims,” he explained his position clearly: “we have
10 to have a ban . . . it’s gotta be a ban.” Presidential Candidate Donald Trump Town Hall Meeting in
11 Londonderry, New Hampshire, C-SPAN 28:16 (Feb. 8, 2016), http://cs.pn/2kY4f1T.
12 Now, in the face of the clear constitutional and statutory prohibitions against official
13 discrimination on the basis of religion, President Trump insists that Executive Order 13,769 is a
14 security measure aimed merely at specific countries and not at a specific religion. But he
15 telegraphed this very strategy as a candidate: When asked about the constitutionality of banning an
16 entire religion, then-candidate Trump responded “[s]o you call it territories. OK? We’re gonna do
17 territories.” 60 Minutes, The Republican Ticket: Trump and Pence, CBS NEWS (July 17, 2016),
18 http://cbsn.ws/29NrLqj. But a Muslim ban by any other name is still a Muslim ban. And as such, it
19 violates the fundamental constitutional guarantees of religious freedom. The gross deprivations, for

20 even a day, would be unfair, unjust, un-American, and just plain cruel.

21

ARGUMENT

22

“[T]he First Amendment mandates governmental neutrality” with respect to religion.

23 Epperson v. Arkansas, 393 U.S. 97, 104 (1968); accord, e.g., McCreary County, Ky. v. ACLU of

24 Ky., 545 U.S. 844, 860 (2005); Larson v. Valente, 456 U.S. 228, 246 (1982). This principle,

25 contained in the First Amendment’s Religion Clauses and reflected also in the Religious Freedom

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 1 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 4 of 16

1 Restoration Act, 42 U.S.C. § 2000bb-1, secures the right to religious freedom by straightforwardly

2 forbidding official discrimination on the basis of religion. Ignoring the clear constitutional

3 command, however, the government has singled out a religious group—Muslims—for official

4 disfavor and maltreatment. By instituting a wide-ranging, punishing ban on immigrants, the

5 government has run roughshod over core First Amendment protections.

6

Because the Executive Order violates fundamental First Amendment rights, the injuries that

7 it inflicts are irreparable as a matter of law. Elrod v. Burns, 427 U.S. 347, 373 (1976). And because

8 the harms are imminent and extraordinary, a temporary restraining order should issue.

9 I. The Executive Order violates the Establishment Clause.

10

Three tests apply in determining whether governmental action like the challenged Executive

11 Order violates the Establishment Clause. First, when the government confers a denominational

12 preference (i.e., when it acts to favor or disfavor one faith or denomination over others), the official

13 action is subject to strict scrutiny and presumptively does not stand. Larson, 456 U.S. at 246. Second,

14 the action is reviewed to determine whether the government is endorsing religion or certain religious

15 beliefs. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000). And third, the

16 challenged conduct is evaluated under the disjunctive three-part test of Lemon v. Kurtzman, 403 U.S.

17 602 (1971), to determine (i) whether the government acted with a religious purpose, (ii) whether the

18 effect of the government’s action is to favor or disfavor religion or a particular faith, and (iii) whether

19 the government has entangled itself with religion. It is customary to apply all the tests pertinent to

20 the particular facts. See, e.g., Modrovich. v. Allegheny County, 385 F.3d 397, 400–01 (3d Cir. 2004);

21 see also Hernandez v. Comm’r, 490 U.S. 680, 695 (1989) (courts should apply Larson when relevant

22 before proceeding to Lemon). Failure to satisfy any one test—or any one part of the three-part Lemon

23 test—invalidates the challenged action. The Executive Order fails all three.

24

Hence, the Executive Order should be enjoined. And to prevent imminent and extraordinary

25 harm in the meantime, a temporary restraining order should issue immediately.

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 2 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 5 of 16

1

A. The Executive Order fails the Establishment Clause’s Larson Test.

2

“The clearest command of the Establishment Clause is that one religious denomination

3 cannot be officially preferred over another.” Larson, 456 U.S. at 244. Thus, when the government

4 designates one denomination for different treatment, whether favorable or unfavorable, its action is

5 subject to strict scrutiny and cannot stand. Id. at 246; see, e.g., Awad v. Ziriax, 670 F.3d 1111,

6 1128 (10th Cir. 2012) (applying strict scrutiny to and invalidating state action that targeted Islam

7 for disfavor). Simply put, “the government may not favor one religion over another, or religion

8 over irreligion, religious choice being the prerogative of individuals.” McCreary, 545 U.S. at 875.

9

The challenged Executive Order singles out Muslim-majority countries and subjects those

10 who were born in or come from those countries (principally Muslims) to harsh legal disabilities

11 and punishments, including exclusion, detention, and expulsion, based on their faith. Exec. Order

12 No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017). At the same time, it affords exemptions and more

13 favorable treatment to “religious minorit[ies]” in those countries—in other words, non-Muslims.

14 See id. § 5(b), (e). Legal U.S. residents from the identified countries are thereby targeted and put at

15 severe risk of detention and deportation because of their officially disfavored Muslim faith, while

16 non-Muslims are free from threats of similar harm.

17

The Executive Order thereby acts in the most personal, palpable terms to disfavor Muslims

18 in Washington and throughout the country. Many Muslims on legal visas for work or education

19 are, at best, trapped in the United States: If they leave, they will not be allowed to return. So they

20 cannot engage in the ordinary activities enjoyed by non-Muslims that may be essential to

21 educational or professional success or to maintenance of family relationships. And even under the

22 government’s litigation-inspired change to its actions (see First Am. Compl. Ex. 14)—which

23 apparently now exempts permanent residents from the prescribed discriminatory treatment, these

24 individuals, as well as U.S. citizens, will still be deprived of family reunifications through

25 immigration and visits from geographically distant relatives that similarly situated Americans from

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 3 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 6 of 16

1 non-Muslim countries enjoy as a matter of course. The Executive Order thus severely injures

2 Muslims by depriving them of fundamental rights and freedoms, negatively interfering with their

3 professional and personal lives, and quarantining them from the outside world.

4

Therefore, this Court should “treat the [Executive Order] as suspect and . . . apply strict

5 scrutiny in adjudging its constitutionality”: the discriminatory treatment of Muslims “must be

6 invalidated unless it is justified by a compelling governmental interest and unless it is closely fitted

7 to further that interest.” Larson, 456 U.S. at 246–47 (citation omitted).

8

Here, the government’s asserted interest is “stop[ping] attacks by foreign nationals . . .

9 admitted to the United States.” Exec. Order No. 13,769 § 1. Preventing attacks is a compelling

10 interest; but merely incanting the mantra of “terrorism” or “national security” is not enough. The

11 Executive Order must be “closely fitted to further the interest.” Larson, 456 U.S. at 248. It isn’t.

12

National security is not furthered by a policy of suddenly, flatly, and universally excluding

13 Muslims whose entry the government had already approved. Much less is it closely fitted to that

14 end. People from the seven identified countries—Iran, Iraq, Libya, Somalia, Syria, Sudan, and

15 Yemen—have, collectively, killed zero people in terrorist attacks in the United States since 1975.

16 Alex Nowrasteh, Where Do Terrorists Come From? Not the Nations Named in Trump Ban,

17 NEWSWEEK (Jan. 31, 2017), http://bit.ly/2kWoddx.1 The Executive Order does not address the

18 greater terrorist threat posed by domestic extremists who are not Muslims. See, e.g., Ellen

19 Nakashima, Domestic Extremists Have Killed More Americans than Jihadists Since 9/11. How the

20 Government Is Responding, WASH. POST (Oct. 15, 2015), http://wapo.st/1Qh8Kft (noting that since

21 2001, “white supremacists and people motivated by racial and religious hatred and anti-government

22 views” have killed more Americans than have “international terrorists”). And even accepting the

23 Trump administration’s fixation on terrorist attacks by Muslims, sixty-nine percent of the individuals

24 who have perpetrated such attacks were either natural-born or naturalized U.S. citizens. Who Are the

25 1 The top five countries of origin for foreign-born perpetrators of terrorism in the United States have been Croatia, Cuba,
Egypt, Pakistan, and Saudi Arabia—not one of which is covered by the Executive Order. See id.

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 4 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 7 of 16

1 Terrorists?, NEW AMERICA, http://bit.ly/2keSmUO (last visited Feb. 2, 2017). As a defense against

2 terrorism, the Executive Order wildly misses the mark. The fit with the defendants’ asserted interest

3 is not merely loose; it is nonexistent. Strict scrutiny cannot be satisfied, and the Executive Order

4 cannot stand. Hence, it should not be enforced, to the great harm of so many, while the government

5 litigates to try to defend its constitutionally and morally indefensible policy.

6

B. The Executive Order fails the Endorsement Test.

7

Not only is government forbidden to “discriminate among persons on the basis of their

8 religious beliefs and practices,” but the Establishment Clause “prohibits government from

9 appearing to take a position on questions of religious belief or from ‘making adherence to a

10 religion relevant in any way to a person’s standing in the political community.’” County of

11 Allegheny v. ACLU, 492 U.S. 573, 590, 594 (1989) (quoting Lynch v. Donnelly, 465 U.S. 668, 687

12 (1984) (O’Connor, J., concurring)). “[T]he government may not favor one religion over another”

13 by endorsing the one or condemning the other. McCreary, 545 U.S. at 875. Yet the Executive

14 Order does exactly that.

15

The question under the Endorsement Test is “‘whether an objective observer . . . would

16 perceive” the government to have placed its stamp of approval or disapproval on religion or on a

17 particular faith. Santa Fe, 530 U.S. at 308 (quoting Wallace v. Jaffree, 472 U.S. 38, 76 (1985)

18 (O’Connor, J., concurring)). The hypothetical objective observer is “presumed to be familiar with

19 the history of the government’s actions and competent to learn what history has to show”

20 (McCreary, 545 U.S. at 866), which means that the entire history of publicly available information

21 about the genesis and evolution of the challenged policy here speaks directly to whether the

22 Executive Order is an unconstitutional religious endorsement. What is more, even officially

23 repudiated past acts are not “dead and buried” but remain in the reasonable observer’s memory,

24 affecting how the final—or in this case evolving—governmental action is viewed. Id. at 870. And

25 the Establishment Clause is violated by “both perceived and actual endorsement of religion”

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 5 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 8 of 16

1 (Santa Fe, 530 U.S. at 305), meaning that if a reasonable observer, considering the full history and

2 context of the challenged policy, would perceive governmental endorsement, even if the

3 government did not intend it, the policy cannot stand.

4

Disapproval of Islam and approval of other faiths is apparent even from the bare text of the

5 Executive Order. It singles out for exclusion persons from seven overwhelmingly Muslim nations:

6 Iran (99.5% Muslim), Iraq (99.0% Muslim), Libya (96.6% Muslim), Somalia (99.8% Muslim),

7 Sudan (90.7% Muslim), Syria (92.8% Muslim), and Yemen (99.1% Muslim). Exec. Order No.

8 13,769 § 3(c); PEW RES. CTR., THE GLOBAL RELIGIOUS LANDSCAPE 45–50 (2012),

9 http://bit.ly/2k4Us8B.

10

The Executive Order also blocks entry of all refugees temporarily and of Syrian refugees

11 indefinitely (Exec. Order No. 13,769 § 5(a), (c)), again disproportionately affecting Muslims. As

12 noted, Syria is overwhelmingly Muslim; and Muslims made up a plurality of all refugees resettled

13 in the United States last year, the number of Muslim refugees to the U.S. having increased almost

14 every year over the past decade. Jens Manuel Krogstad & Jynnah Radford, Key Facts About

15 Refugees to the U.S., PEW RES. CTR. (Jan. 30, 2017), http://pewrsr.ch/2kk7ro8. The disfavor of

16 Islam is, once again, compounded by the Executive Order’s favoritism toward refugees who

17 belong to minority religions (see Exec. Order No. 13,769 § 5(b), (e)), as most refugees worldwide

18 today come from Muslim-majority countries (Figures at a Glance, UNHCR, http://bit.ly/2cmTBiF

19 (last visited Feb. 2, 2017)). The intention to target Muslims and only Muslims is pellucid.

20

Though these features of the Executive Order alone suffice to communicate official

21 preference for non-Muslims, the objective observer as a matter of law also knows much more.

22 First, the precursor to the Executive Order was then-candidate Trump’s public and repeated

23 promise of a “total and complete shutdown of Muslims entering the United States.” First Am.

24 Compl. Ex. 1. Second, candidate Trump renamed and repackaged his Muslim ban only after civil-

25 rights organizations and others decried its illegality, saying “I’m talking territory instead of

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 6 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 9 of 16

1 Muslim.” First Am. Compl. Ex. 4, at 6. Moreover, he publicly described this change not as “a pull-

2 back” but as “an expansion” of the ban. First Am. Compl. Ex. 4, at 1 (emphasis added). Third,

3 after the election, President-elect Trump asked Rudy Giuliani (then under consideration for the

4 post of Secretary of State) how the “Muslim ban” could be implemented “legally.” First Am.

5 Compl. Ex 17. Fourth, in an interview with the Christian Broadcasting Network on January 27,

6 2017, the very day he issued the Executive Order, President Trump declared that his administration

7 would be acting to give priority (i.e., favoritism) to Christian refugees going forward. First Am.

8 Compl. Ex. 8. And fifth, the government has exempted from the ban any person from one of those

9 countries who also holds an Israeli passport (i.e., anyone likely to be Jewish). See Message from

10 U.S. Embassy Tel Aviv Consular Section, U.S. EMBASSY IN ISRAEL, http://bit.ly/2l0KWB8 (last

11 visited Feb. 2, 2017). The objective observer is aware of these public statements by President

12 Trump and others who developed and imposed the Muslim ban and the resulting Executive Order,

13 and is also aware of the broader “social context” in which the Executive Order and the policy that

14 it embodies arose. See, e.g., Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 734 (M.D.

15 Pa. 2005). And the magnitude of the government’s disfavor toward Islam is made vivid to the

16 objective observer by the government’s initial attempt, through the Executive Order, to ban even

17 lawful permanent residents—residents whom the government had already vetted—before its

18 rushed disavowal of that position in the face of compelling legal challenges (First Am. Compl.

19 Exs. 13, 14), and by the government’s mass revocation of “all valid nonimmigrant and immigrant

20 visas,” with few exceptions, from the seven countries (First Am. Compl. Ex. 10 (emphasis added)).

21

Taking all of that into account, an objective observer could hardly help but perceive

22 governmental condemnation of Islam, as well as governmental endorsement of Christianity—most

23 notably through President Trump’s express declaration that his administration would favor

24 Christians over other refugees. The objective observer would thus receive the message that

25 Muslims are “outsiders, not full members of the political community” and that Christians are

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 7 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 10 of 16

1 “insiders, favored members of the political community.” Santa Fe, 530 U.S. at 309–10 (quoting

2 Lynch, 465 U.S. at 688 (O’Connor, J., concurring)). Simply put, the Executive Order

3 communicates that Muslims of all different legal statuses are a disfavored caste. That is not a

4 message that the government can or should convey: “When the government associates one set of

5 religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the

6 individual’s decision about whether and how to worship.” McCreary, 545 U.S. at 883 (O’Connor,

7 J., concurring). The violation of the Establishment Clause here is forthright and flagrant.

8

C. The Executive Order fails all three requirements of the Lemon Test.

9

The Executive Order also violates the Lemon Test, under which governmental action must

10 (1) have a preeminently secular purpose (McCreary, 545 U.S. at 864), (2) have a “principal or

11 primary effect . . . that neither advances nor inhibits religion” (Lemon, 403 U.S. at 612), and

12 (3) “must not foster ‘an excessive government entanglement with religion’” (id. at 613 (quoting

13 Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970))). Failure to satisfy any part constitutes an

14 Establishment Clause violation. See id. at 612–13. The Executive Order fails all three.

15

1. The secular-purpose requirement is violated if the “government’s actual purpose is to

16 endorse or disapprove of religion.” Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (quoting

17 Lynch, 465 U.S. at 690 (O’Connor, J., concurring)). It is not enough merely to articulate a secular

18 purpose; “the secular purpose required has to be genuine, not a sham, and not merely secondary to

19 a religious objective.” McCreary, 545 U.S. at 864. As with the Endorsement Test, “[t]he eyes that

20 look to purpose belong to an ‘objective observer.’” Id. at 862 (internal quotation marks omitted)

21 (quoting Santa Fe, 530 U.S. at 308). And because “reasonable observers have reasonable

22 memories,” the court must not “turn a blind eye to the context” but must “look to the record of

23 evidence showing the progression leading up to” the challenged action. Id. at 866, 868.

24

As explained above, President Trump’s clear, unambiguous statements of intent both

25 before and after the election and inauguration, and the rest of the history leading up to the

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 8 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 11 of 16

1 Executive Order, all bespeak the purpose to disfavor Islam and favor Christianity. The President

2 and his campaign surrogates and policy advisers promised a “complete and total shutdown of

3 Muslims entering the United States” and favoritism toward Christian refugees. First Am. Compl.

4 Exs. 1, 8. They have now acted to deliver on those promises. See Exec. Order No. 13,769 §§ 3, 5;

5 see also First Am. Compl. Ex. 17. The invocation of terrorist threats simply does not explain the

6 action actually taken. So it must be deemed either a “sham” or merely “secondary” to an

7 impermissible religious purpose (McCreary, 545 U.S. at 864).

8

2. The Executive Order also fails Lemon’s principal-effect requirement by inhibiting Islam

9 and advancing Christianity. See Lemon, 403 U.S. at 612. Again, that is partly for the reasons

10 already stated: the effect requirement is violated whenever “it would be objectively reasonable for

11 the government action to be construed as sending primarily a message of either endorsement or

12 disapproval of religion.” Vernon v. City of Los Angeles, 27 F.3d 1385, 1398 (9th Cir. 1994).

13

The Executive Order also has the impermissible effect of inhibiting Islam by demonstrably

14 targeting Muslims, singling them out for unfavorable treatment. Muslim refugees desperate to

15 escape the charnel house of Syria and reunite with family members in the State are now forced to

16 renounce or disguise their faith to qualify for the Executive Order’s exception affording preferred

17 status to “religious minorit[ies].” Exec. Order No. 13,769 § 5(e). When remaining in Syria may be

18 tantamount to a death sentence, this scenario is hardly implausible. Cf., e.g., The Marranos,

19 JEWISHHISTORY.ORG, http://www.jewishhistory.org/the-marranos/ (last visited Feb. 2, 2017)

20 (describing “[t]he forced conversion of a quarter-million Jews in Spain” during the Inquisition). It

21 is difficult to imagine a policy that would more greatly inhibit the practice of one’s faith than to

22 make religious conversion a life-or-death matter.

23

3. Finally, the Establishment Clause forbids “excessive government entanglement with

24 religion.” Lemon, 403 U.S. at 613 (quoting Walz, 397 U.S. at 674). It thus prohibits government

25 from imposing or implementing religious tests or making determinations based on religious

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 9 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 12 of 16

1 doctrine. See, e.g., Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l

2 Presbyterian Church, 393 U.S. 440, 450 (1969).

3

Among other suspect features, the Executive Order gives priority to certain refugee claims

4 “provided that the religion of the individual is a minority religion in the individual’s country of

5 nationality.” Exec. Order No. 13,769 § 5(b). Yet it does not define the term minority religion,

6 forcing individual government agents—although it is yet unclear which agents—to make that

7 determination themselves.

8

The Syrian example demonstrates how fraught judgments about religious-minority status

9 would be. Because Syria is overwhelmingly Muslim, those who profess a faith other than Islam are

10 undoubtedly religious minorities there. But that is just the beginning. Syria’s Muslim population is

11 predominantly Sunni. There is also a substantial minority Shiite population that includes

12 significant numbers of Alawites and Ismailis. The World Factbook: Syria, CENT. INTELLIGENCE

13 AGENCY, http://bit.ly/JZ2o63 (last updated Jan. 12, 2017). Although Alawites are a numerical

14 minority, they hold disproportionate governmental power and count Syrian President Bashar al-

15 Assad (himself a leading cause of refugees) among their number. Guide: Syria’s Diverse

16 Minorities, BBC NEWS (Dec. 9, 2011), http://bbc.in/2l0Zgd0. Given the demographics and politics,

17 whether a Sunni, a non-Alawite Shiite, or an Alawite would be considered a religious minority

18 when fleeing Sunni-majority but Alawite-controlled Syria is unclear. What is clear is that the

19 Executive Order would require U.S. officials to make religious determinations, apparently on an ad

20 hoc, case-by-case basis, about which branch of Islam each potential refugee is most closely

21 associated with and whether that branch constitutes a religious minority—or else to make the

22 theological determination that the distinct branches of Islam are insufficiently different and

23 therefore that no Muslim refugee will be accepted as a religious minority.

24

If it is unconstitutional for government to decide, for example, how much of a school’s

25 expenditure is attributable to “religious activity” versus “secular education” (Lemon, 403 U.S. at

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 10 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 13 of 16

1 620) or whether student activity constitutes “religious speech” (Widmar v. Vincent, 454 U.S. 263,

2 272 n.11 (1981)), it is all the more improper for government to decide whose religion is what and

3 how that relates to other denominations or sects.

4 II. The Executive Order violates the Religious Freedom Restoration Act.

5

The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (2015), provides that

6 governmental action cannot substantially burden religious exercise unless it is the least restrictive

7 means of furthering a compelling interest—that is, unless the action survives strict scrutiny. See

8 Holt v. Hobbs, 135 S. Ct. 853, 859 (2015). Here, the Executive Order cannot meet that

9 “exceptionally demanding” test (see id. at 864).

10

In the first instance, Muslim residents of Washington (or other States) who hold visas and

11 are legally present in the United States cannot make a pilgrimage to Mecca—one of the five pillars

12 of Islam and a mandatory religious obligation to be fulfilled at least once in a practicing Muslim’s

13 lifetime (Diaa Hadid, What Muslims Do on Hajj, and Why, N.Y. TIMES (Sept. 8, 2016),

14 http://nyti.ms/2kYGovS). For if they leave the United States and then try to come back, they will

15 be detained and deported. Because coercion “to act contrary to [one’s] religious beliefs by the

16 threat of civil or criminal sanctions” is a substantial burden on religious exercise (Navajo Nation v.

17 U.S. Forest Serv., 535 F.3d 1058, 1069-70 (9th Cir. 2008)), no one could seriously dispute that

18 detention and subsequent deportation meet RFRA’s threshold.

19

The Executive Order must therefore be “the least restrictive means of furthering [a]

20 compelling governmental interest” (§ 2000bb-1(b)), which, as explained (see supra Section I.A), it

21 is not. A blanket ban on all immigration and visitation from seven overwhelmingly Muslim nations

22 with little to no history of sending terrorists to the United States, and the revocation of visas and

23 the inevitable detention and deportation of people lawfully in the United States and accused of no

24 crime, much less terrorism, are not only far more restrictive than necessary to fight terrorism, but

25 they may not further the government’s asserted interest at all. See David Morgan, Former Intel

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 11 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 14 of 16

1 Official: Trump Immigration Ban Makes Americans Less Safe, CBS NEWS (Jan. 30, 2017),

2 http://cbsn.ws/2jKLkpK. The Executive Order is thus unlawful under RFRA.

3

What is more, RFRA was enacted “to provide greater protection for religious exercise than

4 is available under the First Amendment.” Holt, 135 S. Ct. at 859-60. Thus, whatever else RFRA

5 may cover, it certainly encompasses violations of the Free Exercise Clause’s core mandate that the

6 government must not single out a particular group for punishment based on religious exercise.

7

Indeed, because “[t]he Free Exercise Clause protects against governmental hostility which

8 is masked, as well as overt,” the singling out of a religious group for punishment is suspect even if

9 done artfully and by subterfuge without making direct, explicit reference to the group or its faith.

10 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993). Such a

11 “religious gerrymander” presumptively violates the Free Exercise Clause—and thus also RFRA

12 (cf. Fernandez v. Mukasey, 520 F.3d 965, 966 n.1 (9th Cir. 2008))—unless the government can

13 demonstrate that it is the least restrictive means to serve a compelling governmental interest.

14 Lukumi, 508 U.S at 534, 546. As already explained, it cannot.

15

* * *

16

The Executive Order is exactly what President Trump promised all along—a “Muslim

17 ban.” No amount of rebranding will change that. People from seven countries are refused entry to

18 the United States for no reason other than their deity and preferred holy book. Beyond failing

19 every applicable legal standard, the Executive Order is an insult to the fundamental principles of

20 our Constitution. It cannot stand. It should not stand even for a day. The temporary restraining

21 order should issue.

22

DATED this 2ND day of February, 2017.

23

24

25

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 12 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 15 of 16

AMERICANS UNITED FOR SEPARATION OF CHURCH

1

AND STATE

2

By: s/ Richard B. Katskee

3

Richard B. Katskee, admitted pro hac vice Eric Rothschild, admitted pro hac vice*

4

Andrew Nellis, admitted pro hac vice†

Bradley Girard, admitted pro hac vice

5

Kelly M. Percival, admitted pro hac vice‡

1310 L Street NW, Suite 200

6

Washington, DC 20005

Phone: (202) 466-3234

7

Email: katskee@au.org

8

Email: rothschild@au.org Email: nellis@au.org

9

Email: girard@au.org

Email: percival@au.org

10

* Admitted only in Pennsylvania. Supervised by

11

Richard B. Katskee, a member of the D.C. bar.

12

† Admitted only in New York. Supervised by Richard B. Katskee, a member of the D.C. bar.

13

‡ Admitted only in California. Supervised by Richard

B. Katskee, a member of the D.C. bar.
14

CALFO EAKES & OSTROVSKY PLLC 15

16

By: s/ Angelo J. Calfo By: s/ Kristin W. Silverman

17

Angelo J. Calfo, WSBA #27079

Kristin W. Silverman, WSBA #49421

18

1301 Second Avenue, Suite 2800

Seattle, WA 98101-3808

19

Phone: (206) 407-2200

Fax: (206) 407-2224

20

Email: angeloc@calfoeakes.com

Email: kristins@calfoeakes.com 21

22

Counsel for Amicus Curiae Americans United for Separation of Church and State

23

24

25

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 13 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

Case 2:17-cv-00141-JLR Document 48-2 Filed 02/02/17 Page 16 of 16

1

CERTIFICATE OF SERVICE

2

I hereby certify that on February 2, 2017, the foregoing document was electronically filed

3 with the United States District Court CM/ECF system, which will send notification of such filing

4 to all attorneys of record.

5

6

Americans United for Separation of Church and State

7 By:s/ Richard B. Katskee

8

Richard B. Katskee, admitted pro hac vice

1310 L Street NW, Suite 200

9

Washington, DC 20005

Phone: (202) 466-3234

10

Email: katskee@au.org

11

Counsel for Amicus Curiae Americans

12

United for Separation of Church and State

13

14

15

16

17

18

19

20

21

22

23

24

25

BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE- 1 (Case No. 2:17-cv-00141 JLR)

LAW OFFICES CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101
TEL (206) 407-2200 FAX (206) 407-2224

 
 Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 1 of 34

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

9

STATE OF WASHINGTON and

STATE OF MINNESOTA, 10

No. 2:17-cv-00141 (JLR)

11

Plaintiffs,

DEFENDANTS’ OPPOSITION TO

12

v.

PLAINTIFF STATE OF

WASHINGTON’S MOTION FOR

13

DONALD TRUMP, in his official capacity as TEMPORARY RESTRAINING

14

President of the United States; U.S. DEPARTMENT OF HOMELAND

ORDER

15

SECURITY; JOHN F. KELLY, in his official

capacity as Secretary of the Department of

Noted For Consideration:

16

Homeland Security; REX W. TILLERSON, in February 3, 2017

his official capacity as Secretary of State;1 and

17

the UNITED STATES OF AMERICA,

18 Defendants.
19

20

21

22

23

24

25

26

27

1 Rex W. Tillerson, Secretary of State, has been substituted for Tom Shannon pursuant to Federal Rule of Civil

28

Procedure 25(d).

DEFENDANTS’ OPPOSITION TO PLAINTIFF STATE OF WASHINGTON’SMOTION FOR TEMPORARY RESTRAINING ORDER State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 2 of 34

1

TABLE OF CONTENTS

2 INTRODUCTION ........................................................................................................................ 1
3 BACKGROUND .......................................................................................................................... 3 4
I. The Immigration and Nationality Act ........................................................................ 3 5
II. Presidential Authority Over Foreign Affairs and National Security .......................... 5 6
III. The President’s Executive Order of January 27, 2017 ............................................... 6 7
8 STANDARD OF REVIEW.......................................................................................................... 8
9 ARGUMENT ............................................................................................................................... 9

10

I. The State Lacks Standing to Invoke the Court’s Jurisdiction .................................... 9

11

A. The State Lacks Standing on Its Own Behalf....................................................... 9

12

B. The State Cannot Bring a Parens Patriae Action Here ..................................... 12

13

II. The State Does Not Demonstrate It Is Likely to Prevail on the Merits.................... 14

14

A. The Executive Order Is a Valid Exercise of Congress’ Broad Delegation

15

of Authority to the President, and His Own Constitutional Powers................... 14

16

B. This Court Cannot, and Need Not, Review the President’s National

Security Determinations Underlying the Executive Order................................. 19 17

18

C. The State’s Facial Constitutional Challenges Fail.............................................. 23

19

III. The State Has Made No Showing of Irreparable Harm ........................................... 26

20

IV. The Balance of the Equities and the Public Interest Mandate Against a

Temporary Restraining Order................................................................................... 28

21

V. Any Relief Entered Must Be Limited in Scope to the Plaintiff State and to

22

the Specific Harm Found .......................................................................................... 30

23 CONCLUSION .......................................................................................................................... 30 24

25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - i State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 3 of 34

1

INTRODUCTION

2

A provision of the Immigration and Nationality Act (INA) titled “Suspension of entry or

3 imposition of restrictions by President,” 8 U.S.C. § 1182(f), authorizes the President to “suspend
4 the entry of . . . any class of aliens” whenever the President determines their entry “would be
5

6 detrimental to the interests of the United States[.]” Invoking that authority, on January 27, 2017,

7 the President issued an Executive Order titled “Protecting the Nation from Foreign Terrorist

8 Entry into the United States.” See ECF No. 1-7. The Executive Order’s purpose is “to protect

9 the American people from terrorist attacks by foreign nationals admitted to the United States,”

10 id. pmbl., and as pertinent here it directs the following actions:
11

12

• a 90-day suspension of entry for individuals from certain countries, during which time the Secretary of Homeland Security and other officials must review whether the United

13

States has adequate information to determine that an individual seeking an immigration

benefit “is not a security or public-safety threat,” see id. § 3(a), (c);

14

• a 120-day suspension of the U.S. Refugee Admissions Program (“USRAP” or “refugee

15

program”), during which time the Secretary of State and other officials must “review the

16

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

17

to the security and welfare of the United States, and shall implement such additional

procedures,” see id. § 5(a); and 18

• a suspension of entry of Syrian nationals as refugees, until such time as the President

19

determines “that sufficient changes have been made to the USRAP to ensure that

20

admission of Syrian refugees is consistent with the national interest,” see id. § 5(c).

21 The Executive Order also contains waiver provisions permitting exceptions from some of these

22 actions. See, e.g., id. §§ 3(g), 5(e).

23

Despite this plain congressional authorization to the President to make determinations

24 regarding national security and the admissibility of aliens, the State of Washington (hereafter,
25

“the State”) requests entry of a temporary restraining order prohibiting enforcement nationwide 26

27 of the President’s Executive Order. See Proposed Order (ECF No. 3-1) at 3 ¶ 2. The State does

28 so despite the heavy burden it carries to justify such an “extraordinary remedy,” particularly

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 1 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 4 of 34

1 where the remedy would interfere with Congress’ determination that it is the President, not a

2 court or a single state, that should make the relevant judgments over national security and foreign 3
affairs. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 22, 25-26 (2008). 4
At the outset, the State’s motion for a temporary restraining order (ECF No. 3, hereafter 5 6 “TRO Mot.”) overlooks whether the State even has standing to pursue its claims. It is well-
7 established that a state cannot sue the Federal Government on a parens patriae theory. And the

8 State’s attempts to manufacture standing in its own right—i.e., through lost tax revenues, or
9 reputational injury to its universities—are not concrete, particularized harms cognizable under 10
Article III. Many of the State’s claimed harms, moreover, simply do not exist. Most 11
significantly, the State cannot rely on injuries to lawful permanent residents (“LPRs”), as it seeks 12 13 to do, in light of guidance from the White House clarifying that the 90-day suspension of entry
14 does not apply to those individuals.1

15

The State’s claims likewise fails on the merits. Congress has “plenary power” over the

16 admission and exclusion of aliens, Kleindienst v. Mandel, 408 U.S. 753, 766 (1972), and here
17 expressly has delegated to the President the broad power to suspend entry “of any class of aliens
18
19 into the United States.” 8 U.S.C. § 1182(f). The President’s exercise of his Section 1182(f)

20 authority is committed to his discretion by law, and thus judicial review is precluded. Moreover,

21 that delegation, combined with the President’s own Article II powers in this realm, placed the
22 President at the apex of his authority when issuing the Executive Order. Cf. Youngstown Sheet 23
& Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). The Order was well 24
within the President’s authority under Congress’ delegation, particularly in an area, like 25 26 immigration, in which the admission to the United States of foreign aliens is subject to plenary

27

1 See Memorandum from Donald F. McGahn II, Counsel to the President (Feb. 1, 2017) (filed herewith as Exhibit A)

28

(hereafter “Feb. 1, 2017 Memorandum”).

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 2 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 5 of 34

1 control by the political branches. See Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court

2 has long held that an alien seeking initial admission to the United States requests a privilege and
3 has no constitutional rights regarding his application, for the power to admit or exclude aliens is
4 a sovereign prerogative.”). In light of these principles, the State’s claims on the merits cannot
5
6 succeed, for they would force this Court to override the plenary power of the political branches

7 to determine which aliens should be admitted into this Nation’s borders according to those

8 branches’ assessments of the foreign policy and national security interests of the United States.

9

Indeed, the State’s likelihood of success faces a particularly insurmountable barrier

10 because the State is bringing a facial challenge to the Executive Order. To prevail on its facial
11

challenge, the State must prove that the Executive Order is unconstitutional in all (or at least 12

13 most) of its applications. It cannot do so. At a minimum, because there are unquestionably a

14 significant number of lawful applications of the Executive Order—e.g., to non-resident

15 unadmitted aliens—the State’s facial challenge necessarily must fail.
16 Nor can the State sustain its other burdens. The State’s claimed irreparable harm is vague
17 and abstract, and certainly not occurring with the immediacy necessary to warrant a temporary
18 19 restraining order (i.e., within the coming days or weeks). The balance of the equities and the
20 public interest also decisively favor the United States, given that the State’s requested relief

21 would interfere with the President’s exercise of plenary power delegated by Congress. As these

22 factors, like the merits, weigh squarely against judicial relief, the State’s motion should be denied.

23 BACKGROUND

24

I.

THE IMMIGRATION AND NATIONALITY ACT

25

26

The Immigration and Nationality Act of 1952 (“INA”), 8 U.S.C. §§ 1101 et seq., as

27 amended, provides the legal framework under which Congress has exercised and delegated its

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 3 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 6 of 34

1 constitutional authority to determine who is permitted to enter the United States, who is permitted

2 to remain in the United States, and for what reasons persons may be admitted to or removed from
3 the United States. Central to the Court’s consideration of the issues before it is Section 212(f) of
4 the INA, 8 U.S.C. § 1182(f), which provides broad authority to the President to suspend or
5
6 impose restrictions on the entry of aliens into the United States:

7

(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens

8

into the United States would be detrimental to the interests of the United States,

9

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

10

impose on the entry of aliens any restrictions he may deem to be appropriate. . . .

11

Every President over the last thirty years has invoked this authority to suspend or impose

12 restrictions on the entry of certain aliens or classes of aliens,2 in some instances including
13 classifications based on nationality. For example, in 1986, President Reagan (through
14 Presidential Proclamation 5517) invoked section 212(f) to suspend entry of Cuban nationals as
15
16 immigrants into the United States, subject to certain exceptions. See Suspension of Cuban

17 Immigration, 1986 WL 796773 (Aug. 22, 1986). In 1996, President Clinton (through

18 Presidential Proclamation 6958) invoked section 212(f) to suspend entry, subject to certain
19 exceptions, of members of the Government of Sudan, officials of that Government, and members 20
of the Sudanese armed forces as immigrants or nonimmigrants into the United States. See 21
Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Are Members or 22
23 Officials of the Sudanese Government or Armed Forces, 1996 WL 33673860 (Nov. 22, 1996).

24

25

2 See, e.g., Presidential Proclamation 5517 (President Reagan); Exec. Order No. 12,324 (President Reagan); Exec.

26

Order No. 12,807 (President George H.W. Bush); Presidential Proclamation 6958 (President Clinton); Presidential

Proclamation 8342 (President George W. Bush); Presidential Proclamation 8693 (President Obama); Exec. Order

27

No. 13,694 (President Obama); Exec. Order No. 13,726 (President Obama). The Department of States maintains a

list of Section 212(f) Presidential Proclamations that currently affect the issuance of United States visas at

28

https://travel.state.gov/content/visas/en/fees/presidential-proclamations.html.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 4 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 7 of 34

1

Congress likewise has expressly drawn distinctions based on nationality. For example,

2 in 2015, Congress amended the INA to exclude certain individuals from a visa waiver program 3
(i.e., the ability to enter the United States as a nonimmigrant without a visa) on the basis of 4
nationality.3 See Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129 Stat. 2242, 5 6 2990 (2015) (codified at 8 U.S.C. § 1187(a)(12)). Congress expressly excluded nationals of Iraq
7 and Syria from the program, see 8 U.S.C. § 1187(a)(12)(A)(ii), and created a process by which

8 the Secretary of Homeland Security could designate additional “Countries or areas of concern,”
9 for exclusion of a country’s nationals. See id. § 1187(a)(12)(D). As of February 2016, the 10
exclusion applied to nationals of Iraq and Syria (pursuant to the statute’s plain text), as well as 11
nationals of Iran, Sudan, Libya, Somalia, and Yemen (pursuant to Executive Branch designations 12 13 under the statutory scheme). See Dep’t of Homeland Sec., DHS Announces Further Travel
14 Restrictions for the Visa Waiver Program (Feb. 18, 2016).4 These seven countries excluded

15 from the visa waiver program are the same seven countries that are covered by Section 3 of the

16 President’s January 27, 2017 Executive Order. See Executive Order § 3(c) (incorporating by

17
reference “countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12)”). 18

19

II. PRESIDENTIAL AUTHORITY OVER FOREIGN AFFAIRS AND NATIONAL SECURITY

20

These delegations of authority to deny entry to certain classes of aliens, based on the

21 President’s findings regarding the national interest, fall in the heartland of (and are bolstered by) 22

23

24

3 The INA sets out several terms of art. An “alien” is any person who is neither a citizen nor a national of the United States. See 8 U.S.C. § 1101(a)(3). A “nonimmigrant” is an alien admitted to the United States on a temporary

25

basis, with one of the visa categories established for particular purposes under 8 U.S.C. § 1101(a)(15). On the other hand, an “immigrant” is an individual who is permitted to stay in the United States on a permanent basis. Within

26

the category of “immigrant,” an individual may be admitted with the privilege of residing permanently in the United States, thereby acquiring LPR status. See 8 U.S.C. § 1101(a)(20). LPRs are authorized to work in the United States,

as are some aliens temporarily admitted pursuant to certain nonimmigrant categories. See generally 8 C.F.R. §

27

274a.12 (Classes of aliens authorized to accept employment).

28

4 https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiver-program

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 5 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 8 of 34

1 the President’s broad authority under Article II relating to foreign affairs and national security.

2 See U.S. Const., art. II, § 2 (“Commander in Chief” power, and authority to “make treaties” and
3 “appoint ambassadors”), § 3 (power to “receive ambassadors”). As the Supreme Court
4 repeatedly has held, Article II confers upon the President expansive authority over foreign affairs,
5
6 national security, and immigration. See Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (“The

7 exclusion of aliens is a fundamental act of sovereignty . . . inherent in the executive power to

8 control the foreign affairs of the nation.”); United States v. Curtiss-Wright Exp. Corp., 299 U.S.

9 304, 320 (1936) (discussing “the very delicate, plenary and exclusive power of the President as
10 the sole organ of the federal government in the field of international relations—a power which
11 does not require as a basis for its exercise an act of Congress”).
12

13

III. THE PRESIDENT’S EXECUTIVE ORDER OF JANUARY 27, 2017

14

Invoking these constitutional and statutory authorities, on January 27, 2017, the President

15 issued an Executive Order titled: “Protecting the Nation from Foreign Terrorist Entry into the

16 United States.” See ECF No. 1-7, also available at 2017 WL 394075. The Executive Order is
17 intended “to protect the American people from terrorist attacks by foreign nationals admitted to
18
19 the United States.” Executive Order § 2.

20

To accomplish this purpose, the Executive Order directs a number of actions. See id.

21 §§ 2-11. First, Section 3 of the Executive Order directs the Secretary of Homeland Security (in

22 consultation with other Executive Branch officials) to immediately conduct a review to identify
23 the “information needed from any country . . . to determine that [an] individual seeking [an
24 immigration-related] benefit is who the individual claims to be and is not a security or public-
25
26 safety threat.” Id. § 3(a). The Secretary must, within 30 days of the Executive Order, “submit

27 to the President a report on the results of the review,” as well as “a list of countries that do not

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 6 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 9 of 34

1 provide adequate information[.]” Id. § 3(b). During the next 60 days, the Executive Order directs

2 a process for requesting necessary information from foreign governments that do not supply such
3 information, and consequences for countries not providing the information. See id. § 3(d)-(f).
4 While this review is ongoing, the Executive Order, pursuant to section 212(f) of the INA,
5
6 suspends entry for 90 days of aliens from the seven countries covered by 8 U.S.C. § 1187(a)(12).

7 Id. § 3(c). During this period, exceptions may be made (on a case-by-case basis) by the

8 Secretaries of State or Homeland Security. Id. § 3(g). The suspension of entry in Section 3(c)
9 does not apply to lawful permanent residents of the United States. See Feb. 1, 2017 10
Memorandum (Exhibit A). 11
The Executive Order also suspends the U.S. Refugee Admissions Program for 120 days, 12
13 while the Secretary of State (in conjunction with other Executive Branch officials) reviews “the

14 USRAP application and adjudication process to determine what additional procedures should be

15 taken to ensure that those approved for refugee admission do not pose a threat to the security and
16 welfare of the United States,” and then “implement[s] such additional procedures.” Executive
17 Order § 5(a). Upon resumption of the refugee program—i.e., no sooner than 120 days after
18 19 issuance of the Executive Order—the Order directs the Secretary of State to “make changes, to
20 the extent permitted by law, to prioritize refugee claims made by individuals on the basis of

21 religious-based persecution, provided that the religion of the individual is a minority religion in

22 the individual’s country of nationality.” Id. § 5(b). Again, during the 120-day suspension of the

23 refugee program, the Executive Order allows the Secretaries of State and Homeland Security to
24 permit entry of individual refugees on a case-by-case basis. Id. § 5(e).
25

26

Finally, notwithstanding the general resumption of the refugee program after 120 days,

27 the Executive Order directs, pursuant to Section 212(f), a suspension of entry of nationals of

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 7 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 10 of 34

1 Syria as refugees based upon the President’s finding that such entry “is detrimental to the interests

2 of the United States.” Id. § 5(c). Such suspension will continue until such time as the President

3 determines “that sufficient changes have been made to the USRAP to ensure that admission of
4 Syrian refugees is consistent with the national interest.” Id.
5

6

STANDARD OF REVIEW

7

A temporary restraining order is “an extraordinary and drastic remedy[.]” Munaf v.

8 Geren, 553 U.S. 674, 689 (2008). A party seeking such relief “must establish that [it] is likely
9 to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary 10
relief, that the balance of equities tips in [its] favor, and that [a temporary restraining order] is in 11
the public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008). Further, injunctive relief that would 12
13 “deeply intrude[] into the core concerns of the executive branch”—such as foreign affairs and

14 national security—may be awarded only where the plaintiff “make[s] an extraordinarily strong

15 showing” as to each element. Adams v. Vance, 570 F.2d 950, 954-55 (D.C. Cir. 1978); see
16 Winter, 555 U.S. at 32-33.
17 The State raises only facial challenges to the Executive Order, which are “the most
18 19 difficult challenge[s] to mount successfully.” United States v. Salerno, 481 U.S. 739, 745 (1987).
20 To demonstrate that it is likely to prevail on the merits, the State must show more than that the

21 Executive Order “might operate unconstitutionally under some conceivable set of

22 circumstances.” Id. Instead, the State bears the “heavy burden” of “establish[ing] that no set of
23 circumstances exist under which the [Executive Order] would be valid.” Id.; see also Puente
24 Arizona v. Arpaio, 821 F.3d 1098, 1104 (9th Cir. 2016).
25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 8 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 11 of 34

1

ARGUMENT

2

I.

THE STATE LACKS STANDING TO INVOKE THE COURT’S JURISDICTION

3 The State of Washington pursues two theories of standing. First, it purports to sue on its
4 own behalf, alleging various injuries to its “proprietary interests.” Pl.’s Supp. Br. at 2-3 (ECF
5

6 No. 17). Second, it seeks to bring a parens patriae action on behalf of its residents. Id. at 3-5.

7 Neither theory satisfies the State’s burden to demonstrate standing.

8

A. The State Lacks Standing on Its Own Behalf

9

In some circumstances, a state may have standing to challenge federal action that

10 threatens its own distinct interests. As with any other party, however, the harm to the state’s
11

interests must be “an invasion of a legally protected interest” that is “concrete and particularized” 12

13 and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defs. of Wildlife, 504 U.S.

14 555, 560-61 (1992). A state suffers a cognizable injury when, for example, its physical territory

15 such as its “coastal land” is harmed. See Massachusetts v. EPA, 549 U.S. 497, 522-23 (2007).
16 A state likewise may challenge a measure commanding the state itself to act, see New York v.
17 United States, 505 U.S. 144 (1992) (standing to challenge federal law requiring State to take title
18 19 to nuclear waste or enact federally-approved regulations), or that prohibits it from acting, see
20 Oregon v. Mitchell, 400 U.S. 112 (1970) (standing to challenge federal law barring literacy-test

21 or durational-residency requirements in elections and requiring State to enfranchise 18-year-

22 olds).
23 The State’s allegations of harm here are insufficient to establish Article III standing.
24 Most fundamentally, the State’s allegations of standing rely on downstream, incidental effects
25
26 stemming from the Federal Government’s regulation of immigration as to third-party aliens. The

27 State has no legally cognizable interest in ensuring that the Federal Government issue any

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 9 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 12 of 34

1 particular alien any particular visa or admit any particular alien into the United States. The

2 State’s conception of standing miscomprehends the Nation’s constitutional structure: under our
3 federal system of separate sovereigns, a State has no legally protected interest in avoiding indirect
4 and incidental consequences (allegedly) flowing from the United States’ regulation of
5
6 individuals’ conduct pursuant to the powers vested in the Federal Government by the

7 Constitution. And it would be especially inconsistent with the constitutional structure to allow

8 such claims to proceed when they involve immigration, which is a subject uniquely committed
9 to the Federal Government, and in which the State has no role. See Arizona v. United States, 132 10
S. Ct. 2492, 2502 (2012) (“The federal power to determine immigration policy is well settled.”). 11
Thus, the State’s incidental, indirect injuries from federal immigration policies simply cannot 12
13 establish standing here.

14

Even so, the State’s alleged harms are neither concrete nor particularized. The State first

15 asserts that it will “lose . . . tax revenue” from tourists who, absent the Executive Order, would
16 visit the State and purchase goods and services there. Pl.’s Supp. Br. at 2; Decl. of Kathy Oline,
17 ECF No. 17-1. But allegations of a reduction in a State’s tax revenues (particularly where, as
18 19 here, there is no “direct link between the state’s status as a collector and recipient of revenues
20 and the . . . action being challenged”) is a “generalized grievance about the conduct of

21 government,” not the sort of particularized injury necessary to establish standing. Pennsylvania

22 v. Kleppe, 533 F.2d 668, 672 (D.C. Cir. 1976) (rejecting similar allegations by analogy to
23 taxpayer standing cases); see Florida v. Mellon, 273 U.S. 12, 17-18 (1927) (rejecting standing
24 despite Florida’s allegation that challenged federal law would induce citizens to remove property
25
26 from the state thereby diminishing the state’s tax revenues); Iowa ex rel. Miller v. Block, 771

27 F.2d 347, 353 (8th Cir. 1985) (concluding state lacked standing despite claim that challenged

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 10 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 13 of 34

1 action would “forc[e] unemployment up and state tax revenues down”). Were the Court to find

2 standing based on incidental impacts to the State’s treasury without any direct link to the action
3 challenged, virtually any change in federal policy could prompt an Article III dispute, which is
4 an approach to standing the Supreme Court decisively has rejected. See DaimlerChrysler Corp.
5 6 v. Cuno, 547 U.S. 332, 341 (2006); Kleppe, 533 F.2d at 672.5

7

The State next claims that the “mission” of various state universities and “their

8 attractiveness to international students” may be “damage[d]” because some students and faculty
9 members may be prevented from attending the universities or from travelling abroad for research. 10
Pl.’s Supp. Br. at 3. This argument fails for two reasons. First, most (if not all) of the students 11
and faculty members the State identifies are not actually prohibited from entering the United 12 13 States, and others’ alleged difficulties are hypothetical or speculative.6 That is particularly true

14 given the waiver authority granted to the Secretaries of Homeland Security and State under the

15 Executive Order when entry of an alien would be in the national interest. See Executive Order
16 §§ 3(g), 5(e). And second, even if the State could piggyback on these individuals to establish an
17 injury to the State itself, the State’s assertions of injury are too abstract. See Whitmore v.
18 19 Arkansas, 495 U.S. 149, 155 (1990). Vague allegations about the universities’ reputations and
20 ability to attract students are not sufficiently concrete to show standing. The State’s reliance on

21 Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480 (9th Cir. 1995), see Pl.’s Supp. Br. at 3 n.3,

22 is inapposite. The school’s injury in that case was that it had been terminated from the 23

24

5 City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004), see Pl.’s Supp. Br. at 2, is not to the contrary. In that

25

case, there was a direct link between the challenged construction project and the alleged injury to the adjacent City’s natural resources, aesthetic, and economy. See O’Neill, 386 F.3d at 1199.

26

6 See, e.g., Second Riedinger Decl. ¶¶ 3-7, ECF No. 17-2 (allegations about lawful permanent residents, who are

not impacted by the Executive Order); Boesenberg Decl. ¶ 6, ECF No. 17-3 (same); Second Riedinger Decl. ¶ 8

27

(asserting that certain countries may “ban . . . U.S. travelers” in response to the Executive Order); Second Chaudhry

Decl. ¶ 8, ECF No. 17-4 (alleging one faculty member may not be able to return to the university at a future date).
28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 11 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 14 of 34

1 defendant’s loan guarantee program, id. at 1483, not that its reputation or attractiveness to

2 students had been incidentally diminished by some action that did not directly affect the school.
3 Additionally, the State asserts that it “expects” the Executive Order will have effects on
4 its agency recruitment efforts and its child welfare system. Pl.’s Supp. Br. at 3 n.4. But the State
5
6 concedes that it cannot identify any State agency employees that are currently affected by the

7 Executive Order, see Schumacher Decl. ¶ 7, ECF No. 17-5, nor any specific and actual impact

8 on its child welfare system, see Strus Decl., ECF No. 17-6. Speculation about possible future
9 events does not constitute an injury in fact. Whitmore, 495 U.S. at 158. 10
Finally, the State cites no case recognizing the standing of a state government to bring an 11
Establishment Clause challenge, and it is not clear how a state can suffer “spiritual or 12
13 psychological harm” or have “religious beliefs” that can be “stigmatized.” Catholic League for

14 Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043, 1051-52 (9th Cir. 2010).

15

B. The State Cannot Bring a Parens Patriae Action Here

16 The State cannot convert its political dispute with the Federal Government into a legal
17 claim through the vehicle of a parens patriae suit brought on behalf of its residents. The Supreme
18
19 Court made clear more than eighty years ago that a state cannot bring a parens patriae action

20 against federal defendants. See Massachusetts v. Mellon, 262 U.S. at 485-86. In dismissing an

21 action brought by Massachusetts to exempt its citizens from a federal statute designed to “protect

22 the health of mothers and infants,” the Court explained that the citizens of a state “are also citizens
23 of the United States,” and therefore “[i]t cannot be conceded that a state, as parens patriae, may
24 institute judicial proceedings to protect citizens of the United States from the operation of the
25
26 statutes thereof.” Id. at 479, 485. “[I]t is no part of [a state’s] duty or power to enforce [its

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 12 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 15 of 34

1 citizens’] rights in respect of their relations with the federal government;” “it is the United States,

2 and not the state, which represents [its citizens] as parens patriae.” Id. at 485-86.7 3
Contrary to the State’s assertion, the “special solicitude” for states referred to in 4
Massachusetts v. EPA, 549 U.S. 497, 520 (2007), did not “eradicate[]” the bar on parens patriae 5 6 actions against the Federal Government, Pl.’s Supp. Br. at 4 n.5. Indeed, Massachusetts
7 recognized that Mellon “prohibits” allowing a state “‘to protect her citizens from the operation

8 of federal statutes.’” Massachusetts, 549 U.S. at 520 n.17; see also Del. Dep’t of Nat. Res. &
9 Envtl. Control v. FERC, 558 F.3d 575, 579 n.6 (D.C. Cir. 2009) (Massachusetts “does not 10
eliminate the state [plaintiff’s] obligation to establish a concrete injury, as Justice Stevens’ 11
opinion amply indicates”). The special solicitude afforded in Massachusetts was based on the 12
13 “unique circumstances” of that case, Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563

14 F.3d 466, 476 (D.C. Cir. 2009), wherein Massachusetts sought to assert its own rights to ensure

15 the protection of the land and air within its “sovereign territory,” which was protected by a special
16 “procedural right.” 549 U.S. at 519-20; see id. at 522-23 (explaining that Massachusetts “owns
17 a substantial portion of the state’s coastal property” that was harmed by EPA’s inaction). Here,
18 19 the State’s interest in protecting its territorial sovereignty is not at issue, and the State has
20 identified no other injury to any legally protected rights. Moreover, Congress has not created

21 any protection for states against the incidental impacts asserted by the State here.8 Because a 22

23

7 The Supreme Court has repeatedly applied this principle since Mellon to dismiss actions brought by a state as

24

parens patriae against federal defendants. See Florida, 273 U.S. at 18 (relying on Mellon to dismiss Florida’s challenge to a federal inheritance tax based on alleged injury to its citizens); South Carolina v. Katzenbach, 383 U.S.

25

301, 324 (1966) (concluding South Carolina lacked standing as parens patriae to invoke the Due Process Clause or the Bill of Attainder Clause against the Federal Government); see also Snapp, 458 U.S. at 610 n.16 (“A State does

26

not have standing as parens patriae to bring an action against the Federal Government.”).

8 The generic cause of action under the Administrative Procedure Act, 5 U.S.C. § 702, is no substitute for the

27

necessary conditions for standing in Massachusetts. See Pl.’s Supp. Br. at 4 n.5. It would have made little sense for

the Supreme Court to attach “critical importance” to Congress’s creation of a particular procedural right,

28

Massachusetts, 549 U.S. at 516, if the APA already made that right available generally. The State’s reliance on the

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 13 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 16 of 34

1 state cannot bring a parens patriae suit against federal defendants, the State lacks standing and
2 thus the Court should deny the State’s motion for lack of jurisdiction. 3
II. THE STATE DOES NOT DEMONSTRATE IT IS LIKELY TO PREVAIL ON THE MERITS 4
The State falls far short of carrying its “heavy burden” to demonstrate that it is likely to 5 6 prevail on the merits of its facial challenge by “establish[ing] that no set of circumstances exist
7 under which the [Executive Order] would be valid.” Salerno, 481 U.S. at 745. To the contrary,

8 the Executive Order fits within the express delegation of authority in Section 212(f). The State’s

9 constitutional and statutory claims additionally fail pursuant to their individual elements.
10 A. The Executive Order Is a Valid Exercise of Congress’ Broad Delegation of
11
Authority to the President, and His Own Constitutional Powers 12

13

The Executive Order was issued pursuant to Congress’ broad delegation of authority to

14 the President to “suspend the entry of all aliens or any class of aliens as immigrants or

15 nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
16 8 U.S.C. § 1182(f). The express delegation from Congress, coupled with the President’s own
17 Article II powers over foreign affairs and national security, mean that the President’s “authority
18 19 is at its maximum, for it includes all that he possesses in his own right plus all that Congress can
20 delegate.’” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84 (2015) (quoting

21 Youngstown, 343 U.S. at 635 (Jackson, J., concurring)).

22

Indeed, in the immigration context specifically, “[t]he Supreme Court has ‘long

23 recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised
24 by the Government’s political departments largely immune from judicial control.’” Cardenas v.
25

26 United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792

27

Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1, also is unavailing, as that statute only provides a cause

28

of action for persons that exercise religion.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 14 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 17 of 34

1 (1977)). “Congress has ‘plenary power to make rules for the admission of aliens and to exclude

2 those who possess those characteristics which Congress has forbidden.’” Cardenas, 826 F.3d at 3
1169 (quoting Kleindienst v. Mandel, 408 U.S. 753, 769 (1972)). “When Congress delegates this 4
plenary power to the Executive, the Executive’s decisions are likewise generally shielded from 5 6 administrative or judicial review.” Cardenas, 826 F.3d at 1169. And “[i]n the exercise of its
7 broad power over naturalization and immigration, Congress regularly makes rules that would be

8 unacceptable if applied to citizens.” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976).9

9

Here, the President’s Executive Order falls squarely within the express delegation of

10 power granted him under Section 212(f) of the INA, codified at 8 U.S.C. § 1182(f). “[T]hat
11

statute specifically grants the President, where it is in the national interest to do so, the extreme 12

13 power to prevent the entry of any alien or groups of aliens into this country as well as the lesser

14 power to grant entry to such person or persons with any restriction on their entry as he may deem

15 to be appropriate.” Mow Sun Wong v. Campbell, 626 F.2d 739, 744 n.9 (9th Cir. 1980); Haitian

16 Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1507 (11th Cir. 1992) (“8 U.S.C. § 1182(f) clearly

17
grants the President broad discretionary authority to control the entry of aliens into the United 18

19

States.”).10

20

Presidents, moreover, repeatedly have exercised authority under Section 212(f) to

21 suspend entry of certain aliens or classes of aliens, and at least twice have drawn distinctions 22

23

24

9 As an example of the judicial deference in this area, under the long-established doctrine of consular nonreviewability, a non-resident alien outside the United States has no right to judicial review of a consular officer’s

25

denial of a visa. See Capistrano v. Dep’t of State, 267 F. App’x 593, 594 (9th Cir. 2008) (“The doctrine of consular nonreviewability predates the founding of our Republic” and “prevents [courts] from reviewing decisions reached

26

by consular officials regarding the entry of visa applicants.”).

10 In several other statutory provisions, Congress delegated authority to the Secretaries of Homeland Security and

27

State to, in their sole discretion, revoke visas or visa petitions. See 8 U.S.C. §§ 1155, 1201(i); see also Bernardo ex

rel. M & K Eng’g, Inc. v. Johnson, 814 F.3d 481, 484 (1st Cir. 2016) (describing the unreviewability of such

28

revocations).

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 15 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 18 of 34

1 based on nationality. See Background, Section II.A. For example, in 1986, the President invoked
2 Section 212(f) to suspend entry of Cuban nationals as immigrants into the United States, and in 3
1996, the President did something similar for Sudanese government officials. And with respect 4
to Executive Order 12,807—which, among other things, suspended entry of undocumented aliens 5 6 by sea—the Supreme Court found “[i]t is perfectly clear that 8 U.S.C. § 1182(f) . . . grants the
7 President ample power to establish a naval blockade that would simply deny illegal Haitian
8 migrants the ability to disembark on our shores.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S.
9 155, 164 n.13, 187 (1993) (emphasis added). There can be little doubt, therefore, that 8 U.S.C. 10
§ 1182(f) authorizes the President to suspend the entry of classes of immigrants on the basis of 11
nationality where, as here, the President has determined that their entry would be “detrimental to 12 13 the interests of the United States.” And it is thus untenable for the State to contend that, for
14 countries that present a national-security risk to the United States—as judged by Congress, the
15 State Department, and DHS—the President lacks the authority to pause the entry of aliens from 16
those countries. 17
Indeed, courts repeatedly have confirmed that “[d]istinctions on the basis of nationality 18 19 may be drawn in the immigration field by the Congress or the Executive.” Narenji v. Civiletti,
20 617 F.2d 745, 747 (D.C. Cir. 1979). “In view of the Supreme Court’s repeated emphasis on the
21 concurrent nature of executive and legislative power in this area and the sweeping congressional
22 delegations of discretionary authority to the Executive under the INA, there is little question that 23
the Executive has the power to draw distinctions among aliens on the basis of nationality.” Jean 24
v. Nelson, 727 F.2d 957, 978 n.30 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846 (1985). 25 26 “[C]lassifications on the basis of nationality are frequently unavoidable in immigration matters,”
27
28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 16 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 19 of 34

1 including because “the very concept of ‘alien’ is a nationality-based classification.” Rajah v.

2 Mukasey, 544 F.3d 427, 435 (2d Cir. 2008).

3 Despite this wealth of authority, the State asserts that the President’s authority under

4 Section 212(f) is limited by 8 U.S.C. § 1152(a)(1)(A), another provision of the INA stating that,
5

6

with certain exceptions,11 “no person shall receive any preference or priority or be discriminated

7 against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place

8 of birth, or place of residence.” See TRO Mot. at 19-21. The State is wrong. First, as an initial
9 matter, this provision’s reach is limited to only the “issuance of an immigrant visa”—meaning 10
that it does not apply to nonimmigrant visas or to refugees (who generally do not enter the United 11
States with a visa), and also expressly does not extend to procedures for processing visa 12
13 applications. Indeed, § 1152(a)(1)(B) clarifies that subsection (A) is not to be “construed to limit

14 the authority of the Secretary of State to determine the procedures for the processing of immigrant

15 visa applications or the locations where such applications will be processed.” This clarification
16 suggests that the Executive Order, in part or in whole, may not be covered by the restrictions of
17 subsection (A) because the Executive Order governs the procedures for pausing then resuming
18 19 visa applications. See, e.g., Executive Order §§ 3(a), 5(a). Moreover, this provision does not
20 purport to prohibit preference, priority, or discrimination on the basis of religion, so it would

21 provide no benefit to the State here under one of the State’s theories of the case. See TRO Mot.
22 at 10 (“There is little doubt that the Executive Order is prompted by animus to those of the Islamic 23
faith[.]”). By the statute’s plain terms, then, the provision could have only limited application to 24
the State’s claims here. 25

26

27

11 These exceptions include most family-based, employment-based, and special immigrant visa categories. 8 U.S.C.

28

§§ 1101(a)(27), 1151(b)(2)(A)(i), 1152(b), 1153.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 17 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 20 of 34

1

More fundamentally, however, the State misreads 8 U.S.C. § 1152(a)(1)(A) as

2 constraining the broad delegation of authority to the President in Section 212(f) of the Act. “[I]t
3 is a well established axiom of statutory construction that, whenever possible, a court should
4 interpret two seemingly inconsistent statutes to avoid a potential conflict.” California ex rel.
5
6 Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1012 (9th Cir. 2000).

7 Likewise, it is a “well established canon of statutory interpretation . . . that the specific governs

8 the general.” RadLAX Gateway Hotel v. Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012).

9

In light of these principles, Section 212(f) is easily reconciled with § 1152(a)(1)(A): the

10 latter sets forth the general default rule that applies in the absence of action by the President,
11

whereas Section 212(f) governs the specific instance in which the President proclaims that entry 12

13 of a “class of aliens” would be “detrimental to the interests of the United States.” Here, as the

14 challenged Executive Order involves “detrimental” findings, Section 212(f) controls. That is

15 precisely why (as discussed above) prior Presidents have drawn nationality-based distinctions
16 when exercising their authority under Section 212(f). And it is likewise why the 2015
17 Amendment to the INA, as implemented by the Executive Branch over the past year, has drawn
18 19 the exact same nationality-based distinctions as the Executive Order. Indeed, under the State’s
20 view, the United States could not suspend entry of nationals of a country with which the United

21 States is at war. The INA plainly does not require that result.

22

The placement of the anti-discrimination rule within Section 1152 further indicates that

23 the rule is not intended to curb the President’s authority under Section 212(f) to suspend or
24 impose restrictions upon entry. Section 1152 generally establishes a uniform annual numerical
25

26 limit on immigrant visas for nationals of each foreign country. Had Congress intended to enact

27 a general bar against nationality-based distinctions, it would have enacted such a bar as a general

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 18 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 21 of 34

1 provision of the INA, rather than as a subpart of a subsection speaking to the implementation of

2 nationality-based numerical limitations for the issuance of immigrant visas.
3 Finally, the State mischaracterizes the Executive Order as “tak[ing] us back to a period
4 in our history when distinctions based on national origin were accepted . . . rather than outlawed.”
5
6 TRO Mot. at 20. As an initial matter, the State repeatedly characterizes the Executive Order as

7 discriminating on the basis of “national origin.” See TRO Mot. at 1, 6. But the Executive Order

8 does not distinguish on the basis of national origin insofar as that term implicates ethnic heritage;
9 rather, discrimination on the basis of nationality implicates whether “a person ow[es] permanent 10
allegiance to a state.” 8 U.S.C. § 1101(a)(21) (defining “national”). 11
In any event, in 2015, Congress amended the INA to single out nationals of Iraq, Syria, 12
13 and other to-be-designated countries for exclusion from the Visa Waiver Program. See

14 Background, Section II.B. It is that same group of countries that is covered by Section 3(c) of

15 the Executive Order, which expressly cross-references 8 U.S.C. § 1187(a)(12). And Section 5(c)
16 of the Executive Order applies to nationals of Syria, one of the countries Congress expressly
17 identified. Accordingly, the President has joined with Congress in selecting the seven countries
18 19 whose nationals warrant different treatment on the basis of national security and foreign policy
20 concerns.

21

B. This Court Cannot, and Need Not, Review the President’s National Security

22

Determinations Underlying the Executive Order

23 The State asks this Court to not only disregard case law, Congress’ express delegation of
24 authority to the President, and the President’s own Article II powers, but indeed, to substitute the
25

26 Court’s own judgment regarding what is in the national security and foreign policy interests of

27 the United States. See, e.g., TRO Mot. at 8. This Court should soundly reject that invitation, for

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 19 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 22 of 34

1 as courts repeatedly have recognized, these areas are within the exclusive domain of the political
2 branches of our government. 3
As a statutory matter, Section 212(f), by its plain terms, vests complete discretion in the 4
President to determine whether “the entry of any aliens or of any class of aliens into the United 5 6 States would be detrimental to the interests of the United States,” for the period “as he shall deem
7 necessary,” and to impose such conditions of entry as “he may deem appropriate.” 8 U.S.C. §
8 1182(f). The statute does not require the President to state any basis for such a finding, nor does
9 it require ratification of such a finding by any other entity. Instead, it reflects Congress’ 10
considered judgment that these determinations should be vested exclusively in the President. 11
Critically, the State cites no instance where any court has reviewed presidential findings 12 13 under Section 212(f) regarding what is detrimental to the interests of the United States, nor does
14 the State explain how such an inquiry would be judicially manageable. To the contrary, one
15 court analyzing a presidential exercise of authority under 8 U.S.C. § 1182(f) concluded that 16
“because exercise of this discretion is not limited to circumstances defined in the statute, but 17
rather is geared to Executive ‘find[ings]’ and what is ‘deem[ed]’ necessary or appropriate, the 18 19 statute provides no discernable standards by which this court can review the challenged actions
20 under the APA.” Haitian Refugee Ctr., Inc. v. Baker, 789 F. Supp. 1552, 1575-76 (S.D. Fla.
21 1991); see also Webster v. Doe, 486 U.S. 592, 594, 600-01 (1988) (holding that similar statutory
22 language vested the Director of Central Intelligence with complete discretion over employee 23
discharges, and thus judicial review was precluded). 24
The State here asks the Court to evaluate whether the President’s Executive Order 25 26 achieves its stated purposes. See TRO Mot. at 9 (arguing that the Executive Order is unlawful
27 because “there is no ‘fit’ between the rationales advanced to support the Executive Order and the
28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 20 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 23 of 34

1 means used to further those rationales”). But that would require the Court inappropriately to

2 second-guess the underlying finding that Congress has tasked the President with making, and
3 which lies at the heartland of his constitutional authority regarding foreign affairs, national
4 security, and immigration. See Mandel, 408 U.S. at 765 (“[T]he power to exclude aliens is
5
6 inherent in sovereignty, necessary for maintaining normal international relations and defending

7 the country against foreign encroachments and dangers[.]”); see also, e.g., Harisiades v.

8 Shaughnessy, 342 U.S. 580, 588-89 (1952) (“[A]ny policy toward aliens is vitally and intricately
9 interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war 10
power, and the maintenance of a republican form of government.”); Knauff, 338 U.S. at 542; 11
Mow Sun Wong, 626 F.2d at 743. It is thus well-established that courts cannot evaluate the 12
13 President’s national security and foreign affairs judgments, especially in the immigration context.

14 See Knauff, 338 U.S. at 543 (“[I]t is not within the province of any court, unless expressly

15 authorized by law, to review the determination of the political branch of the Government to
16 exclude a given alien.”); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“[J]udicial deference
17 to the Executive Branch is especially appropriate in the immigration context where officials
18 19 ‘exercise especially sensitive political functions that implicate questions of foreign relations.’”);
20 see also Dep’t of Navy v. Egan, 484 U.S. 518, 529-30 (1988); Al-Haramain Islamic Found., Inc.

21 v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007).

22

It is simply not possible for the Court here to evaluate the President’s Executive Order

23 without passing judgment on the President’s national security and foreign affairs determinations.
24 See, e.g., TRO Mot. at 11 (arguing that the Executive Order is unlawful because there is “no basis
25

26 to conclude that existing screening procedures are uniquely failing as to individuals from the

27 listed countries or as to refugees”). The Constitution vests the President with the duty of

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 21 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 24 of 34

1 protecting our Nation’s security, and Congress has specifically empowered the President to

2 suspend the entry of categories of aliens if he finds that their entry would be detrimental to the
3 national interest. There is accordingly no basis for the Judiciary to second-guess the President’s
4 determinations in that regard. See Al Haramain Islamic Found., Inc. v. Dep’t of Treasury, 686
5
6 F.3d 965, 980 (9th Cir. 2012) (stating that the court “owe[s] unique deference to the executive

7 branch’s determination that we face ‘an unusual and extraordinary threat to the national security’

8 of the United States” (quoting an Executive Order)); Harisiades, 342 U.S. at 597 (Frankfurter,

9 J., concurring) (noting that immigration policies have sometimes been “departures . . . from the
10 best traditions of this country” and “may be deemed to offend American traditions,” but “the
11 place to resist unwise or cruel legislation touching aliens is the Congress, not this Court”).
12

13

Finally, the State also argues that the President’s stated rationale under Section 212(f)

14 was pretextual and, instead, that the Executive Order was “prompted by animus to those of the

15 Islamic faith.” TRO Mot. at 10. But any such inquiry would be directly contrary to the Supreme
16 Court’s decision in Kleindienst v. Mandel, 408 US. 753 (1972), which held that “when the
17 Executive exercises” its delegated plenary power over immigration “on the basis of a facially
18 19 legitimate and bona fide reason, the courts will [not] look behind the exercise of that
20 discretion[.]” Id. at 770. Here, the Executive Order undeniably states a facially legitimate and

21 bona fide reason—protecting against terrorism—which is sufficient to end the matter. Cf. Kerry

22 v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring) (noting that Mandel’s “reasoning
23 has particular force in the area of national security”). Accordingly, the State’s references to
24 statements outside the four corners of the Executive Order are not legally pertinent. The State,
25
26 moreover, creates a constitutional separation-of-powers problem—between the Judiciary and the

27 President, and between a state and the Federal Government—to the extent that this Court is being

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 22 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 25 of 34

1 urged to allow the State to use Article III judicial process to attempt to divine the President’s

2 purported subjective motives in issuing the Executive Order.12 The State cites no precedent for 3
such an inquiry by the Judiciary of the President. Cf. United States v. O’Brien, 391 U.S. 367, 4
383-84 (1968) (holding that an inquiry into the subjective motives of members of Congress is a 5 6 “hazardous matter” and that courts “will not strike down an otherwise constitutional statute on
7 the basis of an alleged illicit legislative motive”).

8

C. The State’s Facial Constitutional Challenges Fail

9

Aside from its statutory argument under the INA, the State contends that the Executive

10 Order is facially unconstitutional under the Fifth Amendment’s equal protection and procedural
11

due process doctrines, and under the First Amendment’s Establishment Clause. TRO Mot. at 512

13 19. These claims fail for reasons in addition to those discussed above.

14

1. An overarching and insurmountable hurdle for the State’s claims of facial

15 unconstitutionality is that the State has the burden to show there is no constitutionally valid
16 application of the Executive Order. See Salerno, 481 U.S. at 745; United States v. Mujahid, 799
17 F.3d 1228, 1233 (9th Cir. 2015). That showing is improbable—indeed, impossible—because it
18 19 is clear that valid applications exist, at an absolute minimum as to unadmitted and nonresident
20 aliens. See Mandel, 408 U.S. at 762 (“It is clear that Mandel personally, as an unadmitted and

21 nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or
22 otherwise.”); Plasencia, 459 U.S. at 32 (“This Court has long held that an alien seeking initial 23
admission to the United States requests a privilege and has no constitutional rights regarding his 24
application, for the power to admit or exclude aliens is a sovereign prerogative.”); United States 25

26

12 In addition, it is well-settled that courts have no jurisdiction “to enjoin the President in the performance of his

27

official duties.” Mississippi v. Johnson, 71 U.S. 475, 501 (1866). Accordingly, the President cannot be the subject

of any injunctive order. Id.; see Franklin v. Massachusetts, 505 U.S. 788, 826 (1992) (Scalia, J., concurring in part

28

and concurring in judgment).

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 23 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 26 of 34

1 v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (“[W]e have rejected the claim that aliens are

2 entitled to Fifth Amendment rights outside the sovereign territory of the United States.”). The 3
State does not dispute that the Executive Order is constitutional as applied to this category of 4
unadmitted and nonresident aliens who have no constitutional right to entry. Whatever claims 5 6 may exist in hypothetical individual cases, therefore, are irrelevant because the State must—but
7 cannot—demonstrate that all (or even most) applications of the Executive Order are

8 unconstitutional.13

9

The State’s arguments rest heavily on the Executive Order’s purported application to

10 lawful permanent residents. See, e.g., TRO Mot. at 1 (contending that the Executive Order
11

“block[s] longtime legal permanent residents from returning to this country”). But as is now 12

13 clear, the Executive Order does not apply to such individuals. See Feb. 1, 2017 Memorandum

14 (Exhibit A).

15

2. A further problem with the State’s equal protection and procedural due process claims

16 is that they both arise under the Fifth Amendment’s Due Process Clause, but the State is ineligible
17 to assert a Fifth Amendment claim. The Fifth Amendment provides that “[n]o person shall . . .
18
19 be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.

20 “The word ‘person’ in the context of the Due Process Clause of the Fifth Amendment cannot . . .

21 be expanded to encompass the States of the Union, and to our knowledge this has never been
22 done by any court.” Katzenbach, 383 U.S. at 323-24; see also Premo v. Martin, 119 F.3d 764, 23
771 (9th Cir. 1997) (“Because the State is not a ‘person’ for the purposes of the Fifth Amendment, 24
the State’s reliance on the Due Process Clause was misplaced.”). “Nor does a State have standing 25 26 as the parent of its citizens to invoke these constitutional provisions against the Federal

27

13

With respect to hypothetical individual cases that may arise, the Executive Order contains an overarching

28

direction that “[t]his order shall be implemented consistent with applicable law.” Executive Order § 11(b).

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 24 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 27 of 34

1 Government, the ultimate parens patriae of every American citizen.” Katzenbach, 383 U.S. at

2 324. This defect is also fatal to the State’s equal protection and due process claims. 3
3. The State’s claim under the Establishment Clause—which is limited to Section 5(b) 4
of the Executive Order—is likewise meritless. See TRO Mot. at 12. The State argues that 5 6 Section 5(b) discriminates based on religion, because it “give[s] preference to Christian refugees
7 while disadvantaging Muslim refugees.” TRO Mot. at 7. That is wrong. Notably, Section 5(b)

8 does not take effect for at least 120 days (i.e., “Upon the resumption of USRAP admissions”),
9 and thus the State cannot yet know how it will be implemented. The State’s Establishment Clause 10
claim therefore is not ripe. See Addington v. U.S. Airline Pilots Ass’n, 606 F.3d 1174, 1179 (9th 11
Cir. 2010) (“A question is fit for decision when it can be decided without considering ‘contingent 12 13 future events that may or may not occur as anticipated, or indeed may not occur at all.’”).14

14

Even if the claim were ripe, moreover, Section 5(b) is lawful. That Section applies to all

15 USRAP admissions—not just admissions for nationals of the seven countries of concern—so it
16 does not exclusively “tilt the scales in favor of Christian refugees at the expense of Muslims.”
17 TRO Mot. at 12. Moreover, Section 5(b) merely provides an accommodation to minority
18 19 religions within each country participating in the refugee program. That accommodation makes
20 eminent sense, because members of minority religions are more likely to face persecution. Such

21 accommodations do not violate the Establishment Clause. Cutter v. Wilkinson, 544 U.S. 709, 22 713 (2005) (“‘[T]here is room for play in the joints between the Free Exercise and Establishment 23

24

25

14 There is also an interim provision, Section 5(e), which authorizes the Secretaries of State and Homeland Security

26

to admit refugees on a case-by-case basis, with one factor (of several) being religious persecution as a minority religion. The State does not mention this interim provision in its TRO motion, but its proposed order seeks to enjoin

this section “to the extent Section 5(e) purports to prioritize only the refugee claims of certain religious minorities.”

27

ECF No. 3-1 at 3, ¶ 1(e). Obviously Section 5(e) does not prioritize only claims of religious minorities because that

is only one of several factors expressly listed, and thus, the State does not appear to be meaningfully challenging

28

this provision.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 25 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 28 of 34

1 Clauses, allowing the government to accommodate religion beyond free exercise requirements,

2 without offense to the Establishment Clause.’”). Because Section 5(b) is both lawful and not yet

3 subject to challenge, therefore, the State has failed to justify any relief—let alone emergency
4 relief—with respect to this provision.
5

6

III. THE STATE HAS MADE NO SHOWING OF IRREPARABLE HARM

7

The State’s motion for a temporary restraining order also should be denied because the

8 State has not “demonstrate[d]” that it will be “immediate[ly]” and “irreparabl[y]” harmed by the
9 Executive Order if this case proceeds in the normal course. Caribbean Marine Servs. Co. v. 10
Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). The State speculates that its residents might be 11
harmed by the Executive Order, see Pl.’s TRO Mot. at 22, but to obtain a temporary restraining 12
13 order, the State must demonstrate irreparable harm to itself, not merely to “third parties.” Phany

14 Poeng v. United States, 167 F. Supp. 2d 1136, 1142 (S.D. Cal. 2001); see, e.g., Adams v. Freedom

15 Forge Corp., 204 F.3d 475, 487 (3d Cir. 2000) (“[T]he preliminary injunction device should not

16 be exercised unless the moving party shows that it specifically and personally risks irreparable
17 harm.”). Because the State has identified no injury to itself—much less a likely, immediate, and
18
19 irreparable injury—it has not met its burden.

20

Even if the Court could consider purported harms to non-parties, moreover, the State does

21 no more than speculate that amorphous harms may occur at some point in time to unspecified

22 individuals. The State claims that some “workers and students” may be harmed economically or
23 psychologically because they will not be able to travel overseas for work or school, and that
24 businesses’ recruitment efforts may be hampered because they may not be able to hire certain
25
26 aliens. See TRO Mot. at 21. This sort of generalized speculation is a far cry from the concrete

27 evidence of likely immediate and irreparable harm that is necessary to obtain a temporary

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 26 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 29 of 34

1 restraining order. See Winter, 555 U.S. at 22; Caribbean Marine, 844 F.2d at 674; cf. Oregon v.

2 Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009) (noting that the Supreme Court has

3 disapproved of considering “‘abstract questions of wide public significance’” amounting to
4 “‘generalized grievances’”).
5

6

The State’s arguments also fail to acknowledge the limited timeframe relevant to

7 consideration of their request for a temporary restraining order. To obtain such relief, the State

8 must show that irreparable harm will occur in the time prior to a hearing on the preliminary
9 injunction motion. Cf. Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 10
415 U.S. 423, 439 (1974) (“Ex parte temporary restraining orders . . . should be restricted to 11
serving their underlying purpose of preserving the status quo and preventing irreparable harm 12
13 just so long as is necessary to hold a hearing, and no longer.”). Here, even assuming the State’s

14 harms are both cognizable and irreparable (and they are not), those harms will be suffered over

15 the long-term; there is no showing that harm is imminent within the next days or even weeks.
16 Finally, the restrictions on entry in Sections 3(c) and 5(a) of the Executive Order are both
17 subject to exceptions to be applied by the Secretaries of State and Homeland Security on a case-
18 19 by-case basis. See Executive Order §§ 3(g), 5(e). Therefore, none of the purported harms the
20 State identifies will occur unless a particular individual falls within the terms of the Executive

21 Order and cannot obtain an exception under these case-by-case provisions. Because of the

22 availability of this case-by-case review, any allegations of harm to third parties are not irreparable
23 at this time. Cf. Leidseplein Presse, B.V. v. Does, No. C16-5065 (BHS), 2016 WL 337267, at *1
24 (W.D. Wash. Jan. 28, 2016) (denying temporary restraining order based on lack of irreparable
25
26 harm, because “Plaintiff has failed to show that other means of preventing the alleged [harm] are

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 27 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 30 of 34

1 either unavailable or unavailing” and “Plaintiff has failed to submit evidence describing efforts

2 made to explore other available means of preventing” the alleged harm).

3 IV. THE BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST MANDATE AGAINST A
4 TEMPORARY RESTRAINING ORDER
5

6

The State has not demonstrated that any harm to it (and there is none) outweighs the harm

7 that a temporary restraining order would cause the Federal Government, or that “an injunction is

8 in the public interest.” Winter, 555 U.S. at 20. These two factors merge where, as here, the
9 Federal Government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009). Courts 10
have accorded “great weight” to considerations of foreign policy and national security when 11
balancing the interests and equities of the parties. Nat’l Res. Def. Council, Inc. v. Pena, 972 F. 12
13 Supp. 9, 20 (D.D.C. 1997); see Winter, 555 U.S. at 24; Comm. for Nuclear Responsibility, Inc.

14 v. Seaborg, 463 F.2d 796, 798 (D.C. Cir. 1971) (Because of “assertions of potential harm to

15 national security and foreign policy—assertions which [the court] obviously can not appraise—
16 and given the meager state of the record before us, we are constrained to refuse an injunction.”).
17 Moreover, in assessing the public interest, a court must heed “the judgment of Congress,
18 19 deliberately expressed in legislation,” and “the balance that Congress has struck.” United States
20 v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001).

21

These final elements weigh heavily in favor of the Federal Government. The State asks

22 the Court to enjoin an Executive Order that suspends the entry of certain aliens into the United
23 States based on the President’s determination that failing to do so would be detrimental to the
24 interests of the United States, including its national security. The State of Washington disagrees
25
26 with the President’s determination and believes the Executive Order will harm the interests of

27 residents in that state. The Constitution, however, commits “decision-making in the fields of

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 28 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 31 of 34

1 foreign policy and national security . . . to the political branches of government,” Schneider v.

2 Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005), not to the states. And in 8 U.S.C. § 1182(f),
3 Congress expressly authorized the President to do what he has done here based upon a finding,
4 which the President has made here, that “the entry . . . of any class of aliens into the United States
5
6 would be detrimental to the interests of the United States.” It undoubtedly would be contrary to

7 the public interest for this Court to ignore Congress’s judgment that the President should make

8 such determinations, to second-guess the President’s determination, or to override the President’s

9 determination based on purported interests of a single state. See, e.g., Adams, 570 F.2d at 954
10 (vacating preliminary injunction that directed action by the Secretary of State in foreign affairs,
11 which “deeply intrude[d] into the core concerns of the executive branch”).
12

13

Finally, even if the State satisfied the requirements for a temporary restraining order, this

14 Court still would retain its equitable discretion—i.e., the discretion to refrain from issuing relief

15 that would interfere in the Executive Branch’s foreign affairs and national security activities. In
16 an analogous situation, the D.C. Circuit held it would be an abuse of discretion for a court to
17 enter equitable relief against one of the President’s foreign affairs policies: “At least where the
18 19 authority for our interjection into so sensitive a foreign affairs matter as this are statutes no more
20 specifically addressed to such concerns than the Alien Tort Statute and the APA, we think it

21 would be an abuse of our discretion to provide discretionary relief.” Sanchez-Espinoza v.

22 Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985). Similarly here, the Court should not intrude upon
23 the President’s efforts “to ensure that those approved for admission do not intend to harm
24 Americans and that they have no ties to terrorism.” Executive Order § 1.
25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 29 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 32 of 34

1

V. ANY RELIEF ENTERED MUST BE LIMITED IN SCOPE TO THE PLAINTIFF STATE AND TO

2

THE SPECIFIC HARM FOUND

3 Even if the Court were to conclude that the State has satisfied the requirements for a
4 temporary restraining order with respect to some or all of its claims, the Court should not enter
5

6 the “nationwide injunction” the State seeks. TRO Mot. at 23; see Pl.’s Proposed TRO, ECF No.

7 3-1, at 3. “[A]n injunction must be narrowly tailored ‘to affect only those persons over which it

8 has power, and to remedy only the specific harms shown by the plaintiffs, rather than’ to enjoin
9 all possible breaches of the law.” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004). 10
Thus, courts routinely deny requests for nationwide injunctive relief. See Dep’t of Def. v. 11
Meinhold, 510 U.S. 939 (1993) (staying nationwide injunction insofar as it “grants relief to 12
13 persons other than” named plaintiff); Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th

14 Cir. 2012) (affirming district court’s refusal to grant nationwide relief).

15

CONCLUSION

16 For the reasons set forth above, the Court should deny the State of Washington’s motion

17
for a temporary restraining order. 18

19 DATED: February 2, 2017

Respectfully submitted,

20

CHAD A. READLER

Acting Assistant Attorney General

21

JOSEPH H. HUNT

22

Director, Federal Programs Branch

23 JOHN R. TYLER

24

Assistant Director, Federal Programs Branch

25

/s/ Michelle R. Bennett

26

MICHELLE R. BENNETT

ERIC SOSKIN

27

DANIEL SCHWEI

ARJUN GARG 28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 30 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 33 of 34

1

Trial Attorneys

U.S. Department of Justice

2

Civil Division, Federal Programs Branch

3

20 Massachusetts Avenue, NW

Washington, DC 20530

4

Tel: (202) 305-8902

Fax: (202) 616-8470

5

Email: michelle.bennett@usdoj.gov

6

arjun.garg@usdoj.gov

7

Attorneys for Defendants

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 31 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50 Filed 02/02/17 Page 34 of 34

1

CERTIFICATE OF SERVICE

2

3

I hereby certify that on February 2, 2017, I electronically filed the foregoing Opposition

4 to Plaintiff’s Motion for Temporary Restraining Order using the Court’s CM/ECF system,

5 causing a notice of filing to be served upon all counsel of record.

6

7 Dated: February 2, 2017 8

/s/ Michelle R. Bennett MICHELLE R. BENNETT

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 50-1 Filed 02/02/17 Page 1 of 2
Exhibit A

Case 2:17-cv-00141-JLR Document 50-1 Filed 02/02/17 Page 2 of 2

THE WHITE HOUSE
WASHINGTON

February 1, 2017

MEMORANDUM TO THE ACTING SECRETARY OF STATE, THE ACTING ATTORNEY GENERAL, AND THE SECRETARY OF HOMELAND SECURITY

FROM:

Donald F. McGahn II – Counsel to the President

SUBJECT: Authoritative Guidance on Executive Order Entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017)

Section 3(c) of the Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017) suspends for 90 days the entry into the United States of certain aliens from countries referred to in section 217(a)(12) of the Immigration and Nationality Act (INA), 8 U.S.C. 1187(a)(12). Section 3(e) of the order directs the Secretary of Homeland Security, in consultation with the Secretary of State, to submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of certain foreign nationals from countries that do not provide information needed to adjudicate visas, admissions, or other benefits under the INA.

I understand that there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States. Accordingly, to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals. Please immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order.

1

 
 Case 2:17-cv-00141-JLR Document 53 Filed 02/04/17 Page 1 of 3

1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

9

STATE OF WASHINGTON and

STATE OF MINNESOTA, 10

11

Plaintiffs,

12

v.

No. 2:17-cv-00141 (JLR) NOTICE OF APPEAL

13

DONALD TRUMP, in his official capacity as

14

President of the United States; U.S. DEPARTMENT OF HOMELAND

15

SECURITY; JOHN F. KELLY, in his official

capacity as Secretary of the Department of

16

Homeland Security; REX W. TILLERSON, in

his official capacity as Secretary of State; and

17

the UNITED STATES OF AMERICA,

18 Defendants.
19

20

PLEASE TAKE NOTICE that the defendants Donald Trump, in his official capacity as

21 President of the United States; United States Department of Homeland Security; John F. Kelly, 22
in his official capacity as Secretary of the Department of Homeland Security; Rex W. Tillerson, 23
in his official capacity as Secretary of State; and the United States of America hereby appeal to 24 25 the United States Court of Appeals for the Ninth Circuit from the February 3, 2017 Order (ECF
26 No. 52) enjoining and restraining enforcement of portions of the January 27, 2017 Executive

27 Order on Protecting the Nation from Foreign Terrorist Entry into the United States. 28

NOTICE OF APPEAL State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 53 Filed 02/04/17 Page 2 of 3

1 DATED: February 4, 2017 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

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOSEPH H. HUNT Director, Federal Programs Branch
JOHN R. TYLER Assistant Director, Federal Programs Branch
/s/ Michelle R. Bennett MICHELLE R. BENNETT ERIC SOSKIN DANIEL SCHWEI ARJUN GARG Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov
arjun.garg@usdoj.gov
Attorneys for Defendants

NOTICE OF APPEAL State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 53 Filed 02/04/17 Page 3 of 3

1

CERTIFICATE OF SERVICE

2

I hereby certify that on February 4, 2017, I electronically filed the foregoing Notice of

3 Appeal using the Court’s CM/ECF system, causing a notice of filing to be served upon all counsel
4 of record.
5

6 Dated: February 4, 2017 7

/s/ Michelle Bennett MICHELLE BENNETT

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

NOTICE OF APPEAL State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

 
 Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 1 of 125

No. 17-35105

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD TRUMP, President of the United States, et al. Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 FOR ADMINISTRATIVE STAY
AND MOTION FOR STAY PENDING APPEAL _____________________

NOEL J. FRANCISCO Acting Solicitor General

CHAD A. READLER Acting Assistant Attorney
General AUGUST E. FLENTJE
Special Counsel to the Assistant Attorney General
DOUGLAS N. LETTER SHARON SWINGLE H. THOMAS BYRON LOWELL V. STURGILL JR. CATHERINE DORSEY Attorneys, Appellate Staff Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 2 of 125
CIRCUIT RULE 27-3 CERTIFICATE
The undersigned counsel certifies that the following is the information
required by Circuit Rule 27-3:
(1) Telephone numbers and addresses of the attorneys for the parties
Counsel for Appellants Donald Trump, et al. Noel J. Francisco Chad A. Readler (Chad.A.Readler@usdoj.gov) August E. Flentje Douglas N. Letter (Douglas.Letter@usdoj.gov) Sharon Swingle (Sharon.Swingle@usdoj.gov) H. Thomas Byron (H.Thomas.Byron@usdoj.gov) Lowell V. Sturgill Jr. (Lowell.Sturgill@usdoj.gov) Attorneys, Appellate Staff Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 (202) 514-3427
Counsel for Appellees
For State of Washington: Colleen N. Melody (Coleenm1@atg.WA.Gov) Noah Guzzo Purcell (Noahp@atg.Wa.Gov) Anne Elizabeth Egeler (Annee1@atg.Wa.Gov) Patricio A. Marquez (Patriciom@atg.Wa.Gov) Marsha J. Chien (Marshac@atg.Wa.Gov) Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744
i

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 3 of 125
For State of Minnesota: Jacob Campion (Jacob.Campion@ag.State.Mn.Us) 445 Minnesota Street, Suite 1100 St. Paul, MN 55101 (651) 757-1459 (2) Facts showing the existence and nature of the emergency As set forth more fully in the motion, the district court has entered a nationwide injunction barring enforcement of provisions of an Executive Order issued pursuant to constitutional and statutory authority to address national security concerns, which is imposing irreparable harm on the defendants and the general public. The injunction contravenes the constitutional separation of powers; harms the public by thwarting enforcement of an Executive Order issued by the nation’s elected representative responsible for immigration matters and foreign affairs; and second-guesses the President’s national security judgment about the quantum of risk posed by the admission of certain classes of aliens and the best means of minimizing that risk. (3) When and how counsel notified The undersigned counsel notified counsel for the plaintiffs by email on February 4, 2017, of the defendants’ intent to file this motion. Service will be effected by electronic service through the CM/ECF system.
ii

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 4 of 125
(4) Submissions to the district court The defendants requested a stay from the district court on February 3, 2017,
which the district court orally denied.

Counsel to Defendants
NOEL J. FRANCISCO /s/ Noel J. Francisco Acting Solicitor General

CHAD A. READLER Acting Assistant Attorney
General AUGUST E. FLENTJE
Special Counsel to the Assistant Attorney General
DOUGLAS N. LETTER SHARON SWINGLE H. THOMAS BYRON LOWELL V. STURGILL JR. CATHERINE DORSEY Attorneys, Appellate Staff Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Ave., NW

iii

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 5 of 125
INTRODUCTION The President of the United States has determined that “[d]eteriorating 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,” and that our Nation accordingly must take additional steps “to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States (Jan. 27, 2017) (Order) (Exhibit A). Invoking his constitutional authority to control the entry of aliens into this country and congressionally delegated authority to “suspend the entry of * * * any class of aliens” whose entry “would be detrimental to the interests of the United States,” the President has directed a temporary 90-day suspension of entry for individuals from seven countries previously identified as posing a heightened risk of terrorism by Congress or the Executive Branch; a temporary 120-day suspension of the U.S. Refugee Admissions Program; and a suspension of entry of Syrian nationals as refugees until the President determines that measures are in place “to ensure that admission of Syrian refugees is consistent with the national interest.” Exec. Order §§ 3(c), (5)(a), (c). As another district court recently concluded in a thorough, well-reasoned opinion, the Order is a lawful exercise of the political branches’ plenary control over
1

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 6 of 125
the admission of aliens into the United States. Louhghalam v. Trump, Civ. No. 1710154-NMG, Order 11 (D. Mass. Feb. 3, 2017) (Exhibit B).
The district court here nevertheless issued an immediate, nationwide injunction barring enforcement of the Order, accompanied by virtually no legal analysis. R 52 (Exhibit C).
The district court’s sweeping injunction should be stayed pending appeal. It conflicts with the basic principle that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). It also contravenes the considered judgment of Congress that the President should have the unreviewable authority to suspend the admission of any class of aliens. The district court did not confront those authorities; indeed, it gave no explanation why the State of Washington has a high likelihood of success on the merits of its claims. And it entered the injunction at the behest of a party that is not itself subject to the Executive Order; lacks Article III standing or any right to challenge the denial of entry or visas to third-party aliens; and brings a disfavored facial challenge. The injunction is also vastly overbroad— it is untethered to Washington’s particular claims; extends even to aliens abroad who currently have no visas; and applies nationwide, effectively overriding the judgment
2

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 7 of 125
of another district court that sustained the Executive Order against parallel challenges.
The balance of harms weighs strongly in favor of a stay, as well as an immediate administrative stay pending consideration of the request for a full stay pending appeal. The injunction immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment. As the President acted well within both statutory and constitutional authorization, the relief irreparably harms our system of government by contravening the Constitution’s separation of powers. The State, by comparison, has identified only speculative harms it would suffer from temporary suspension of the entry of aliens affected by the Order, and that harm could be minimized by expediting appeal.
BACKGROUND A. The President’s Authority 1. In the Immigration and Nationality Act of 1952 (“INA”), 8 U.S.C. §§ 1101 et seq., as amended, Congress established the framework for deciding which aliens may enter and remain in the United States. Congress expressly granted the President broad discretionary authority, whenever he “finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States,” to “suspend the entry of all aliens or any class of aliens as immigrants
3

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 8 of 125
or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate * * *.” 8 U.S.C. § 1182(f).
Numerous Presidents have invoked this authority,1 including an order by President Reagan based on nationality, i.e., a suspension of entry of certain Cuban nationals as immigrants into the United States. See 1986 WL 796773 (Aug. 22, 1986).
2. In addition to that statutory authority, the President has expansive constitutional authority under Article II over foreign affairs, national security, and immigration. “The exclusion of aliens is a fundamental act of sovereignty * * * inherent in the executive power to control the foreign affairs of the nation.” Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).
B. The President’s Order Invoking these constitutional and statutory authorities, the President issued the Order “to protect the American people from terrorist attacks by foreign nationals admitted to the United States.” Order § 2.
1 Presidential Proclamation 5517 (President Reagan); Exec. Order No. 12,324 (President Reagan); Exec. Order No. 12,807 (President George H.W. Bush); Presidential Proclamation 6958 (President Clinton); Presidential Proclamation 8342 (President George W. Bush); Presidential Proclamation 8693 (President Obama); Exec. Order No. 13,694 (President Obama); Exec. Order No. 13,726 (President Obama).
4

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 9 of 125
The Order directs a number of actions in the interests of national security. Id. §§ 2-11. The Secretary of Homeland Security is directed to conduct an immediate review to identify the “information needed from any country * * * to determine that [an] individual seeking [an immigration-related] benefit is who the individual claims to be and is not a security or public-safety threat.” Id. § 3(a). The Order also directs a process for requesting necessary information from foreign governments that do not supply such information, and consequences for countries not providing it. See id. § 3(d)-(f).
While that review is ongoing, the Order suspends entry for 90 days of aliens from seven countries previously identified as being associated with a heightened risk of terrorism pursuant to 8 U.S.C. § 1187(a)(12). Id. § 3(c). Section 1187(a)(12), enacted in 2015, modifies the visa waiver program. Pub. L. No. 114-113, 129 Stat. 2242, 2990 (2015). That program allows nationals of certain countries to enter the United States without a visa. See 8 U.S.C. § 1187. Section 1187(a)(12) bars from the visa waiver program any individuals who are nationals of or have recently travelled to certain countries that raise terrorism-related concerns. Congress itself identified Iraq and Syria as countries of concern, and also included countries that have been designated by the Secretary of State as sponsors of terrorism: Iran, Sudan, and Syria. Id. § 1187(a)(12)(A)(i)(I)-(II), (ii)(I)-(II). In addition, Congress authorized the Executive Branch to designate additional “countries or areas of
5

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 10 of 125
concern” based on “whether the 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,” “whether a foreign terrorist organization has a significant presence in the country or area,” and “whether the country or area is a safe haven for terrorists.” 8 U.S.C. § 1187(a)(12)(D)(ii). In February 2016, the Executive Branch exercised that authority to bar from the visa waiver program individuals who had recently travelled to Libya, Somalia, and Yemen, in an effort to ensure that the visa waiver program’s “requirements are commensurate with the growing threat from foreign terrorist fighters.” https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travelrestrictions-visa-waiver-program.
Exceptions to the Order’s suspension of the entry of aliens from the seven countries identified under § 1187(a)(12) can be made on a case-by-case basis. Order § 3(g). The suspension of entry does not apply to lawful permanent residents of the United States (i.e., an immigrant admitted with the privilege of residing permanently in the United States, 8 U.S.C. § 1101(a)(20)). Feb. 1, 2017 Memorandum (Exhibit D).
The Order also suspends for 120 days the U.S. refugee program, which is independently committed to the discretion of the President under 8 U.S.C. § 1157(a), to permit a review of the “application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee
6

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 11 of 125
admission do not pose a threat to the security and welfare of the United States.” Order § 5(a). Once the refugee program is resumed, the Secretary of State is 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.” Id. § 5(b). The Order contemplates the entry of a total of up to 50,000 refugees during Fiscal Year 2017. Id. § 5(d).
Finally, the Order suspends entry of nationals of Syria as refugees under 8 U.S.C. § 1182(f) until the President determines that sufficient changes have been made to the refugee program “that admission of Syrian refugees is consistent with the national interest.” Id. § 5(c).
C. Procedural History The State of Washington brought this action on January 30, 2017, asserting constitutional and statutory claims against the United States, the President, and the Secretaries of Homeland Security and State. Complaint, R1. On the same day, Washington moved for a temporary restraining order. R3. Washington subsequently amended its complaint to add Minnesota as a plaintiff. See R8. Defendants opposed Washington’s motion. R50. The district court held a hearing on February 3, 2017. First orally, and then in a brief written order, the court issued a nationwide injunction, effective immediately, barring enforcement of
7

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 12 of 125
sections 3(c), 5(a)-(c), and 5(e) of the Order. Transcript 48-49 (Exhibit E); R52. The court also denied defendants’ motion for a stay. Transcript 50.
ARGUMENT An immediate stay pending appeal is appropriate in this case because defendants can establish (1) a strong likelihood of success on appeal; (2) a likelihood that it will be irreparably harmed absent a stay; (3) that plaintiffs will not be substantially harmed by a stay; and (4) public interest in a stay. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). This Court has jurisdiction under 28 U.S.C. § 1292(a)(1). Although temporary restraining orders are ordinarily not appealable, this Court has jurisdiction over appeals from “interlocutory orders of the district courts pertaining to injunctions”; “the essence of the order, not its moniker,” determines appealability. Service Employees v. Nat’l Union of Healthcare, 598 F.3d 1061, 1067 (9th Cir. 2010). Where, as here, the “district court holds an adversary hearing and the basis for the court’s order was strongly challenged,” and the length of the injunction (in this case, indefinite) “exceeds the ordinary duration” of temporary restraining orders, the order is properly treated as an appealable injunctive order. Id.
8

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 13 of 125
A. Defendants Are Likely to Succeed on Appeal. The district court erred in concluding that Washington is likely to succeed on the merits.2 In fact, Washington lacks Article III standing, has no basis for challenging the denial of visas or entry to third-party aliens, and has not identified any legal defect in the Order—much less one that would justify the facial injunctive relief granted by the district court.
1. Washington Lacks Article III Standing to Bring this Action. The district court reasoned that the Washington has Article III standing because the Order “adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel,” and that these harms “extend to the States by virtue of their roles as parens patriae of the residents living within their borders.” R52, at 4-5. But a State cannot bring a parens patriae action against federal defendants. In dismissing Massachusetts’ challenge to a federal statute designed to “protect the health of mothers and infants” in Massachusetts v. Mellon, the Supreme Court explained that “it is no part of [a State’s] duty or power to enforce [its citizens’] rights in respect of their relations with the federal government.” 262 U.S. 447, 478, 485-86 (1923); accord South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).
2 Because Minnesota, which was added as a plaintiff in the amended complaint, did not move for interim injunctive relief, we address only Washington’s standing. Regardless, the arguments apply equally to Minnesota.
9

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 14 of 125
The district court also reasoned that “the States themselves are harmed by virtue of the damage that implementation of the Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds.” R52, at.5. These attenuated and speculative alleged harms are neither concrete nor particularized.
With respect to Washington’s public universities, most if not all of the students and faculty members the State identifies are not prohibited from entering the United States, and others’ alleged difficulties are hypothetical or speculative.3 That is particularly true given the Order’s waiver authority. See Executive Order §§ 3(g), 5(e). Furthermore, any assertion of harm to the universities’ reputations and ability to attract students is insufficiently concrete for standing. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). And although Washington suggested that the Order might affect its recruitment efforts and child welfare system, it conceded that it could not identify any currently affected state employees, nor any actual impact on its child welfare system. See Schumacher Decl. ¶ 7, R17-5; Strus Decl., R17-6.
3 See, e.g., Second Riedinger Decl. ¶¶ 3-7, R17-2 (allegations about lawful permanent residents, who are not impacted by the Executive Order); Boesenberg Decl. ¶ 6, R17-3 (same); Second Riedinger Decl. ¶ 8 (asserting that certain countries may “ban * * * U.S. travelers” in response to the Executive Order); Second Chaudhry Decl. ¶ 8, R17-4 (alleging one faculty member may be unable to return to the university in the future).
10

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 15 of 125
Washington’s contentions regarding its tax base and public funds are equally flawed. See Florida v. Mellon, 273 U.S. 12, 17-18 (1927) (finding no standing based on Florida’s allegation that challenged law would diminish tax base); see also, e.g., Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985).4
Nor does Washington have any “legally protected interest,” Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 134 (2011), in the grant or denial of entry to an alien outside the United States. The INA’s carefully reticulated scheme provides for judicial review only at the behest of an alien adversely affected, and even then only if the alien is subject to removal proceedings, see 8 U.S.C. § 1252. Under longstanding principles exemplified by the doctrine of consular nonreviewability, an alien abroad cannot obtain judicial review of the denial of a visa (or his failure to be admitted as a refugee). Brownell v. Tom We Shung, 352 U.S. 180, 184 n.3, 185 n.6 (1956). It follows that a third party, like Washington, has no “judicially cognizable interest,” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), in such a denial. Or to put it in Administrative Procedure Act (APA) terms, review is precluded by the INA, the relevant determinations are committed to the
4 Washington cited no case recognizing the standing of a State, which cannot suffer “spiritual or psychological harm” or hold “religious beliefs” that could be “stigmized,” Catholic League for Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043, 1050-52 (9th Cir. 2010), to bring an Establishment Clause challenge.
11

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 16 of 125
Executive’s discretion (indeed, to the President, who is not subject to the APA), and Washington lacks a cause of action. 5 U.S.C. §§ 701(a), (702).
2. The Order Is a Valid Exercise of the Executive’s Constitutional and Statutory Power
This express delegation from Congress in 8 U.S.C. § 1182(f), coupled with the President’s own Article II powers over foreign affairs and national security, mean that the President’s “authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84 (2015); see also, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952) (recognizing that control over immigration is an integral part of Article II authorities “in regard to the conduct of foreign relations [and] the war power”).
In the immigration context specifically, “[t]he Supreme Court has ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). “When Congress delegates this plenary power to the Executive, the Executive’s decisions are likewise generally shielded from administrative or judicial review.” Cardenas, 826 F.3d at 1169.
The Order falls squarely within Congress’ delegation in 8 U.S.C. § 1182(f) of the “power to prevent the entry of any alien or groups of aliens into this country as
12

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 17 of 125
well as * * * to grant entry to such person or persons with any restriction on their entry as he may deem to be appropriate.” Mow Sun Wong v. Campbell, 626 F.2d 739, 744 n.9 (9th Cir. 1980); accord Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1507 (11th Cir. 1992). “Pursuant to, and without exceeding, that grant of discretionary authority, the President * * * suspended entry of aliens from the seven subject countries.” Louhghalam, Order 17.
As noted above (at p. 4), prior Presidents have repeatedly invoked this authority to suspend entry of certain classes of aliens, including on the basis of nationality. In reviewing an Executive Order directing the interdiction and forcible repatriation of undocumented aliens outside the territorial waters of the United States, the Supreme Court found it “perfectly clear that 8 U.S.C. § 1182(f) * * * grants the President ample power to establish [by Executive Order] a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187 (1993) (emphasis added). And courts have repeatedly affirmed that “[d]istinctions on the basis of nationality may be drawn in the immigration field by the Congress or the Executive.” Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979); see also, e.g., Jean v. Nelson, 727 F.2d 957, 978 n.30 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846 (1985); Rajah v. Mukasey, 544 F.3d 427, 435 (2d Cir. 2008).
13

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 18 of 125
Washington argued in district court that the President’s authority under § 1182(f) is limited by 8 U.S.C. § 1152(a)(1)(A), which provides, with certain exceptions, that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” But this restriction does not address the President’s authority under § 1182(f) to “suspend the entry” of aliens, which is an entirely different act under the immigration laws. An immigrant visa does not entitle an alien to admission to the United States, and even if an alien is issued a valid visa, he is subject to being denied admission to this country when he arrives at the border. See, e.g., Khan v. Holder, 608 F.3d 325, 330 (7th Cir. 2010). There is no inconsistency between § 1152(a)(1)(A) and the President’s issuance of the Order under § 1182(f).
In any event, even if there were thought to be some potential inconsistency between § 1152(a)(1)(A) and § 1182(f) , 8 U.S.C. § 1152(a)(1)(B) makes clear that the statute does not “limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications * * *.” This establishes that the Order is not covered by the restrictions of subsection (A), because the Order directs a review and revision of procedures for processing of visa applications and adopts procedures for a temporary suspension and then resumption of processing of certain visa applications following that review. See, e.g., Order §§ 3(a), 5(a).
14

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 19 of 125
Furthermore, while the review is pending, the Secretaries of State and Homeland Security have discretion to grant visas on a case-by-case basis. Id. §§ 3(g), 5(e). Washington’s interpretation of the two provisions, in contrast, would lead to the untenable result that the United States could not suspend entry of nationals of a country with which the United States is at war, which would raise a serious constitutional question about Congress’s ability to restrict the President’s Article II authority to ensure the nation’s security.
3. The District Court Improperly Second-Guessed the President’s National Security Determinations
By its plain terms, 8 U.S.C. § 1182(f) vests complete discretion in the President to determine whether “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,” to suspend entry or impose such conditions of entry as the President “may deem appropriate” for such period as “he shall deem necessary.” The President’s exercise of this discretion “is not limited to circumstances defined in the statute,” and “the statute provides no discernable standards” for reviewing his determination. Haitian Refugee Ctr., Inc. v. Baker, 789 F. Supp. 1552, 1575-76 (S.D. Fla. 1991); see also Webster v. Doe, 486 U.S. 592, 594, 600-01 (1988).
Judicial second-guessing of the President’s determination that a temporary suspension of entry of certain classes of aliens was necessary at this time to protect national security would constitute an impermissible intrusion on the political
15

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 20 of 125
branches’ plenary constitutional authority over foreign affairs, national security, and immigration. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.”). “[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” Knauff, 338 U.S. at 543; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).
Courts are particularly ill-equipped to second-guess the President’s prospective judgment about future risks, as decisions about how best to “confront evolving threats” are “an area where information can be difficult to obtain and the impact of certain conduct difficult to assess.” Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010). Unlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process. See, e.g., Al Haramain Islamic Found., Inc. v. Dep’t of Treasury, 686 F.3d 965, 980 (9th Cir. 2012).
Washington nevertheless argued that the district court should disregard the President’s stated rationale for issuing the Executive Order because Washington believed it was prompted by religious animus toward Islam. That argument is
16

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 21 of 125
wrong, and it cannot be reconciled with Kleindienst v. Mandel, 408 US. 753, 770 (1972), which held that, “when the Executive exercises” immigration authority “on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion[.]” Cf. Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring) (noting that Mandel’s “reasoning has particular force in the area of national security”). Here, as another district court has recognized, the Executive Order undeniably states a facially legitimate and bona fide reason— ensuring “the “proper review and maximum utilization of available resources for the screening of foreign nationals” and “that adequate standards are established to prevent infiltration by foreign terrorists.” Order, §§ 3(c), 5(a), (c); see Louhghalam, Order 18-19. The Order does so in part by incorporating a list of seven countries that were identified by Congress—and by the Executive in 2016—as raising terrorism-related concerns. Accordingly, Mandel forecloses the State’s challenge. Louhghalam, Order 18-19.
The more searching inquiry envisioned by the States would create substantial separation-of-powers problems, by permitting probing of the President’s subjective motive in issuing the Order, cf. United States v. O’Brien, 391 U.S. 367, 383-84 (1968) (inquiry into the subjective motives of members of Congress is a “hazardous matter”), and here even seeking an injunction running against the President himself, see Mississippi v. Johnson, 71 U.S. 475, 501 (1867).
17

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 22 of 125
4. The State’s Constitutional Challenges Are Without Merit Washington’s equal protection and procedural due process challenges also fail. See Louhghalam, Order 8-11, 13-16. As an initial matter, “[t]he word ‘person’ in the context of the Due Process Clause of the Fifth Amendment cannot * * * be expanded to encompass the States of the Union.” Katzenbach, 383 U.S. at 323; see also Premo v. Martin, 119 F.3d 764, 771 (9th Cir. 1997). Nor can Washington invoke the Fifth Amendment rights of its citizens against the federal government. See Katzenbach, 383 U.S. at 324. Furthermore, the vast majority of the individuals that Washington claims are affected by the Executive Order are aliens outside the United States, but it is “clear” that “an unadmitted and nonresident alien” “had no constitutional right of entry to this country as a nonimmigrant or otherwise.” Mandel, 408 U.S. at 762; see Plasencia, 459 U.S. at 32. This is fatal to Washington’s facial challenges, which require it to show that there is no constitutionally valid application of the Order. Even if the State could show a constitutional violation with respect to some individuals—and it cannot—they plainly cannot establish such a violation as to nonresident aliens who are outside the United States and who have no prior connection to this country. For the reasons explained in Louhghalam, moreover, the State cannot possibly make that showing. Indeed, the State’s claim of animus is irreconcilable with the
18

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 23 of 125
fact that the seven countries listed in Section 3(c) of the Order are the same seven countries that Congress and the Executive Branch identified in restricting the visawaiver program in 2015 and 2016, precisely because those countries are hotbeds of terrorist activity. See pp. 5-6, supra; see also 8 U.S.C. 1187(a)(12)(D)(iii).
Washington argued in district court that Section 5(b) of the Order violates the Establishment Clause by “giv[ing] preference to Christian refugees while disadvantaging Muslim refugees.” TRO Mot. at 7. But Section 5(b) provides an accommodation for refugees from each country in the refugee program, not just those specified in sections 3(a) & (c). As a result, it does not favor Christian refugees at the expense of Muslims, but rather is neutral with respect to religion. See Louhghalam, Civ. No. 17-10154-NMG, Order 13 (Section 5(b) does not favor Christians over Muslims in violation of the Establishment Clause because it “could be invoked to give preferred refugee status to a Muslim individual in a country that is predominantly Christian”). Nor does it violate the Clause to recognize that religious minorities are more likely to face persecution than members of the dominant religion. Cf. Cutter v. Wilkinson, 544 U.S. 709, 713 (2005) (Establishment Clause permits accommodation of religion). Washington’s Establishment Clause challenge to Section 5(b) also is not ripe, since that section does not take effect for at least 120 days.
19

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 24 of 125
5. The District Court Improperly Issued a Nationwide Injunction. An injunction should extend no further “than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). The district court’s order violates this rule by extending beyond any immediate impact on the State’s own institutions to include private persons and indeed all jurisdictions nationwide, including Massachusetts, where a court has upheld the Order against challenges similar to those presented here, Louhghalam, Order 18-19. B. The Balance of Harms Weighs Strongly in Favor of a Stay. The balance of harms also clearly favors a stay pending this Court’s expedited consideration of defendants’ appeal. First, the district court’s order contravenes the considered national security judgment of the President that the admission of certain classes of aliens at this time to the United States, under the existing screening and visa-issuance procedures, is not in the national interest. “‘[N]o governmental interest is more compelling than the security of the Nation.’” Jifry v. FAA, 370 F.3d 1174, 1183 (D.C. Cir. 2004) (quoting Haig v. Agee, 453 U.S. 280, 307 (1981)). “[T]he Government’s interest in combating terrorism is an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010).
20

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 25 of 125
This is particularly true as to predictive judgments about the potential national security threat posed by a class of aliens. A reviewing court would not be well-equipped to ascertain the quantum of risk, or what is a reasonable margin of error in assessing risk. Cf. Oryszak v. Sullivan, 576 F.3d 522, 525-26 (D.C. Cir. 2009) (“Egan teaches plainly that review of the breadth of [the margin of error acceptable in assessing the security risk posed by an individual] is outside the authority of a nonexpert body.”) (alteration in original)). Judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large.
Second, the injunction imposes irreparable harm by barring enforcement of the Executive Order in a manner that intrudes heavily on the constitutional separation of powers. Judicial intrusion on the political branches’ exclusive authority over the admission of aliens, by violating the separation of powers, in itself constitutes irreparable injury. See, e.g., Adams v. Vance, 570 F.2d 950, 954 (D.C. Cir. 1978) (vacating preliminary injunction that directed action by the Secretary of State in foreign affairs, which “deeply intrude[d] into the core concerns of the executive branch”). Stays of injunctions have repeatedly been granted to prevent a significant breach of inter-branch comity. See, e.g., INS v. Legalization Assistance Project, 510 U.S. 1301, 1306 (1993) (O’Connor, J., in chambers) (staying district court injunction interfering with the federal
21

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 26 of 125
government’s execution of immigration statute, noting that injunction was “an improper intrusion by a federal court into the workings of a coordinate branch of the Government”); Schweiker v. McClure, 452 U.S. 1301, 1303 (1981) (Rehnquist, J., in chambers); Committee on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008).
Furthermore, an order barring the Executive Branch from enforcing a Presidential Executive Order inherently imposes harm on the public, by thwarting the legal effect of the public’s chosen representative. Cf. New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers) (“[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.”); see also United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001) (recognizing that, in assessing the public interest, a court must heed “the judgment of Congress, deliberately expressed in legislation,” and “the balance that Congress has struck”).
Finally, enjoining operative provisions of the Order, which would require the Executive Branch to treat non-resident aliens’ visas as valid and potentially would result in their admission into the United States, could cloud the clear legal and factual distinction between their present status as inadmissible aliens not
22

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 27 of 125
lawfully present in the United States, and their desired status as aliens who were lawfully admitted to this country.
In contrast, the State has not shown that it faces irreparable harm during the temporary suspension of entries pending the national security review contemplated by the Order. Furthermore, defendants’ appeal could be significantly expedited in order to minimize any prejudice to the State.
Given the substantial harms posed by the district court’s order, defendants also respectfully request that this Court enter an immediate administrative stay pending consideration of the merits of this motion.
CONCLUSION For the foregoing reasons, defendants respectfully request that the Court enter an immediate administrative stay pending consideration of this motion. Defendants also request that the Court enter a stay pending appeal of the district court’s February 3, 2017, injunctive order.
23

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 28 of 125

NOEL J. FRANCISCO /s/ Noel J. Francisco Acting Solicitor General

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney
General AUGUST E. FLENTJE
Special Counsel to the Assistant Attorney General
DOUGLAS N. LETTER SHARON SWINGLE H. THOMAS BYRON LOWELL V. STURGILL JR. CATHERINE DORSEY Attorneys, Appellate Staff Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Ave., NW

24

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 29 of 125
CERTIFICATE OF SERVICE I hereby certify that on February 4, 2017, I 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. All participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system.
s/ Lowell V. Sturgill Jr. Lowell V. Sturgill Jr.

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 30 of 125
CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Motion complies with the type-volume limitation of Fed. R. App. P. 27 because it contains 5,074 words. This Motion complies with the typeface and the type style requirements of Fed. R. App. P. 27 because this brief has been prepared in a proportionally spaced typeface using Word 14-point Times New Roman typeface.
s/ Lowell V. Sturgill Jr. Lowell V. Sturgill Jr.

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 31 of 125
EXHIBIT A Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States (Jan. 27, 2017)

CasCeaC1s:ea1:s721e-:c712v-7:3-1-05c701v-4-0c08v500-,010042D1/20o-J64cLu/2RmD0e1oDn7ct,ou2IcmDue:mFn1iet0len13dt-01120-817F4/25il8eF,/diD1le7k0dt1E0/P2n1a8t/rg3/y1e0:7/12147oP, fPa1Pga0aeggeP2ea3og2feo1IDf01#02:522
THE WHITE HOUSE Office of the Press Secretary
For Immediate Release January 27, 2017
EXECUTIVE ORDER
- - - - - - -
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 visa-issuance 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-

CasCeaC1s:ea1:s721e-:c712v-7:3-1-05c701v-4-0c08v500-,010042D1/20o-J64cLu/2RmD0e1oDn7ct,ou2IcmDue:mFn1iet0len13dt-01120-817F4/25il8eF,/diD1le7k0dt1E0/P2n1a8t/rg3/y1e0:7/13147oP, fPa1Pga0aeggeP3ea3og3feo1IDf01#02:523
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 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

CasCeaC1s:ea1:s721e-:c712v-7:3-1-05c701v-4-0c08v500-,010042D1/20o-J64cLu/2RmD0e1oDn7ct,ou2IcmDue:mFn1iet0len13dt-01120-817F4/25il8eF,/diD1le7k0dt1E0/P2n1a8t/rg3/y1e0:7/14147oP, fPa1Pga0aeggeP4ea3og4feo1IDf01#02:524
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 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.

CasCeaC1s:ea1:s721e-:c712v-7:3-1-05c701v-4-0c08v500-,010042D1/20o-J64cLu/2RmD0e1oDn7ct,ou2IcmDue:mFn1iet0len13dt-01120-817F4/25il8eF,/diD1le7k0dt1E0/P2n1a8t/rg3/y1e0:7/15147oP, fPa1Pga0aeggeP5ea3og5feo1IDf01#02:525
(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 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

CasCeaC1s:ea1:s721e-:c712v-7:3-1-05c701v-4-0c08v500-,010042D1/20o-J64cLu/2RmD0e1oDn7ct,ou2IcmDue:mFn1iet0len13dt-01120-817F4/25il8eF,/diD1le7k0dt1E0/P2n1a8t/rg3/y1e0:7/16147oP, fPa1Pga0aeggeP6ea3og6feo1IDf01#02:526
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 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

CasCeaC1s:ea1:s721e-:c712v-7:3-1-05c701v-4-0c08v500-,010042D1/20o-J64cLu/2RmD0e1oDn7ct,ou2IcmDue:mFn1iet0len13dt-01120-817F4/25il8eF,/diD1le7k0dt1E0/P2n1a8t/rg3/y1e0:7/17147oP, fPa1Pga0aeggeP7ea3og7feo1IDf01#02:527
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 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 entryexit 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.

CasCeaC1s:ea1:s721e-:c712v-7:3-1-05c701v-4-0c08v500-,010042D1/20o-J64cLu/2RmD0e1oDn7ct,ou2IcmDue:mFn1iet0len13dt-01120-817F4/25il8eF,/diD1le7k0dt1E0/P2n1a8t/rg3/y1e0:7/18147oP, fPa1Pga0aeggeP8ea3og8feo1IDf01#02:528
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. 1222, 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 visa-interview 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 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 terrorismrelated organization, or any other national security

CasCeaC1s:ea1:s721e-:c712v-7:3-1-05c701v-4-0c08v500-,010042D1/20o-J64cLu/2RmD0e1oDn7ct,ou2IcmDue:mFn1iet0len13dt-01120-817F4/25il8eF,/diD1le7k0dt1E0/P2n1a8t/rg3/y1e0:7/19147oP, fPa1Pga0aeggeP9ea3og9feo1IDf01#02:529
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 terrorism-related 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.
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.

CasCCeaaC1ss:ae1es7:2e-1:c172v7-:-13-0c750v-14-c08v500-0,104D122/o-0J6c4Lu/Rm2D0eo1Dnc7tuo,2mcIDuem:Fn1ietl0en13dt-10102-178F/42il58eF,/di1lDe70dk1tE0/P21na8/tg3/r1ye07:/1074P,oaPPfga1aeg0g1eeP04a1o0g0feoo1IfDf0112#05: 30

THE WHITE HOUSE, January 27, 2017.

DONALD J. TRUMP # # #

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 41 of 125
EXHIBIT B Louhghalam v. Trump, Civ. 17-10154-NMG, Order
(Feb. 3, 2017)

Case:11:177-3-c5v1-0150,10524/-0N4M/2G017D, oIDc:u1m0e3n0t268945,FDilekdtE0n2tr/0y:31/147, PPagaege421 of 12215

United States District Court District of Massachusetts

)

Arghavan Louhghalam et al.

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of )

the United States, et al.

)

)

Defendants.

)

)

Civil Action No. 17-10154-NMG

MEMORANDUM & ORDER

GORTON, J.

This Court was initially asked 1) to issue a writ of habeas

corpus on behalf of by Arghavan Louhghalam and Mazdak

Pourabdollah Tootkaboni, lawful permanent residents who were

detained at Boston Logan International Airport (“Logan”) for

several hours upon arrival from an academic conference outside

the United States and 2) to declare unlawful Executive Order

13,769, promulgated by the President of the United States.

Late in the evening on January 28, 2017, United States

District Judge Allison D. Burroughs and United States Magistrate

Judge Judith G. Dein held a hearing on a motion of Louhghalam

and Tootkaboni for a temporary restraining order. Following

that hearing, Judge Burroughs and Magistrate Judge Dein entered

a temporary restraining order (“TRO”) that, inter alia,

prohibits the detention and/or removal of individuals with

-1-

Case:11:177-3-c5v1-0150,10524/-0N4M/2G017D, oIDc:u1m0e3n0t268945,FDilekdtE0n2tr/0y:31/147, PPagaege432 of 12215
approved refugee applications who would be legally admitted to the United States in absence of the Executive Order. That TRO is set to expire on Sunday, February 5, 2017.
Following entry of the TRO a flurry of activity has resulted in the filing of an amended complaint wherein five other Iranian nationals and Oxfam America, Inc. are named as additional plaintiffs and the allowance of a motion by the Commonwealth of Massachusetts and the University of Massachusetts to intervene as plaintiffs. Now pending before this session is the informal motion of all of the plaintiffs to continue in force the subject TRO which defendant opposes. Oral argument on that motion was heard earlier today. I. Background
A. The Parties Habeas petitioners Tootkaboni and Louhghalam are Iranian nationals, Muslim and lawful permanent residents of the United States. Both are currently employed as Associate Professors at the University of Massachusetts-Dartmouth. They were each detained for nearly four hours at Logan Airport on January 28, 2017, without access to counsel, after returning from an academic conference outside the country. The five other individual plaintiffs are Iranian nationals and Muslim. Three of them, Babak Yaghoubi Moghadam, his sister, Fatemeh Yaghoubi Moghadam, and Ali Sanie are also lawful
-2-

Case:11:177-3-c5v1-0150,10524/-0N4M/2G017D, oIDc:u1m0e3n0t268945,FDilekdtE0n2tr/0y:31/147, PPagaege443 of 12215
permanent residents. Plaintiffs Zahrasadat Mirrazi Renani and Leily Amirsardary are in the United States on valid F-1 student visas. Plaintiff Oxfam America Inc. is a subsidiary of a worldwide non-profit organization that promotes policy reform in the United States and abroad with respect to global poverty.
Defendants in this case are President of the United States, Donald J. Trump, United States Customs and Border Protection (“CBP”), Kevin K. McAleen, the Acting Commissioner of the CBP, William Mohalley, the Boston Field Director of the CPB, and the Department of Homeland Security and its Secretary, John Kelly. Each individual defendant is sued in his official capacity.
B. The Executive Order On January 27, 2017, the President of the United States Donald J. Trump, issued Executive Order No. 13,769 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO”). The EO directs changes to the policy and process of admitting non-citizens into the United States purportedly to protect national security and to provide a period of review for relevant agencies to evaluate current procedures and to propose and implement new procedures. The changes in immigration procedure relevant to this action are as follows. The EO suspends for 90 days entry of immigrants and non-immigrants from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. Exec. Order 13,769
-3-

Case:11:177-3-c5v1-0150,10524/-0N4M/2G017D, oIDc:u1m0e3n0t268945,FDilekdtE0n2tr/0y:31/147, PPagaege454 of 12215
§ 3(c). The EO also suspends, for 120 days, the United States Refugee Admission Program (“USRAP”). Id. § 5(b). The order directs, after the suspension on USRAP ends, that the Secretary of State prioritize applicants on the basis of religious-based persecution
provided that the religion of the individual is a minority religion in the individual’s country of nationality. Id. On February 1, 2017, White House counsel issued a clarification to the Acting Secretary of State, the Attorney General and the Secretary of Homeland Security that Sections 3(c) and 3(e) do not apply to lawful permanent residents. C. The Immigration and Nationality Act The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., was originally enacted in 1952 and has been amended several times, including in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). The INA governs immigration, naturalization, refugee assistance and removal procedures and defines the circumstances that govern the admission of aliens into the United States. The relevant provision of the INA provides that: Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the
-4-

Case:11:177-3-c5v1-0150,10524/-0N4M/2G017D, oIDc:u1m0e3n0t268945,FDilekdtE0n2tr/0y:31/147, PPagaege465 of 12215
entry of aliens any restrictions he may deem to be appropriate. 8 U.S.C. § 1182(f). D. Procedural History As described above, petitioners Tootkaboni and Louhghalam filed a writ of habeas corpus on January 28, 2017. In the middle of a weekend night, following a hearing, Judge Burroughs and Magistrate Judge Dein, the assigned emergency district and magistrate judges, respectively, entered a TRO preventing individuals subject to the EO from being detained or removed upon arrival at Logan. The TRO also directed petitioners to file an amended complaint and scheduled a hearing to occur prior to the expiration of that order. The matter was randomly assigned to this judicial officer who, accordingly, scheduled a hearing with respect to the continuance of the TRO. II. Continuance of the TRO A. Legal Standard In order to obtain a preliminary injunction or temporary restraining order, the moving party must establish 1) a reasonable likelihood of success on the merits, 2) the potential for irreparable harm if the injunction is withheld, 3) a favorable balance of hardships and 4) the effect on the public interest. Jean v. Mass. State Police, 492 F.3d 24, 26-27 (1st Cir. 2007); Quincy Cablesys., Inc. v. Sully’s Bar, Inc., 640 F.
-5-

Case:11:177-3-c5v1-0150,10524/-0N4M/2G017D, oIDc:u1m0e3n0t268945,FDilekdtE0n2tr/0y:31/147, PPagaege476 of 12215
Supp. 1159, 1160 (D. Mass. 1986). Of these factors, the likelihood of success on the merits “normally weighs heaviest on the decisional scales.” Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009).
The Court may accept as true “well-pleaded allegations [in the complaint] and uncontroverted affidavits.” Rohm & Haas Elec. Materials, LLC v. Elec. Circuits, 759 F. Supp. 2d 110, 114, n.2 (D. Mass. 2010) (quoting Elrod v. Burns, 427 U.S. 347, 350, n.1 (1976)). The Court may also rely on otherwise inadmissible evidence, including hearsay. See Asseo v. Pan Am. Grain Co., Inc., 805 F.2d 23, 26 (1st Cir. 1986). Ultimately, the issuance of preliminary injunctive relief is “an extraordinary and drastic remedy that is never awarded as of right.” Peoples Fed. Sav. Bank v. People’s United Bank, 672 F.3d 1, 8-9 (1st Cir. 2012) (quoting Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)).
The Court may extend temporary injunctive relief upon a showing of good cause. Fed. R. Civ. P. 65(b)(2).
B. Application 1. The claims for injunctive relief by the lawful permanent residents
On February 1, 2017, the White House distributed a memorandum to the Acting Secretary of State, the Acting Attorney General and the Secretary of Homeland Security clarifying that
-6-

Case:11:177-3-c5v1-0150,10524/-0N4M/2G017D, oIDc:u1m0e3n0t268945,FDilekdtE0n2tr/0y:31/147, PPagaege487 of 12215
Sections 3(c) and 3(e) of the EO do not apply to lawful permanent residents.
That memorandum comports with the language of the Section 3(c) which temporarily suspends “entry” of aliens from the seven subject countries. Upon returning to the United States, lawful permanent residents do not, however, typically “enter” the country for purposes of the INA.
Although “entry” is no longer defined in the INA, it has been replaced with the term “admission,” which is defined as
the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(A) (emphasis added); see also Vartelas v. Holder, 556 U.S. 257, 263 (2012) (explaining that Congress made “admission” the “key word” and removed the definition of “entry” from the statute). Under the INA, lawful permanent residents are regarded as seeking admission, i.e. entry, into the United States only if they fall within six categories, including inter alia, being absent from the United States for 180 days or more. See id.; 8 U.S.C. § 1101(a)(13)(c). Therefore, the use of the term “entry” in Section 3(c) indicates that the suspension was not intended to be applied to lawful permanent residents.
-7-

Case:11:177-3-c5v1-0150,10524/-0N4M/2G017D, oIDc:u1m0e3n0t268945,FDilekdtE0n2tr/0y:31/147, PPagaege498 of 12215
In light of the government’s clarification that the EO will not be applied to lawful permanent residents, the claims for injunctive relief by plaintiffs Louhghalam, Tootkaboni, Sanie, Fatemeh Moghadam and Babak Moghadam are moot. With respect to those individuals, there is “no ongoing conduct to enjoin”. Town of Portsmouth v. Lewis, 813 F.3d 54, 58 (1st Cir. 2016). Thus, any declaration with respect to the lawfulness of the EO would be strictly advisory. See New Eng. Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 18 (1st Cir. 2002) (remarking that it would be “pointless” to declare the constitutionality of a policy that had been revised during litigation).
Although the claims by the lawful permanent resident plaintiffs for injunctive relief are moot, the claims for injunctive relief by plaintiffs Renani and Amirsardary, holders of F-1 visas, and Oxfam are not covered by that clarification and thus the Court will address the merits of their claims for injunctive relief.
2. The claims for injunctive relief by the plaintiffs who hold F-1 Visas a. Count I: Equal Protection claim
The Fifth Amendment protects aliens within the United States from “invidious discrimination by the Federal Government.” Plyler v. Doe, 457 U.S. 202, 210 (1982) (quoting Mathews v. Diaz, 426 U.S. 67, 77); see also Yick Wo v. Hopkins,
-8-

Case:11:177-3-c5v1-0150,10524/-0N4M/2G017D, oIDc:u1m0e3n0t268945,FDilekdtE0n2tr/0y:31/147, PPagaege509 of 12215
118 U.S. 356, 369, (1886) (“[Equal Protection is] universal in [its] application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.”). There is a distinction, however, between the constitutional rights enjoyed by aliens who have entered the United States and those who are outside of it. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
The decision to prevent aliens from entering the country is a “fundamental sovereign attribute” realized through the legislative and executive branches that is “largely immune from judicial control.” Chi Thon Ngo v. I.N.S., 192 F.3d 390, 395 (3d Cir. 1999), amended (Dec. 30, 1999) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)). Federal classifications based on alien status are evaluated using rational basis review. Mathews v. Diaz, 426 U.S. 67, 83 (1976) (considering whether a law that made distinctions based on alien status was “wholly irrational”); Ruiz-Diaz v. United States, 703 F.3d 483, 486–87 (9th Cir. 2012)(determining that a regulation that treated immigrant religious workers differently than other visa applicants would be evaluated using rational basis review); Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979) (upholding a regulation issued in response to the Iran hostage crisis that required non-immigrant alien Iranian students to
-9-

CCaassee1: :1177--3c5v1-10051, 5042-/N04M/2G017D,oIcDu:m10e3n0t 268945F,iDlekdtE0n2t/r0y3:/147, PPaaggee5110ooff12215
provide information to Immigration and Naturalization Services Offices).
Rational basis review examines whether the “classification at issue bears some fair relationship to a legitimate public purpose.” Plyler, 457 U.S. at 216. It is “not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Heller v. Doe by Doe, 509 U.S. 312, 319–20 (1993) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)). Under rational basis review, a classification is permissible “if there is any reasonably conceivable state of facts that could provide a rational basis.” Id. (quoting Beach Communications, 508 U.S. at 313).
Plaintiffs contend that the EO discriminates on the basis of religion and was designed to exclude Muslims from the United States. They further allege that it singles out citizens of seven different countries. At oral argument, plaintiffs relied on “astonishing evidence of intent” from President Trump which, in their view, demonstrates that EO was “substantially motivated by improper animus.” See Hunter v. Underwood, 471 U.S. 222, 233 (1985) (holding that a provision in the Alabama Constitution violated equal protection even through it was facially neutral because it was motivated by animus). Defendants responded that the cases examining improper animus involve equal protection claims against states, which may be reviewed with strict
-10-

CCaassee1: :1177--3c5v1-10051, 5042-/N04M/2G017D,oIcDu:m10e3n0t 268945F,iDlekdtE0n2t/r0y3:/147, PPaaggee5121ooff12215
scrutiny, while the federal government classification of nonresident aliens in this case is subject to rational basis review.
Because the EO involves federal government categorizations with respect to non-resident aliens, rational basis review applies. According to the EO, its purpose is
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 . . . . Exec. Order 13,769 § 3(c). The EO specifically asserts that permitting aliens from the countries identified in section 217(a) of the INA, 8 U.S.C. § 1187(a)(12), to enter “would be detrimental to the United States.” The order provides a reasonably conceivable state of facts [which concerns national security and] that could provide a rational basis for the classification. Heller, 509 U.S. at 319–20. Accordingly, this Court declines to encroach upon the “delicate policy judgment” inherent in immigration decisions. Plyler, 457 U.S. at 225.
b. Count II: Establishment Clause claim With respect to Count II, plaintiffs allege that the Executive Order violates the Establishment Clause of the United States Constitution. See U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion . . . .”). Specifically, plaintiffs claim that the EO disfavors Islam and
-11-

CCaassee1: :1177--3c5v1-10051, 5042-/N04M/2G017D,oIcDu:m10e3n0t 268945F,iDlekdtE0n2t/r0y3:/147, PPaaggee5132ooff12215
favors Christianity. The Court concludes, however, that the remaining plaintiffs lack standing to raise an Establishment Clause challenge.
The purported harmful disparate treatment of those two faiths arises from Section 5(b) of the EO in which the Secretary of State is directed, upon reinstatement of USRAP, 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 (emphasis added). To have standing, plaintiffs must allege an injury in fact that is “concrete and particularized”. Reddy v. Foster, Docket No. 16-1432, 2017 WL 104825, at *4 (1st Cir. Jan. 11, 2017) (quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)). Plaintiffs are not, however, refugees seeking admission to the United States and consequently, any future implementation of Section 5(b) would not personally affect them. Although plaintiffs vigorously disagree with such a policy, that sincere disagreement is insufficient injury to confer standing. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485-86 (1982) (“They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of
-12-

CCaassee1: :1177--3c5v1-10051, 5042-/N04M/2G017D,oIcDu:m10e3n0t 268945F,iDlekdtE0n2t/r0y3:/147, PPaaggee5143ooff12215
conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III . . . .” (emphasis removed)).
Moreover, the language in Section 5 of the EO is neutral with respect to religion. Plaintiffs submit in their amended complaint that Section 5 favors Muslims over Christians, in violation of the Establishment Clause. The provisions of Section 5, however, could be invoked to give preferred refugee status to a Muslim individual in a country that is predominately Christian. Nothing in Section 5 compels a finding that Christians are preferred to any other group.
c. Count III: Due Process claim The power to admit or exclude aliens is a sovereign prerogative” and aliens seeking admission to the United States request a “privilege.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). It is “beyond peradventure” that “unadmitted and nonresident aliens” have no right to be admitted to the United States. Adams v. Baker, 909 F.2d 643, 647 (1st Cir. 1990). There is no constitutionally protected interest in either obtaining or continuing to possess a visa. The due process guaranteed by the Fifth Amendment “attaches only when the federal government seeks to deny a liberty or property interest.” Knoetze v. U.S., Dep't of State, 634 F.2d 207, 211 (5th Cir. 1981). A non-citizen has no “inherent property right
-13-

CCaassee1: :1177--3c5v1-10051, 5042-/N04M/2G017D,oIcDu:m10e3n0t 268945F,iDlekdtE0n2t/r0y3:/147, PPaaggee5154ooff12215
in an immigrant visa.” Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990); see also Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, Bureau of Consular Affairs, 104 F.3d 1349, 1354 (D.C. Cir. 1997) (holding that aliens “may not assert a Fifth Amendment right in challenging the procedures for granting immigrant visas”); Knoetze, 634 F.2d at 212 (concluding that “revocation of an entry visa issued to an alien already within our country has no effect upon the alien's liberty or property interests”); De Avilia v. Civiletti, 643 F.2d 471, 477 (7th Cir. 1981) (determining there is “no vested right in the issuance of a visa”). Thus, because an alien does not enjoy a property right in a visa, he has no due process right that protects the manner in which a visa is revoked.
Conversely, because the Due Process Clause safeguards all “persons” in the United States, once an alien is in this country, that alien is entitled to Fifth Amendment protection. Zadvydas, 533 U.S. at 693. It is “well established” that aliens have cognizable due process interests which must be protected in deportation hearings. Demore v. Kim, 538 U.S. 510, 523 (2003) (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)). At a minimum, before deportation, aliens are entitled to “notice of the nature of the charges and a meaningful opportunity to be heard.” Choeum v. I.N.S., 129 F.3d 29, 38 (1st Cir. 1997).
-14-

CCaassee1: :1177--3c5v1-10051, 5042-/N04M/2G017D,oIcDu:m10e3n0t 268945F,iDlekdtE0n2t/r0y3:/147, PPaaggee5165ooff12215
The plaintiffs who hold F-1 Visas, Ms. Renani and Ms. Amirsardary (“the F-1 plaintiffs”), contend that the EO violates their due process rights guaranteed by the Fifth Amendment because it prevents individuals from the targeted countries from coming into the United States without any procedural safeguards. Moreover, they submit that they fear leaving the country because of concerns about being unable to return. Defendants respond that such fears are premature because neither of the F-1 plaintiffs has specific travel plans within the next month.
The F-1 plaintiffs have not demonstrated that they are likely to succeed on the merits of their due process claim. It is not clear whether the F-1 visas of aliens in the United States at the time of the EO have been revoked, although defendants’ counsel stated at the hearing that he thought they had been. Assuming their visas have been revoked, the F-1 plaintiffs have no property or liberty interest in those visas and thus no due process claim with respect to the supposed revocation. Knoetze, 634 F.2d at 212.
Although the F-1 plaintiffs certainly would be protected by the Due Process Clause in the Fifth Amendment if deportation proceedings were initiated against them, Demore, 538 U.S. at 523, there is no indication that such proceedings are forthcoming. Furthermore, while this Court is sympathetic to the difficult personal circumstances in which these plaintiffs
-15-

CCaassee1: :1177--3c5v1-10051, 5042-/N04M/2G017D,oIcDu:m10e3n0t 268945F,iDlekdtE0n2t/r0y3:/147, PPaaggee5176ooff12215
find themselves, if they choose to leave the country, as nonresident aliens, they have no right to re-enter. Landon, 459 U.S. at 32. In sum, because due process protections do not apply to visas and the F-1 plaintiffs are not currently subject to deportation proceedings, they have not demonstrated a likelihood of success on the merits of a due process claim at this time.
d. Count IV: Administrative Procedure Act claim
The Court concludes that plaintiffs have not shown a likelihood of success on the merits with respect to Count IV, in which plaintiffs allege that the EO violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.
In Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992), the United States Supreme Court concluded that the Presidency is not an “agency” as defined in the APA, § 701(b)(1), and thus actions by the President are not subject to the APA. Courts have interpreted Franklin to prohibit review under the APA of actions by the President when he is exercising discretionary authority. See, e.g., Detroit Int’l Bridge Co. v. Gov’t of Canada, 189 F. Supp. 3d 85, 104 (D.D.C. 2016).
Here, Congress has granted the President authority to suspend entry for any class of aliens if such entry would be “detrimental to the interests of the United States.” 8 U.S.C.
-16-

CCaassee1: :1177--3c5v1-10051, 5042-/N04M/2G017D,oIcDu:m10e3n0t 268945F,iDlekdtE0n2t/r0y3:/147, PPaaggee5187ooff12215
1182(f). Pursuant to, and without exceeding, that grant of discretionary authority, the President issued EO 13,769 and suspended entry of aliens from the seven subject countries. The President’s action is thus unreviewable under the APA. See Detroit Int’l Bridge, 189 F. Supp. 3d at 104-05 (concluding that the President’s decision to allow a permit for an international bridge was not subject to the APA because he had the authority to do so under the International Bridge Act of 1972, 33 U.S.C. § 535 et seq.).
Because the likelihood of success element is “essential” to the issuance of an injunction, New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 13-14 (1st Cir. 2002), the Court will not continue to impose injunctive relief pursuant to Count IV.
e. Count V: First Amendment claim Finally, in Count V, Oxfam claims that the EO has violated its First Amendment rights to freedom of speech, association and petition by barring entry of aliens, including visa holders, into the United States. The United States Supreme Court, in Kleindienst v. Mandel, 408 U.S. 753, 764, 770 (1972), explained that a denial of a visa to an alien could, under some circumstances, violate a United States citizen’s First Amendment right “to receive information”. The Court dismissed plaintiffs’ First Amendment claim, however,
-17-

CCaassee1: :1177--3c5v1-10051, 5042-/N04M/2G017D,oIcDu:m10e3n0t 268945F,iDlekdtE0n2t/r0y3:/147, PPaaggee5198ooff12215
because the Attorney General provided a “facially legitimate and bona fide reason” for denying the alien’s visa request. In such case, the Court continued, lower courts should not
look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. Id. at 770. The First Circuit Court of Appeals (“First Circuit”) has considered the bounds of Kleindienst on two occasions: in Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988), and in Adams v. Baker, 909 F.2d 643 (1st Cir. 1990). That Court concluded in Allende that plaintiffs adequately raised a First Amendment claim. 845 F.2d at 1116. Conversely, in Adams, it held that plaintiffs’ did not assert a valid First Amendment challenge. 909 F.2d at 649-50. In both cases, however, the First Circuit undertook an analysis to determine whether the conduct of the individual who had been denied a visa fit within the statutory authority relied upon for those denials. Here, the President has exercised his broad authority under 8 U.S.C. § 1182(f) to suspend entry of certain aliens purportedly in order to ensure that resources are available to review screening procedures and that adequate standards are in place to protect against terrorist attacks. Exec. Order 13,769 § 3(c). Such a justification is “facially legitimate and bona
-18-

CCaassee1: :1177--3c5v1-10051, 5042-/N04M/2G017D,oIcDu:m10e3n0t 268945F,iDlekdtE0n2t/r0y3:/147, PPaaggee6109ooff12215
fide” and therefore Oxfam’s First Amendment rights are not implicated. See Kleindienst, 408 U.S. at 770 (concluding that the First Amendment rights of American scholars and students were not violated when a Belgian scholar whom they invited to speak was denied entry into the United States).
Although at oral argument plaintiffs directed this Court to American Academy of Religion v. Napolitano, 573 F.3d 115, 137 (2nd Cir. 2009), which held that a “well supported allegation of bad faith” could render a decision not bona fide, that is not the standard in the First Circuit. Therefore, in light of the “plenary congressional power to make policies and rules for exclusion of aliens,” Kleindienst, 408 U.S. at 769, which pursuant to 8 U.S.C. § 1182(f), has been delegated to the President, the Court concludes that the government’s reasons, as provided in the EO, are facially legitimate and bona fide.
Consequently, Oxfam has not shown a likelihood of success with respect to its claim in Count V. See Kleindienst, 408 U.S. at 770; Adams, 909 F.2d at 650.
f. Other preliminary injunction factors Moving on to the other three factors considered for a temporary restraining order, Jean v. Mass. State Police, 492 F.3d 24, 26-27 (1st Cir. 2007), the potential for irreparable harm weighs in favor of plaintiffs. The harm of being forced to choose between visiting loved ones, participating in a
-19-

CCaassee1: :1177--3c5v1-10051, 5042-/N04M/2G017D,oIcDu:m10e3n0t 268945F,iDlekdtE0n2t/r0y3:/147, PPaaggee6210ooff12215
prestigious doctoral program or founding a business, on the one hand, and staying in this country out of fear of being denied re-entry is painful to contemplate. Oxfam faces some less lifesize challenges but they are important nevertheless.
There are considerations on both sides with respect to a balancing of the hardships. On the one hand, implementing an effective immigration regime that ensures the safety of all Americans is undoubtedly difficult. On the other hand, the hardship to the professional and personal lives of the individual plaintiffs and to the operation of the Oxfam worldwide organization is palpable.
Finally, there are public interest considerations on both sides. The rich immigrant history of the United States has long been a source of strength and pride in this country. The individual plaintiffs in this case provide particularly compelling examples of the value that immigrants add to our society. Conversely, the public interest in safety and security in this ever-more dangerous world is strong as well.
When the four factors that the Court must consider before imposing injunctive relief are considered collectively, likelihood of success on the merits weighs most heavily in the decision. Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009). Therefore, because plaintiffs have not demonstrated that they are likely to succeed on the merits of
-20-

CCaassee1: :1177--3c5v1-10051, 5042-/N04M/2G017D,oIcDu:m10e3n0t 268945F,iDlekdtE0n2t/r0y3:/147, PPaaggee6221ooff12215
any of their claims, an extension of the restraining order at the present time is not warranted.

ORDER For the forgoing reasons, the Court declines to impose any injunctive relief and will not renew the temporary restraining order that was entered on January 29, 2017 (Docket No. 6).

So ordered.

Dated February 3, 2017

/s/ Nathaniel M. Gorton_____ Nathaniel M. Gorton United States District Judge

-21-

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 63 of 125
EXHIBIT C Temporary Restraining Order (Feb. 3, 2017)

CCaasese: 127:1-375-c1v0-50,00124/10-4J/L2R017D, oIDc:u1m0e3n0t258245,FDilekdtE0n2tr/0y:31/147, PPagaege641 of 1725

CCaasese: 127:1-375-c1v0-50,00124/10-4J/L2R017D, oIDc:u1m0e3n0t258245,FDilekdtE0n2tr/0y:31/147, PPagaege652 of 1725

CCaasese: 127:1-375-c1v0-50,00124/10-4J/L2R017D, oIDc:u1m0e3n0t258245,FDilekdtE0n2tr/0y:31/147, PPagaege663 of 1725

CCaasese: 127:1-375-c1v0-50,00124/10-4J/L2R017D, oIDc:u1m0e3n0t258245,FDilekdtE0n2tr/0y:31/147, PPagaege674 of 1725

CCaasese: 127:1-375-c1v0-50,00124/10-4J/L2R017D, oIDc:u1m0e3n0t258245,FDilekdtE0n2tr/0y:31/147, PPagaege685 of 1725

CCaasese: 127:1-375-c1v0-50,00124/10-4J/L2R017D, oIDc:u1m0e3n0t258245,FDilekdtE0n2tr/0y:31/147, PPagaege696 of 1725

CCaasese: 127:1-375-c1v0-50,00124/10-4J/L2R017D, oIDc:u1m0e3n0t258245,FDilekdtE0n2tr/0y:31/147, PPagaege707 of 1725

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 71 of 125
EXHIBIT D Feb. 1, 2017 Memorandum

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 72 of 125

THE WHITE HOUSE
WASHINGTON

February 1, 2017

MEMORANDUM TO THE ACTING SECRETARY OF STATE, THE ACTING ATTORNEY GENERAL, AND THE SECRETARY OF HOMELAND SECURITY

FROM:

Donald F. McGahn II – Counsel to the President

SUBJECT: Authoritative Guidance on Executive Order Entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017)

Section 3(c) of the Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017) suspends for 90 days the entry into the United States of certain aliens from countries referred to in section 217(a)(12) of the Immigration and Nationality Act (INA), 8 U.S.C. 1187(a)(12). Section 3(e) of the order directs the Secretary of Homeland Security, in consultation with the Secretary of State, to submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of certain foreign nationals from countries that do not provide information needed to adjudicate visas, admissions, or other benefits under the INA.

I understand that there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States. Accordingly, to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals. Please immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order.

1

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 73 of 125
EXHIBIT E Transcript of Hearing before Judge Robart
(Feb. 3, 2017)

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 74 of 125
1

1

UNITED STATES DISTRICT COURT

2

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

3 _____________________________________________________________

4

)

STATE OF WASHINGTON and

) C17-00141-JLR

5 STATE OF MINNESOTA,

)

) SEATTLE, WASHINGTON

6

Plaintiffs,

)

) February 3, 2017

7 v.

)

) MOTION FOR

8 DONALD TRUMP, in his

) TEMPORARY

official capacity as

) RESTRAINING ORDER

9 President of the United

)

States; U.S. DEPARTMENT OF

)

10 HOMELAND SECURITY; JOHN F.

)

KELLY, in his official

)

11 capacity as Secretary of the )

Department of Homeland

)

12 Security; TOM SHANNON, in

)

his official capacity as

)

13 Acting Secretary of State;

)

and the UNITED STATES OF

)

14 AMERICA,

)

)

15

Defendants.

)

16 _____________________________________________________________

17

VERBATIM REPORT OF PROCEEDINGS

BEFORE THE HONORABLE JAMES L. ROBART

18

UNITED STATES DISTRICT JUDGE

_____________________________________________________________

19

20 APPEARANCES:
21

22

23

For the Plaintiffs:

Noah Purcell

Colleen Melody

24

Assistant Attorneys General

Office of the Attorney General

25

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 75 of 125
2

1

Jacob Campion

Assistant Attorney General of

2

Minnesota

445 Minnesota Street, Suite 1100

3

St. Paul, MN 55101

4

For the Defendants:

Michelle Bennett

5

John Tyler

Trial Attorneys

6

U.S. Department of Justice

Civil Division

7

Federal Programs Branch

20 Massachusetts Avenue, NW

8

Washington, DC 20530

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 76 of 125
3

1

THE CLERK: Case No. C17-141, State of Washington

2 versus Donald J. Trump. Counsel, please make your

3 appearances for the record.

4

MR. PURCELL: Noah Purcell for the State of

5 Washington, Your Honor.

6

MS. MELODY: I'm Colleen Melody, also for the state.

7

MR. CAMPION: I'm Jacob Campion, I'm an Assistant

8 Attorney General for the State of Minnesota.

9

THE COURT: Welcome.

10

MS. BENNETT: Good afternoon, Your Honor, Michelle

11 Bennett from the Department of Justice for the defendants.

12 And with me is my colleague, also from the Department of

13 Justice, John Tyler.

14

THE COURT: Thank you. Counsel, welcome.

15

A couple of housekeeping matters to attend to. We are

16 scheduled to conduct this hearing between 2:30 and 4 o'clock.

17 I'm going to have some very brief housekeeping matters at the

18 start, of which I've already used eight of my ten allotted

19 minutes. The state will go next. I will tell you that I've

20 given, in effect, 30 minutes to each side. If the state

21 wishes, they can reserve some of their time for rebuttal.

22 They're going first. The federal government is going second.

23

Your prepared remarks, which I'm sure are all very

24 thoughtful and quite helpful, are going to get swallowed by

25 questions, because I have questions that are essential to our

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 77 of 125
4

1 resolution of this case and I need to get those answered. So

2 be prepared for pretty much an interruption from the start.

3

And at around 3:45, having followed the direct

4 presentations, and rebuttal if the state has time left,

5 you're going to hear from the court. It's my intention to

6 orally rule from the bench but in very conclusory terms. And

7 we will get a written order to follow, so that if you want to

8 have the Ninth Circuit grade my homework, you'll have

9 something that you can get on file there promptly.

10

So, that will be the order of the day. And I'm going to

11 hear from the state first, please.

12

Mr. Purcell, why don't we do one other item. Technically

13 the motion that's before me started off as Docket 3, which

14 was exclusively the State of Washington, and is now Docket

15 19, which is both the states of Washington and Minnesota.

16 We've also had a series of requests to file amicus briefs,

17 and I intend to grant those. So I'm granting Docket 26, the

18 ACLU; Docket 42, the Service Employees Union; Docket 45,

19 amicus filed by the Amicus Law Professors. Sounds like the

20 Three Amigos. Let's see, Docket 46, I may have mentioned, is

21 the Washington State Labor Council. And, finally, Docket 48,

22 which is the amicus, Americans United For Separation of

23 Church and State. Those motions are granted.

24

Please note that it's not a motion for intervention, it's

25 simply authorization to file the amicus brief in this

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 78 of 125
5

1 particular question.

2

Mr. Purcell.

3

MR. PURCELL: Thank you, Your Honor. Good afternoon.

4

In the weeks since President Trump signed the Executive

5 Order at issue here, six federal judges around the country

6 have enjoined or stayed parts of it in response to action by

7 particular plaintiffs, finding a likelihood of success on the

8 merits of the challenges. The states of Washington and

9 Minnesota are asking you to do the same here today and to

10 enjoin the parts of the order that we challenge.

11

The order is illegal and is causing serious immediate

12 harms to our states, to our state institutions, and to our

13 people, and enjoining the order is overwhelmingly in the

14 public interest. So, you're familiar, of course, with the

15 standard for a temporary restraining order, I won't waste

16 your time.

17

THE COURT: You can dispense with that.

18

MR. PURCELL: I want to first address the likelihood

19 of success on the merits, including the threshold issues that

20 the government has raised, including standing, deference to

21 national security interests, and the facial versus as-applied

22 nature of the challenge.

23

THE COURT: Well, let me try and derail you here.

24

MR. PURCELL: Sure.

25

THE COURT: I'd like to take this in terms of equal

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 79 of 125
6

1 protection first.

2

MR. PURCELL: Okay.

3

THE COURT: And, in particular, how does the equal

4 protection claim apply to all of the order, which is the

5 120-day-part found in paragraph or Section 5A. How does this

6 ban discriminate in any way, or violate equal protection,

7 when it's an across-the-board ban?

8

MR. PURCELL: You're talking about as to refugees?

9 So, our claim about refugees is primarily that it is

10 religiously motivated discrimination, and that the order is,

11 in large part, motivated by religious animus. So that

12 doesn't require us to show that everyone harmed by the order

13 is of a particular faith, it just requires us to show that

14 part of the motivation for issuing the order was religious

15 discrimination.

16

THE COURT: Then I'm going to try to put words in

17 your mouth. Are you telling me, then, that you are not

18 making an equal protection challenge to the refugee ban?

19

MR. PURCELL: I would say, Your Honor, that we have a

20 -- I would say the focus there is on the religious

21 discrimination aspect.

22

THE COURT: We're going to get there next.

23

MR. PURCELL: Okay. Would you like me to address

24 that further?

25

THE COURT: No. Let's move on to my second question

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 80 of 125
7

1 on equal protection, then.

2

MR. PURCELL: Okay.

3

THE COURT: Do refugees or visa holders that have

4 never physically entered the country have equal protection

5 rights under the constitution?

6

MR. PURCELL: Your Honor, that is not the focus of

7 our claim. I think the answer is probably no. But they do

8 have rights to some constitutional protections. And

9 certainly their friends and family who are here -- and we're

10 just talking about refugees now, not aliens, for example, who

11 might have been sponsored by a university or something like

12 that to come here.

13

THE COURT: Right.

14

MR. PURCELL: Our claim is that -- our claim is

15 primarily focused on the people who are here or have been

16 here and left, their families, their employers and the

17 institutions here.

18

THE COURT: All right. Has any court ever set aside

19 an immigration law or regulation on equal protection grounds

20 based on rational review? I understand it's not the

21 centerpiece, but you've pled it and so you're going to get

22 questioned about it.

23

MR. PURCELL: We did plead it, and that's just fine,

24 Your Honor. I was planning to start this morning with due

25 process -- or this afternoon -- but equal protection is just

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 81 of 125
8

1 fine.

2

I am not aware of an immigration order being set aside on

3 equal protection grounds. On the other hand, I'm not aware

4 of any Executive Order quite like this one, that there's so

5 much evidence, before there's even been any discovery, that

6 it was motivated by animus, religiously targeted, and just

7 utterly divorced from the stated purposes of the order. And

8 I'm happy to talk about that more in terms of -- the

9 government is asking for an extraordinary level of deference

10 here, essentially saying that you can't really look at what

11 were the real motives for the order; you can't test its

12 legality. And we just think that's wrong, legally and

13 factually.

14

And if you'll spare me for just a minute, indulge me for

15 just a minute and let me -- there's three -- there's a legal

16 point and a factual point. The legal point is courts often

17 review executive action that has to do with national security

18 for constitutional violations. If you look at cases like

19 Hamdi, Hamdan, Boumediene, the Supreme Court routinely

20 reviews -- you know, those were cases involving enemy

21 combatants being held offshore. Here we have a case that

22 largely involves people who have been here, long-time

23 residents who still live here and have lost rights. And

24 we're asking the court to review that claim.

25

They also suggest, Your Honor, at page 21 to 22 of their

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 82 of 125
9

1 brief, based on a case called Kleindienst and Kerry v. Din,

2 that you can't sort of look behind the stated purposes of the

3 order. They say that if the President gives a facially

4 legitimate and bona fide reason for excluding an alien, the

5 court will not look behind that reason.

6

But there's two fundamental problems with that argument,

7 Your Honor. First of all, those cases dealt with the

8 President's power to exclude aliens who were not here, had

9 not been here, and had no right to come back. That is not

10 this case, where we have a case involving people who have

11 been here, have rights to remain here and rights to return.

12

And in Justice Kennedy and Alito's concurring opinion in

13 that Kerry v. Din case, which is a controlling opinion, they

14 held that they would look behind stated motives, even for

15 exclusion of someone who had never been here, if the

16 plaintiff plausibly alleged with sufficient particularity an

17 affirmative showing of bad faith. And that's at 2141 of the

18 Din opinion. And the Ninth Circuit endorsed that standard in

19 the Cardenas opinion, 826 F.3d, 1164.

20

THE COURT: Well, let me stop because we'll keep in

21 this area.

22

MR. PURCELL: Okay.

23

THE COURT: Do you not see some distinction between

24 election campaign statements and then subsequently an

25 election and then an Executive Order which is issued with

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 83 of 125
10

1 comment at the time the Executive Order is issued? It seems

2 to me that it's a bit of a reach to say: The President is

3 clearly anti-Muslim or anti-Islam, based on what he said in

4 New Hampshire in June.

5

MR. PURCELL: Well, Your Honor, it might go to the

6 weight to give the evidence, I suppose. But I don't think

7 it's sort of off the table, especially given that we're only

8 a week into -- well, two weeks now, I suppose, but the order

9 was issued a week after the campaign -- well, after the

10 President took office.

11

THE COURT: Inauguration.

12

MR. PURCELL: After the inauguration, I'm sorry. So

13 it's not as though those are completely irrelevant. And

14 moreover -- and, again, this is before any discovery -- we

15 have the President's advisor saying on national television

16 that, you know, the President asked him to come up with a

17 Muslim ban -- this was after the election -- asked him to

18 come up with a Muslim ban in a way that would make it legal.

19 And that that's what they did.

20

THE COURT: Does the Executive Order mention the word

21 "Islamic" or "Muslim?" Let's stay on religious grounds.

22

MR. PURCELL: No, it does not, Your Honor. It does

23 not. But when we're arguing about religiously motivated

24 targeting, again, the burden is not to prove that it affects

25 every single person of the Islamic faith. The burden is to

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 84 of 125
11

1 prove that a desire to discriminate based on religion was one

2 motivating factor in the adoption of the order.

3

And, again, we're at the pleading stage, four days after

4 having filed our complaint, no discovery, and there's already

5 an overwhelming amount of evidence to suggest that that's the

6 case, that it was, at least in part, motivated by religion.

7

Going back briefly just to the national security. Part of

8 the evidence of that, Your Honor, is that the tie to the

9 stated purpose of national security is so tenuous here. I

10 mean, the President apparently had not decided whether the

11 order applied to lawful permanent residents before it was

12 issued. And there's 500,000, roughly 500,000 lawful

13 permanent residents from these seven listed countries in the

14 United States. Either those people are an enormous threat to

15 our safety or they're not. And they've changed their mind

16 about that five times since Friday. You know, first they

17 said that it did apply to them, and many of those people were

18 excluded from returning to the country. Then the Department

19 of Homeland Security reiterated that it applied to them.

20 Then the Secretary said that it didn't. And then -- this is

21 all in our complaint, by the way -- and then the White House

22 spokesperson said it did not. And then the White House

23 counsel has now issued authoritative guidance, whatever that

24 means, that although there could have been reasonable

25 confusion about what the order meant, it wasn't meant to

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 85 of 125
12

1 cover those people.

2

So the point is, if they were an enormous security risk,

3 you would think that they would have made up their mind about

4 that before issuing the order.

5

And the second point, Your Honor --

6

THE COURT: Well, before we leave that one.

7

MR. PURCELL: Yeah.

8

THE COURT: What do you say to the argument that the

9 seven countries that were designated -- and I'll quote the

10 language -- have been designated as, "Countries the

11 government of which has repeatedly provided support for acts

12 of international terrorism under 8 U.S.C. 1187." Wouldn't

13 that provide a rational basis for the Executive Order?

14

MR. PURCELL: Your Honor, that would provide a cover,

15 in our view, for -- that was maybe one motivating factor.

16 But when you look at the standard of proving a religious

17 discrimination claim, again, you can't just accept at face

18 value the stated purposes. Especially where again, before

19 there's even been any discovery, there's so much evidence

20 that it was not targeted at the concerns stated. I mean, the

21 order applies to infants, it applies to senior citizens, it

22 applies to students and faculty at our state universities who

23 have never been accused of any wrongdoing.

24

The main point I guess I'm getting at here is that the

25 idea that you just can't review, can't review the real

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 86 of 125
13

1 reasons for this order, or even ask whether there are real

2 reasons beyond what is stated, is just not supported by the

3 case law. So we're asking you to -- the main point is, the

4 government is saying you cannot look behind the stated

5 reasons, and we're saying that you can. The case law doesn't

6 support that argument that they're making.

7

THE COURT: Would you agree with me that it is only

8 Section 5 that mentions religion?

9

MR. PURCELL: It's only Section 5 that mentions

10 religion. We would say it's not only Section 5 that is, in

11 part, motivated by religion.

12

THE COURT: And the part of that is this resumption

13 of the refugee program after, I think it's 90 days for that

14 provision. Then it says, minority -- "Practicers of a

15 minority religion in a country." Does your establishment

16 clause cause of action then extend beyond Section 5?

17

MR. PURCELL: I think our establishment clause claim

18 is focused on that section. But I think that both three and

19 five are motivated in part, our allegation is, by preferring

20 one religious view over another. The Larson case that's

21 cited in our brief makes clear that you don't need to have a

22 distinction between named religions on the face of the order

23 for it to be an establishment clause violation. In that case

24 it didn't name any religions. It just set standards for how

25 different religious groups would qualify for a tax exemption.

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 87 of 125
14

1 And the court said that, combined with the effects on the

2 religious groups, was enough.

3

Your Honor, I want to spend some time on our due process

4 claim.

5

THE COURT: We're going to get there.

6

MR. PURCELL: Okay. Excellent.

7

THE COURT: Trust me.

8

MR. PURCELL: Okay. And also standing. But if I

9 could turn to the due process claim.

10

THE COURT: Well, before you go there, let's finish

11 establishment.

12

MR. PURCELL: Okay.

13

THE COURT: 5(b) isn't implemented for, I think it's

14 100 days.

15

MR. PURCELL: Um-hum.

16

THE COURT: Why should I take this up at this time,

17 as opposed to, if you're coming back on a motion for

18 preliminary injunction, deal with it when it's somewhat more

19 concrete?

20

MR. PURCELL: Well, Your Honor, we're asking you to

21 temporarily restrain what we thought was a narrow subset of

22 the categories that we thought were motivated by these

23 unconstitutional -- that violated the constitution. If you

24 want to have further thought about whether -- so we're

25 suggesting that the action itself of banning the refugees,

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 88 of 125
15

1 and the Syrian refugees indefinitely, and the selection of

2 the countries, was partially religiously motivated. If you

3 want to wait to rule on whether 5(b) itself, and that

4 favoritism approach going forward is a constitutional

5 violation, I suppose that would be fine. We're not -- that

6 does not necessarily require immediate injunction. But that

7 is evidence, I think that provision is evidence, of the

8 religious underpinnings of the order.

9

THE COURT: All right. Why don't you move on to due

10 process, since I've used up a fair chunk of your time.

11

MR. PURCELL: So I think the most obvious way in

12 which the order violates the constitution is its violation of

13 the due process clause. The due process clause protects

14 everyone in this country, including immigrants. And a number

15 of cases make that clear.

16

THE COURT: So is it your position that refugees and

17 other aliens who are presently outside the country are

18 covered by due process?

19

MR. PURCELL: Your Honor, the Supreme Court has said

20 that aliens who are not in the country and have never been

21 here, the only process they're entitled to is what Congress

22 provides. So we're not -- again, they're not the focus of

23 our claim. The focus of our claim is on people who have been

24 here and have, overnight, lost the right to travel, lost the

25 right to visit their families, lost the right to go perform

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 89 of 125
16

1 research, lost the right to go speak at conferences around

2 the world. And also people who had lived here for a long

3 time and happened to be overseas at the time of this order,

4 which came with no warning whatsoever, and suddenly lost the

5 right to return to the United States.

6

So there's a series of cases, and we cited some of these

7 in our brief, Your Honor, but I'd like to -- given that

8 there's only been a short time since the government's filing,

9 I direct you to cases like Landon v. Plasencia, 459 U.S. 21.

10

THE COURT: You might want to slow down a little bit.

11

MR. PURCELL: Sorry. Landon, 459 U.S. 21, Rosenberg,

12 374 U.S. 449, that make very clear that people who have lived

13 here legally for some period of time and then leave

14 temporarily, are protected by the due process clause in

15 attempting to return, and cannot have their right to return

16 taken away without some sort of process.

17

And that's effectively what happened here to thousands of

18 people in Washington, including hundreds of students at our

19 state universities, and faculty. They just overnight, with

20 no process whatsoever, lost these important rights that they

21 had.

22

Now, the federal government --

23

THE COURT: A case from your list of cases is

24 Katzenbach, which the government cites extensively for the

25 proposition that you've lost that argument.

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 90 of 125
17

1

MR. PURCELL: Right.

2

THE COURT: How do you respond to that?

3

MR. PURCELL: Well, they're wrong, Your Honor, for a

4 number of reasons. First of all, so they say we can't cite

5 that case because we're a state. But our claim is not the

6 state as state, as we made clear in our standing brief, our

7 claim is the state as proprietor and the state as parens

8 patriae on behalf of the people of the state. So the state

9 as a proprietor, I think is the obvious way that that

10 argument of theirs is incorrect, Your Honor.

11

We are asserting the due process rights on behalf of the

12 people of the state who are harmed, and on behalf of the

13 state institutions that they attend. So, for example, the

14 University of Washington and Washington State University, as

15 well as our community colleges, are arms of the state. It's

16 very clear under state law they're arms of the state. We sue

17 on their behalf. And their students and faculty are being

18 denied due process rights pursuant to this order.

19

And if you look at cases like Pierce v. Society of

20 Sisters, 268 U.S. 510, and the cases cited in footnote three

21 of our standing brief, it's very clear that schools and

22 universities have standing to bring challenges based on harms

23 to their students. So that's the first way in which we have

24 standing to bring a due process claim.

25

Second, Katzenbach, of course, is before Massachusetts v.

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 91 of 125
18

1 EPA and before the significant change in parens patriae

2 standing that that case announced, as detailed in the amicus

3 brief of the law professors and as explained in

4 Massachusetts v. EPA itself. So the Snapp decision, the case

5 out of Puerto Rico cited in our briefing, makes it very clear

6 that states can bring parens patriae claims asserting

7 discrimination sort of causes of action. And then

8 Massachusetts v. EPA makes it very clear that the sort of

9 Katzenbach-Mellon limitations on state standing have been

10 scaled back, if not eliminated altogether.

11

THE COURT: What's your view of the Fifth Circuit

12 opinion in United States v. Texas?

13

MR. PURCELL: Well, it is a strong basis for standing

14 here as well. That was primarily an Administrative Procedure

15 Act claim. And we do have an Administrative Procedure Act

16 claim here. We didn't have space or time to brief it in our

17 temporary restraining order motion. And I should say there's

18 a number of claims actually, in our complaint, that we think

19 we're likely to prevail on, that we just didn't have time or

20 space to brief in the 48 hours and 24 pages of the temporary

21 restraining order motion.

22

And that's one of them, Your Honor. And that case makes

23 very clear that the harms to the state that we're suffering

24 here are sufficient to generate standing in a proprietary

25 capacity. There the state was arguing, essentially, added

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 92 of 125
19

1 driver's license costs that were sort of unspecified, the

2 exact amount. And here we have claimed, very clearly, lost

3 tax revenue, harms to our state universities in terms of

4 wasted money that was spent sponsoring people to come here

5 and teach and perform research, wasted money that was spent

6 buying tickets for people who will no longer be able to go

7 and speak or research at conferences, a wide range of

8 proprietary harms, Your Honor, that do suffice under U.S. v.

9 Texas to show standing.

10

THE COURT: Let's go to the INA claim, and then leave

11 you some time to actually talk to me. Do states have a right

12 of action under Section 8 U.S.C. 1152 (a)(1)(A)?

13

MR. PURCELL: Your Honor, I'm sorry, I honestly do

14 not have a good answer to that question. I think we can

15 assert -- we should be allowed to assert the rights of our

16 people here as parens patriae who are harmed by

17 discrimination, the nationality discrimination embodied in

18 this order. But the INA -- I think I would say our INA claim

19 primarily supplements our other claims by showing that this

20 action, the President's action here, is not endorsed by

21 Congress. It's not consistent with congressional directives.

22 It's actually contrary to what Congress has said about how

23 these sorts of decisions are supposed to be made, which

24 further undermines the federal government's argument to

25 deference to the President's decisionmaking in this context.

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 93 of 125
20

1

THE COURT: All right. You've got ten minutes. I

2 won't ask you any more questions.

3

MR. PURCELL: Your Honor, I'm perfectly happy to have

4 you ask me questions.

5

So I guess, first of all, I want to overall emphasize that

6 we have two distinct bases for standing here in terms of our

7 proprietary interests, the harms to the University of

8 Washington, Washington State University, our other state

9 colleges and universities, and then our parens patriae claim.

10 Those are real harms in both senses.

11

The federal government really has offered no meaningful

12 response to our claims of proprietary harm to the

13 universities. I know they've claimed that tax harms are

14 insufficient, in some of their pleading, but all the cases

15 they cite predate Massachusetts v. EPA, and they're

16 inconsistent with, for example, the Fifth Circuit's approach

17 in U.S. v. Texas. If the added cost of issuing driver's

18 licenses is sufficient to generate standing, there's no

19 reason why the lost revenue of losing visitors who would come

20 here and spend money should be insufficient to generate

21 standing. More revenue versus less revenue, it's two sides

22 of the same coin.

23

And as to the universities, the federal government claims

24 that these harms are "illusory" because most of the people we

25 allege who will be affected actually won't be. But there's

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 94 of 125
21

1 just no evidence to support that. So they say now -- again,

2 their position has changed five times. And I don't mean any

3 ill intent towards counsel. I know they don't have any

4 control over this. But the federal government's position

5 about what the Executive Order means has changed repeatedly

6 since the order was issued. And so now they say it protects

7 long-term lawful permanent residents or doesn't apply to

8 them. But that wasn't their initial position. And in any

9 event, we have hundreds of students and faculty at our

10 universities who are here on visas who -- again, overnight --

11 lost the right to travel for any number of purposes or to

12 return to the country.

13

The only other point I'd make, Your Honor, they make much

14 of the idea that this is a facial challenge, we can't show

15 that it's illegal in all applications. And that's incorrect,

16 Your Honor. The Ninth Circuit has repeatedly held that when

17 -- in analyzing whether something is a facial or as-applied

18 challenge, you look at whether it's a challenge to the

19 entirety of the action or to parts of it. And that's cases

20 like Hoye v. Oakland, 653 F.3d 835.

21

Here we're challenging only parts of the Executive Order.

22 It's very clear that this is an as-applied challenge to parts

23 of the order. We don't need to show it's unconstitutional in

24 every application. I apologize for citing so many cases,

25 Your Honor, in oral argument. I don't normally do that.

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 95 of 125
22

1 It's just that, of course, we had no opportunity to file a

2 response in only a short period of time from when they filed.

3

And the last thing I'd say, Your Honor, for now -- and

4 then I'd just like to reserve the remainder of my time -- is

5 that the establishment clause. The establishment clause, one

6 of the original purposes of it was to protect the states

7 against the federal government choosing a national religion

8 and imposing it on the states. So the idea that the state

9 would not have standing to challenge a national government --

10 well, the President, anyway, expressing a preference is just

11 -- it makes no sense.

12

And, again, you know, I can't cite you to a case where a

13 state sued the federal government over an establishment cause

14 violation, but I also can't cite you to an Executive Order

15 ever before quite like this one or the circumstances that we

16 are facing today.

17

So I'd like to reserve the remainder of my time and just

18 conclude by saying, the question is likelihood of success,

19 irreparable harm, and the balance of equities. We feel we've

20 shown a strong likelihood of success, as the other courts

21 have ruled. And we'd ask you to enjoin this order

22 temporarily. Thank you, Your Honor.

23

THE COURT: Ms. Bennett, are you arguing?

24

MS. BENNETT: Yes, Your Honor.

25

THE COURT: Thank you for coming. I thought your

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 96 of 125
23

1 brief was extremely well done. It was helpful.

2

MS. BENNETT: Thank you, Your Honor.

3

May it please the court. Your Honor, for some of the

4 reasons we mentioned we think we have very good reasons why

5 the state is not likely to prevail on the merits. But I'd

6 like to start with standing, which I think distinguishes this

7 case from some of the other cases that have been filed around

8 the country.

9

THE COURT: Well, let's concentrate on standing.

10 Tell me why you think that the Fifth Circuit is wrong, in

11 what seemed to be fairly marginal circumstances, and they

12 strongly come out, without hesitation or doubt, to find

13 standing?

14

MS. BENNETT: Well, Your Honor, we do disagree with

15 the Fifth Circuit's decision. Of course we also think that

16 case would be distinguishable. We disagree with the decision

17 because we do think it has to be a particularized impact on

18 the state. In United States v. Texas, the court found that

19 the state itself had injury. It wasn't an injury in its

20 parens patriae capacity. And it was basically that the --

21

THE COURT: Let me stop you. In the State of

22 Washington, and I can't speak to Minnesota, but both the

23 University of Washington and Washington State are considered

24 parts of the state government. And they've cited a litany of

25 direct consequences, damages to them. That's compared to,

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 97 of 125
24

1 what, the $13.40 in Texas for issuing a driver's license?

2

MS. BENNETT: Well, Your Honor, in Texas it was a

3 monetary injury, right? Here the injuries that the state

4 talks about to its universities, in particular, are

5 reputational harm or that students won't come there, that it

6 will undermine their diversity. They don't cite any cases

7 that define lack of diversity at a university, or something

8 like that, even assuming they could prove that as an injury.

9

THE COURT: I don't think that's their argument. I

10 think they're talking about direct financial harm in their

11 declarations.

12

MS. BENNETT: I mean, I don't read them that way,

13 Your Honor. I didn't see any sort of calculations of

14 financial harm like there were in Texas. They talked about

15 faculty members that might not be able to teach; although

16 most of those were lawful permanent residents that actually

17 were not affected by the order. They talked about the

18 possibility of some students that might not be able to

19 travel. Most of it was very speculative. I didn't see --

20 the only place that I saw numbers of monetary losses was in

21 their allegations about lost tax revenue. And as we

22 explained in our brief, those are -- lots of courts have

23 recognized that sort of generalized grievances like that are

24 not cognizable injuries, analogizing it to the

25 taxpayer-standing context.

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 98 of 125
25

1

THE COURT: If I have a student who is admitted to

2 one of those two universities, who is in a country who is now

3 unable to come to the United States, enroll and pay tuition,

4 is that not a direct financial harm?

5

MS. BENNETT: Your Honor, we don't think it's a

6 direct financial harm to the state. We think it's -- I mean,

7 perhaps given the circumstances, and it would depends on the

8 circumstances, could be a harm to the individual. But the --

9

THE COURT: No, they're benefitting, they're not

10 paying that outrageous tuition. You know, it's the

11 University of Washington, part of the State of Washington, or

12 Washington State, part of the State of Washington, who are

13 not receiving these dollars from this student who, under the

14 Executive Order, can't get into the United States.

15

MS. BENNETT: Well, Your Honor, I mean, first of all,

16 I'll point out that I'm not sure they make those allegations

17 of a specific student. But I would also say that we think

18 that injury is too far down the chain of causation. That

19 it's an incidental impact. And if Your Honor were to find

20 standing in that circumstance, it's hard to imagine a federal

21 law or a federal action that wouldn't in some way down the

22 line have effect on states, which would essentially allow

23 states to sue to challenge any federal law if they could

24 point to a way in which some individual was affected by the

25 law because it applied to them, and then that individual, the

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 99 of 125
26

1 effect on that individual had some effect on the state. And

2 we think that that's too expansive of a definition of

3 standing.

4

THE COURT: Well, the odd couple of the Fifth Circuit

5 in their opinion in United States v. Texas, that seems to me

6 to, you know, basically follow the lines of what you just

7 said is improper.

8

MS. BENNETT: Well, Your Honor, as I said, we

9 respectfully disagree with the Fifth Circuit's decision and

10 note, of course, as Your Honor knows, that you're not bound

11 by that decision.

12

Plaintiffs haven't cited anything in the Ninth Circuit

13 that relies on that sort of injury. As we explained in the

14 briefs, some of the cases they cited, I believe the one

15 school case that they cite involved a bank that had

16 terminated its loan guarantee program with the school. So

17 that was a more direct effect on the school. Whereas here

18 the government is not regulating in any way the school. The

19 government's interactions are with individuals. And they

20 are, perhaps, down-the-line consequences on the state,

21 although we think many of those, if not all of them, are

22 speculative.

23

THE COURT: Let me move you off of standing, if you

24 would. Given the breadth of authority of the Executive in

25 the area of immigration, do you acknowledge any limitation on

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 100 of 125
27

1 his or her power?

2

MS. BENNETT: Your Honor, I don't think Your Honor

3 needs to answer that question to decide on this case.

4

THE COURT: No, but it seemed like a good question.

5

MS. BENNETT: I don't think it would be wise to sort

6 of opine on what the extent of the Executive's power is.

7 Here we have specific circumstances where the President has

8 issued this Executive Order. It was pursuant to authority

9 that Congress gave him in Section 212(f) of the INA that

10 specifically allows him to suspend the entry of certain

11 aliens or class of aliens when he finds that it would be

12 detrimental to the interests of the United States to allow

13 them in.

14

So here we have the President acting pursuant to power

15 that Congress gave him, which means, under the Youngstown

16 Steel seizure cases, he's acting at the apex of his power.

17

And the Executive Order, as Your Honor mentioned, is

18 tied -- the countries that it applies to -- is tied to

19 countries that Congress previously, for two of them,

20 explicitly designated as countries of concern, and that

21 Congress designated authority to the President to -- or,

22 sorry, to federal agencies, to designate other countries.

23

And under the prior administration, the remaining five

24 countries were designated as areas of concern. And so we

25 think in the context of, certainly in the context of this

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 101 of 125
28

1 case, the President is acting well within his -- the

2 authority that Congress has given him. And Your Honor need

3 not opine on what he may or may not be able to do beyond

4 that.

5

Your Honor, with respect to the plaintiffs' argument that

6 the President's authority is somehow limited by Section

7 1152(a)(1)(A) of the INA, as we explained in our briefing, we

8 don't read that as a limitation on the President's expansive

9 power under 212(f). As we noted in our briefs, there have

10 been other presidents that have exercised the power in 212(f)

11 in ways that distinguish between nationalities, as the

12 President has done here.

13

We also mentioned that these distinctions between

14 nationalities were made explicitly by Congress in 8 U.S.C.

15 1187. That's what the President has tied the Executive Order

16 to here. And so we don't understand 1152(a) as imposing a

17 limitation on the President's power.

18

If it did, as we pointed out in our brief, you can imagine

19 a situation where basically that provision would prevent the

20 President from suspending the entry of aliens from countries

21 that the United States has to be at war with. And we don't

22 think that's a fair reading of the statute. So we think that

23 212(f) applies in situations where the President has made the

24 determination that the entry of certain aliens would be

25 detrimental to the United States, and situations where

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 102 of 125
29

1 that -- when that determination has not been made, then the

2 other provision in 1152 applies to prevent these

3 discrimination -- to bar certain types of discrimination in

4 the issuance of immigrant visas.

5

THE COURT: I'd like to move you along to equal

6 protection if we can.

7

MS. BENNETT: Sure.

8

THE COURT: You strongly urge that strict scrutiny

9 doesn't apply. Can it ever apply in the immigration context,

10 in the government's view?

11

MS. BENNETT: Your Honor, again, I hesitate to opine

12 on whether it can ever apply as opposed to whether it applies

13 under the circumstances of this case. The courts have made

14 clear that distinctions based on nationality, which is what

15 this Executive Order does, in the immigration context, are

16 completely valid and legitimate and do not violate the

17 Constitution. And so in the context of this case, there's no

18 equal protection violation.

19

With respect to the argument of religious discrimination.

20 Again, it's a little bit confusing whether the -- exactly

21 what the state's religious discrimination claim is. We

22 understand it to be limited to Section 5 of the Executive

23 Order, which is about refugees. And in that context, for

24 reasons Your Honor mentioned, we think the claim is unripe.

25 But it also -- that provision doesn't discriminate against

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 103 of 125
30

1 religion.

2

THE COURT: Well, no. It may not discriminate, but

3 it favors one over another.

4

MS. BENNETT: It doesn't, Your Honor. It sets up a

5 system -- it doesn't even set up a system. It says, 120 days

6 from now, once the suspension of the refugee program is back

7 on track, that the executive branch, the Secretary of

8 Homeland Security and Secretary of State, are to make changes

9 to the extent permitted by law to the prioritized refugee

10 claims based on religious-based persecution where the

11 religion is a minority religion in that individual's country

12 of nationality.

13

And, Your Honor, that provision doesn't just apply to the

14 seven countries that are designated in Section 3 of the

15 order. It applies to all countries. So you can imagine

16 that, while it might be true that the seven countries are

17 majority of Muslims, there are other countries where Islam

18 would not be the majority religion. And in those contexts

19 the minority religion might be Islam.

20

THE COURT: But under the establishment cases, I

21 think you're arguing against your own position, aren't you?

22 What you're saying is, in any particular country we're going

23 to reward someone for belonging to a particular faith or

24 practicing a particular faith.

25

MS. BENNETT: Well, Your Honor, I don't think we're

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 104 of 125
31

1 saying that. The government has long prioritized or

2 permitted asylum claims or other types of claims in the

3 immigration context based on religious persecution. So the

4 government is not doing anything different than what it's

5 already done. It's not about the particular religion, it's

6 essentially accommodating religion, which the government has

7 always done.

8

But as Your Honor -- as we said before, this is something

9 that the President has directed executive agencies to look

10 into this matter going forward. And so until -- certainly

11 until 120 days passes, but we think even beyond that, because

12 until it's actually implemented we don't know what it's going

13 to look like, that there's no establishment-cause problem.

14

THE COURT: All right. I think I understand your

15 argument. Let's talk about Section 3. I'm going to do the

16 same thing, trying to leave you some time to just talk as

17 opposed to being interrupted.

18

The rationale for Section 3 is invoking 9/11. And my

19 question to you is: Have there been terrorist attacks in the

20 United States by refugees or other immigrants from the seven

21 countries listed, since 9/11?

22

MS. BENNETT: Your Honor, I don't know the specific

23 details of attacks or planned attacks. I think -- I will

24 point out, first of all, that the rationale for the order was

25 not only 9/11, it was to protect the United States from the

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 105 of 125
32

1 potential for terrorism.

2

I will also note that the seven countries that are listed

3 in the Executive Order are the same seven countries that were

4 already subject to other restrictions in obtaining visas that

5 Congress put in place, both by naming countries, Syria and

6 Iraq, and that the prior administration put in place by

7 designating them as places where terrorism is likely to

8 occur, or -- the specific factors are whether the presence in

9 a particular country increases the likelihood that an alien

10 is a credible threat to U.S. security or an area that is a

11 safe haven for terrorists.

12

THE COURT: Well, let me walk you back, then. You're

13 from the Department of Justice, if I understand correctly?

14

MS. BENNETT: Yes.

15

THE COURT: So you're aware of law enforcement. How

16 many arrests have there been of foreign nationals for those

17 seven countries since 9/11?

18

MS. BENNETT: Your Honor, I don't have that

19 information. I'm from the civil division if that helps get

20 me off the hook.

21

THE COURT: Let me tell you. The answer to that is

22 none, as best I can tell. So, I mean, you're here arguing on

23 behalf of someone that says: We have to protect the United

24 States from these individuals coming from these countries,

25 and there's no support for that.

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 106 of 125
33

1

MS. BENNETT: Your Honor, I think the point is that

2 because this is a question of foreign affairs, because this

3 is an area where Congress has delegated authority to the

4 President to make these determinations, it's the President

5 that gets to make the determinations. And the court doesn't

6 have authority to look behind those determinations. They're

7 essentially like determinations that are committed to agency

8 discretion.

9

And we do think that -- despite plaintiffs' claim -- that

10 Kleindienst v. Mandel is directly on point. And if the four

11 corners of the Executive Order offer a facially legitimate

12 and bona fide reason for it, which they do here, that the

13 court can't look behind that.

14

THE COURT: Well, counsel, I understand that from

15 your papers, and you very forcefully presented that argument.

16 But I'm also asked to look and determine if the Executive

17 Order is rationally based. And rationally based to me

18 implies that to some extent I have to find it grounded in

19 facts as opposed to fiction.

20

MS. BENNETT: Well, Your Honor, we actually don't

21 think you are supposed to look at whether it's rationally

22 based. We think that the standard is, again, facially

23 legitimate, and that there are some cases that say the court

24 would have to find it wholly irrational. And again, Your

25 Honor, I would point to the fact that Congress itself has

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 107 of 125
34

1 specifically designated two of these countries as areas of

2 concern with respect to terrorism. And the Obama

3 Administration, the executive branch, designated the

4 remaining five. And so it's not that this Executive Order

5 is, in that regard, saying anything new about these being

6 countries of concern as it regards terrorism.

7

THE COURT: Well, let's go back to something you were

8 starting to get around to when I interrupted you. You were

9 going to argue Katzenbach. Isn't that just classic dicta?

10

MS. BENNETT: Your Honor, I think to the extent

11 you're talking about that states --

12

THE COURT: I'm talking about the language you quote

13 in your brief.

14

MS. BENNETT: Well, I mean, we also, I think, cited

15 that case for the idea that states don't have parens patriae

16 standing. But for the idea that states don't have due

17 process rights, we cite other cases in our brief. I think

18 that it's a well-established -- the Fifth Amendment applies

19 to persons, and cases established that the state is not a

20 person in that regard. And so the state doesn't have due

21 process rights to assert.

22

THE COURT: Well then how do I reconcile that with

23 Massachusetts v. EPA?

24

MS. BENNETT: Your Honor, Massachusetts v. EPA, which

25 was a standing case. Right? So there the facts were very

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 108 of 125
35

1 specific. There you had two factors that the court found

2 relevant. One, you had an actual injury to the territorial

3 sovereignty of Massachusetts. The court talked about how

4 global warming actually affected the territory of

5 Massachusetts, its coastline, an area that was owned by the

6 state. And the second factor was that Congress had

7 explicitly given states and other parties a procedural right,

8 when someone petitioned the EPA to look into global warming

9 and the EPA denied that petition, then Congress created a

10 procedural mechanism for that person to challenge that

11 decision.

12

So the court said, in an area where the state has an

13 injury-in-fact, it's an injury to its territorial sovereignty

14 and these explicit procedural rights, that there's standing.

15 And neither one of those circumstances are present here.

16 Washington, of course, doesn't allege any injury to its

17 territorial sovereignty. It doesn't -- you know, its other

18 alleged injuries are sort of incidental.

19

THE COURT: Explain to me what you mean by the term

20 "territorial sovereignty."

21

MS. BENNETT: Injury to its territory. So it's

22 pollution of its rivers, for example, pollution of its

23 coastline, pollution of its land.

24

THE COURT: So the federal government can do whatever

25 it wanted to people who live here, and as long as the land is

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 109 of 125
36

1 not damaged, there's no harm or there's no cause of action?

2

MS. BENNETT: Well, Your Honor, I mean, I wouldn't

3 make a statement that broad. I think that the statement I

4 would make here is that when the federal government regulates

5 individuals, and there are sort of speculative downstream

6 effects that might affect the state in terms of lost revenue

7 and stuff like that, cases have said no, that that's not

8 sufficient. That it's not sufficiently direct as it was in

9 Massachusetts.

10

THE COURT: All right. Before I run out of all your

11 time also, what limits does 1152(a)(1)(A) place on the

12 Executive?

13

MS. BENNETT: Your Honor, we think -- so, in terms of

14 when, as I was trying to explain before, in terms of when the

15 President has made a determination under Section 212(f) of

16 the INA, that entry of certain aliens should be suspended

17 because it would be detrimental to the United States

18 otherwise, we think that that trumps the 1152(a).

19

THE COURT: Well, let's concentrate on that. You

20 argue this in your brief that the Executive can classify

21 aliens by origin of birth or nationality. And then there is

22 a statute that says the classic anti-discrimination language.

23 How do I reconcile those two concepts?

24

MS. BENNETT: Your Honor, so we think that the

25 1152(a) only applies when the President has not made that

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 110 of 125
37

1 designation. And I will -- to sort of play this out a little

2 more --

3

THE COURT: Stop there. Tell me what the authority

4 is for that argument. You make it in your briefing and you

5 don't give me any authority for it there; you just sort of

6 make the statement that, yes, that's our position. Help me

7 understand where it comes from.

8

MS. BENNETT: I think the first principle would be

9 that the court is supposed to attempt to reconcile competing

10 provisions of a statute. I think there's also, Your Honor, a

11 constitutional avoidance point. Here the President is acting

12 in an area of his Article II powers in foreign affairs. And

13 if the court were to find some sort of conflict between the

14 two, the court might run up against the constitutional

15 question of whether the President had authority to make

16 distinctions based on nationality.

17

THE COURT: Or that the Executive is running up

18 against the law that Congress has passed.

19

MS. BENNETT: Well, Your Honor, to the extent that

20 you're concerned about that, I would just note that Congress

21 itself, in the INA, makes those very same distinctions based

22 on nationality. In the provision that the President is

23 relying on here 11 -- 8 U.S.C. 1187, where it says that

24 different rules in terms of applying for visas apply to, and

25 it names two countries, Iraq and Syria, and then allows the

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 111 of 125
38

1 President to designate others.

2

We think that a reading that says that 1152 applies, no

3 matter what, would trump that provision or would suggest that

4 that provision was invalid.

5

THE COURT: I don't get a lot of chance to do

6 statutory interpretation. But let's concentrate on that for

7 a moment. As I understand it, 1152(a) was promulgated after

8 1182(f). Do you agree with that?

9

MS. BENNETT: Yes, Your Honor.

10

THE COURT: And didn't Congress then have to, by

11 statutory construction, Congress had to be aware of 1182(f)?

12

MS. BENNETT: Yes, Your Honor. That's right.

13

THE COURT: And in that particular provision it makes

14 a number of exceptions, but it does not except to 52.

15

MS. BENNETT: Because we don't think Congress thought

16 it applied. Again, this is a -- the 1152(a) is in a narrower

17 section of the statute that talks about creating a uniform

18 quota system for immigrant visas, for which people are going

19 to be allowed to come into this country. And we just think

20 that that's a narrower section of the statute and that the

21 President's broader authority -- again, Your Honor, I

22 hesitate to repeat this, but I think it's a good example. I

23 mean, Your Honor, if this provision of 1152 trumped 212(f),

24 then the President would essentially be prohibited from

25 restricting the entry of aliens to a country at which the

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 112 of 125
39

1 United States was at war. And we just don't think that

2 Congress could have meant that.

3

THE COURT: You've shaken those bones about as much

4 as you can get out of them.

5

Why shouldn't the court assume that Congress did not want

6 to except 1182(f) from the operation of 1151? I mean,

7 Justice Scalia has not been with us for a year, but it seems

8 that what you're running to now is, oh, all I have to do is

9 look at the legislative history and that must have been what

10 they meant.

11

MS. BENNETT: Well, I don't think Your Honor needs to

12 look at the legislative history. I think you can look at the

13 text and the structure of the statute, that this broader

14 power authorizing the President to suspend the entry of any

15 aliens, or any class of aliens, supersedes this other

16 provision that otherwise would apply in the absence of that.

17

I would also note, Your Honor, that we also make

18 additional arguments in our brief about the procedural

19 exemption to 1152(a) and its narrowness as well. But we

20 think 212(f) trumps that provision.

21

THE COURT: All right. You've got about six minutes

22 left, so I won't interrupt you either for a bit here.

23

MS. BENNETT: Okay, Your Honor. Thank you.

24

I'll just make a few more points. I think I covered

25 largely what I wanted to cover. But with respect to the

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 113 of 125
40

1 remaining two preliminary injunction factors, I would just

2 say that the state, we don't think they've established

3 standing and injury. But certainly even if Your Honor

4 disagrees, they haven't shown irreparable harm. As this

5 process has sort of shown, the Executive Order sets up a

6 case-by-case -- or sets up a system where there can be

7 case-by-case waivers of specific exemptions.

8

And so the idea that a state can come in and sort of sue

9 on behalf of all of its citizens without really sort of

10 playing out specific circumstances where it's been applied

11 unlawfully, we think that's not the proper avenue for a TRO.

12

Again, that certainly, perhaps, some of these individuals

13 could bring their own case and we'd have to look at the facts

14 of those cases. But as for this facial challenge, for Your

15 Honor to enjoin this restraining order, or frankly even parts

16 of it, even provisions of it, we think that's a facial

17 challenge and that Your Honor can't do that in light of the

18 fact that it is lawful in some of its applications.

19

And then we would just point to the balance of the

20 equities, Your Honor, and note again that in this regard the

21 President was acting pursuant to congressional authority, at

22 the height of his power, in the area of national security,

23 foreign affairs and immigration.

24

So we'd ask that Your Honor deny the TR0.

25

THE COURT: Thank you.

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 114 of 125
41

1

MS. BENNETT: Thank you.

2

THE COURT: Mr. Purcell, you have about six minutes.

3

MR. PURCELL: Thank you, Your Honor.

4

Just a few points. First, the federal government has

5 argued that the harms to UW and WSU and their students and

6 faculty are abstract. That just couldn't be further from the

7 case. They have students and faculty who are literally

8 stranded overseas, as they've stated in the declarations.

9 They have sponsored visas for people that are wasted because

10 they are not going to be able to come. They went to great

11 time and expense to do that.

12

This harm is much more direct and immediate than what was

13 happening in either Massachusetts v. EPA or Texas v. United

14 States. In Texas v. United States the immigration program

15 that was challenged hadn't even taken effect yet. No one had

16 even qualified for if yet. The harm was a ways down the

17 road. And the court there still granted a preliminary

18 injunction. Here there's literally people stuck overseas who

19 can't get back to their universities.

20

THE COURT: But the causes of action belong to them.

21 The state can't be exercising them on their behalf.

22

MR. PURCELL: The universities and their students are

23 harmed by those harms, Your Honor. It's the university that

24 spent the money to bring the people here who can no longer

25 come. It's the university that went to the time and trouble

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 115 of 125
42

1 of sponsoring those scholars to come. And they're harmed

2 immediately. So perhaps, yes, certainly, the people who are

3 stranded overseas may have their own claim, but that doesn't

4 mean that the state has no claim. Massachusetts v. EPA makes

5 that clear, Your Honor.

6

The federal government also talked about a Ninth Circuit

7 case not saying anything remotely like Texas v. United

8 States. We cited the City of Sausalito case on page two of

9 our standing brief, where the court found standing based on

10 aesthetic harms to a local government that were not

11 quantified in any sort of monetary way.

12

You also asked me, Your Honor, if the court had ever

13 blocked part of an immigration order based on the equal

14 protection clause and due process clause, and my co-counsel

15 very helpfully pointed out that, in fact, two courts have

16 blocked parts of this order based on the equal protection

17 clause and due process clause. And I can give you those

18 orders.

19

It's the Darweesh case out of the United States District,

20 Eastern District of New York. That order was entered on

21 January 28th -- sorry, that order was entered on January,

22 yes, 28th. And the -- I'm going to butcher this name --

23 Tootkaboni case, out of the District of Massachusetts, issued

24 on January 29th.

25

And both of those cases found that the petitioners had a

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 116 of 125
43

1 strong likelihood of success in establishing the violations

2 of the due process and the equal protection clause of the

3 United States Constitution. I don't have all the orders with

4 me, but at least those two have found it on this order.

5

The next thing I'd say, Your Honor, is that the

6 religious-based claims, the federal government is trying to

7 limit those only to the refugee portions of the order. Our

8 position is broader than that, Your Honor. We're saying part

9 three and part five were motivated, in part, by desire to

10 target a particular, unpopular religious group, Muslims, and

11 that that undermines the basis for both of those sections.

12

Your Honor helpfully pointed out that the Katzenbach

13 language is dicta. I'm sorry I didn't say that, but you're

14 absolutely right. And, frankly, the federal government's

15 position about the standard of review here is frightening. I

16 mean, they're basically saying that you can't review anything

17 about what the President does or says, as long as he says

18 it's for national security reasons. And that just can't be

19 the law.

20

And the last thing I'd say, Your Honor, is that we are

21 asking here for nationwide relief. We do have now two states

22 that are part of this case that are obviously some distance

23 apart. We also have people trying to come to Washington from

24 all over the world, through various places, and we believe

25 that nationwide relief is appropriate here for the same

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 117 of 125
44

1 reasons that it was in United States v. Texas.

2

So, Your Honor, in sum, the state is grievously harmed

3 here, both in its proprietary capacity and in its parens

4 patriae capacity. The declarations that are attached to our

5 briefing, the descriptions of people who have been harmed in

6 the amicus briefs, are heartbreaking. And it's not just harm

7 to people who are trying to come here who have never been

8 here. Again, that is not the focus of our claim. The focus

9 of our claim is the harm to people who have been here, in

10 many cases for many years, following the law, and you know,

11 traveled overseas without warning that this was going to

12 happen, or could no longer travel, and have lost fundamental

13 rights without any process at all in an order that was

14 motivated largely by religious animus.

15

So we're asking you to enter the temporary restraining

16 order that we're seeking here. Thank you, Your Honor.

17

THE COURT: Thank you, counsel. I think argument was

18 helpful.

19

The following oral opinion will constitute the informal

20 opinion of the court. It is a formal opinion for purposes of

21 ruling on this motion. But as I indicated to you, I intend

22 to do a formal written order. And hopefully we will have

23 that on file over the weekend, so that by the time the Ninth

24 Circuit opens on Monday you'll be in a position to be able to

25 seek review of it.

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 118 of 125
45

1

Before the court is plaintiffs State of Washington and

2 State of Minnesota's emergency motion for a temporary

3 restraining order. For the audience out there, lawyers refer

4 to those as TROs. And that's not initials that we like to

5 see.

6

The court has reviewed the motion, the complaint, the

7 amended complaint, the submissions of the parties, the

8 submissions of the amici, the relevant portions of the

9 record, and most importantly, the applicable law. And I do

10 very much appreciate the fact that counsel have come for oral

11 argument today on a very expedited basis; and have done a

12 nice job of submitting written materials to the court, which

13 are helpful, and also participating in oral argument.

14

I'm going to digress for a moment and remind people who

15 see this opinion and wonder what's going on. Fundamental to

16 the work of this court is a recognition that it is only one

17 of three branches, three equal branches of our government.

18 The role assigned to the court is not to create policy, and

19 it's not to judge the wisdom of any particular policy

20 promoted by the other two branches. That is the work of the

21 legislative and executive branches and the citizens who

22 ultimately, by exercising their rights to vote, exercise

23 democratic control over those branches.

24

The work of the judiciary is limited to ensuring that the

25 actions taken by those two branches comport with our laws,

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 119 of 125
46

1 and most importantly, our constitution.

2

There is a very narrow question before the court today

3 that is asked to be considered and that is whether it is

4 appropriate to enter a TRO against certain actions taken by

5 the Executive that are enumerated in this specific lawsuit.

6 Although that question is narrow, the court is mindful of the

7 considerable impact that its order may have on the parties

8 before it, the executive branch of our government, and the

9 country's citizens and residents.

10

I will not repeat the procedural background of this case.

11 It will be in the written order. I would instead note that

12 the motion was filed and that the federal defendants opposed

13 the state's motion.

14

Any question regarding lawsuits in federal court starts

15 with the issue of: Does the court have jurisdiction over the

16 federal defendants and the subject matter of the lawsuit? In

17 terms of notice to the federal defendants, that was certainly

18 accomplished, and indeed, the federal defendants have

19 appeared and argued before the court and defended their

20 position in this action. And since this is an attack based

21 on the constitution and federal law, I find that I do have

22 subject matter jurisdiction.

23

The standard for issuing a restraining order in this

24 circuit is the same as for issuing a preliminary injunction.

25 A temporary restraining order is, as the government has

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 120 of 125
47

1 noted, an extraordinary remedy that may only be awarded upon

2 a clear showing that the plaintiff is entitled to such

3 relief. A citation to the Winter case, which is well known

4 to the lawyers.

5

The legal standard for preliminary injunctive relief, and

6 hence for a temporary restraining order, is that the

7 plaintiff must be likely to succeed on the merits, that it

8 will suffer irreparable harm in the absence of preliminary

9 relief, that the balance of equities tips in their favor, and

10 finally, that the injunction is in the public interest.

11

The Ninth Circuit has an alternative test which it's used

12 from time to time and is well known to the parties and will

13 be in the written order.

14

It is an interesting question in regards to the standing

15 of the states to bring this action. I'm sure the one item

16 that all counsel would agree on is that the standing law is a

17 little murky. I find, however, that the state does have

18 standing in regards to this matter, and therefore they are

19 properly here. And I probed with both counsel my reasons for

20 finding that, which have to do with direct, immediate harm

21 going to the states, as institutions, in addition to harm to

22 their citizens, which they are not able to represent as

23 directly.

24

Therefore, turning to the merits. The court finds that

25 for purposes of the entry of the temporary restraining order,

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 121 of 125
48

1 that the state has met its burden of demonstrating that it

2 faces immediate and irreparable injury as a result of the

3 signing and implementation of the Executive Order.

4

I find that the state has satisfied the test that it is

5 likely to succeed on the merits of the claim, which would

6 entitle them to relief. I find that the balance of equities

7 favor the states. And lastly, I find that a temporary

8 restraining order is in the public interest.

9

If I were to apply the Ninth Circuit's alternative test, I

10 would find that the states have established a question, a

11 serious question going to the merits, and the balance of

12 equities tips sharply in their favor. As such, I find that

13 the court should and will grant the temporary restraining

14 order.

15

The scope of that order is as follows: Federal defendants

16 and all their respective officers, agents, servants,

17 employees, attorneys, and persons acting in concert or

18 participation with them are hereby enjoined and restrained

19 from:

20

(A) Enforcing Section 3(c) of the Executive Order;

21

(B) Enjoined and restrained from enforcing section 5(a)

22 of the Executive Order;

23

(C) Enjoined and restrained from enforcing Section 5(b)

24 of the Executive Order, or proceeding with any action that

25 prioritizes the refugee claims of certain religious

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 122 of 125
49

1 minorities;

2

(D) Enjoined and restrained from enforcing Section 5(c)

3 of the Executive Order, and lastly;

4

(E) Enjoined and restrained from enforcing Section 5(e)

5 of the Executive Order, to the extent Section 5(e) purports

6 to prioritize refugee claims of certain religious minorities.

7

This TRO is granted on a nationwide basis and prohibits

8 enforcement of Sections 3(c), 5(a), 5(b), 5(c) and 5(e) of

9 the Executive Order at all United States borders and ports of

10 entry pending further orders from this court.

11

I considered the question of the government's request that

12 the order should be limited to Minnesota and Washington, but

13 I find that such partial implementation of the Executive

14 Order would undermine the constitutional imperative of a

15 uniform rule of naturalization and Congress's instruction

16 that immigration laws of the United States should be enforced

17 vigorously and uniformly. That's language is from Texas v.

18 United States, 809 F.3d, 134, 155, 5th Circuit 2015.

19

I find that no security bond is required under the Federal

20 Rules of Civil Procedure 65(c), and I direct that the parties

21 confer and get back to the court promptly -- today wouldn't

22 be too late, but by next week -- regarding a date for the

23 preliminary injunction hearing, the time for the motion for

24 the preliminary injunction, the time for the federal

25 defendants to file their opposition and for the states to

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 123 of 125
50

1 file their reply.

2

Once we know that, we'll promptly schedule a hearing on

3 the motion for preliminary injunction after we are in receipt

4 of the parties' briefing.

5

The court concludes that the circumstances that brought it

6 here today are such that we must intervene to fulfill the

7 judiciary's constitutional role in our tri-part government.

8 Therefore, the court concludes that entry of the

9 above-described TRO is necessary and the state's motion is

10 hereby granted.

11

Counsel, anything further at this time? Mr. Purcell?

12

MR. PURCELL: No, Your Honor.

13

THE COURT: Ms. Bennett?

14

MS. BENNETT: One more thing, Your Honor, as a

15 procedural matter the government would move Your Honor to

16 stay the TRO, for the same purposes that we opposed the TRO,

17 pending a decision of the ASG of whether to appeal, whether

18 to file an appeal.

19

THE COURT: I'm sorry, pending a decision by the...

20

MS. BENNETT: I'm sorry, the Acting Solicitor

21 General; I'm sorry, Your Honor, we use lots of acronyms. By

22 the Acting Solicitor General.

23

THE COURT: I understand the motion and I am going to

24 deny it.

25

MS. BENNETT: Thank you, Your Honor.

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 124 of 125
51

1

THE COURT: I will do everything I can to get you

2 prompt appellate review, which I think is the appropriate

3 case to take.

4

MS. BENNETT: Thank you, Your Honor.

5

THE COURT: We will be in recess. Thank you,

6 counsel.

7

(The proceedings recessed.)

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 125 of 125
52
CERTIFICATE
I, Debbie K. Zurn, RMR, CRR, 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.
/s/ Debbie Zurn DEBBIE ZURN OFFICIAL COURT REPORTER
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

 
 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
FEB 04 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States; et al.,
Defendants-Appellants.

No. 17-35105 D.C. No. 2:17-cv-00141 Western District of Washington, Seattle
ORDER

Before: CANBY and FRIEDLAND, Circuit Judges. The court has received appellants’ emergency motion (Docket Entry
No. 14). Appellants’ request for an immediate administrative stay pending full consideration of the emergency motion for a stay pending appeal is denied.
Appellees’ opposition to the emergency motion is due Sunday, February 5, 2017 at 11:59 p.m. PST. Appellants’ reply in support of the emergency motion is due Monday, February 6, 2017 at 3:00 p.m. PST.

MOATT

 
 Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 1 of 32

NO. 17-35105
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATES OF WASHINGTON AND MINNESOTA, Plaintiffs-Appellees,
v. DONALD TRUMP, President of the United States, et al.,
Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
No. 2:17-cv-00141 The Honorable JAMES L. ROBART
United States District Court Judge

STATES’ RESPONSE TO EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 FOR ADMINISTRATIVE STAY AND MOTION FOR STAY PENDING APPEAL

ROBERT W. FERGUSON, WSBA 26004 Attorney General
NOAH G. PURCELL, WSBA 43492 Solicitor General
ANNE E. EGELER, WSBA 20258 Deputy Solicitor General
COLLEEN M. MELODY, WSBA 42275 Civil Rights Unit Chief

MARSHA CHIEN WSBA 47020 PATRICIO A. MARQUEZ WSBA 47693 Assistant Attorneys General
Washington State Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 2 of 32
LORI SWANSON Attorney General of Minnesota ALAN I. GILBERT, MN #0034678 Solicitor General JACOB CAMPION, MN #0391274 Assistant Attorney General
Office of the Attorney General 445 Minnesota Street, Suite 1100 St. Paul, MN 55101 (651) 757-1450

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 3 of 32
TABLE OF CONTENTS I. INTRODUCTION ................................................................................1 II. BACKGROUND ..................................................................................1 III. ARGUMENT .......................................................................................5
A. Defendants’ Appeal is Procedurally Improper .....................................5 B. If the Court Considers the Appeal, Defendants’ Burden is High
and the Standard of Review Deferential..............................................6 C. Defendants Cannot Show Irreparable Harm from the TRO When
it Simply Reinstates the Status Quo....................................................7 D. Defendants Are Unlikely to Succeed on Appeal Because the
District Court Acted Within its Discretion ..........................................8 1. Courts can review the legality of executive action and the
executive’s true motives..............................................................9 2. The States have standing...........................................................11
a. Proprietary standing............................................................11 b. Parens Patriae standing ......................................................13 3. The States’ claims have merit ....................................................14 a. Defendants are unlikely to prevail against the States’
Due Process claim ..............................................................14 b. Defendants are unlikely to prevail against the States’
Establishment Clause claim .................................................18 c. Defendants are unlikely to prevail against the States’
Equal Protection claim ........................................................20
i

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 4 of 32
d. Defendants are unlikely to prevail against the States’ INA claim .........................................................................21
4. A nationwide TRO was appropriate............................................23 E. A Stay Would Harm the States and the Public Interest........................24 IV. CONCLUSION ..................................................................................25
ii

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 5 of 32
I. INTRODUCTION On January 27, President Trump unleashed chaos by signing the Executive Order at issue here. Within 72 hours, the State of Washington (quickly joined by Minnesota) had filed a complaint and motion for temporary restraining order (TRO), detailing the extraordinary and irreparable harms the Order was inflicting on our States and our people. After hearing from Defendants, the district court entered the TRO, finding that the States had met their burden to obtain that relief. The effects of the TRO were positive and immediate, as immigration procedures began to return to normal, families reunited, stranded students and faculty began returning to our States, and longtime State residents were able to return to their homes. Defendants now ask this Court to unleash chaos again by staying the district court order. The Court should decline. Defendants’ appeal is improper, their burden to obtain a stay is high and unmet, and their arguments fail.
II. BACKGROUND Donald Trump campaigned on the promise to impose “a total and complete shutdown of Muslims entering the United States.” ECF 18 ¶ 42-43.1 He repeatedly defended and reiterated this promise. ECF 18 ¶¶ 44-46.
1 All ECF citations are to the district court docket numbers.
1

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 6 of 32
Shortly after taking office, President Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“the Order”). ECF 18 ¶ 49. The Order radically changes U.S. immigration policy, imposing a 120-day moratorium on the refugee resettlement program; indefinitely suspending entry of Syrian refugees; and suspending for 90 days entry of anyone from seven majority-Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. ECF 18 ¶¶ 49-52. President Trump subsequently stated his intent to prioritize Christians in the Middle East for admission as refugees. ECF 18 ¶ 53.
The Order had immediate and significant effects in Washington. Over 7,000 noncitizen immigrants from the affected countries reside in Washington. ECF 18 ¶ 11; ECF 4 ¶ 7, Ex. A. Those who were abroad were blocked from returning home. ECF 33 ¶¶ 7-8. Husbands were separated from wives, brothers from sisters, and parents from their children. ECF 18 ¶¶ 21-23; ECF 33 ¶ 5, 9. Some who had waited decades to see family members had that reunion taken away without warning or reason. ECF 18 ¶ 21; see also e.g., ECF 8 ¶¶ 11-13; ECF 33 ¶¶ 5-9; ECF 43 ¶¶ 5-9.
Washington’s economy was also immediately impacted. Washington receives substantial sales tax revenue every year from travelers from the
2

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 7 of 32
countries covered by the Order’s travel ban, and immediately began losing some of that revenue. See ECF 17 ¶¶ 3-11. Washington-based travel company Expedia began incurring costs assisting its customers who were suddenly banned from travel to the United States. ECF 7 ¶¶ 12-14, 20. Washington companies Amazon, Expedia, and Microsoft depend on skilled immigrants, and the Order diminished their ability to recruit. ECF 18 ¶¶ 12-17; ECF 6 ¶¶ 3-4, 11; ECF 7 ¶¶ 7, 9, 21. As a result of the order, many employees were unable to travel internationally, impairing business operations. ECF 7 ¶¶ 15-20; ECF 6 ¶¶ 7-11; ECF 18 ¶¶ 14-15.
The Order also caused immediate harm to Washington’s public universities, which are state agencies. Hundreds of their faculty, staff, and students are from the affected countries. ECF 18 ¶ 28; ECF 9 ¶ 5; ECF 5 ¶ 5; ECF 17-3 ¶¶ 4, 6; ECF 17-2 ¶ 10; ECF 17-4 ¶ 5. The Order instantly stranded some faculty and students overseas, prevented others from traveling for research and scholarship, and harmed the universities’ missions. ECF 9 ¶¶ 6-8; ECF 5 ¶¶ 6-9. ECF 17-4 ¶¶ 6-7.
Due to these immediate and serious harms, Washington filed a complaint and motion for TRO. ECF 3. Minnesota soon joined, alleging similar harms. ECF 18 ¶¶ 30-36.
3

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 8 of 32
On February 3, the district court held a hearing on the States’ motion. The Court granted the motion and entered a TRO barring Defendants from enforcing several sections of the Order. ECF 52. The Court stated its intent to promptly hold a hearing on the States’ forthcoming motion for preliminary injunction and ordered the parties to propose a briefing schedule by the next business day. ECF 52 at 6. The State proposed a briefing schedule to Defendants. Decl. of N. Purcell In Support of State of Washington’s Response to Emergency Motion for Stay Pending Appeal, Ex. K.
Following entry of the TRO, the State Department declared that it was restoring visas that had been revoked under the Executive Order. Id. Exs. A, B. It also stated that refugees could begin arriving as soon as Monday. Id. Exs. C, D. The Department of Homeland Security started processing travelers with visas as normal and resumed standard inspection procedures. Id. Exs. E, B, F. Customs and Border Protection directed that nationals of the seven affected countries and all refugees presenting a valid visa or green card be permitted to travel to the United States. Id. Ex. G. Airlines announced that they will allow travelers from the seven nations to board flights. Id. Exs. G, H, I, J, B, D. On February 4, travelers from the previously banned countries began arriving at
4

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 9 of 32
U.S. airports. Id. Ex. B. More travelers are expected in the coming days. Id. Ex. B.
On February 4, Defendants filed a notice of appeal and motion for stay pending appeal.
III. ARGUMENT The Court should deny Defendants’ Motion to Stay as procedurally improper and wrong on the merits. A. Defendants’ Appeal is Procedurally Improper Defendants acknowledge that TROs are generally non-appealable. Motion at 8. But they claim a right to appeal here because the order, in their view, is akin to a preliminary injunction. Id. Not so. In cases where this Court has treated a TRO as a preliminary injunction, the parties had a full opportunity to brief issues and often put on evidence, and the order extended for lengthy periods. See, e.g., SEIU v. Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010) (months passed between complaint and TRO, and TRO was entered after 2-day evidentiary hearing). Here, by contrast, Washington filed its complaint and motion simultaneously, the TRO expressly ends when “the court can hear and decide the States’ request for a preliminary injunction,” ECF 52 at 5, and the States
5

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 10 of 32
have proposed a schedule that would allow a hearing within 15 days of the TRO’s entry. Purcell Dec. Ex. K. The Court should wait to review an order at that time, not prematurely take up this one. B. If the Court Considers the Appeal, Defendants’ Burden is High and
the Standard of Review Deferential If the Court deems this order reviewable, Defendants bear the heavy burden of showing (1) a strong likelihood of success on the merits, (2) the likelihood of irreparable injury if relief is not granted, (3) a balance of hardships favoring Defendants, and (4) that reinstating the Executive Order is in the public interest. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). In assessing these factors, this Court reviews the district court order for abuse of discretion. American Hotel and Lodging Assoc. v. Los Angeles, 834 F.3d 958, 962 (9th Cir. 2016). The review is “limited and deferential, and does not extend to the underlying merits of the case.” Southwest Voter Registration Ed. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc). “If the underlying constitutional question is close” the Court “should uphold the injunction and remand for trial on the merits.” Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 664-65 (2004).
6

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 11 of 32
C. Defendants Cannot Show Irreparable Harm from the TRO When it Simply Reinstates the Status Quo Defendants concede that they must show “a likelihood that [they] will be
irreparably harmed absent a stay.” Motion at 8 (quoting Hilton, 481 U.S. at 776). But they offer no evidence that the time-limited TRO will cause irreparable harm. In purporting to identify “facts” showing “the existence and nature of the emergency” justifying their motion, Defendants resort to highlevel references to “separation of powers,” “harms [to] the public by thwarting Enforcement of an Executive Order,” and the so-called harm of “secondguess[ing] the President’s national security judgment.” Motion at ii. These purported harms fail to justify a stay.
First, separation-of-powers concerns do not automatically establish irreparable harm. See, e.g., Lopez v. Heckler, 713 F.2d 1432, 1434 (9th Cir. 1983) (declining to stay district court order “restrain[ing]” the Secretary of Health and Human Services from implementing an announced policy where “separation of powers” was at issue). And Defendants cannot plausibly allege that they suffer harm from being required to comply with the law, even where they assert national security concerns. See, e.g., Holder v. Humanitarian Law Proj., 561 U.S. 1, 34 (2010) (“Our precedents . . . make clear that national security and foreign relations do not warrant abdication of the judicial role.”).
7

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 12 of 32
Second, Defendants’ argument amounts to claiming that returning to the pre-Executive Order status quo would inflict irreparable harm. But that would mean that until the Order was issued, Defendants were suffering some unspecified, ongoing irreparable harm. That makes no sense. As this court has held, preserving the status quo against sudden disruption is often in the interest of all parties. See Feldman v. Ariz. Sec’y of State’s Office, 843 F.3d 366, 369370 (9th Cir. 2016) (en banc) (“preserv[ing] the status quo” to avoid the “disruption” of a change in law pending review). That is precisely what the TRO accomplishes here, stopping implementation of portions of the Order until the district court determines whether they are lawful. While the Order is reviewed, refugees and immigrants from the banned countries will continue to undergo the rigorous screening processes that already existed prior to the Order. Decl. of Nat’l Sec. Officials ¶ 6. Defendants nowhere explain how reinstating a total ban is necessary to avoid irreparable injury. Id. ¶¶ 3-5 (concluding the Executive Order is likely to weaken, not strengthen, national security). D. Defendants Are Unlikely to Succeed on Appeal Because the District
Court Acted Within its Discretion Defendants concede that to justify a stay they must also prove “a strong likelihood of success on appeal.” Motion at 8 (quoting Hilton, 481 U.S. at 776).
8

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 13 of 32
They cannot. The district court correctly concluded that the States “have shown that they are likely to succeed on the merits of the claims that would entitle them to relief.” ECF 52 at 4.2
1. Courts can review the legality of executive action and the executive’s true motives
Defendants offer two threshold arguments to limit this Court’s review, claiming that invoking national security prohibits meaningful judicial review and that courts cannot examine the Executive’s motives. Both arguments fail.
First, courts routinely review executive decisions with far greater security implications than this Order. Even “in matters relating to the actual prosecution of a war,” the courts “exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims.” Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) (plurality opinion); see also id. at 545 (Souter, J., concurring in the judgment); Boumediene v. Bush, 553 U.S. 723 (2008); Korematsu v. United States, 323 U.S. 214, 234 (1944) (Murphy, J.,
2 Defendants repeatedly assert that the States bring a “facial” challenge to the Order and thus must demonstrate its invalidity in every possible application. Motion at 2, 9, 18. But the States’ claim is as-applied because the States challenge only portions of the Executive Order. See, e.g., Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011) (“[T]he difference between an asapplied and a facial challenge lies only in whether all or only some of the statute’s subrules (or fact-specific applications) are being challenged.”).
9

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 14 of 32
dissenting) (“Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.”).
Second, Defendants cite Kleindienst v. Mandel, 408 U.S. 753 (1972), and Kerry v. Din, 135 S. Ct. 2128 (2015), for the proposition that so long as the President gives a facially legitimate reason for excluding an alien, the courts will not look behind that reason. But those cases dealt with the President’s power to exclude “an unadmitted and nonresident alien,” i.e., someone who had no legal right to be here. Mandel, 408 U.S. at 762; Din, 135 S. Ct. at 2131. This case, by contrast, involves longtime residents who are here and have constitutional rights. Moreover, Justice Kennedy’s controlling opinion in Din held that courts should look behind the stated motives for exclusion even as to a nonresident alien if the plaintiff “plausibly alleged with sufficient particularity” “an affirmative showing of bad faith.” Id. at 2141. See also Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir. 2016) (same). Here, the State has plausibly alleged with sufficient particularity that the President acted in bad faith in an effort to target Muslims. ECF 18 ¶¶ 42-61. Thus, courts have both the right and the duty to examine Defendants’ true motives.
10

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 15 of 32
2. The States have standing In establishing standing, states “are not normal litigants,” but instead receive “special solicitude.” Massachusetts v. EPA, 549 U.S. 497, 518, 520 (2007). The States established two independent grounds for Article III standing: (1) harms to their proprietary interests; and (2) harms to their quasisovereign interests. ECF 17 at 2-5. Defendants fail to overcome either basis. Crucially, because this case is at the pleading stage, the States need only “state a plausible claim that [they have] suffered an injury in fact fairly traceable to the actions of the defendant[s] that is likely to be redressed by a favorable decision on the merits.” Humane Soc’y v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015). “[G]eneral factual allegations of injury resulting from the defendant’s conduct may suffice,” and the Court “presumes that general allegations embrace those specific facts that are necessary to support the claim.” Bennett v. Spear, 520 U.S. 154, 168 (1997).
a. Proprietary standing The States alleged and submitted evidence that that the Order is harming us by stranding our university students and faculty overseas, preventing university-sponsored faculty and staff from coming here, preventing students and faculty who are here currently from making pre-planned trips for research
11

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 16 of 32
or scholarship, and decreasing state tax revenue. See infra at 2-3. On this evidence, the district court correctly found that “the States themselves are harmed” by the damage to “their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds.” ECF 52 at 5. Defendants show no likelihood that this finding is incorrect.
Defendants first argue that the harms to state universities are speculative, claiming that the Order’s waiver provisions may allow students and faculty to travel or return. Motion at 10. But in the face of evidence that faculty and students have actually been prevented from travelling, ECF 17-4, Defendants offer no evidence that such waivers will be granted, and concede that some may be denied. Motion at 10. Defendants’ speculative remedies cannot undo the States’ real harms.
As to the States’ evidence of lost tax revenue, ECF 17 at 2-3, Defendants never dispute the evidence, instead claiming that lost tax revenue can never establish state standing. But the case law does not support that claim. While Florida v. Mellon, 273 U.S. 12 (1927), determined that the particular tax revenues at issue there were speculative, courts have repeatedly found lost tax revenues sufficient to establish proprietary standing. See, e.g., Sausalito v.
12

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 17 of 32
Oneill, 386 F.3d 1186, 1198 (9th Cir. 2004) (holding that lost property and sales tax revenues caused by increased traffic established standing without any numeric quantification of the harm). And in Texas v. United States, 787 F.3d 733 (5th Cir. 2015), the court found that a change in immigration policy that would increase state expenditures created standing. If increased expenditures create standing, there is no logical reason why decreased revenues should not.
b. Parens Patriae standing The States also alleged and offered evidence that the Order is inflicting grievous harms on our residents. ECF 17 at 4 (citing ECF 8 ¶¶ 6-14; ECF 18 ¶¶ 18-23, 31-36). Based on this evidence, the district court correctly concluded that: “The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae.” ECF 52 at 4-5. Defendants never meaningfully dispute these harms, instead arguing that parens patriae suits against the federal government are never permitted under Massachusetts v. Mellon, 262 U.S. 447 (1923). Not so. Mellon expressly recognized that it did not prohibit state actions—such as this one—seeking to protect quasi-sovereign interests. See id. at 481-82, 485; see also Massachusetts, 549 U.S. at 520 n.17 (same). Mellon also pointed
13

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 18 of 32
out that it did not bar all parens suits challenging the United States’ unconstitutional acts. Mellon, 262 U.S. at 487.
More recent Supreme Court decisions confirm the States’ parens standing. In Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982), the Court found that states have standing to sue based on discrimination against their residents: “This Court has had too much experience with the political, social, and moral damage of discrimination not to recognize that a State has a substantial interest in assuring its residents that it will act to protect them from these evils.” Id. at 609. And in Massachusetts v. EPA, the Court cemented states’ standing to protect their quasi-sovereign interests, including in actions against the federal government. 549 U.S. at 516-21. The Court rejected the broad reading of Mellon advocated by Defendants, id. at 520 n.17, confirming that a state can assert standing to protect its citizens when the federal government violates federal law.
3. The States’ claims have merit a. Defendants are unlikely to prevail against the States’ Due Process claim
The Order violates due process in several ways and the States’ claim is very likely to succeed.
14

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 19 of 32
First, the Order denies entry to the United States of all persons from the seven countries, regardless of whether they have lived legally in this country for years.3 Thus, our States’ residents from these countries who travel abroad will be deported if they attempt to re-enter this county, and those who remain will be forced to forego international travel to avoid that devastating result. This draconian restriction violates due process.
The Fifth Amendment protects all persons in the United States “from deprivation of life, liberty, or property without due process of law,” regardless of immigration status. Mathews v. Diaz, 426 U.S. 67, 69, 77 (1976); Zadvydas v. Davis, 533 U.S. 678, 693 (2001). A temporary absence from the country does not deprive longtime residents of their right to due process. See, e.g., Landon v. Plasencia, 459 U.S. 21, 33 (1982) (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.”) (internal citation omitted); Kwong Hai Chew v. Colding, 344 U.S. 590, 601 (1953).
3 After taking a dizzying number of positions, Defendants landed on the view that the travel ban “does not apply to lawful permanent residents.” See Mot. at 6. Nonetheless, the text of the Order remains unchanged, and the States’ challenge to that portion of Section 3(c) is not moot. See White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000) (mootness based on voluntary cessation is a “stringent” standard).
15

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 20 of 32
Due process requires that lawful permanent residents and visaholders not be denied re-entry to the United States without “at a minimum, notice and an opportunity to respond.” United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014). A resident denied re-entry must receive a “full and fair hearing of his claims” and “a reasonable opportunity to present evidence on his behalf.” Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000); Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011).
The Order’s denial of re-entry to all visaholders and lawful permanent residents from the impacted countries, without an opportunity to be heard, violates these principles. The Order also deprives noncitizen residents of our States of the right to travel, a constitutionally protected liberty interest. Kent v. Dulles, 357 U.S. 116, 125-26 (1958) (holding that Secretary of State could not deny passports to Communists on the basis that the right to travel abroad is a constitutionally protected liberty interest).
Defendants never contest these principles. Instead, they argue that the Order will not really affect our States’ residents, and that states cannot raise due process claims, citing South Carolina v. Katzenbach, 383 U.S. 301 (1966). But the States have alleged and offered evidence that many state residents,
16

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 21 of 32
including students and faculty at public universities, are being harmed by the Order. Defendants cannot wish that away.
Moreover, unlike in Katzenbach, the States here assert proprietary harms. Where, as here, a state asserts harms to students and faculty at its institutions, the State should be allowed—just like any other proprietor of educational institutions—to raise due process claims on their behalf. See, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487 (9th Cir. 1995) (holding that school had standing to challenge harm to students that impacted school); Ohio Ass’n of Indep. Schs. v. Goff, 92 F.3d 419, 422 (6th Cir. 1996) (same); see also Bd. of Nat. Res. of State of Wash. v. Brown, 992 F.2d 937, 943 (9th Cir. 1993).
Even as to the States’ parens claims, Katzenbach does not control. Katzenbach cited Mellon in holding that South Carolina could not use its parens authority to challenge a federal statute. 383 U.S. at 323-24. But in Massachusetts v. EPA, the Court clarified that “there is a critical difference between allowing a State to protect her citizens from the operation of federal statutes (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do).” 549 U.S. at 520 n.17. Here, the States seek not to protect our residents from federal statutes, but to
17

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 22 of 32
protect our residents against Defendants’ violations of federal law. This is what States “ha[ve] standing to do.” Id.
b. Defendants are unlikely to prevail against the States’ Establishment Clause claim
The State has alleged and offered substantial evidence even before discovery that the Executive Order violates the Establishment Clause because its purpose and effect are to favor one religion. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). In Larson, the law at issue did not mention any religious denomination, but drew a distinction between religious groups based on facially neutral criteria. Id. at 231-32. The Court nonetheless applied strict scrutiny because the law was focused on religious entities and had the effect of favoring some. Id. at 246-47.
Larson applies here. The Order’s refugee provisions explicitly distinguish between members of religious faiths. President Trump has made clear that one purpose of the Order is to favor Christian refugees at the expense of Muslims. ECF 18 ¶ 53, Ex. 8. And the States have plausibly alleged that the countries chosen for the travel ban were chosen in part to disfavor Muslims.
18

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 23 of 32
ECF 18 ¶ 61, Ex. 17. This case thus involves just the sort of discrimination among denominations that failed strict scrutiny in Larson, and must fail here.4
Defendants claim that the Order “is neutral with respect to religion.” Motion at 19. “But it is . . . the duty of the courts to distinguish a sham secular purpose from a sincere one.” Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000); McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 864 (2005) (citing Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)). Here, the sham of a secular purpose is exposed by both the language of the Order and Defendants’ expressions of anti-Muslim intent. See, e.g., McCreary, 545 U.S. at 866 (courts consider the “historical context” of the government act and “the specific sequence of events leading to [its] passage”).
Unable to respond on the merits, Defendants claim that States cannot raise Establishment Clause claims themselves or as parens patriae. Motion at 11 n.4. But they cite no authority for these propositions. And one purpose of the Establishment Clause was to protect States against the federal government
4 Even under the less demanding Lemon test, the Order is unconstitutional. See ECF 19-1 at 12-14.
19

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 24 of 32
adopting a national religion.5 There is no reason to bar States from enforcing that right, whether on their own behalf or as parens patriae.
c. Defendants are unlikely to prevail against the States’ Equal Protection claim
The States are likely to prevail on our equal protection claim because the Executive Order is motivated by discriminatory animus and cannot survive any level of review.
Classifications based on religion are inherently suspect and subject to strict scrutiny. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). The Order specifies that Defendants will give priority to refugee claims “on the basis of religious-based persecution,” but only if “the religion of the individual is a minority religion in the individual’s country of nationality.” Sec. 5(b). The State has plausibly alleged and offered evidence that this policy change and the list of countries targeted by the Order were intended to disfavor Muslims. The States need not show that intent to discriminate against Muslims “was the sole purpose of the challenged action, but only that it was a ‘motivating factor.” Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015).
5 See, e.g., Richard Albert, The Constitutional Politics of the Establishment Clause, 87 CHI.-KENT L. REV. 867, 874 (2012); Separation of Church & State Comm. v. City of Eugene, 93 F.3d 617, 621 (9th Cir. 1996) (O’Scannlain, J., concurring) (“[C]oncerns about federalism . . . motivated ratification of the Establishment Clause.”).
20

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 25 of 32
Even if the Order did not make suspect classifications, it would be illegal because “its sheer breadth is so discontinuous with the reasons offered for it that the [Order] seems inexplicable by anything but animus toward the class it affects.” Romer v. Evans, 517 U.S. 620, 632 (1996). For several months it bans all travelers from the listed countries and all refugees, whether they be infants, schoolchildren, or grandparents. And though it cites the attacks of September 11, 2001, as a rationale, it imposes no restrictions on people from the countries whose nationals carried out those attacks. “It is at once too narrow and too broad,” id. at 633, and cannot withstand any level of scrutiny. See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (“The Constitution’s guarantee of equality must at the very least mean that a bare [legislative] desire to harm a politically unpopular group cannot justify disparate treatment of that group.”).
d. Defendants are unlikely to prevail against the States’ INA claim
8 U.S.C. § 1152(a)(1)(A) states: “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of race, nationality, place of birth, or place of residence.” Defendants argue that the national origin discrimination embodied in the Executive Order is nonetheless justified under Section 1182(f), which allows the President to suspend entry of aliens detrimental to the interests of the United States, and
21

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 26 of 32
that such immigration decisions are “generally shielded from administrative or judicial review.” Mot. at 12. Neither argument is persuasive.
Section 1152 was enacted in 1965, thirteen years after Section 1182(f), and it enumerates specific exceptions that do not include Section 1182(f). Congress specified exactly when federal officials could take nationality into account: “as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title.” 8 U.S.C. § 1152(a)(1)(A). None of these narrow exceptions apply here; and by enumerating those few exemptions, Congress made clear it did not intend to authorize others.6 See, e.g., United Dominion Indus. v. United States, 532 U.S. 822, 836 (2001) (describing expressio unius canon).
Further, despite Defendants’ references to “plenary” power over immigration, Motion at 4—which actually resides with Congress, see U.S. Const., Article I, § 8—the President’s authority under Section 1182(f) is judicially reviewable. See Zadvydas, 533 U.S. at 698 (holding the political branches’ power “is subject to important constitutional limitations”); Diouf v.
6 Although Defendants argue that “courts have repeatedly affirmed” the President’s authority to make distinctions based on nationality, Motion at 13, none of the cases Defendants cite raised Section 1152.
22

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 27 of 32
Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011) (refusing to defer to DHS’s regulations because the regulations “raise[d] serious constitutional concerns”).
Before now, no President has invoked 1182(f) to impose a categorical bar on admission based on a generalized (and unsupported) claim that some members of a class might engage in misconduct. Cf. Pres. Procl. 5517, 1986 WL 796773 (Aug. 22, 1986) (barring entry of certain Cuban nationals, with many categorical exceptions). The Order flouts Congress’s clear command prohibiting nationality-based discrimination.
4. A nationwide TRO was appropriate Defendants offer a halfhearted argument that a nationwide injunction was inappropriate, but they offer no plausible narrower order that would have provided the relief the States sought. In any event, nationwide relief was well within the district court’s discretion given that (1) Congress and the courts have emphasized the importance of uniformity in immigration policies; and (2) nationwide relief was necessary to ensure that the States’ residents were not stopped at other ports of entry around the country on their way to Washington or Minnesota. See, e.g., Texas, 787 F.3d at 768-69 (affirming nationwide injunction to ensure uniformity and provide full relief).
23

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 28 of 32
E. A Stay Would Harm the States and the Public Interest The States have detailed at length the harms we suffered under the
Order. Staying the district court’s ruling would reinstitute those harms, separating families, stranding our university students and faculty, and barring travel. Defendants claim that national security requires these harms, but the Court need not and should not allow constitutional violations merely based on Defendant’s unsupported invocation of national security concerns. See Decl. of Nat’l Sec. Officials ¶ 4; Hassan v. City of New York, 804 F.3d 277, 306-07 (3d Cir. 2015) (“[I]t is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights.”). In any event, the balance of equities and public interest always favor “prevent[ing] the violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012).
/ / / / / / / / /
24

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 29 of 32
IV. CONCLUSION
For the reasons above, the Court should deny Defendants’ request for
stay.
RESPECTFULLY SUBMITTED this 6th day of February 2017.
ROBERT W. FERGUSON, WSBA 26004 Attorney General NOAH G. PURCELL, WSBA 43492 Solicitor General ANNE E. EGELER, WSBA 20258 Deputy Solicitor General COLLEEN M. MELODY, WSBA 42275 Civil Rights Unit Chief MARSHA CHIEN WSBA 47020 PATRICIO MARQUEZ WSBA 47693 Assistant Attorneys General Washington State Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744
LORI SWANSON Attorney General of Minnesota ALAN I. GILBERT, MN #0034678 Solicitor General JACOB CAMPION, MN #0391274 Assistant Attorney General
Office of the Attorney General 445 Minnesota Street, Suite 1100 St. Paul, MN 55101 (651) 757-1450
25

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 30 of 32
STATEMENT OF RELATED CASES Pursuant to Circuit Rule 28-2.6(c) the Appellees state that there are no related cases.
26

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 31 of 32

CERTIFICATE OF COMPLIANCE (FRAP 32(a)(7)) I certify that pursuant to Fed. R. App. P. 27, the attached answering brief is proportionately spaced, has a typeface of 14 points or more and contains 5,110 words.

February 6, 2017

s/ Noah G. Purcell NOAH G. PURCELL, WSBA 43492

27

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-1, Page 32 of 32

CERTIFICATE OF SERVICE I hereby certify that on February 6, 2017, I electronically filed the foregoing with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

February 6, 2017

s/ Noah G. Purcell NOAH G. PURCELL, WSBA 43492

28

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 1 of 17
Response to Emergency Motion
Exhibit A

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 2 of 17

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.

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 3 of 17
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

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 4 of 17
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

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 5 of 17
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

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 6 of 17
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

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 7 of 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

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 8 of 17

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 9 of 17

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 10 of 17

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 11 of 17

LIOZ'KmnrqeCJo f,ep q,g slql CgJOlgXg

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 12 of 17

NITHJOY'ICW'g NIHO 73

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 13 of 17

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 14 of 17

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 15 of 17
EXECUTED this 5th day of February, 2017 __________/s/_________________ JANET A. NAPOLITANO

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 16 of 17

Case: 17-35105, 02/06/2017, ID: 10302892, DktEntry: 28-2, Page 17 of 17
EXECUTED this 5th day of February, 2017 ________/s/___________________ SUSAN E. RICE

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-1, Page 1 of 4

(1 of 52)

NO.17-35105

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON and STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.

DECLARATION OF NOAH G. PURCELL IN SUPPORT OF RESPONSE TO EMERGENCY MOTION FOR STAY PENDING APPEAL

DONALD TRUMP, President of the United States, et al.,

Defendants-Appellants.

Pursuant to 28 U.S.C. § 1746(2), I, Noah G. Purcell, hereby declare as

follows:

1. I am over the age of eighteen and competent to testify.

2. I am the Solicitor General for the State of Washington. I make this

declaration as a representative of the State of Washington (“State”) in support

of the Response to Emergency Motion Under Circuit Rule 27-3 for

Administrative Stay and Motion for Stay Pending Appeal.

3. Attached hereto as Purcell Declaration Exhibit A is a true and correct

copy of a printout dated February 5, 2017, from the U.S. Department of State,

1

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-1, Page 2 of 4

(2 of 52)

Bureau of Consular Affairs’ website containing an “Important Announcement” dated February 4, 2017, titled “Executive Order on Visas.” 4. Attached hereto as Purcell Declaration Exhibit B is a true and correct copy of a printout of a news article from the Washington Post dated February 4, 2017, titled “A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follow.” 5. Attached hereto as Purcell Declaration Exhibit C is a true and correct copy of a printout of a news article from Reuters dated February 4, 2017, titled “U.S. moves to resume admitting refugees, including Syrians.” 6. Attached hereto as Purcell Declaration Exhibit D is a true and correct copy of a printout of a news article from the New York Times dated February 4, 2017, titled “Appeals Court Rejects Request to Immediately Restore Travel Ban.” 7. Attached hereto as Purcell Declaration Exhibit E is a true and correct copy of a printout dated February 4, 2017, from the U.S. Department of Homeland Security’s website containing a press release dated February 4, 2017, titled “DHS Statement on Compliance with Recent Court Order.” 8. Attached hereto as Purcell Declaration Exhibit F is a true and correct copy of a printout dated February 5, 2017, from the U.S. Customs and Border
2

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-1, Page 3 of 4

(3 of 52)

Protection’s website containing a notice last published February 4, 2017, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” 9. Attached hereto as Purcell Declaration Exhibit G is a true and correct copy of a printout dated February 4, 2017, from the airline Emirates’ website containing an operational update dated February 4, 2017, titled “Update on US entry requirements – 4th February 2017.” 10. Attached hereto as Purcell Declaration Exhibit H is a true and correct copy of a printout dated February 5, 2017, from Qatar Airways’ website containing a travel alert dated February 4, 2017, titled “Changes to entry requirements to the United States.” 11. Attached hereto as Purcell Declaration Exhibit I is a true and correct copy of a printout dated February 5, 2017, from Etihad Airways’ website containing an announcement titled “US travel restrictions.” 12. Attached hereto as Purcell Declaration Exhibit J is a true and correct copy of a printout dated February 5, 2017, from Lufthansa’s website containing current travel information titled “Immigration restrictions for travel to the USA lifted.” 13. On February 5, 2017, I contacted trial counsel for Defendants to propose a briefing schedule for the States’ motion for a preliminary injunction. I
3

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-1, Page 4 of 4

(4 of 52)

propose to have briefing completed by February 17, 2017. Attached hereto as Purcell Declaration Exhibit K is a true and correct copy of my email to trial counsel for Defendants dated February 5, 2017. I have not received a reply from Defendants’ counsel.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 5th day of February 2017.
s/ Noah G. Purcell NOAH G. PURCELL

4

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-2, Page 1 of 3

(5 of 52)

Purcell Declaration Exhibit A

Important Announcement

Page 1 of(62 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-2, Page 2 of 3

I t t A travel.state.gov

U.S. Passports & International Travel

Executive Order on Visas - Important Announcement

t Students Abroad U.S. Visa

•

Intercountry Adoption

International Parental Child Abduction

|

Contact Us

close
Find U.S. Embassies & Consulates

ALERT
FEBRUARY 4, 2017

Important Announcement

travel.state.gov > Newsroom > Important Announcement

Executive Order on Visas

Print Email

An order issued by a U.S. District court in the state of Washington on February 3 bars the U.S. government from enforcing certain provisions of Executive Order 13769, “Protecting the Nation from Terrorist Attacks by Foreign Nationals,” including those related to visas and travel for nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen.

The Department of State had, under the Executive Order, provisionally revoked all valid visas of nationals of those seven countries, with limited exceptions. That provisional revocation is now lifted, and those visas are now valid for travel to the United States, if the holder is otherwise eligible. Individuals whose visas are expired, or were physically cancelled, must apply for a new visa at a U.S. embassy or consulate, absent a Customs and Border Patrol (CBP) decision to grant parole or waive the visa requirement at the port of entry. We are looking further into this issue and will revise this site with any updates.

We are working closely with the Departments of Justice and Homeland Security and we will provide further updates as soon as information is available.

On January 27, 2017, President Trump signed Executive Order 13769 on Protecting the Nation from Terrorist Attacks by Foreign Nationals which directs us to review current screening procedures, while protecting national security – our top priority when issuing visas.

The U.S. government’s national security screening and vetting procedures for visitors are constantly reviewed and refined to improve security and more effectively identify individuals who could pose a threat to the United States. We welcome every opportunity to continue to review and improve our systems and procedures. In implementing this executive order, the Department of State had temporarily stopped scheduling appointments and halted processing of immigrant and nonimmigrant visa applications for individuals from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen, with limited exceptions. Processing of those applications has now resumed and appointments will be scheduled.

•

Information on the Executive Order and Lawful Permanent Residents (LPR) - DHS

•

FAQs on the Executive Order - Department of Homeland Security

About Us Newsroom Reports and Statistics

Find a U.S. Embassy or Consulate Contact Us

STAY CONNECTED
Dipnote Blog

@travelgov

https://travel.state.gov/content/travel/en/news/important-announcement.html

2/5/2017

Important Announcement

Page 2 of(72 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-2, Page 3 of 3

Legal Considerations

Careers Consular Notification and Access

Facebook Flickr

Youtube RSS

travel.state.gov

U.S. Passports & International Travel

Students Abroad

U.S. Visa

Intercountry Adoption

International Parental Child Abduction

Privacy Copyright & Disclaimer FOIA No FEAR Act Data Office of the Inspector General This site is managed by the Bureau of Consular Affairs, U.S. Department of State.

USA.gov

GobiernoUSA.gov

https://travel.state.gov/content/travel/en/news/important-announcement.html

2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 1 of 7

(8 of 52)

Purcell Declaration Exhibit B

A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follo... Page 1 of(96 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 2 of 7
National
A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follow.
By Karen Weintraub, Michael E. Miller and Justin Jouvenal February 4 at 7:37 PM
BOSTON — Most of the more than 40 people from Iran who arrived at Logan International Airport on Saturday afternoon were ecstatic, the first large wave of travelers to come to the United States a week after President Trump banned them from entering the country.
The decision late Friday by a federal judge to temporarily halt Trump’s denial of entry to travelers from seven majority-Muslim countries had created an opening — and in a frantic race on the other side of the globe, thousands of people rushed to book flights to the United States, uncertain of how long the opportunity would last.
Flights carrying previously barred travelers reached Logan on Saturday afternoon, with more expected at airports across the country starting Sunday.
But amid the euphoria and excitement, the Jalili family of Iran passed through the checkpoints at Logan and onto American soil in a heartbroken state, even though their dream to emigrate — 10 years in the making — had been revived by the federal judge.
https://www.washingtonpost.com/local/virginia-politics/travelers-from-iran-board-flights-to... 2/5/2017

A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follo... Page 2 o(1f 06 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 3 of 7
At the last minute, after passing through security in the Tehran airport, officials would not let their oldest daughter, 19-year-old Helya, board the Boston-bound plane. She was kept back with about 15 others whose names were called. They got no explanation.
After a quick and agonizing decision, and with Helya’s urging, the rest of the family boarded the plane with heavy hearts. They spent most of the flight crying, next to Helya’s empty seat.
The family’s plight was emblematic of the confusion that continued Saturday — even as government officials and airlines tried to restore normalcy after a week of chaos surrounding the entry ban — amid protests and legal challenges, and after the issuance of the nationwide stay.
“We were very, very sad last night,” said Hamid Jalili. “If [my daughter] will come here tomorrow, our gladness will be complete.”
Only a small number of citizens of the seven Middle Eastern and North African countries covered in Trump’s banning order arrived at U.S. airports Saturday, but attorneys representing them expected a flood in the coming days.
Becca Heller, the director of the International Refugee Assistance Project (IRAP) in New York, said considerable problems remained as citizens of the seven nations — Libya, Iran, Iraq, Yemen, Somalia, Sudan and Syria — trickled Saturday into the United States.
“It’s just completely unclear what coordination is happening. . . . What we’re witnessing is the Wild West of immigration law,” she said. “And the people who are suffering are the people who desperately need to come to the U.S.”
She said her group is hearing reports from travelers of inconsistencies in how airlines are complying with the judge’s order; it appeared that some low-level employees of some carriers were still unaware Saturday that a stay of Trump’s ban had been issued.
Nevertheless, Heller urged travelers to book flights soon, given the Trump administration’s impending challenge of the stay, which was issued by U.S. District Judge James L. Robart in Seattle but affects the entire nation.
“There’s a window right now. No one knows how long the window will last,” Heller said. “People that need to get to the United States for an urgent reason should get on a plane as soon as possible.”
https://www.washingtonpost.com/local/virginia-politics/travelers-from-iran-board-flights-to... 2/5/2017

A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follo... Page 3 o(1f 16 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 4 of 7
IRAP was preparing packets of information for travelers to present to authorities if they encounter any problems. The documents explain their right to travel to the United States.
A number of airlines — including Qatar Airways, Etihad Airways, Air France and Lufthansa — announced that they would allow travelers from the seven nations to board flights after the State Department said Saturday that it was restoring visas that had been revoked under Trump’s Jan. 27 executive order.
And Department of Homeland Security workers were told at the start of their shifts to start processing travelers with visas as normal.
The Jalili family and others at Logan described few problems when they arrived in the country, a marked change from the previous weekend, when some travelers from countries named in the banning order were detained for hours and some sent out of the country on return flights.
Hamid and Bahareh Jalili and two of their daughters, Helya and Hanya, 13, had been issued immigrant visas to join Hamid’s brother, who moved to the United States 40 years ago, and the brothers’ recently widowed mother.
They had spent most of the first leg, from Tehran to Frankfurt, Germany, in shock after being separated from Helya.
In Frankfurt, they received text messages from Helya saying that their names had been called just after they left — officials had wanted to keep them, too. But the Seattle judge’s decision, which came before they left for Boston, had shifted the situation, and they were hopeful again, Hamid said in halting English.
Arriving in Boston, Bahareh with tears in her eyes and Hanya looking stunned, the family was greeted by a small but enthusiastic crowd of well-wishers, lawyers and relatives of other passengers.
The family applied for visas in 2004. The visas came through at the end of October, and the family decided to leave at the end of January. Then came Trump’s entry ban.
Brothers Reza and Hamid had not seen each other in three years. Hamid could not attend their father’s funeral last year. He worried that his mother, 84 and with a heart ailment, would die before he could reach the United States.
https://www.washingtonpost.com/local/virginia-politics/travelers-from-iran-board-flights-to... 2/5/2017

A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follo... Page 4 o(1f 26 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 5 of 7
Reza had tried to reassure Hamid when Trump’s executive order was announced. “I said, ‘There’s no way they can take this away from you.’ ” Now, he said, “I have egg on my face.”
Asked whether the situation had changed his view of the United States, Reza Jalili said: “I’ve been here 40 years. You cannot change my view now.”
He said he was upset that such a thing could happen in what he called a country of immigrants, “but at the same time, I want to thank the other half of America that has nothing to do with this.”
The Jalilis were not the only travelers who had to scramble to get on flights.
Syrian national Nael Zaino had spent three days at airports, unable to sleep because his cellphone kept buzzing with the latest news about Trump’s temporary ban on refugees and the U.S. courts’ reaction to the ban.
Zaino’s wife and 18-month-old son had received asylum and entered the United States last year; now he was increasingly desperate to join them.
At the airport in Istanbul, where he has lived since fleeing Syria two years ago, Zaino was told a half-hour before his flight was scheduled to leave that he would not be allowed on. He had already twice been barred from boarding U.S.-bound flights.
He went to find a place to sit and wait for his next chance, when his name was called. The court had just reversed the U.S. entry ban and Zaino would be allowed to fly. He grabbed his bags and ran full-tilt to the gate, the last to board the Boston flight.
He was still nervous when he landed, worried that he would be sent back.
It sank in that he was safe, he said, only when a customs officer handed his passport back to him.
“He told me go start your new life with your son. Choose a very good doctor for him, a very good school,” Zaino said in accented but fluid English, choking back emotion.
As some waited for loved ones at airports, protesters in New York, Miami, the District and other cities around the world turned out to express anger at the entry ban. Hundreds gathered near the White House in Lafayette Square.
https://www.washingtonpost.com/local/virginia-politics/travelers-from-iran-board-flights-to... 2/5/2017

A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follo... Page 5 o(1f 36 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 6 of 7

Many in the crowd wore Statue of Liberty foam crowns or displayed posters with the Statue of Liberty’s face plastered with the words: “Silence Equals Violence.”
Jessica Fix, 27, of the District, attended Saturday’s protest at the White House just as she did the previous week. She said she is Jewish and that her ancestors had migrated to the United States from Russia.
“In my opinion, this is how the Holocaust started,” said Fix, a senior at the University of Baltimore. “It’s important to come out and fight for people who are too scared to.”

Today's Headlines newsletter The day's most important stories.

Sign up

Back at Logan Airport, immigration lawyer Susan Church spent the afternoon keeping a record of arriving foreigners and offering pro bono services from American lawyers.

As people from the listed countries walked out of customs and into Logan’s lobby, lawyers and others cheered and offered them flowers, pastries and gift bags.

Church welcomed most of them, shaking their hands and saying, “I’m sorry.”

Kate Jubboori, from the Boston suburb of Hopkinton, stopped at Logan just before 6 p.m. to drop off goody bags for arriving migrant children. Jubboori, whose father-in-law migrated to the United States from Iraq in the 1960s, said the family had toys left over from her son’s fourth birthday party earlier Saturday. She had printed labels that said “Welcome home” on the small gold-colored bags. Asked why she made the effort, Jubboori said she was “just being a human.”
Ian Shapira and Abigail Hauslohner in Washington, Vera Haller in New York, Steve Freiss in Detroit, Leah Sotille in Portland, Ore., Lornet Turnbull in Seattle, Camille Pendley in Atlanta, Mark Guarino in Chicago, Francisco Alvarado in Miami and Rob Kuznia contributed to this report.

Michael E. Miller is a reporter on the local enterprise team. ¬ Follow @MikeMillerDC

PAID PROMOTED STORIES

Recommended by

https://www.washingtonpost.com/local/virginia-politics/travelers-from-iran-board-flights-to... 2/5/2017

A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follo... Page 6 o(1f 46 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 7 of 7

The Absolute Best Sheets You Will Ever Find. Period.
Business Insider

How To: Get Rid of Dark Under Eye Circles
Health Headlines

10 Most Luxurious Cars Under $35k
Kelley Blue Book

50 Little Things Your Pet Is Doing to Try to Talk to You
Reader's Digest

Librarians Love It - The One Website Book Lovers Need to Know
The Book Insider

The 6 Most Iconic European Places to Snap a Photo
British Airways on AARP

https://www.washingtonpost.com/local/virginia-politics/travelers-from-iran-board-flights-to... 2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-4, Page 1 of 5

(15 of 52)

Purcell Declaration Exhibit C

U.S. moves to resume admitting refugees, including Syrians | Reuters

Page 1 o(1f 64 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-4, Page 2 of 5

EDITION: UNITED STATES

U.S. moves to resume admitting refugees, including Syrians

POLITICS | Sat Feb 4, 2017 | 10:29pm EST
U.S. moves to resume admitting refugees, including Syrians

FILE PHOTO - An internally displaced Syrian boy looks out his tent in the Bab Al-Salam refugee camp, near the Syrian-Turkish border, northern Aleppo province, Syria December 26, 2016. REUTERS/Khalil Ashawi

TRENDING STORIES
1 Trump immigration ban in limbo after appeals court ruling
2 German magazine defends cover showing Trump beheading Statue of Liberty
3 Tale of Two Donalds: Trump gives Europe splitting headache
4 Commentary: Trump has broken his oath to God – and America
5 Iran vows 'roaring missiles' if threatened, defies new sanctions

http://www.reuters.com/article/us-usa-trump-immigration-refugees-idUSKBN15K01D

2/5/2017

U.S. moves to resume admitting refugees, including Syrians | Reuters

Page 2 o(1f 74 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-4, Page 3 of 5

By Julia Edwards Ainsley | WASHINUG.ST.OmNoves to resume admitting refugees, including Syrians
The U.S. State Department on Saturday moved to begin admitting refugees, including Syrians, as soon as Monday after a federal judge on Friday blocked a Trump administration temporary ban on refugee admissions.An email from the State Department's refugee office reviewed by Reuters Saturday said the U.S. government is working with its legal team and interagency and overseas partners to comply with the ruling.

Trump's Jan. 27 executive order had suspended refugee admissions for 120 days and indefinitely barred Syrian refugees but U.S. Judge James Robart in Seattle on Friday blocked the president's order.

A U.S. State Department official told Reuters on Saturday that officials "expect some refugees to arrive Monday."

The U.S. instructed the International Organization for Migration "to rebook refugees of all nationalities, including Syrians, who were" to schedule to arrive since the Trump's order was signed, the email said.

"We are focusing on booking refugee travel through February 17. We are asking that arrivals resume this Monday, the first normal travel day of the week, if possible. We are aware that some refugees may not be ready to depart on short notice," the email said.

A United Nations spokesman, Leonard Doyle, told the New York Times about 2,000 refugees were ready to travel.

Refugees do not usually enter on weekends, a U.S. official said, as the department hews to a strict set of rules on how their admissions are processed.

Other travelers from seven Muslim majority countries affected by President Donald Trump's week-old curb on immigration can rework their flights after the judge's order, as long as they have valid visas.

Refugees fleeing war, hunger and persecution have less autonomy. Advocates working on their behalf urged the government to move quickly on admitting them.

International Refugee Assistance Project Director Becca Heller called for "the instant resumption of the U.S. Refugee Admissions Program to immediately take the most vulnerable refugees out of harm's way."

During the week of the ban, the government admitted 843 refugees - but no Syrian refugees, government figures show. Officials previously told Reuters that they were "in transit" and had already been cleared for resettlement before the ban took effect.

For refugee families, they are trying to keep expectations in check and hope they do not end up back where they started.

Ayham Oubeid, a Syrian living in Cleveland, has been waiting for over a year for his brother George's family to come to the United States as refugees. His brother, who has health issues, is living in Dubai on a work visa that covers him, his six-year-old daughter and five-months pregnant wife.

PICTURES

George left his job and moved the family out of their apartment when he was told they would be resettled in the United States on Feb. 13. But the family's plane tickets were

http://www.reuters.com/article/us-usa-trump-immigration-refugees-idUSKBN15K01D

2/5/2017

U.S. moves to resume admitting refugees, including Syrians | Reuters

Page 3 o(1f 84 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-4, Page 4 of 5

canceled when Trump announcUe.dS.tmheovteesmtoproesruamryebaadmn.itWtinigthreofuugt eGees,oinrgcleu’dsinjogbS,yrtihanesfamily could lose the work visa and be sent back to Syria in the midst of its deadly civil war.

Upon hearing of the judge's ruling from Friday, Oubeid called George. He was careful not to be too hopeful, knowing the judge's order could be overturned.

"I don’t want to get excited. I don’t want my brother to get excited. Because it was hard for him when he lost everything and was told he couldn't come," Oubeid said.

ALSO IN POLITICS
Tale of Two Donalds: Trump gives Europe splitting headache

(Reporting by Julia Edwards and David Shepardson in Washington, Alex Dobuzinskis in Los Angeles; Editing by Mary Milliken, Dan Grebler and Diane Craft)

Pictures of the month

Trump immigration ban in limbo after appeals court ruling

NEXT IN POLITICS

'So-called judge' derided by Trump known for fairness, work with youth
U.S. Judge James Robart emerged from relative obscurity on Saturday as the first justice to come under fire from the president since he took office after his temporary order to lift Donald Trump's immigration ban.
MORE FROM REUTERS
Philadelphia Fox affiliate suspends TV host for Conway remark: media
North Korean elite turning against leader Kim: defector
Warren Buffett: I bought $12 billion of stock after Trump won
American steel unlikely to get Keystone boost despite Trump order

Trump's whirlwind start draws admiration on French far-right
LYON, France Donald Trump's first two weeks in office have left some European politicians leaders aghast but are drawing cheers from France's farright National Front (FN) as its leader Marine Le Pen launches her own bid for power.
SPONSORED CONTENT
Before Applying For A Citi Card, Check If You Pre-Qualify Citi Motley Fool Releases Rare Triple-Buy Alert
The Motley Fool
The U.S. has been a tale of two economies — see the signs of growth. Capital Ideas Massive tsunami about to hit market and blindside investors. Money and Markets The Rare Advice Jim Cramer Is Giving To Individual Investors Real Money
Promoted by Dianomi

SPONSORED TOPICS
• Motley Fool Releases Rare Triple-Buy Alert
The Motley Fool
• Before Applying For A Citi Card, Check If You Pre-Qualify Citi
• My #1 Rule: Don't Buy Options Investing Daily
• The U.S. has been a tale of two economies — see the signs of growth. Capital Ideas
• Homeowners Must Claim Their $4272 Early in 2017 Innovative Metrics

Commentary: Trump has broken his oath to God – and America

FROM AROUND THE WEB

Promoted by Revcontent

http://www.reuters.com/article/us-usa-trump-immigration-refugees-idUSKBN15K01D

2/5/2017

U.S. moves to resume admitting refugees, including Syrians | Reuters

Page 4 o(1f 94 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-4, Page 5 of 5

U.S. moves to resume admitting refugees, including Syrians

How to Get Solar Panels from WA Government for Free
Savings-scanner

Putin Exposes Mind Blowing Photos of Life in Russia
Detonate.com

Long-lost Navajo Remedy May "Fix" Hearing Loss in 14 Days
Navajo Hearing Fix

Shocking Ways Your Body Changes when You Drink Just One Diet Soda
Nucific

This $0.39 Marijuana Stock Set to Soar April 15th
Agorafinancial

Homeowners: How Will You Spend Your $5,088 Mortgage Rebate?
The Mortgage Insider

Follow Reuters:

Subscribe: Feeds | Newsletters | Podcasts | Apps

Reuters News Agency | Brand Attribution Guidelines | Careers
Reuters is the news and media division of Thomson Reuters. Thomson Reuters is the world's largest international multimedia news agency, providing investing news, world news, business news, technology news, headline news, small business news, news alerts, personal finance, stock market, and mutual funds information available on Reuters.com, video, mobile, and interactive television platforms. Learn more about Thomson Reuters products:

EIKON
Information, analytics and exclusive news on financial markets delivered in an intuitive desktop and mobile interface

ELEKTRON
Everything you need to empower your workflow and enhance your enterprise data management

WORLD-CHECK
Screen for heightened risk individual and entities globally to help uncover hidden risks in business relationships and human networks

WESTLAW
Build the strongest argument relying on authoritative content, attorney-editor expertise, and industry defining technology

ONESOURCE
The most comprehensive solution to manage all your complex and everexpanding tax and compliance needs

CHECKPOINT
The industry leader for online information for tax, accounting and finance professionals

All quotes delayed a minimum of 15 minutes. See here for a complete list of exchanges and delays. © 2017 Reuters. All Rights Reserved. Site Feedback Corrections Advertising Guidelines Cookies Terms of Use Privacy Policy

http://www.reuters.com/article/us-usa-trump-immigration-refugees-idUSKBN15K01D

2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 1 of 9

(20 of 52)

Purcell Declaration Exhibit D

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(211oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 2 of 9

https://nyti.ms/2kzzP5O
POLITICS
Appeals Court Rejects Request to Immediately Restore Travel Ban
By MARK LANDLER FEB. 4, 2017 WEST PALM BEACH, Fla. — A federal appeals court early Sunday rejected a request by the Justice Department to immediately restore President Trump’s targeted travel ban, deepening a legal showdown over his authority to tighten the nation’s borders in the name of protecting Americans from terrorism.
In the legal back and forth over the travel ban, the United States Court of Appeals for the Ninth Circuit in San Francisco said a reply from the Trump administration was now due on Monday.
The ruling meant that travelers from seven predominantly Muslim nations — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — as well as vetted refugees from all nations could, for now, continue to enter the country. Those foreigners had been barred by an executive order signed by the president on Jan. 27.

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(222oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 3 of 9

After a Federal District Court in Seattle blocked Mr. Trump’s order nationwide on Friday, the Justice Department appealed the ruling late Saturday, saying that the president had the constitutional authority to order the ban and that the court ruling “second-guesses the president’s national security judgment.”
On Saturday night, as Mr. Trump arrived at a Red Cross gala at Mar-a-Lago, his waterfront Florida resort, where he was spending the first getaway weekend of his presidency, reporters asked him if he was confident he would prevail in the government’s appeal. “We’ll win,” he replied. “For the safety of the country, we’ll win.”
The legal maneuvering led Mr. Trump to lash out at Judge James Robart of the Federal District Court in Seattle throughout the day, prompting criticism that the president had failed to respect the judicial branch and its power to check on his authority.
In a Twitter post on Saturday, Mr. Trump wrote, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
The Justice Department’s filing sought to have the United States Court of Appeals for the Ninth Circuit block the Seattle judge’s decision and asked that the lower court’s ruling be stayed pending the appeal.
In its argument for an appeal, the Justice Department had said the president had an “unreviewable authority” to suspend the entry of any class of foreigners. It said the ruling by Judge Robart was too broad, “untethered” to the claims of the State of Washington, and in conflict with a ruling by another federal district judge, in Boston, who had upheld the order.
The Ninth Circuit court moved quickly to reject the administration’s appeal, a measure of the urgency and intense interest in the case.
The Justice Department argued that the president acted well within his constitutional authority. Blocking the order, it concluded, “immediately harms the

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(233oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 4 of 9

public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment.”
Judge Robart, who was appointed by President George W. Bush, declared in his ruling on Friday that “there’s no support” for the administration’s argument that “we have to protect the U.S. from individuals” from the affected countries.
His ruling also barred the administration from enforcing its limits on accepting refugees. The State Department said Saturday that refugees, including Syrians, could begin arriving as early as Monday. Syrians had faced an indefinite ban under the executive order.
Despite Mr. Trump’s vehement criticism of the ruling and the certainty that it would be appealed, the government agencies at the center of the issue, the State Department and the Department of Homeland Security, moved quickly to comply.
Lawrence Bartlett, the State Department’s director of refugee resettlement, wrote in a departmental email that officials were working to rebook travel for refugees who had previously been scheduled to leave for the United States over a three-week period that will end Feb. 17. A State Department official said the extended time frame accounted for the fact that some refugees will have to make difficult journeys back to airports from refugee camps.
A United Nations spokesman, Leonard Doyle, said about 2,000 refugees were ready to travel.
Airlines, citing American customs officials, were telling passengers from the seven countries that their visas were once again valid. Those carriers, however, have yet to report an uptick in travel, and there appeared to be no rush to airports by visa holders in Europe and the Middle East intent on making their way to the United States.
Etihad Airways, the United Arab Emirates’ national carrier, said in a statement: “Following advice received today from the U.S. Customs and Border Protection unit at Abu Dhabi Airport, the airline will again be accepting nationals from the seven

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(244oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 5 of 9

countries named last week.” Other Arab carriers, including Qatar Airways, issued similar statements.
A group of advocacy organizations that had worked to overturn the executive order and help immigrants and refugees stranded at airports issued a statement on Saturday afternoon encouraging travelers “to rebook travel to the United States immediately.”
“We have been in contact with hundreds of people impacted by the ban, and we are urging them to get on planes as quickly as possible,” Clare Kane, a law student intern at the Jerome N. Frank Legal Services Organization at Yale Law School, one of the groups involved, said in a statement.
But some officials were being more cautious, advising travelers to wait for further clarity. The American Embassy in Baghdad said it was waiting for additional guidance from Washington. “We don’t know what the effect will be, but we’re working to get more information,” the embassy told The Associated Press in a statement.
The Department of Homeland Security said it had suspended implementation of the order, including procedures to flag travelers from the countries designated in Mr. Trump’s order. It said it would resume standard inspection procedures. But in a statement, the department defended the order as “lawful and appropriate.”
In his first statement on the matter on Friday evening, the White House press secretary, Sean Spicer, described the Seattle judge’s action as “outrageous.” Minutes later, the White House issued a new statement deleting the word outrageous.
Mr. Trump’s Twitter post showed no such restraint. It recalled the attacks he made during the presidential campaign on a federal district judge in California who was presiding over a class-action lawsuit involving Trump University.
Democrats said the president’s criticism of Judge Robart was a dangerous development. Senator Patrick J. Leahy of Vermont, a member of the Judiciary Committee, said in a statement that Mr. Trump seemed “intent on precipitating a constitutional crisis.” Gov. Jay Inslee of Washington, whose state filed the suit that

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(255oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 6 of 9

led to the injunction, said the attack was “beneath the dignity” of the presidency and could “lead America to calamity.”
Senator Chuck Schumer of New York, the Democratic leader, said in a statement that Mr. Trump’s outburst could weigh on the confirmation process for Judge Neil M. Gorsuch, the president’s nominee for the Supreme Court.
Until now, Mr. Trump had been comparatively restrained about the multiple federal judges who have ruled against parts of his immigration order, even as he staunchly defended its legality. Some analysts had speculated that he did not want a repeat of the storm during the campaign when he accused Judge Gonzalo P. Curiel of having a conflict of interest in the Trump University case because the judge’s family was of Mexican heritage. Mr. Trump, who had painted Mexicans as rapists and criminals, settled that case after the election.
But on Saturday morning, Mr. Trump let loose, and in the afternoon he unleashed another volley of attacks on the ruling. In one Twitter message, he questioned why a judge could “halt a Homeland Security travel ban,” which would allow “anyone, even with bad intentions,” to enter the country. An hour later, he complained about the “terrible decision,” saying it would let “many very bad and dangerous people” pour into the country.
Earlier, Mr. Trump had asserted, without evidence, that some Middle Eastern countries supported the immigration order. “Interesting that certain Middle-Eastern countries agree with the ban,” he wrote. “They know that if certain people are allowed in it’s death & destruction!”
The Washington State case was filed on Monday, and it was assigned to Judge Robart that day. He asked for briefs on whether the state had standing to sue, with the last one due on Thursday. On Wednesday, Minnesota joined the suit.
On Friday evening, Judge Robart issued a temporary restraining order, requiring the government to revert to its previous immigration policies as the case moved forward. He found that the states and their citizens had been injured by Mr. Trump’s order.

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(266oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 7 of 9

“The executive order adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel,” Judge Robart wrote. He said the states had been hurt because the order affected their public universities and their tax bases.
Still, Judge Robart’s order left many questions, said Josh Blackman, a professor at South Texas College of Law in Houston.
“Does the executive order violate the equal protection of the laws, amount to an establishment of religion, violate rights of free exercise, or deprive aliens of due process of law?” Professor Blackman asked. “Who knows? The analysis is bare bones, and leaves the court of appeals, as well as the Supreme Court, with no basis to determine whether the nationwide injunction was proper.”
While large crowds had yet to materialize at airports, there were individual stories of people trying to enter the country.
Nael Zaino, 32, a Syrian who had tried unsuccessfully for nearly a week to fly to the United States to join his wife and American-born son, was allowed to board a flight from Istanbul and then Frankfurt late Friday. He landed in Boston around 1 p.m. Saturday and emerged from immigration two hours later, said his sister-in-law Katty Alhayek.
Mr. Zaino was believed to be among the first revoked visa holders to enter the United States since the executive order went into effect. His advocates had sought a waiver for him from the State Department, citing family reunification. “Mine must be a very special case,” Mr. Zaino said by phone from Istanbul.
Iranians, many of them students on their way to American universities, also rushed to book flights to transfer destinations in other Persian Gulf countries, Turkey and Europe. Pedram Paragomi, a 33-year-old Iranian medical student bound for the University of Pittsburgh, who had been caught up in the initial chaos over the travel ban, flew to Frankfurt on Saturday, where he was to transfer to a flight to Boston.

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(277oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 8 of 9

“I’m anxious,” he said from Frankfurt. “The rules keep on changing, but I think I will make it this time.”
Reporting was contributed by Alexander Burns, Russell Goldman, Nicholas Kulish and Somini Sengupta from New York; Adam Liptak, Gardiner Harris, Ron Nixon, Eric Lichtblau and Noah Weiland from Washington; and Thomas Erdbrink from Tehran.
A version of this article appears in print on February 5, 2017, on Page A1 of the New York edition with the headline: Administration Files an Appeal of Travel Ruling.

Access to NYTimes.com and all NYTimes apps Unlimited article access, anytime, anywhere Learn more ►
Times Insider Access, including behind-the-scenes stories, exclusive events, podcasts, and e-books 1 complimentary digital subscription to give anyone you'd like Learn more ►

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(288oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 9 of 9

Customized delivery options such as Sunday only, Fri.-Sun., weekday delivery, or daily delivery The weekly Sunday magazine and monthly T Magazine 2 complimentary digital subscriptions to give anyone you'd like Learn more ►
© 2017 The New York Times Company

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-6, Page 1 of 3

(29 of 52)

Purcell Declaration Exhibit E

DHS Statement on Compliance with Recent Court Order | Homeland Security

Page 1 o(3f 02 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-6, Page 2 of 3

Official website of the Department of Homeland Security

Contact Us Quick Links Site Map A-Z Index

DHS Statement on Compliance with Recent Court Order
Release Date: February 4, 2017
For Immediate Release Office of the Press Secretary Contact: 202-282-8010
WASHINGTON - In accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States."
This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order.
DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.
At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the president's Executive Order, which is lawful

https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-court-order

2/4/2017

DHS Statement on Compliance with Recent Court Order | Homeland Security

Page 2 o(3f 12 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-6, Page 3 of 3

and appropriate. The order is intended to protect the homeland and the American people, and the president has no higher duty and responsibility than to do so.

###

Topics: Immigration Enforcement (/topics/immigration-enforcement) , International (/topics/international) Keywords: immigration (/keywords/immigration) , DOJ (/keywords/doj) , international travel (/keywords/international-travel)
Last Published Date: February 4, 2017

https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-court-order

2/4/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-7, Page 1 of 5

(32 of 52)

Purcell Declaration Exhibit F

Protecting the Nation from Foreign Terrorist Entry into the United States | U.S. Customs ... Page 1 o(3f 34 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-7, Page 2 of 5
Official website of the Department of Homeland Security
U.S. Customs and Border Protection
Protecting the Nation from Foreign Terrorist Entry into the United States
In accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States." This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the President's Executive Order, which is lawful and appropriate. The Order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so.
Individuals who may be affected by this Executive Order may visit the CBP INFO Center website for additional information. On the webpage, travelers may also request additional guidance by clicking on the ‘Email us your Question’ button
Below are the actions taken in accordance with the Executive Order signed January 27, 2017. CBP Executive Order Actions
Recommended Denial of Boarding 1,222 Visa holders granted waivers 87
(Statistics are valid as of February 2, 2017)
Download a PDF of the Questions and Answers
https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states 2/5/2017

Protecting the Nation from Foreign Terrorist Entry into the United States | U.S. Customs ... Page 2 o(3f 4 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-7, Page 3 of 5
Questions and Answers about the Executive Order
When did enforcement of the Executive Order start? Does this affect travelers at all ports of entry? How many people are currently detained at Ports of Entry as a result of the Executive Order? What do the two exemptions in the Executive Order mean? How are they applied to individual cases? What is the process for considering an individual for an exemption under the Executive Order? Does “from one of the seven countries” mean citizen, national or born in? How does the lawsuit/stay affect DHS operations in implementing this executive order? Does this Executive Order apply to green card holders from one of the seven countries listed? Will nationals of restricted countries with valid green cards (LPRs) be allowed to return to the United States? How many Lawful Permanent Residents have not been allowed to enter pursuant to the Exception to the Executive Order? Has CBP been pressuring detainees to either withdraw their applications for admission into the country or sign documents rescinding their green cards? There are reports that CBP is confiscating green cards. Does this Executive Order apply to dual nationals of the seven countries who want to enter the United States? If they apply for entry based on their citizenship from one of the countries NOT on the list, will they be allowed entry? Can a dual national traveling with a passport from an unrestricted country travel to the United States?
https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states 2/5/2017

Protecting the Nation from Foreign Terrorist Entry into the United States | U.S. Customs ... Page 3 o(3f 54 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-7, Page 4 of 5
Can a dual national who holds nationality with a restricted country and is currently overseas, apply for an immigrant or nonimmigrant visa to the United States? How does the Executive Order affect college students from the seven countries, such as F1/J1/M1 visa holders? Are they included in the Executive Order? What kind of guidance is being given to foreign students from these countries legally in the U.S.? Can USCIS continue refugee interviews of religious minorities and for countries with which we have an agreement? Will the U.S. accept emergency requests to process a refugee who will then travel? Can the exception for refugee admission be used in I-730 cases (family members following to join) for the petition of refugee/asylee relatives? What about refugees who are considered to be “in transit?” Does the Executive Order apply to those currently being adjudicated for naturalization? Will Canadian immigrants affected by the Executive Order be eligible for entry to the United States? Can Canadian immigrants affected by the Executive Order apply for an immigrant or nonimmigrant visa to the United States? Will Iraqi Passport holders with a valid Special Immigrant Visa be eligible for entry to the United States? How many aliens with special immigrant visas have been denied entry? Has CBP issued clear guidance to CBP officers at Ports of Entry on the Executive Order and the court orders? What coordination is being done between CBP and the carriers? What additional screening will nationals of restricted countries (as well as any visa applications) undergo as a result of the Executive Order? Does CBP have the authority to search individuals’ electronics? What happened to the two men at JFK who were released?
https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states 2/5/2017

Protecting the Nation from Foreign Terrorist Entry into the United States | U.S. Customs ... Page 4 o(3f 64 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-7, Page 5 of 5
Last published: Saturday, February 4, 2017 - 11:23 Tags: Border Security
https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states 2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-8, Page 1 of 5

(37 of 52)

Purcell Declaration Exhibit G

Operational updates | About Emirates | Emirates United States

Page 1 o(3f 84 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-8, Page 2 of 5

(/us/english/)
t

Operational updates
Flight suspension ()

Security alert ()

Check flight status Operational changes ()

News flash
Last updated: February 4, 2017, 17:40 Dubai (GMT+4)
Update on US entry requirements - 4th February 2017
As directed by the U.S. Customs and Border Protection (CBP), nationals of the seven affected countries listed below and all refugees seeking admission presenting a valid, unexpired U.S. visa or Lawful Permanent Resident (LPR) card (Green Card) will be permitted to travel to the United States. Entry requirements to the U.S. may change, and travellers are advised to check the latest information prior to travel. Emirates will continue to comply with guidance provided by the U.S. Customs and Border Protection.
Last updated: 28 January 2017, 22:07 Dubai (GMT+4) Changes to entry requirements to the United States The U.S Customs and Border Protection has issued an Immigration Advisory Notice with regards to new U.S immigration entry requirements affecting the nationals of the following countries: Sudan, Libya, Somalia, Syria, Iran, Iraq, Yemen Nationals from these countries may travel to the U.S. only if they are in possession of a permanent resident card (Green card) or any of the below visas:
• A1 & A2 (Government Officials and immediate family) • C2 (Travel to U.N.)

https://www.emirates.com/us/english/about/operational_updates/operational_updates.aspx 2/5/2017

Operational updates | About Emirates | Emirates United States

Page 2 o(3f 94 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-8, Page 3 of 5

• G1 & G2 (Representative & employees of international organisations) • G3 & G4 (Representatives to and employees of international organisations) • NATO For more information, please visit the U.S. Customs and Border Protection site (http://www.cbp.gov/). Emirates is offering rebooking and refund options for affected passengers who are booked to fly to/from the USA between 28 January and 28 February. Terms and conditions apply. Please contact your booking agent if you need to change your travel arrangements.
Back to top

Flight suspension

We don't have any updates at the moment.
Security alert

Back to top

We don't have any updates at the moment.

Back to top

https://www.emirates.com/us/english/about/operational_updates/operational_updates.aspx 2/5/2017

Operational updates | About Emirates | Emirates United States

Page 3 o(4f 04 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-8, Page 4 of 5

Operational changes

Last updated: April 25, 2016, 11:06 Dubai (GMT+4)
UAE visa for GCC residence permit holders
As of April 29, 2016, GCC residence permit holders will need to apply for a UAE visa (/us/english/plan_book/essential_information/visa_passport_information/uae_visas.aspx) before arriving in Dubai.

Last updated: April 11, 2016, 11:48 Dubai (GMT+4)
Baggage policy for Africa
For tickets issued on or after April 15, 2016 For itineraries beginning from any destination in Africa, the piece concept applies. Customers beginning their journey in Africa are allowed two bags of up to 23 kg each in Economy Class, and two bags of up to 32 kg each in First Class or Business Class. This will apply regardless of the country in which the ticket was purchased. If the free baggage allowance is exceeded, excess charges apply.
For tickets issued before April 15, 2016 The baggage allowance for passengers with tickets issued before this date on journeys originating in Africa will continue to be based on the weight concept. This applies regardless of the date of travel. If the free baggage allowance is exceeded, excess charges apply.
To see details of the baggage policies and the excess baggage rates for your trip, please use our baggage allowance calculator (/us/english/plan_book/essential_information/baggages/baggage_calculator.aspx).
Back to top

About us
Our company (/us/english/about/) News (/us/english/about/media-centre/news.aspx) History (/us/english/about/history.aspx) Careers (http://www.emiratesgroupcareers.com) Annual reports (/us/english/about/annual-reports.aspx) Emirates Official Store (https://www.emiratesofficialstore.com) The environment (/us/english/environment/environment.aspx)

More

https://www.emirates.com/us/english/about/operational_updates/operational_updates.aspx 2/5/2017

Operational updates | About Emirates | Emirates United States

Page 4 o(4f 14 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-8, Page 5 of 5

International and government affairs (/us/english/about/int-and-gov-affairs/international-and-government-affairsnew.aspx) Sponsorships (/us/english/about/emirates-sponsorships/sponsorships.aspx) Operational updates (/us/english/about/operational_updates/operational_updates.aspx) Rules and notices (/us/english/plan_book/essential_information/rules_and_notices/rules_notices.aspx) Emirates Skywards program rules (/us/english/skywards/about/skywards-programme-rules.aspx) Emirates destinations (/us/english/destinations/) Advanced Seat Reservation (/us/english/plan_book/advance-seat/reservation-policy.aspx)

© 2016 The Emirates Group. All rights reserved.
Accessibility (/us/english/sitetools/accessibility.aspx) Contact us (/us/english/help/contact-emirates/) Privacy policy (/us/english/sitetools/privacy_policy.aspx) Terms and conditions (/us/english/sitetools/terms_and_conditions.aspx) Optional services (https://cdn.ek.aero/downloads/ek/pdfs/Essential_Information/Optional-Services.pdf) Customer Service Plan (https://cdn.ek.aero/downloads/ek/pdfs/customer_service_plan/ek_customer_service_plan_v1.pdf)

https://www.emirates.com/us/english/about/operational_updates/operational_updates.aspx 2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-9, Page 1 of 3

(42 of 52)

Purcell Declaration Exhibit H

Travel Alerts | Qatar Airways

Page 1 o(4f 32 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-9, Page 2 of 3

Book

Travel

Holidays

Privilege Club

Help

Search

English ‫اﻟﻌﺭﺑ ّﻳﺔ‬

Book a flight

Manage a booking

Check-in online

Flight status

Timetable search

Travel alerts

Manage booking Visa & passport requirements Qatar transit visa
Travel alerts
South Africa child travel requirements Advance passenger information oneworld

Changes to entry requirements to the United States
Update 4 February 2017 ‫ﻋﻣﻼً ﺑﺗﻭﺟﻳﻬﺎﺕ إﺩاﺭﺓ اﻟﺟﻣﺎﺭﻙ ﻭ ﺣﻣﺎﻳﺔ اﻟﺣﺩﻭﺩ ﻓﻲ اﻟﻭﻻﻳﺎﺕ اﻟﻣﺗﺣﺩﺓ اﻷﻣﺭﻳﻛﻳﺔ ﻳﺳﻣﺢ ﻟﺣﺎﻣﻠﻲ ﺟﻧﺳﻳﺎﺕ اﻟﺩﻭﻝ اﻟﺳﺑﻌﺔ اﻟﻣﺑﻳﻧﺔ أﺩﻧﺎﻩ ﻭ ﺟﻣﻳﻊ ﻁﺎﻟﺑﻲ‬
‫اﻟﻠﺟﻭء اﻟﺣﺎﻣﻠﻳﻥ ﻟﺗﺄﺷﻳﺭاﺕ ﺩﺧﻭﻝ ﺳﺎﺭﻳﺔ اﻟﻣﻔﻌﻭﻝ إﻟﻰ اﻟﻭﻻﻳﺎﺕ اﻟﻣﺗﺣﺩﺓ اﻷﻣﺭﻳﻛﻳﺔ أﻭ ﻣﻥ ﻳﺣﻣﻠﻭﻥ إﻗﺎﻣﺔ ﺩاﺋﻣﺔ أﻭ ﻏﺭﻳﻥ ﻛﺎﺭﺩ ﺑﺎﻟﺳﻔﺭ إﻟﻰ اﻟﻭﻻﻳﺎﺕ‬ . ‫اﻟﻣﺗﺣﺩﺓ اﻷﻣﺭﻳﻛﻳﺔ‬

Contact us

‫ اﻟﻳﻣﻥ‬, ‫ اﻟﻌﺭاﻕ‬, ‫ إﻳﺭاﻥ‬, ‫ ﺳﻭﺭﻳﺎ‬, ‫ اﻟﺻﻭﻣﺎﻝ‬, ‫ ﻟﻳﺑﻳﺎ‬, ‫اﻟﺳﻭﺩاﻥ‬ As directed by the U.S. Customs and Border Protection (CBP), nationals of the seven affected countries listed below and all refugees seeking admission presenting a valid, unexpired U.S. visa or Lawful Permanent Resident (LPR) card (Green Card) will be permitted to travel to the United States and will be processed accordingly upon arrival.

Sudan, Libya, Somalia, Syria, Iran, Iraq, Yemen 28 January 2017

Find your local Qatar Airways office contact details.

‫ﻧﻅﺭا ﻟﻠﺗﻐﻳﺭاﺕ اﻟﺟﺩﻳﺩﺓ ﻣﻥ ﻗﺑﻝ اﺩاﺭﺓ اﻟﻬﺟﺭﺓ ﻭاﻟﺟﻭاﺯاﺕ ﻓﻲ اﻟﻭﻻﻳﺎﺕ اﻟﻣﺗﺣﺩﺓ ﺳﻭﻑ ﺗﺗﻐﻳﺭ ﻣﺗﻁﻠﺑﺎﺕ اﻟﺩﺧﻭﻝ ﻟﻣﻭاﻁﻧﻳﻥ اﻟﺩﻭﻝ اﻟﺗﺎﻟﻳﺔ اﻟﻰ اﻟﻭﻻﻳﺎﺕ‬
:‫اﻟﻣﺗﺣﺩﺓ اﻻﻣﺭﻳﻛﻳﺔ‬ ‫ اﻟﻌﺭاﻕ ﻭاﻟﻳﻣﻥ‬،‫اﻳﺭاﻥ‬،‫ﺳﻭﺭﻳﺎ‬،‫اﻟﺻﻭﻣﺎﻝ‬،‫ﻟﻳﺑﻳﺎ‬،‫اﻟﺳﻭﺩاﻥ‬
‫ﻭﻳﻣﻛﻥ ﻟﺣﺎﻣﻠﻲ اﻟﺟﻧﺳﻳﺎﺕ اﻟﻣﺫﻛﻭﺭﺓ اﻟﺳﻔﺭ اﻟﻰ اﻟﻭﻻﻳﺎﺕ اﻟﻣﺗﺣﺩﺓ ﻓﻲ ﺣﺎﻝ ﺣﻣﻠﻬﻡ ﻟﺑﻁﺎﻗﺔ اﻻﻗﺎﻣﺔ اﻟﺩاﺋﻣﺔ )اﻟﺑﻁﺎﻗﺔ اﻟﺧﺿﺭاء( اﻭ اﻱ ﻣﻥ اﻟﺗﺄﺷﻳﺭاﺕ‬ :‫اﻟﺗﺎﻟﻳﺔ‬

(‫ )ﻣﻣﺛﻠﻲ اﻟﺣﻛﻭﻣﺎﺕ ﻭ اﻻﻗﺭﺑﺎء اﻟﻣﺑﺎﺷﺭﻳﻥ‬A2 ‫ ﻭ‬A1 C2
(‫ )ﻣﻣﺛﻠﻳﻥ ﻭ ﻣﻭﻅﻔﻳﻥ اﻟﻣﻧﻅﻣﺎﺕ اﻟﺩﻭﻟﻳﺔ‬G2 ‫ﻭ‬G1
( ‫ )ﻣﻣﺛﻠﻳﻥ ﻭ ﻣﻭﻅﻔﻳﻥ اﻟﻣﻧﻅﻣﺎﺕ اﻟﺩﻭﻟﻳﺔ‬G3 and G4 NATO

.‫ﻳﺭﺟﻰ اﻟﺗﻭاﺻﻝ ﻣﻊ ﻭﻛﻳﻝ ﺳﻔﺭﻛﻡ ﻓﻲ ﺣﺎﻝ اﻟﺣﺎﺟﺔ اﻟﻰ ﺗﻐﻳﺭ اﻟﺣﺟﻭﺯاﺕ‬ .‫ﻟﻠﻣﺯﻳﺩ ﻣﻥ اﻟﻣﻌﻠﻭﻣﺎﺕ ﻳﺭﺟﻰ ﺯﻳﺎﺭﺓ ﻣﻭﻗﻊ اﺩاﺭﺓ اﻟﻬﺟﺭﺓ ﻭاﻟﺟﻭاﺯاﺕ اﻻﻣﺭﻳﻛﻳﺔ‬

Per an Immigration Advisory Notice from U.S Customs and Border Protection with regards to new U.S immigration entry requirements affecting the nationals of the following countries
Sudan, Libya, Somalia, Syria, Iran, Iraq, Yemen
Nationals from these countries may travel to the U.S. only if they are in possession of a permanent resident card (Green card) or any of the below visas:
A1 - A2 (Government Officials and immediate family) C2 (Travel to U.N.) G1 - G2 (Representative & employees of international organisations) G3 - G4 (Representatives to and employees of international organisations) NATO
Please contact your booking agent if you require amendment to your travel arrangements. For more information, please visit the U.S. Customs and Border Protection site.
Galaxy Note 7
Effective immediately, passengers are not permitted to bring Samsung Galaxy Note 7 devices on board the aircraft or in checked luggage. This prohibition applies to all flights.
‫ ﻋﻠﻰ ﻣﺗﻥ اﻟﻁﺎﺋﺭﺓ اﻭ ﺣﻣﻠﻬﺎ ﻓﻲ اﻻﻣﺗﻌﺔ اﻟﻣﺳﺟﻠﺔ ﻋﻠﻰ ﺟﻣﻳﻊ ﺭﺣﻼﺕ اﻟﺧﻁﻭﻁ‬٧ ‫اﺑﺗﺩاء ﻣﻥ اﻻﻥ ﻳﻣﻧﻊ ﺣﻣﻝ اﺟﻬﺯﺓ ﺳﺎﻣﺳﻭﻧﺞ ﺟﺎﻻﻛﺳﻲ ﻧﻭﺕ‬ ‫اﻟﺟﻭﻳﺔ اﻟﻘﻁﺭﻳﺔ‬
Updated on 15/10/2016 @ 09:55 GMT
Zika Virus
Passengers considering travel to Zika-affected nations may find more information here:

http://www.qatarairways.com/global/en/travel-alerts.page

2/5/2017

Travel Alerts | Qatar Airways

Page 2 o(4f 42 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-9, Page 3 of 3

Company
About Qatar Airways Careers Media room Sponsorship Affiliate programme e-Procurement Trade partners

World Health Organisation Centers for Disease Control and Prevention United Nations World Tourism Organisation
For latest flight status information please use the flight status panel at the top of this page.
Flight status updates can also be found at http://fs.qatarairways.com/fltstatus/pages/flight_status.jsf

Qatar Airways Group
Qatar Airways Cargo Qatar Duty Free Qatar Executive Hamad International Airport

Corporate Solutions
Corporate travel Qbiz corporate loyalty Meetings and events

Contact us
FAQs Worldwide offices Enquiries & feedback

bacjrxvz
© Qatar Airways. All rights reserved.

Legal
Legal Privacy policy Cookie policy Accessibility

http://www.qatarairways.com/global/en/travel-alerts.page

2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-10, Page 1 of 2

(45 of 52)

Purcell Declaration Exhibit I

US travel restrictions

Page 1 o(4f 61 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-10, Page 2 of 2

NATIONAL AIRLINE OF THE UAE

FAQ Contact us

United States

My Etihad Guest login

Plan and book Etihad experience Before you fly Deals Destinations Vacations Etihad Guest About us

Announcement
Home > Announcement
US travel restrictions
Following advice received today from the U.S. Customs and Border Protection unit at Abu Dhabi Airport, the airline will again be accepting nationals from the seven countries - Iran, Iraq, Sudan, Somalia, Syria, Yemen and Libya – who were listed in changes to U.S. immigration entry requirements last week. Acceptance will naturally be subject to checks completed by U.S. authorities, as existed prior to the issuance of the Executive Order on 27 January. Our customer service offices around the world will be working to ensure that the information is shared with passengers, and we will provide updated advice and assistance to our guests so their journeys can go ahead as planned. The Etihad Airways contact centre can also be contacted on +971 2 599 0000. For more information, please contact a U.S. Consulate or visit the U.S. Customs and Border Protection website.

Announcements

More about Etihad
About Etihad Airways Etihad Holidays Hala Abu Dhabi Etihad Cargo Etihad Airways Engineering Careers Cookie Policy

Where we fly
Etihad destinations Flights to Hyderabad Flights to Mumbai Flights to Banglore Flights to New Delhi Flights to Chennai

Terms and Conditions

Privacy Policy

Sitemap

Useful links
Payment Options Baggage information Subscribe to offers Facts & figures Etihad BusinessConnect Optional services and fees
FLYING REIMAGINED

Stay connected
Facebook Twitter YouTube Linked-in Google +
Copyright 2017 Etihad Airways. All rights reserved.

http://www.etihad.com/en-us/announcements/us-travel-restrictions/

2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-11, Page 1 of 4

(47 of 52)

Purcell Declaration Exhibit J

Current Travel Information - Lufthansa ® Germany

Page 1 o(4f 83 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-11, Page 2 of 4

 (/dCe/uenr/Hroemenpatget)ravel information

 

See below for the latest news about our current flight operation.

Immigration restrictions for travel to the USA lifted



The United States federal court has blocked the travel ban to the USA with immediate effect.
Visitors with a passport issued by 7 countries - Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen - and holding a valid immigrant or non-immigrant visa for the US are again allowed to travel to the USA. However, short notice changes to the immigration regulations may occur at any time. The final decision regarding immigration lies with the US authorities.

Travel to/ via Canada: Electronic Travel Authorization (eTA) mandatory as of 10 November 2016



Samsung Galaxy Note 7 banned on all flights



Passport Controls within the Schengen Area



Current travel information for flights within the European Community



No lithium battery-powered personal devices on board 

Information for transport of weapons with departures

ex Brussels



aTgorpeeeImrtsoonopauolrizretcaaonnodktiimecpprhoolviaceyn.y(oghutertpws:/e/wbfwsoiwtre.leuUxftphSear-nieesnanc.cetortmhyi/sdrese/iteengu/Cusoelosakctieoioso-kPnieessr.soBhnyaaulisvzienedg-sLbuHre.fcineogmn) , you

http://www.lufthansa.com/de/en/Travel-information

2/5/2017

Current Travel Information - Lufthansa ® Germany

Page 2 o(4f 93 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-11, Page 3 of 4

imposed on short notice

Air Passenger Duty (APD): Who is exempt from paying APD?



Secure Flight



All about your booking
Here you can check the current status of your booking, change your booking if necessary, check in directly and make use of many other services related to your booking.
 My Bookings (https://www.lufthansa.com/deeplink/cockpit?country=DE&language=en)
Lufthansa on Twitter
With Lufthansa’s Twitter channel you can receive the latest news about flight services at any time.
 Follow Lufthansa on Twitter (https://twitter.com/)

Share this page:

(http://delicious.com/post?url=http%3A%2F%2Fwww.lufthansa.com%2Fde%2Fen%2FTravel-

(http://www.staralliance.com)

Imprint (/de/en/Imprint) Terms & Conditions (/online/portal/lh/cmn/generalinfo?nodeid=1873532378&l=en&cid=18002) Passenger Rights (/cmn/en/passenger-rights) Privacy Statement (/de/en/Privacy-statement) Terms of use (/online/portal/lh/de/local?nodeid=2017120&l=en&cid=18002)
To personalize and improve your website experience this site uses cookies. By using LH.com, you agree to our cookie policy. (http://www.lufthansa.com/de/en/Cookies-Personalized-surfing)

http://www.lufthansa.com/de/en/Travel-information

2/5/2017

Current Travel Information - Lufthansa ® Germany

Page 3 o(5f 03 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-11, Page 4 of 4

To personalize and improve your website experience this site uses cookies. By using LH.com, you agree to our cookie policy. (http://www.lufthansa.com/de/en/Cookies-Personalized-surfing)

http://www.lufthansa.com/de/en/Travel-information

2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-12, Page 1 of 2

(51 of 52)

Purcell Declaration Exhibit K

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-12, Page 2 of 2

(52 of 52)

From: To: Cc: Subject: Date:

Purcell, Noah (ATG) michelle.bennett@usdoj.gov; arjun.garg@usdoj.gov Melody, Colleen (ATG) Schedule for preliminary injunction briefing Sunday, February 05, 2017 12:11:31 PM

Counsel: It was nice meeting you on Friday. I write to confer about the preliminary injunction briefing schedule as directed by the court. Washington and Minnesota propose the following: 1.      Plaintiffs’ motion for a preliminary injunction filed by 11:59pm PST on February 9, 2017 2.      Defendants’ opposition filed by 11:59pm PST on February 15, 2017 3.      Plaintiffs’ reply filed by 11:59pm on February 17, 2017 The order indicates that the court itself will handle hearing scheduling. Please let me know if this schedule is acceptable to the Department. My office will prepare a pleading.

Sincerely, Noah Purcell Solicitor General Washington State Attorney General’s Office 1125 Washington Street SE Olympia, WA 98504 (360) 753-2536

 
 Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-1, Page 1 of 6

(1 of 53)

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD J. TRUMP, et al., Defendants-Appellants.

On Appeal from an Order of the United States District Court for the Western District of Washington
United States District Judge James L. Robart Case No. 2:17-cv-00141-JLR
MOTION FOR LEAVE TO FILE BRIEF OF TECHNOLOGY COMPANIES AND OTHER BUSINESSES
AS AMICUS CURIAE IN SUPPORT OF APPELLEES

February 5, 2017

Andrew J. Pincus Paul W. Hughes MAYER BROWN LLP 1999 K Street N.W. Washington, D.C. 20006 (202) 263-3000
Counsel for Amici Curiae

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-1, Page 2 of 6

(2 of 53)

MOTION FOR LEAVE TO FILE BRIEF OF TECHNOLOGY COMPANIES AND OTHER BUSINESSES
AS AMICI CURIAE IN SUPPORT OF APPELLEES Pursuant to Rule 29 of the Federal Rules of Appellate Procedure and Circuit Rule 29-3, amici curiae (a full list of amici is attached as Appendix A to Exhibit A1), by and through undersigned counsel, respectfully move for leave to file a 20page amicus curiae brief in support of Appellees’ Opposition to Appellants’ Emergency Motion for Stay Pending Appeal. Amici state as follows: 1. Amici are leading technology companies and leading businesses from other sectors of the U.S. economy. These companies’ operations are affected by the Executive Order issued on January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Order”). 2. The Order represents a significant departure from the principles of fairness and predictability that have governed the immigration system of the United States for more than fifty years—and the Order inflicts significant harm on American business, innovation, and growth as a result. The Order makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world’s best employees. It disrupts ongoing business operations. And it threatens companies’ ability to attract talent, business, and investment to the United States.

1 Complete corporate disclosure statements for each amici are attached as Appendix B to Exhibit A.
1

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-1, Page 3 of 6

(3 of 53)

3. The proposed amicus brief, attached to this motion as Exhibit A, explains how the Order will harm amici’s business operations and is contrary to law.
4. Counsel for Appellants and Appellees both have consented to the filing of an amicus brief.
5. Out of an abundance of caution, amici file this motion to request the Court’s leave to file a 20-page brief.
6. Neither the Federal Rules of Appellate Procedure nor this Court’s Rules clearly authorize the filing of an amicus curiae brief in connection with a motion for a stay, even when the parties have consented to its filing.
7. In addition, Fed. R. App. P. 29(a)(5) states that, except with the Court’s permission, an amicus brief may be no more than one-half the maximum length authorized by these rules for a party’s principal brief. Circuit Rule 271(1)(d) does not speak in terms of “briefs,” instead stating that, except with the Court’s permission, a motion or response to a motion may not exceed 20 pages. Because it is unclear whether Circuit Rule 27-1 limits amici to 10 pages, and because amici believe that a 20-page brief is warranted in light of the importance and novelty of the issues presented, amici request the Court’s leave to file a 20page brief.

2

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-1, Page 4 of 6

(4 of 53)

CONCLUSION
Amici respectfully request that the Court grant their motion for leave to file a
20-page amicus curiae brief and accept for filing the amicus curiae brief attached
as Exhibit A.
Respectfully submitted,
/s/ Andrew J. Pincus Andrew J. Pincus Paul W. Hughes MAYER BROWN LLP 1999 K Street, N.W. Washington, D.C. 20006 (202) 263-3000 Counsel for Amici Curiae
Dated: February 5, 2017

3

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-1, Page 5 of 6

(5 of 53)

CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the undersigned counsel certifies that this motion: (i) complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared using Microsoft Office Word 2007 and is set in Times New Roman font in a size equivalent to 14 points or larger and, (ii) complies with the length requirement of Rule 27(d)(2) because it is 470 words.

Dated: February 5, 2017

/s/ Paul W. Hughes Paul W. Hughes MAYER BROWN LLP

4

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-1, Page 6 of 6

(6 of 53)

CERTIFICATE OF SERVICE I certify that on this 5th day of February 2017, I served the foregoing Motion for Leave to File Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees via the Court’s ECF system upon all counsel.

Dated: February 5, 2017

/s/ Paul W. Hughes Paul W. Hughes MAYER BROWN LLP

5

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 1 of 47

(7 of 53)

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD J. TRUMP, et al., Defendants-Appellants.
On Appeal from an Order of the United States District Court for the Western District of Washington
United States District Judge James L. Robart Case No. 2:17-cv-00141-JLR
BRIEF OF TECHNOLOGY COMPANIES AND OTHER BUSINESSES AS AMICI CURIAE IN SUPPORT OF APPELLEES
Andrew J. Pincus Paul W. Hughes MAYER BROWN LLP 1999 K Street N.W. Washington, D.C. 20006 (202) 263-3000
Counsel for Amici Curiae

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 2 of 47

(8 of 53)

CORPORATE DISCLOSURE STATEMENTS Amici curiae submit their corporate disclosure statements, as required by Fed. R. App. P. 26.1 and 29(c), in Appendix B.

February 5, 2017

/s/ Paul W. Hughes Paul W. Hughes Attorney for Amici Curiae

i

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 3 of 47

(9 of 53)

TABLE OF CONTENTS
Interest of Amici Curiae.............................................................................................1 Argument....................................................................................................................1 I. American Innovation And Economic Growth Are Intimately Tied To
Immigration ........................................................................................................4 II. The Executive Order Harms The Competitiveness Of U.S. Companies ...........8 III. The Executive Order Is Unlawful ....................................................................13
A. The Order discriminates on the basis of nationality ...................................13 B. The Order exercises discretion arbitrarily...................................................16 Conclusion ...............................................................................................................20 Appendix A - List of Amici Curiae..........................................................................1a Appendix B - Corporate Disclosures for Amici Curiae.......................................... 6a

ii

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 4 of 47

(10 of 53)

TABLE OF AUTHORITIES
Page(s)
Cases
Arizona v. United States, 132 S. Ct. 2492 (2012)........................................................................................16
Aziz v. Trump, 17-cv-116 (E.D. Va. Feb. 1, 2017) .......................................................................9
Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982) ...............................................................................15
Coates v. City of Cincinnati, 402 U.S. 611 (1971)............................................................................................19
FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984)............................................................................................18
Foley v. Connelie, 435 U.S. 291 (1978)..............................................................................................1
Grayned v. City of Rockford, 408 U.S. 104 (1972)................................................................................17, 19, 20
Judulang v. Holder, 565 U.S. 42 (2011)..............................................................................................16
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)................................................................................16, 17, 18
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469 (D.C. Cir. 1995)..............................................................................14
Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997) .......................................................................7
Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997)...........................................................................15
Rosenberg v. Fleuti, 374 U.S. 449 (1963)......................................................................................16, 20
iii

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 5 of 47

(11 of 53)

Wong Wing Hang v. INS, 360 F.2d 715 .......................................................................................................15
Statutes and Rules
8 U.S.C. § 1152(a)(1)(A).......................................................................................14, 15, 16 § 1182(f)........................................................................................................17, 18 § 1185(a)(1) ......................................................................................................... 17
Fed. R. App. 29(a)(4)(E)............................................................................................1
Other Authorities
Americas Soc’y & Council of The Americas, Bringing Vitality To Main Street (2015), https://goo.gl/i9NWc9......................................................4, 5
Anca D. Cristea, Buyer-Seller Relationships in International Trade, 84 J. Int’l Econ. 207 (2011) ................................................................................11
BGRS, Breakthrough to the Future of Global Talent Mobility: Global Mobility Trends Survey (2016), http://goo.gl/ZhIxSr.........................................11
Cong. Research Serv., Executive Authority to Exclude Aliens: In Brief (Jan. 23, 2017), https://goo.gl/D0bRkS ..............................................................19
Dep’t of Homeland Security, Protecting The Nation From Foreign Terrorist Entry To The United States (Jan. 29, 2017), https://goo.gl/IYa1bg ............................................................................................9
Diana Furchtgott-Roth, Manhattan Institute, The Economic Benefits Of Immigration (Feb. 2013), https://goo.gl/lsWhb5.............................................5
Elizabeth Grieco, U.S. Census Bureau, The Foreign-Born Population in the United States (2012), https://goo.gl/PZ3pnE..............................................1
Gallup, Majority of Americans Identify Themselves as Third Generation Americans (July 10, 2001), https://goo.gl/o7PRxv ...........................1
H.R. Rep. No. 89-745 (1965).............................................................................14, 16
The Hamilton Project, Ten Economic Facts About Immigration (Sept. 2010), goo.gl/3zpdpn..................................................................................6
iv

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 6 of 47

(12 of 53)

Harv. Bus. Rev., Strategic Global Mobility (2014), http://goo.gl/AV3nhJ ..........................................................................................11
Hearing before the Subcomm. on Immigration and Naturalization, S. Comm. on the Judiciary, 89th Cong., 1st Sess. (Feb. 10, 1965) ........................14
Immigration Laws and Iranian Students, 4A Op. O.L.C. 133 (1979) ..................................................................................17
John F. Kennedy, A Nation of Immigrants (1958)................................................1, 2
Jonathan Shieber, Apple CEO Tim Cook Sent An Email to Employees About the Immigration Ban, TechCrunch (Jan. 28, 2017), https://goo.gl/qzXDJO ........................................................................................10
Kathianne Boniello, Customs Agents Ignore Judge, Enforce Trump’s Travel Ban: ACLU, N.Y. Post, Jan. 19, 2017, https://goo.gl/AgcHd4...........................................................................................9
Laura King et al., Confusion Reigns at U.S. Airports as Protests of Trump Executive Order Enter Second Day, L.A. Times, Jan. 29, 2017, goo.gl/9kSm9G..............................................................................8
Letter from Bradford L. Smith, President and Chief Legal Advisor, Microsoft, to John F. Kelly, Sec’y of Homeland Security, and Rex W. Tillerson, Sec’y of State (Feb. 2, 2017), https://goo.gl/AZtcFV ..................10
Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill (Oct. 3, 1965) ........................................................................................................7
Maksim Belenkiy & David Riker, Face-to-Face Exports: The Role of Business Travel in Trade Promotion, 51 J. Travel Res. 632 (2012) ..................11
Memorandum from Donald F. McGahn II, Counsel to the President, to the Acting Sec’y of State, the Acting Att’y Gen., and the Sec’y of Homeland Security (Feb. 1, 2017), https://goo.gl/oqb9A6..............................9
Miriam Jordan et al., Donald Trump’s Immigration Order Sparks Confusion, Despair at Airports, Wall St. J., Jan. 29, 2017, goo.gl/eTbrsY .......................................................................................................8

v

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 7 of 47

(13 of 53)

Muzaffar Chishti & Claire Bergeron, Post-9/11 Policies Dramatically Alter the U.S. Immigration Landscape, Migration Policy Inst. (Sep. 8, 2011), https://goo.gl/6rdagt ..............................................................................2
New American Economy, Reason for Reform (Oct. 2016) .......................................5
Nune Hovhannisyan & Wolfgang Keller, International Business Travel: An Engine of Innovation, 20 J. Econ. Growth 75 (2015) ......................11
Pew Research Center, Second-Generation Americans: A Portrait of the Adult Children of Immigrants (Feb. 7, 2013), https://goo.gl/SRaXxc...........................................................................................1
Pia Orrenius, Benefits of Immigration Outweigh the Costs, The Catalyst: A Journal of Ideas from the Bush Institute (2016), https://goo.gl/qC9uOc...........................................................................................5
Partnership for a New American Economy, The “New American” Fortune 500 (2011), http://goo.gl/yc0h7u ............................................................4
Partnership for a New American Economy, Open For Business: How Immigrants Are Driving Small Business Creation in the United States, Aug. 2012, https://goo.gl/zqwpVQ ...........................................................5
S. Rep. No. 89-748 (1965) .......................................................................................14
Seth Fiegerman, Former Google Exec Calls Trump Travel Ban An “Enormous Problem,” CNN Tech (Jan. 30, 2017), https://goo.gl/vNVgLt.........................................................................................11
Shannon Pettypiece & Michelle Jamrisko, Trump’s Order on Refugee Limits Draws Iran Retaliation Threat, Bloomberg Politics (Jan. 27, 2017), http://goo.gl/DKLWgf ..............................................................12
Stuart Anderson, Immigrant Flooding America with Nobel Prizes, Forbes (Oct. 16, 2016), http://goo.gl/RILwXU ....................................................6
Tara Palmeri & Bryan Bender, Politico, U.S. Diplomats Warning GE’s Major Deals in Iraq at Risk over Travel Ban, Feb. 1, 2017, http://goo.gl/nhj9CZ ...........................................................................................12

vi

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 8 of 47

(14 of 53)

U.S. Dep’t of State, National Consortium for the Study of Terrorism and Responses to Terrorism: Annex of Statistical Information (2016) ..................................................................................................................18
U.S. Dep’t of State, Office of the Historian, The Immigration Act of 1924 (The Johnson-Reed Act), https://goo.gl/5foFNZ .........................................7
Vivek Wadhwa, et al., America’s New Immigrant Entrepreneurs (2007), https://goo.gl/wCIySz ..............................................................................6
4 Woodrow Wilson, A History of the American People (1902) ...............................7

vii

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 9 of 47

(15 of 53)

INTEREST OF AMICI CURIAE
Amici curiae are 97 leading businesses from the technology sector and other
parts of the economy. A list of amici is set forth in Appendix A.1
ARGUMENT
America proudly describes itself as “a nation of immigrants.” Foley v.
Connelie, 435 U.S. 291, 294 (1978). We are: in 1910, 14.7% of the population was
foreign born; in 2010, 12.9%.2 A quarter of us have at least one parent who was
born outside the country.3 Close to half of us have a grandparent born somewhere
else.4 Nearly all of us trace our lineage to another country.
The “contributions of immigrants,” then-Senator John F. Kennedy explained,
“can be seen in every aspect of our national life.” John F. Kennedy, A Nation of
Immigrants 4 (1958). “We see it in religion, in politics, in business, in the arts, in
education, even in athletics and in entertainment.” Id. There is “no part of our na-
tion,” he recognized, “that has not been touched by our immigrant background.” Id.
1 Amici state that no party’s counsel authored this brief in whole or in part, that no party or party’s counsel contributed money that was intended to fund preparing or submitting the brief, and that no person other than amici or its counsel contributed money that was intended to fund preparing or submitting the brief. See Fed. R. App. 29(a)(4)(E). 2 Elizabeth Grieco, U.S. Census Bureau, The Foreign-Born Population in the United States 3 (2012), https://goo.gl/PZ3pnE. 3 Pew Research Center, Second-Generation Americans: A Portrait of the Adult Children of Immigrants 8 (Feb. 7, 2013), https://goo.gl/SRaXxc. 4 Gallup, Majority of Americans Identify Themselves as Third Generation Americans (July 10, 2001), https://goo.gl/o7PRxv.

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 10 of 47

(16 of 53)

Immigrants make many of the Nation’s greatest discoveries, and create some
of the country’s most innovative and iconic companies. Immigrants are among our
leading entrepreneurs, politicians, artists, and philanthropists. The experience and
energy of people who come to our country to seek a better life for themselves and
their children—to pursue the “American Dream”—are woven throughout the social,
political, and economic fabric of the Nation.
For decades, stable U.S. immigration policy has embodied the principles that
we are a people descended from immigrants, that we welcome new immigrants,
and that we provide a home for refugees seeking protection. At the same time,
America has long recognized the importance of protecting ourselves against those
who would do us harm. But it has done so while maintaining our fundamental
commitment to welcoming immigrants—through increased background checks and other controls on people seeking to enter our country.5
On January 27, 2017, President Donald J. Trump signed Executive Order
13769. See 82 Fed. Reg. 8977 (2017) (the “Order”). The Order alters immigration
policy in significant respects: 5 “In the decade since 9/11,” immigration policy has incorporated, among other things, “major new border security and law enforcement initiatives, heightened visa controls and screening of international travelers and would-be immigrants, the collection and storage of information in vast new interoperable databases used by law enforcement and intelligence agencies, and the use of state and local law enforcement as force multipliers in immigration enforcement.” Muzaffar Chishti & Claire Bergeron, Post-9/11 Policies Dramatically Alter the U.S. Immigration Landscape, Migration Policy Inst. (Sep. 8, 2011), https://goo.gl/6rdagt.
2

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 11 of 47

(17 of 53)

• Seven-nation entry bar: for a period of at least 90 days, nationals of seven nations—Syria, Libya, Iran, Iraq, Somalia, Yemen, and Sudan—are barred from entering the United States. Order § 3(c).
• Potential expansion of entry bar: the Order indicates that this entry bar could be lengthened, and may be expanded to include individuals from any country that is determined, based on unspecified criteria, not to provide sufficient information to the United States. Id. § 3(e)-(f).
• Waivers based on unconstrained discretion: the Order permits the Secretaries of State and Homeland Security to exercise discretion in issuing visas to nationals from the seven affected countries “on a case-by-case basis.” Id. § 3(g).
• Refugee suspension: for a period of at least 120 days, the United States is suspending the Refugee Admissions Program. Id. § 5(a). If the Refugee Admission Program resumes, the Secretary of Homeland Security is to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Id. § 5(b).
The Order effects a sudden shift in the rules governing entry into the United
States, and is inflicting substantial harm on U.S. companies. It hinders the ability
of American companies to attract great talent; increases costs imposed on business;
makes it more difficult for American firms to compete in the international market-
place; and gives global enterprises a new, significant incentive to build opera-
tions—and hire new employees—outside the United States.
The Order violates the immigration laws and the Constitution. In 1965, Con-
gress prohibited discrimination on the basis of national origin precisely so that the
Nation could not shut its doors to immigrants based on where they come from.
Moreover, any discretion under the immigration laws must be exercised reasonably,
and subject to meaningful constraints. 3

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 12 of 47

(18 of 53)

I. American Innovation And Economic Growth Are Intimately Tied To Immigration. The tremendous impact of immigrants on America—and on American busi-
ness—is not happenstance. People who choose to leave everything that is familiar and journey to an unknown land to make a new life necessarily are endowed with drive, creativity, determination—and just plain guts. The energy they bring to America is a key reason why the American economy has been the greatest engine of prosperity and innovation in history.
Immigrants are leading entrepreneurs. “The American economy stands apart because, more than any other place on earth, talented people from around the globe want to come here to start their businesses.” Partnership for a New American Economy, The “New American” Fortune 500, at 5 (2011), http://goo.gl/yc0h7u.
Some of these businesses are large. Immigrants or their children founded more than 200 of the companies on the Fortune 500 list, including Apple, Kraft, Ford, General Electric, AT&T, Google, McDonald’s, Boeing, and Disney. Id. at 1. Collectively, these companies generate annual revenue of $4.2 trillion, and employ millions of Americans. Id. at 2.
Many of these businesses are small. “While accounting for 16 percent of the labor force nationally and 18 percent of business owners, immigrants make up 28 percent of Main Street business owners.” Americas Soc’y & Council of The Americas, Bringing Vitality To Main Street (2015), https://goo.gl/i9NWc9. These
4

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 13 of 47

(19 of 53)

are “the shops and services that are the backbone of neighborhoods around the country.” Id. Between 2006 and 2010, immigrants opened 28% of all new businesses in the United States. See Partnership for a New American Economy, Open For Business: How Immigrants Are Driving Small Business Creation in the United States 3, Aug. 2012, https://goo.gl/zqwpVQ.
Immigrant-entrepreneurs come from all parts of the world. In 2014, “19.1 percent of immigrants from the Middle East and North Africa were entrepreneurs.” New American Economy, Reason for Reform 2 (Oct. 2016), https://goo.gl/32dLNM.
Immigrants also fuel the growth of the economy as a whole. “When immigrants enter the labor force, they increase the productive capacity of the economy and raise GDP. Their incomes rise, but so do those of natives.” Pia Orrenius, Benefits of Immigration Outweigh the Costs, The Catalyst: A Journal of Ideas from the Bush Institute (2016), https://goo.gl/qC9uOc. Immigrants do not take jobs away from U.S. citizens—they create them. Thus, immigration “expand[s] the American work-force, and encourage[s] more business start-ups”—ensuring that “[b]usinesses ranging from Apple Corporation to apple growers would be able to find the workers they need in America.” Diana Furchtgott-Roth, Manhattan Institute, The Economic Benefits Of Immigration 1 (Feb. 2013), https://goo.gl/lsWhb5.
Immigrants are innovators. Since 2000, more than one-third of all American
5

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 14 of 47

(20 of 53)

Nobel prize winners in Chemistry, Medicine, and Physics have been immigrants. See Stuart Anderson, Immigrant Flooding America with Nobel Prizes, Forbes (Oct. 16, 2016), http://goo.gl/RILwXU. Among individuals with advanced educational degrees, immigrants are nearly three times more likely to file patents than U.S.born citizens. Michael Greenstone & Adam Looney, The Hamilton Project, Ten Economic Facts About Immigration 11 (Sept. 2010), https://goo.gl/3zpdpn. By one estimate, non-citizen immigrants were named on almost a quarter of all U.S.-based international patent applications filed in 2006. Vivek Wadhwa et al., America’s New Immigrant Entrepreneurs 4 (Jan. 4, 2007), https://goo.gl/wCIySz. Inventions and discoveries by immigrants have profoundly changed our Nation. Some, like alternating current (Nikola Tesla), power our world. Others, like nuclear magnetic resonance (Isidore Rabi) and flame-retardant fiber (Giuliana Tesoro), save lives. And yet others, like basketball (James Naismith), blue jeans (Levi Strauss), and the hot dog (Charles Feltman), are integral to our national identity.
America’s success in attracting and incorporating immigrants into our society is unrivaled in the world. To be sure, America has in the past deviated from this ideal. Woodrow Wilson in 1901 decried the immigration to the United States of “multitudes of men of the lowest class from the south of Italy and men of the meanest sort out of Hungary and Poland, men out of the ranks, where there was neither skill nor energy nor any initiative of quick intelligence, and they came in
6

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 15 of 47

(21 of 53)

numbers which increased from year to year, as if the countries of the south of Europe were disburdening themselves of the more sordid and hapless elements of
their population.” 4 Woodrow Wilson, A History of the American People 212-13 (1902). The Immigration Act of 1917 (also known as the Literacy Act) barred immigration from parts of Asia. And in 1924, the Johnson-Reed Act significantly re-
stricted Italian and Jewish immigration to the United States in an effort to “preserve the ideal of U.S. homogeneity.” U.S. Dep’t of State, Office of the Historian, The Immigration Act of 1924 (The Johnson-Reed Act), https://goo.gl/5foFNZ.
But the march of time has discredited these laws and policies. Since World
War II, American immigration policy has been one of “tolerance, equality and openness” in which “the United States has revived its traditional rhetoric of welcome—and matched its words with action.” Mojica v. Reno, 970 F. Supp. 130, 145
(E.D.N.Y. 1997). When President Johnson signed the Immigration and Nationality Act in
1965—the law establishing the immigration framework that remains today, includ-
ing the elimination of national quotas, he stated: America was built by a nation of strangers…. And from this experience, almost unique in the history of nations, has come America’s attitude toward the rest of the world. We, because of what we are, feel safer and stronger in a world as varied as the people who make it up— a world where no country rules another and all countries can deal with the basic problems of human dignity and deal with those problems in their own way.
7

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 16 of 47

(22 of 53)

Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill (Oct. 3, 1965). These principles have defined American immigration policy for the past 50
years. The beneficiaries are not just the new immigrants who chose to come to our shores, but American businesses, workers, and consumers, who gain immense advantages from immigrants’ infusion of talents, energy, and opportunity. II. The Executive Order Harms The Competitiveness Of U.S. Companies.
The Executive Order abandons those principles—and inflicts significant harm on American business, innovation, and growth as a result. The Order makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world’s best employees. It disrupts ongoing business operations. And it threatens companies’ ability to attract talent, business, and investment to the United States.
1. The Order threatens the long-standing stability of the U.S. immigration laws, which have been marked by clear, settled standards and constrained discretion—introducing sudden changes without notice, unclear standards for implementation, and no standards for the exercise of waiver authority. That shift deprives employees and businesses of the predictability they require.
The uncertainty became apparent as soon as the Order was issued. Officials at U.S. airports struggled to implement it.6 After several courts temporarily en-
6 See, e.g., Laura King et al., Confusion Reigns at U.S. Airports as Protests of 8

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 17 of 47

(23 of 53)

joined the Order, government officials reportedly did not comply.7
This confusion appears to be a consequence of the sudden issuance of the
Order, without public notice and without following the normal channels for gov-
ernment review. Because the Order denies entry to all “aliens” from the seven tar-
geted countries, Order § 3(c), government officials initially excluded lawful per-
manent residents (LPRs) from the country; within two days, the Department of
Homeland Security changed course and exempted LPRs from the Order’s scope;8
then, four days later, the Counsel to the President reversed course again and
claimed that the Order did not (despite its plain text) apply to LPRs in the first
place.9
The Order establishes a system of “case-by-case” exceptions, but does not
specify any criteria for issuing exceptions. Order §§ 3(g), 5(e). Because individual
immigration officers appear to have unconstrained discretion in issuing exceptions,
Trump Executive Order Enter Second Day, L.A. Times, Jan. 29, 2017, goo.gl/9kSm9G; Miriam Jordan et al., Donald Trump’s Immigration Order Sparks Confusion, Despair at Airports, Wall St. J., Jan. 29, 2017, http://goo.gl/eTbrsY. 7 See, e.g., Aziz v. Trump, 17-cv-116 (E.D. Va. Feb. 1, 2017) (Dkt. No. 20) (motion by Commonwealth of Virginia to hold the government in contempt); Kathianne Boniello, Customs Agents Ignore Judge, Enforce Trump’s Travel Ban: ACLU, N.Y. Post, Jan. 19, 2017, https://goo.gl/AgcHd4. 8 See, e.g., Dep’t of Homeland Security, Protecting The Nation From Foreign Terrorist Entry To The United States (Jan. 29, 2017), https://goo.gl/IYa1bg. 9 Memorandum from Donald F. McGahn II, Counsel to the President, to the Acting Sec’y of State, the Acting Att’y Gen., and the Sec’y of Homeland Security (Feb. 1, 2017), https://goo.gl/oqb9A6 (“[T]o remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals.”).
9

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 18 of 47

(24 of 53)

it is unclear what exemptions will be given, or why—and whether that authority is being exercised fairly and without discrimination or favoritism.
If the Order stands, it is impossible for individuals and businesses to anticipate which countries may be affected next. The Order itself promises to ban individuals from additional countries if those nations do not provide information the Secretary of State deems necessary to approve visas. See Order § 3(e)-(f).
The Order has had immediate, adverse effects on the employees of American businesses. Several major companies reported substantial disruptions from the Order, because their employees were ensnared in the Order’s travel restrictions.10
This instability and uncertainty will make it far more difficult and expensive for U.S. companies to hire some of the world’s best talent—and impede them from competing in the global marketplace. Businesses and employees have little incentive to go through the laborious process of sponsoring or obtaining a visa, and relocating to the United States, if an employee may be unexpectedly halted at the border. Skilled individuals will not wish to immigrate to the country if they may be cut off without warning from their spouses, grandparents, relatives, and friends— they will not pull up roots, incur significant economic risk, and subject their family
10 See, e.g., Letter from Bradford L. Smith, President and Chief Legal Advisor, Microsoft, to John F. Kelly, Sec’y of Homeland Security, and Rex W. Tillerson, Sec’y of State, at 5 (Feb. 2, 2017), https://goo.gl/AZtcFV; Jonathan Shieber, Apple CEO Tim Cook Sent An Email to Employees About the Immigration Ban, TechCrunch (Jan. 28, 2017), https://goo.gl/qzXDJO.
10

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 19 of 47

(25 of 53)

to considerable uncertainty to immigrate to the United States in the face of this in-
stability.11
2. The Order’s bans on travel are also significantly impairing day-to-day
business. The marketplace for today’s businesses is global. Companies routinely
send employees across borders for conferences, meetings, or job rotations, and in-
vite customers, clients, or users from abroad. Global mobility is critical to busi-
nesses whose customers, suppliers, users, and workforces are spread all around the
world.12
Global business travel lets employees develop new skills, take on expanded
roles, and stay abreast of new technological or business developments. It also facil-
itates new markets and business partnerships. Indeed, one study has shown that
each additional international business trip increases exports from the United States
to the visited country by, on average, over $36,000 per year.13
But the Order means that many companies and employees (both inside and
11 Seth Fiegerman, Former Google Exec Calls Trump Travel Ban An “Enormous Problem,” CNN Tech (Jan. 30, 2017), https://goo.gl/vNVgLt (“It sends a powerful signal that this is not a country that wants the best people in the world.”). 12 See, e.g., BGRS, Breakthrough to the Future of Global Talent Mobility: Global Mobility Trends Survey (2016), http://goo.gl/ZhIxSr; Harv. Bus. Rev., Strategic Global Mobility (2014), http://goo.gl/AV3nhJ. 13 Maksim Belenkiy & David Riker, Face-to-Face Exports: The Role of Business Travel in Trade Promotion, 51 J. Travel Res. 632, 637 (2012); see also Anca D. Cristea, Buyer-Seller Relationships in International Trade, 84 J. Int’l Econ. 207 (2011); Nune Hovhannisyan & Wolfgang Keller, International Business Travel: An Engine of Innovation, 20 J. Econ. Growth 75 (2015).
11

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 20 of 47

(26 of 53)

outside the United States) are unable to take advantage of these opportunities. That is true even for persons or countries not currently covered by the Order because there is no way to know whether a given country may be added to the no-entry list.
The Order also could well lead to retaliatory actions by other countries, which would seriously hinder U.S. companies’ ability to do business or negotiate business deals abroad.14 Many companies do business in one or more of the countries currently covered by the Order. Indeed, U.S. diplomats already are reporting that General Electric may lose out on business deals in Iraq potentially worth billions of dollars.15 Additional actions against American citizens or business will have a further ripple effect.
3. For all of these reasons, the Order will incentivize both immigration to and investment in foreign countries rather than the United States. Highly skilled immigrants will be more interested in working abroad, in places where they and their colleagues can travel freely and with assurance that their immigration status will not suddenly be revoked. Multinational companies will have strong incentives, including from their own employees, to base operations outside the United States or to move or hire employees and make investments abroad. Foreign companies
14 See Shannon Pettypiece & Michelle Jamrisko, Trump’s Order on Refugee Limits Draws Iran Retaliation Threat, Bloomberg Politics (Jan. 27, 2017), http://goo.gl/DKLWgf. 15 Tara Palmeri & Bryan Bender, U.S. Diplomats Warning GE’s Major Deals in Iraq at Risk over Travel Ban, Politico (Feb. 1, 2017), http://goo.gl/nhj9CZ.
12

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 21 of 47

(27 of 53)

will have significantly less incentive to establish operations in the United States and hire American citizens, because the Order will preclude the ability of those companies to employ their world-class talent within their U.S. subsidiaries. Ultimately, American workers and the economy will suffer as a result.
Of course, the federal government can and should implement targeted, appropriate adjustments to the nation’s immigration system to enhance the Nation’s security. But a broad, open-ended ban—together with an indication that the ban could be expanded to other countries without notice—does not fit the goal of making the country more secure. Instead, it will undermine American interests. III. The Executive Order Is Unlawful.
The problems that render the Executive Order harmful to businesses and their employees also make it unlawful. Fairness, regularity, and predictability are core principles of immigration law and of U.S. law generally.
A. The Order discriminates on the basis of nationality. Immigration law contains a clear command: in issuing visas and making admission decisions, immigration officials cannot discriminate based on an alien’s nationality, race, sex, or any other invidious classification. The Order violates that commitment, and harms the Nation’s economy and competitiveness in the process. Congress first codified an antidiscrimination requirement in the immigration laws in 1965. For four decades before that, U.S. immigration was governed by the
13

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 22 of 47

(28 of 53)

“national origin system,” a set of discriminatory quotas under which “the selection of immigrants was based upon race and place of birth.” H.R. Rep. No. 89-745, at 8-10 (1965). As President Johnson explained in 1965, this system was not just “incompatible with our basic American tradition”; “too often,” he added, “it arbitrarily denie[d] us immigrants who ha[d] outstanding and sorely needed talents and skills.” Id. at 11-12. Many others echoed these views.16
Congress agreed. That year, it “aboli[shed] … the national origins system” and replaced it with one based largely upon “the advantage to the United States of the special talents and skills of an immigrant.” Id. at 18; see S. Rep. No. 89-748, at 10 (1965). To make this reform effective, Congress enacted 8 U.S.C. § 1152(a)(1)(A), a sweeping antidiscrimination rule providing that “no person shall … be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” As the D.C. Circuit has observed, “Congress could hardly have chosen more explicit language.” Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, 45 F.3d 469, 473 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). It “unambiguously directed that no nationality-based discrimination shall occur.” Id.

16 See Hearing before the Subcomm. on Immigration and Naturalization, S. Comm. on the Judiciary, 89th Cong., 1st Sess. 8 (Feb. 10, 1965) (statement of Att’y Gen. Katzenbach) (“[W]e are depriving ourselves of brilliant, accomplished, and skilled residents of foreign countries who want to bring their talents here.”).
14

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 23 of 47

(29 of 53)

This clear directive is reinforced by other antidiscrimination requirements. Since 1966, federal courts have categorically held that discretion under the immigration laws “may not be exercised to discriminate invidiously” against any “race or group,” even if that group is not specifically named in section 1152(a)(1)(A). Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966) (Friendly, J.); see also Bertrand v. Sava, 684 F.2d 204, 212 n.12 (2d Cir. 1982) (“Invidious discrimination against a particular race or group … is a type of irrational conduct generally not countenanced by our law.”). The Equal Protection Clause bars all federal officials, including the President, from treating individuals differently because of their national origin.
The Order violates these basic precepts. It bars anyone from seven countries from immigrating to the United States for a period of 90 days, and provides that the President may indefinitely bar immigration from other countries, as well. Order § 3(c), (e)-(f). The Order thus does exactly what section 1152(a)(1)(A) and the Constitution prohibit: it discriminates against immigrants on the basis of nationality. See Olsen v. Albright, 990 F. Supp. 31, 39 (D.D.C. 1997) (“The principle that government must not discriminate against particular individuals because of the color of their skin or the place of their birth means that the use of generalizations based on these factors [in the immigration context] is unfair and unjustified.”).
In so doing, the Executive Order revives a form of the discriminatory and
15

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 24 of 47

(30 of 53)

costly “national origin system” that Congress abolished in 1965. Although the rationale for the Order differs from that system’s, its basic contours are nearly the same: a system of priority “based upon … place of birth.” H.R. Rep. No. 89-745, at 10. And its costs will be much the same, too. It will deprive the United States of some of the best and brightest; needlessly break up families; and betray “our basic American tradition.” Id. at 11. In 1965, Congress enacted section 1152(a)(1)(A) to stop these harms and base admission decisions instead on an immigrant’s “special talents and skills,” id. at 18—a decent and fair policy that has served the Nation, its businesses, and its immigrants well for half a century.
B. The Order exercises discretion arbitrarily. The Order is also contrary to the immigration laws’ and the Constitution’s insistence that discretion must be reasonably exercised and adequately constrained. Numerous provisions of the immigration laws vest Executive officials with “broad discretion” to admit, deport, or deny entry to foreign nationals. Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). But Congress and the courts have long recognized that everyone—from the President to individual immigration officers— must exercise his or her discretion in a rational manner that accords with the policies of the immigration laws. See, e.g., Judulang v. Holder, 565 U.S. 42, 58-59 (2011); Rosenberg v. Fleuti, 374 U.S. 449, 455 (1963); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950).
16

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 25 of 47

(31 of 53)

Moreover, the Due Process Clause demands that every grant of discretion “provide explicit standards” so that officers will not act “on an ad hoc and subjective basis.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). These safeguards ensure that the immigration laws are not enforced in an “arbitrary and discriminatory” manner, id. at 109, and that immigrants, their families, and their employers are afforded consistent and predictable treatment at the hands of the Federal Government. The Executive Order fails to satisfy that standard in two significant respects.
1. The Order issues an overbroad, seven-country ban on immigration that lacks any basis in precedent. The Order justifies this ban by citing 8 U.S.C. § 1182(f), which authorizes that President to “suspend the entry of … any class of aliens” whose entry he finds “would be detrimental to the interests of the United States.” Like other grants of discretion under the immigration laws, however, that power is not unbounded. As the Office of Legal Counsel—the President’s own legal adviser—has explained, any suspension the President makes under this provision “must meet the test of ‘reasonableness.’” U.S. Dep’t of Justice, Immigration Laws and Iranian Students, 4A Op. O.L.C. 133, 140 (1979). Other immigration provisions reinforce that conclusion: section 1185(a)(1) provides that aliens may not “enter the United States except under such reasonable rules, regulations, and orders … as the President may prescribe,” 8 U.S.C. § 1185(a)(1) (emphasis added),
17

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 26 of 47

(32 of 53)

while in Knauff the Supreme Court reviewed whether an order suspending entry was “reasonable in the circumstances of the period for which [it was] authorized,” 338 U.S. at 544 (emphasis added).
The Order is not “reasonable” in scope. The Order says that its purpose is to “prevent infiltration by foreign terrorists or criminals.” Order § 3(c). But the ban it imposes applies to millions of individuals who could not plausibly be foreign terrorists: hundreds of thousands of students, employees, and family members of citizens who have already been admitted to the United States; thousands of visaholders who have already passed the Nation’s rigorous screening process; and countless peaceful individuals residing or born in the targeted countries. The Order is also under-inclusive with respect to its goal; a number of countries left off the list have a greater incidence of terrorist attacks than the seven the Order includes.17 There is a mismatch between means and ends. See, e.g., FCC v. League of Women Voters of Cal., 468 U.S. 364, 396 (1984).
There is no precedent for an order like this one in magnitude or kind. Since section 1182(f) was enacted in 1952, Presidents have invoked the provision dozens of times. But in every prior instance, Presidents issued a targeted restriction on entry—usually limited to dozens or hundreds of individuals—based on the determi-
17 See U.S. Dep’t of State, National Consortium for the Study of Terrorism and Responses to Terrorism: Annex of Statistical Information 5 (2016) (listing top 10 countries with most terrorist attacks, of which only three are included in the order).
18

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 27 of 47

(33 of 53)

nation that each affected individual had engaged in culpable conduct, such as human trafficking, illegal entry, or corruption. See Cong. Research Serv., Executive Authority to Exclude Aliens: In Brief 6-10 (Jan. 23, 2017), https://goo.gl/D0bRkS (listing each previous order). No order before this one imposed a categorical ban of hundreds of millions of foreign nationals.
The Order also introduces severe uncertainty into the immigration system. If this approach were upheld, future orders might apply to any nation, and suddenly and unexpectedly bar its nationals from entering or returning to the United States. That severely undermines immigrants’ and businesses’ ability to make plans, conduct business, or manage any affairs involving non-citizens.
2. The Executive Order vests immigration officials with open-ended discretion to make exceptions to the immigration ban, as to both visa holders (Order § 3(g)) and refugees (id. § 5(e)).
These provisions establish precisely the sort of arbitrary enforcement scheme that both the Due Process Clause and the immigration laws prohibit. It is inconceivable that thousands of border patrol and consular officers, adjudicating millions of visa applications and requests for entry around the globe, will agree even in broad terms when admission is “in the national interest.”18
18 Grayned, 408 U.S. at 108-09 (due process forbids laws that “delegate[] basic policy matters … for resolution on an ad hoc and subjective basis”); Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) (invalidating ordinance whose enforce-
19

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 28 of 47

(34 of 53)

Regrettably, some immigration officers could use their discretion improperly—engaging in profiling or favoritism, for instance, or in “arbitrary and discriminatory enforcement.” Grayned, 408 U.S. at 108. Yet the Order provides no system to police such inconsistency or abuse; to the contrary, it states that every exercise of discretion be “case-by-case,” and purports to block judicial review of officers’ decisions entirely. See Order § 11(c) (stating that the Order “does not … create any right or benefit, substantive or procedural, enforceable at law or in equity by any person”).
For any immigrant ensnared in this system, the prospect of entry becomes a “sport of chance.” Rosenberg, 374 U.S. at 460. Immigrants, family members, and businesses deserve much better—and Congress and the Constitution entitle them to an immigration system that is administered reasonably, non-arbitrarily, and in accord with statutory requirements. The Order contravenes that bedrock guarantee.
CONCLUSION The Court should deny Appellants’ motion.

ment “entirely depend[ed] upon whether or not a policeman is annoyed”). 20

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 29 of 47

(35 of 53)

Respectfully submitted.

/s/ Andrew J. Pincus Andrew J. Pincus Paul W. Hughes MAYER BROWN LLP 1999 K Street, N.W. Washington, D.C. 20006 (202) 263-3000 apincus@mayerbrown.com phughes@mayerbrown.com
Counsel for Amici Curiae

Dated: February 5, 2017

21

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 30 of 47

(36 of 53)

CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the undersigned counsel certifies that this brief: (i) complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared using Microsoft Office Word 2007 and is set in Times New Roman font in a size equivalent to 14 points or larger and, (ii) amici have requested leave to file a 20-page brief.

Dated: February 5, 2017

/s/ Paul W. Hughes Paul W. Hughes MAYER BROWN LLP

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 31 of 47

(37 of 53)

CERTIFICATE OF SERVICE I hereby certify that on this 5th day of February 2017, I filed the foregoing Brief of Technology Companies and Other Businesses As Amici Curiae in Support of Appellees via the CM/ECF system and served the foregoing via the CM/ECF system on all counsel who are registered CM/ECF users.

Dated: February 5, 2017

/s/ Paul W. Hughes Paul W. Hughes MAYER BROWN LLP

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 32 of 47

(38 of 53)

APPENDIX A LIST OF AMICI CURIAE 1. AdRoll, Inc. 2. Aeris Communications, Inc. 3. Airbnb, Inc. 4. AltSchool, PBC 5. Ancestry.com, LLC 6. Appboy, Inc. 7. Apple Inc. 8. AppNexus Inc. 9. Asana, Inc. 10. Atlassian Corp Plc 11. Autodesk, Inc. 12. Automattic Inc. 13. Box, Inc. 14. Brightcove Inc. 15. Brit + Co 16. CareZone Inc. 17. Castlight Health 18. Checkr, Inc.
1a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 33 of 47

(39 of 53)

19. Chobani, LLC 20. Citrix Systems, Inc. 21. Cloudera, Inc. 22. Cloudflare, Inc. 23. Copia Institute 24. DocuSign, Inc. 25. DoorDash, Inc. 26. Dropbox, Inc. 27. Dynatrace LLC 28. eBay Inc. 29. Engine Advocacy 30. Etsy Inc. 31. Facebook, Inc. 32. Fastly, Inc. 33. Flipboard, Inc. 34. Foursquare Labs, Inc. 35. Fuze, Inc. 36. General Assembly 37. GitHub 38. Glassdoor, Inc.
2a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 34 of 47

(40 of 53)

39. Google Inc. 40. GoPro, Inc. 41. Harmonic Inc. 42. Hipmunk, Inc. 43. Indiegogo, Inc. 44. Intel Corporation 45. JAND, Inc. d/b/a Warby Parker 46. Kargo Global, Inc. 47. Kickstarter, PBC 48. KIND, LLC 49. Knotel 50. Levi Strauss & Co. 51. LinkedIn Corporation 52. Lithium Technologies, Inc. 53. Lyft, Inc. 54. Mapbox, Inc. 55. Maplebear Inc. d/b/a Instacart 56. Marin Software Incorporated 57. Medallia, Inc. 58. A Medium Corporation
3a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 35 of 47

(41 of 53)

59. Meetup, Inc. 60. Microsoft Corporation 61. Motivate International Inc. 62. Mozilla Corporation 63. Netflix, Inc. 64. NETGEAR, Inc. 65. NewsCred, Inc. 66. Patreon, Inc. 67. PayPal Holdings, Inc. 68. Pinterest, Inc. 69. Quora, Inc. 70. Reddit, Inc. 71. Rocket Fuel Inc. 72. SaaStr Inc. 73. Salesforce.com, Inc. 74. Scopely, Inc. 75. Shutterstock, Inc. 76. Snap Inc. 77. Spokeo, Inc. 78. Spotify USA Inc.
4a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 36 of 47

(42 of 53)

79. Square, Inc. 80. Squarespace, Inc. 81. Strava, Inc. 82. Stripe, Inc. 83. SurveyMonkey Inc. 84. TaskRabbit, Inc 85. Tech:NYC 86. Thumbtack, Inc. 87. Turn Inc. 88. Twilio Inc. 89. Twitter Inc. 90. Turn Inc. 91. Uber Technologies, Inc. 92. Via 93. Wikimedia Foundation, Inc. 94. Workday 95. Y Combinator Management, LLC 96. Yelp Inc. 97. Zynga Inc.

5a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 37 of 47

(43 of 53)

APPENDIX B CORPORATE DISCLOSURES FOR AMICI CURIAE 1. AdRoll, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock. 2. Aeris Communications, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock. 3. Airbnb, Inc. has no parent corporation and no publicly held corporation owns 10% or more of Airbnb’s stock. 4. AltSchool, PBC has no parent corporation and no publicly held corporation owns 10% or more of its stock. 5. Ancestry.com, LLC has no parent corporation and no publicly held corporation owns 10% or more of its stock. 6. Appboy, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock. 7. Apple Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock. 8. AppNexus Inc. has no parent corporation and the following publicly held corporations own 10% or more of its stock: Microsoft Corporation and WPP Luxembourg Gamma Three S.à r.l.

6a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 38 of 47

(44 of 53)

9. Asana, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
10. Atlassian Corp. Plc has no parent corporation and no publicly held corporation owns 10% or more of its stock.
11. Autodesk, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
12. Automattic Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
13. Box, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
14. Brightcove Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
15. Brit Media, Inc. d/b/a Brit + Co has no parent corporation and no publicly held corporation owns 10% or more of its stock.
16. CareZone Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
17. Castlight Health has no parent corporation and no publicly held corporation owns 10% or more of its stock.
18. Checkr, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
7a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 39 of 47

(45 of 53)

19. Chobani Global Holdings, LLC is the sole member of Chobani, LLC and no publicly held corporation owns 10% or more of the membership interest in either entity.
20. Citrix Systems, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
21. Cloudera, Inc. has no parent corporation and the following publicly held corporation own 10% or more of its stock: Intel Corporation.
22. Cloudflare, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
23. Copia Institute has no parent corporation and no publicly held corporation owns 10% or more of its stock.
24. DocuSign, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
25. DoorDash has no parent corporation and no publicly held corporation owns 10% or more of its stock.
26. Dropbox, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
27. Dynatrace LLC’s parent corporation is Compuware Parent, LLC and no publicly held corporation owns 10% or more of its stock.

8a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 40 of 47

(46 of 53)

28. eBay Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
29. Engine Advocacy has no parent corporation and no publicly held corporation owns 10% or more of its stock.
30. Etsy Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
31. Facebook, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
32. Fastly, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
33. Flipboard, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
34. Foursquare Labs, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
35. Fuze, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
36. General Assembly Space, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
37. GitHub, Inc. (“GitHub”) has no parent corporation and no publicly held corporation owns 10% or more of its stock.
9a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 41 of 47

(47 of 53)

38. Glassdoor, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
39. Google Inc. is a wholly owned subsidiary of Alphabet Inc.; accordingly, Alphabet Inc. has more than 10% ownership of Google Inc.
40. GoPro, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
41. Harmonic Inc. has no parent corporation and the following publicly helds corporation own 10% or more of its stock: investment funds affiliated with BlackRock hold more than 10% of Harmonic common stock; investment funds affiliated with T Rowe Price hold more than 10% of Harmonic common stock.
42. Hipmunk’s parent corporation is Concur (a division of SAP), and the following publicly held corporation own 10% or more of its stock: SAP.
43. Indiegogo, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
44. Intel Corporation has no parent corporation and no publicly held corporation owns 10% or more of its stock.
45. JAND, Inc. d/b/a Warby Parker has no parent corporation and no publicly held corporation owns 10% or more of its stock.
46. Kargo Global, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
10a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 42 of 47

(48 of 53)

47. Kickstarter, PBC has no parent corporation and no publicly held corporation owns 10% or more of its stock.
48. KIND, LLC’s parent corporation is KIND, Inc., no publicly held corporation owns 10% or more of KIND, Inc.
49. Knotel has no parent corporation and no publicly held corporation owns 10% or more of its stock.
50. Levi Strauss & Co. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
51. LinkedIn Corporation’s parent corporation is Microsoft Corporation, and the following publicly held corporation owns 10% or more of its stock: Microsoft Corporation.
52. Lithium Technologies, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
53. Lyft, Inc. has no parent corporation and the following publicly held corporation own 10% or more of its stock: Rakuten, Inc., a publicly held corporation traded on the Tokyo Stock Exchange, and General Motors Company, a publicly held corporation traded on the New York Stock Exchange, each own more than ten percent of Lyft’s outstanding stock, in each case through a subsidiary.
54. Mapbox, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
11a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 43 of 47

(49 of 53)

55. Maplebear Inc. d/b/a Instacart has no parent corporation and no publicly held corporation owns 10% or more of its stock.
56. Marin Software Incorporated has no parent corporation and no publicly held corporation owns 10% or more of its stock.
57. Medallia, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
58. A Medium Corporation has no parent corporation and no publicly held corporation owns 10% or more of its stock.
59. Meetup, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
60. Microsoft Corporation has no parent corporation and no publicly held corporation owns 10% or more of its stock.
61. Motivate International Inc.’s parent corporation is Bikeshare Holdings, LLC and no publicly held corporation owns 10% or more of its stock.
62. Mozilla Corporation’s parent corporation is Mozilla Foundation and no publicly held corporation owns 10% or more of its stock.
63. Netflix, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
64. NETGEAR, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
12a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 44 of 47

(50 of 53)

65. NewsCred, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
66. Patreon, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
67. PayPal Holdings, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
68. Pinterest, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
69. Quora, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
70. Reddit, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
71. Rocket Fuel Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
72. SaaStr Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
73. Salesforce.com, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
74. Scopely, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
13a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 45 of 47

(51 of 53)

75. Shutterstock, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
76. Snap Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
77. Spokeo, Inc. has no parent corporation and there are no publicly-held corporations that own 10% or more of Spokeo, Inc.’s stock.
78. Spotify USA Inc. is a wholly-owned subsidiary of Spotify AB, a company organized under the laws of Sweden. Spotify AB is a wholly-owned subsidiary of Spotify Technology S.A., a company organized under the laws of the Grand Duchy of Luxembourg. Spotify Technology S.A. does not have a parent corporation and no publicly held corporation owns 10% or more of its stock.
79. Square, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
80. Squarespace, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
81. Strava, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
82. Stripe, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.

14a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 46 of 47

(52 of 53)

83. SurveyMonkey Inc.’s parent corporation is SUMK Inc. and no publicly held corporation owns 10% or more of its stock.
84. TaskRabbit, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
85. Tech:NYC has no parent corporation and no publicly held corporation owns 10% or more of its stock.
86. Thumbtack, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
87. Turn Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
88. Twilio Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
89. Twitter Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
90. Turn Inc. has no parent entity and no publicly held corporation holds 10% or more of its stock.
91. Uber Technologies, Inc. has no parent entity and no publicly held corporation holds 10% or more of its stock.
92. Via Transportation, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
15a

Case: 17-35105, 02/05/2017, ID: 10302881, DktEntry: 19-2, Page 47 of 47

(53 of 53)

93. Wikimedia Foundation, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
94. Workday has no parent entity and no publicly held corporation holds 10% or more of its stock.
95. Y Combinator Management, LLC has no parent corporation and no publicly held corporation owns 10% or more of its stock.
96. Yelp Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
97. Zynga Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.

16a

 
 Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 1 of 15

No. 17-35105

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD TRUMP, President of the United States, et al. Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

REPLY IN SUPPORT OF EMERGENCY MOTION FOR STAY PENDING APPEAL
_____________________

EDWIN S. KNEEDLER* Deputy Solicitor General

AUGUST E. FLENTJE Special Counsel to the Assistant Attorney General
DOUGLAS N. LETTER SHARON SWINGLE H. THOMAS BYRON III LOWELL V. STURGILL JR. CATHERINE DORSEY Attorneys, Appellate Staff Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530

* The Acting Solicitor General and Acting Assistant Attorney General have refrained from signing this brief, out of an abundance of caution, in light of a last-minute filing of an amicus brief by their former law firm.

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 2 of 15
The Executive Order is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees. Relying on his express statutory authority to suspend entry of any class of aliens to protect the national interest, the President has directed a temporary suspension of entries through the refugee program and from countries that have a previously identified link to an increased risk of terrorist activity, see 8 U.S.C. § 1187(a)(12). The purpose of that temporary suspension is to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks. As a different district court recently concluded, that objective provides a “facially legitimate and bona fide” justification that satisfies any constitutional scrutiny that applies. Louhghalam v. Trump, Civ. Action No. 17-10154-NMG, Order 18-19 (D. Mass. Feb. 3, 2017); see id. at 10-11, 15-16.
The district court therefore erred in entering an injunction barring enforcement of the order. But even if some relief were appropriate, the court’s sweeping nationwide injunction is vastly overbroad, extending far beyond the State’s legal claims to encompass numerous applications of the Order that the State does not even attempt to argue are unlawful.
1. As an initial matter, the State cannot challenge the denial of entry or visas to third-party aliens. It is well-settled that a State lacks authority to sue “as the representative of its citizens” to protect them from the operation of federal law.
1

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 3 of 15
Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923); South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). The State invokes the “special solicitude” for States referred to in Massachusetts v. EPA, but there, Massachusetts sought to enforce a congressionally created “procedural right” to protect a loss of “sovereign territory.” 549 U.S. 497, 519-20, 522-23 (2007). Here, by contrast, the State’s interest in protecting its own territory is not at issue. Instead, the Constitution vests the federal government with exclusive power over immigration for the Nation as a whole, and Congress did not create any “procedural right” for States to sue the federal government to challenge its decisions to deny the entry of (or revoke visas held by) third-party aliens.
To the contrary, an alien outside the United States has no substantive right or basis for judicial review in the denial of a visa at all. See Brownell v. Tom We Shung, 352 U.S. 180, 184 n.3, 185 n.6 (1956). Moreover, Congress has been clear that the issuance of a visa to an alien does not confer upon that alien any right of admission into the United States, 8 U.S.C. § 1201(h), and that the Secretary of State “may, at any time, in his discretion, revoke such visa or other documentation.” Id. § 1201(i). If a visa is revoked, even the alien himself has no right of judicial review “except in the context of a removal proceeding,” and only if the visa revocation “provides the sole ground for removal.” Id. And even an alien who has been admitted to and developed significant ties with this country, who has as a result come within the
2

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 4 of 15
protection of the Fifth Amendment’s Due Process Clause, has no protected property or liberty interest in the retention of his visa. Knoetze v. U.S. Dep’t of State, 634 F.2d 207, 212 (5th Cir. 1981). A fortiori, the State cannot challenge the revocation of third-party aliens’ visas here. The State likewise cannot challenge the Executive’s decision not to admit a refugee.
The Supreme Court’s decisions in Kerry v. Din, 135 S. Ct. 2128 (2015), and Kleindienst v. Mandel, 408 U.S. 753 (1972), also do not support even limited judicial review of the State’s claims here. In those cases, U.S. citizens sought review of the denial of a third-party visa on the ground that the citizens had an independent constitutionally-protected interest in the third-party’s admission to the country— either a marital relationship or a First Amendment interest. The State, in contrast, has no independent constitutional rights to invoke with respect to the denial of admission of aliens affected by the Order.
2. Even if it could establish standing and a right of judicial review, the State would be unlikely to succeed on the merits of its claims.
a. Congress has granted the President broad discretion under 8 U.S.C. § 1182(f) to suspend the entry of “any class of aliens” into the United States, and independently broad discretion over the refugee program under 8 U.S.C. § 1157. The exclusion of aliens is also “a fundamental act of sovereignty * * * inherent in the executive power to control the foreign affairs of the nation.” United States ex
3

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 5 of 15
rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). The State does not address the text of § 1182(f), or the extensive caselaw relating to the exclusion of aliens from the United States. And although the State suggests (Response 23) that it is somehow impermissible for the President to rely on § 1182(f) “to impose a categorical ban on admission,” the statute’s broad grant of authority to suspend the entry “of any class of aliens,” “for such period as [the President] shall deem necessary,” whenever the President finds that it would be “detrimental to the interests of the United States,” clearly authorizes the categorical, temporary suspension the President has adopted here.
b. The State continues to argue that Section 3(c)’s temporary suspension of the entry of aliens from seven countries contravenes the restriction on nationalitybased distinctions in 8 U.S.C. § 1152(a)(1)(A). But that restriction applies only to “the issuance of an immigrant visa,” Id., not to the President’s restrictions on the right of entry. It also has no application at all to aliens who hold or seek nonimmigrant visas, such as student visas or work visas. And § 1152(a)(1)(B) permits, as here, a temporary suspension of entry pending completion of a review and revision of procedures for processing visa applications.
Furthermore, even if it applied, § 1152(a)(1)(A) would not restrict § 1182(f)’s broad grant of discretionary authority. A court should, whenever possible, “interpret two seemingly inconsistent statutes to avoid a potential conflict,” California ex rel.
4

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 6 of 15
Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1012 (9th Cir. 2000), and should interpret “the specific [to] govern[] the general.” RadLAX Gateway Hotel v. Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012). Here, § 1152(a)(1)(A) establishes a general rule governing the issuance of immigrant visas, whereas § 1182(f) governs the specific instance in which the President determines that entry of a “class of aliens” would be “detrimental to the interests of the United States.” The State’s assertion that § 1152(a)(1)(A) limits that authority would mean that the President would be statutorily disabled from barring the entry of nationals of a country with which the United States was at war—a result that would raise serious constitutional questions, which is itself a sufficient reason to reject the State’s reading. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988).
c. The State asserts that the Order violates the constitutional rights of lawful permanent residents (LPRs). Response at 10, 15 & n.3, 16. But the Order does not apply to LPRs. Exhibit D. It applies only to aliens who lack LPR status. And most of those aliens are outside the United States and have never been admitted to this country. The Supreme Court “has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Landon v. Plasencia, 459 U.S. 21, 32 (1982).
5

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 7 of 15
The State argues (Response 9) that “courts routinely review executive decisions with far greater security implications than this Order.” In those cases, however, the courts were reviewing government actions taken against individuals who had rights under the U.S. Constitution or federal statutes with respect to the adverse actions they faced. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) (plurality op.) (reviewing indefinite detention of U.S. citizen); Boumediene v. Bush, 553 U.S. 723 (2008) (reviewing detention of aliens held to have constitutionally protected interest in habeas corpus review). Those cases do not override the longstanding rule that aliens outside the United States have no right or interest in their admission to the United States protected by the Due Process Clause, Knauff, 338 U.S. at 543, or the rule that non-immigrants do not have a liberty or property interest in the retention of a visa.
d. The State’s constitutional challenges lack merit. i. The State first asserts that the Order violates the Establishment
Clause and equal protection principles because it was assertedly based on animus against Muslims. That is incorrect. There are two separate aspects of the Order challenged here, and both are neutral with respect to religion.
First, Section 3(c) temporarily suspends entry of aliens from seven countries previously identified under 8 U.S.C. § 1187(a)(12). Those countries were identified by Congress and the Executive Branch as being associated with a heightened risk of
6

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 8 of 15
terrorism. Congress itself identified Iraq and Syria, where “the Islamic State of Iraq and the Levant (ISIL) * * * maintain[s] a formidable force.” U.S. Department of State, Country Reports on Terrorism 2015 6 (June 2016). See 8 U.S.C. § 1187(a)(12)(A)(i)(I), (ii)(I). Congress also incorporated countries designated as state sponsors of terrorism: Iran, Sudan, and Syria. Id. § 1187(a)(12)(A)(i)(II) and (ii)(II). And in 2016, the Executive Branch added Libya, Somalia, and Yemen after a review that considered “whether the country or area is a safe haven for terrorists” and “whether the 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.” 8 U.S.C. § 1187(a)(12)(D)(iii); https://www.dhs.gov/news/20016/02/18/dhsannounces-further-travel-restrictions-visa-waiver-program.
Second, Section 5(a) temporarily suspends the refugee program as to refugees from all countries, not just the seven countries identified in Section 3(c). Section 5(b) further provides that, when the refugee program resumes, the Secretary of State shall “make changes, to the extent permitted by law, to prioritize refugee claims” by members of persecuted minority religions. Laws that “give relief to a religious minority” “are in tune with the Bill of Rights,” Kong v. Scully, 341 F.3d 1132, 1141 (9th Cir. 2003), and Section 5(b) of the Order applies equally to all religious minorities seeking refugee status “on the basis of religious-based persecution.” As the district court recognized in Louhghalam, Section 5(b) “could be invoked to give
7

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 9 of 15
preferred refugee status to a Muslim individual in a country that is predominantly Christian.” Order 13.2
Accordingly, as the district court held in Louhghalam, Order 13, the Executive Order is “neutral with respect to religion.” And under Mandel, the Order’s nationalsecurity basis for the temporary suspension amply establishes its constitutionality. See also Louhghalam, Order 18-19. The State asserts (Response 10) that the Court should “look behind” the stated basis for the Order to probe its subjective motivations because the State claims to have made “an affirmative showing of bad faith.” Din, 135 S. Ct. at 2141 (Kennedy, J., concurring). But the State’s allegations of bad faith are not meaningfully different from the allegations deemed insufficient in Mandel, where the plaintiff asserted that the visa was denied because of the alien’s advocacy of revolutionary Marxism and world communism, rather than his failure to comply with the terms of prior visas. 408 U.S. at 756; see Din, 135 S. Ct. at 21412142 (Kennedy, J., concurring) (endorsing Mandel). And here, the State asks the courts to take the extraordinary step of second-guessing a formal national-security judgment made by the President himself pursuant to broad grants of statutory authority.
2 Washington relies on Larson v. Valente, 456 U.S. 228 (1982), but that holding is limited to cases where a government statute or practice “explicitly discriminates against a certain religious group.” Sep. of Church & State Comm. v. City of Eugene, 93 F.3d 617, 623 (9th Cir. 1996) (O’Scannlain, J., concurring).
8

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 10 of 15
ii. The State also argues (Response 14-18) that the order violates aliens’ procedural due process rights. But as explained above, aliens outside the United States have no due process rights with respect to their attempt to gain entry into this country. And regardless, “notice and an opportunity to respond” is not required where, as here, the challenged rule reflects a categorical judgment. Cf. BiMetallic Inv. Co. v. State Bd. Of Equalization, 239 U.S. 441, 445 (1915) (“[w]here a rule of conduct applies to more than a few people,” individuals affected do not “have a constitutional right to be heard before a matter can be decided”); see also Din, 135 S. Ct. at 2144 (Breyer, J., dissenting) (citing Bi-Metallic).
3. The State argues (Response 7-8) that the injunction does not impose any irreparable harm. But the injunction reinstates procedures that the President determined should be temporarily suspended in the interest of national security. Order § 1; see also id. § 2. The Order temporarily suspends entry of aliens from seven countries previously identified by Congress and the Executive Branch as raising heightened terrorism-related concerns. The suspension terminates in 90 days, once concerns relating to screening practices can be addressed, as necessary “to prevent infiltration [into this Nation] by foreign terrorists or criminals,” Order § 3(c). Similarly, the temporary suspension of the U.S. refugee program will be lifted after 120 days, once the Secretaries of State and Homeland Security, in consultation with the Director of National Intelligence, determine “what additional
9

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 11 of 15
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.” Order § 5(a). The potential national-security risks and harms resulting from the compelled application of procedures that the President has determined must be reexamined, for the purpose of ensuring an adequate measure of protection for the Nation, cannot be undone. Nor can the effect on our constitutional separation of powers.
4. Regardless of the plaintiff’s likelihood of success, the injunction court is, at a minimum, vastly overbroad. The State has made clear that it is seeking to protect LPRs and other nationals from the seven identified countries who were previously admitted to the United States and are either temporarily abroad or are here now and wish to travel outside this country—not aliens who are attempting to enter the country for the first time. See Response 11-12, 15-16; Transcript 7-8, 1516. That makes sense because the latter class of aliens have no constitutional rights with respect to entry into the country—a point the State largely conceded below. See Transcript 7, 15. The injunction, however, bars all applications of Section 3(c)—even as to aliens who have never previously visited this country, and have not yet begun the process of obtaining a visa. It also bars all applications of Section 5, even though there is no indication that any of the aliens affected by the temporary
10

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 12 of 15
suspension of the refugee program have been previously admitted to this country.3 That is plainly impermissible. At most, the injunction should be limited to the class of individuals on whom the State’s claims rest—previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.
3 Indeed, the district court even enjoined a provision that will not go into effect for 120 days, a provision as to which even plaintiffs conceded that their challenge is not ripe for review. Transcript 15 (Section 5(b) claim “does not necessarily require immediate injunction”).
11

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 13 of 15

CONCLUSION

For the foregoing reasons, defendants respectfully request a stay pending

appeal of the district court’s February 3, 2017 injunctive order.

Respectfully submitted,

/s/ Edwin S. Kneedler EDWIN S. KNEEDLER* Deputy Solicitor General

AUGUST E. FLENTJE Special Counsel to the Assistant Attorney General
DOUGLAS N. LETTER SHARON SWINGLE H. THOMAS BYRON III LOWELL V. STURGILL JR. CATHERINE DORSEY Attorneys, Appellate Staff Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530

12
* The Acting Solicitor General and Acting Assistant Attorney General have refrained from signing this brief, out of an abundance of caution, in light of a last-minute filing of an amicus brief by their former law firm.

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 14 of 15
CERTIFICATE OF SERVICE I hereby certify that on February 6, 2017, I 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. All participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system.
s/ Lowell V. Sturgill Jr. Lowell V. Sturgill Jr.

Case: 17-35105, 02/06/2017, ID: 10304146, DktEntry: 70, Page 15 of 15
CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Reply in Support of Emergency Motion for Stay Pending Appeal complies with the type-volume limitation of Fed. R. App. P. 27 because it contains 2,599 words. This Motion complies with the typeface and the type style requirements of Fed. R. App. P. 27 because this brief has been prepared in a proportionally spaced typeface using Word 14-point Times New Roman typeface.
s/ Lowell V. Sturgill Jr. Lowell V. Sturgill Jr.

 
 Case 2:17-cv-00141-JLR Document 56 Filed 02/06/17 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

STATE OF WASHINGTON and

CIVIL ACTION NO. 2:17-cv-00141-JLR

9 STATE OF MINNESOTA,

10

Plaintiffs,

11

v.

12 DONALD TRUMP, in his official capacity as President of the United
13 States; U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F.
14 KELLY, in his official capacity as Secretary of the Department of
15 Homeland Security; TOM SHANNON, in his official capacity as Acting
16 Secretary of State; and the UNITED STATES OF AMERICA,
17 Defendants.
18

JOINT STATUS REPORT

19

Pursuant to the Court’s February 3, 2017 Order (ECF No. 52), the parties hereby

20 submit this joint status report, proposing a briefing schedule for Plaintiffs’ motion for

21 preliminary injunction. The parties request that the Court enter the following briefing

22 schedule:

23

Plaintiffs’ motion for preliminary injunction due by 11:59pm PST on February 9, 2017

24

Defendants’ opposition due by 11:59pm PST on February 15, 2017

25

Plaintiffs’ reply due by 11:59pm PST on February 17, 2017

26

JOINT STATUS REPORT

1

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 56 Filed 02/06/17 Page 2 of 4

1

It is Defendants’ position that the Court lacks jurisdiction to decide Plaintiffs’

2 forthcoming motion for preliminary injunction until the Ninth Circuit resolves Defendants’

3 pending appeal of this Court’s February 3, 2017 Order. See Notice of Appeal, ECF No. 53; see

4 also Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (“The filing of a notice

5 of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of

6 appeals and divests the district court of its control over those aspects of the case involved in the

7 appeal.”); Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 880 (9th

8 Cir. 2000) (explaining that a “district court lacks jurisdiction to modify an injunction once it

9 has been appealed except to maintain the status quo among the parties”); Flynt Distrib. Co. v.

10 Harvey, 734 F.2d 1389, 1392 n.1 (9th Cir. 1984) (“The district court had no jurisdiction to

11 ‘modify and supersede’ its order after the filing of the notice of appeal.”). Nevertheless,

12 pursuant to Federal Rule of Civil Procedure 62.1, the Court may defer considering Plaintiffs’

13 forthcoming motion for preliminary injunction until after the Ninth Circuit has resolves

14 Defendants’ appeal or the Court may issue an indicative ruling, stating that it would deny

15 Plaintiffs’ motion for preliminary injunction if the Ninth Circuit remands for that purpose. See

16 Fed. R. Civ. P. 62.1(a)(1), (3). Defendants, therefore, believe it is appropriate for the parties to

17 proceed with briefing on plaintiffs’ motion for preliminary injunction despite Defendants’

18 pending appeal.

19

The jurisdictional position above is not shared by Plaintiffs. Plaintiffs intend to bring a

20 preliminary injunction motion pursuant to Federal Rule of Civil Procedure 65(a) and do not

21 agree that the temporary restraining order issued by the Court on February 3, 2017, is an

22 “injunction” for purposes of the cases cited above. Plaintiffs agree on the briefing schedule set

23 out above for a preliminary injunction motion.

24

For these reasons, the parties respectfully request that the Court enter the briefing

25 schedule set forth above.

26

JOINT STATUS REPORT

2

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 56 Filed 02/06/17 Page 3 of 4

1 DATED this 6th day of February, 2017.

2 Respectfully submitted,

3

4

CHAD A. READLER Acting Assistant Attorney General

5 JOSEPH H. HUNT 6 Director, Federal Programs Branch

7

JOHN R. TYLER Assistant Director, Federal Programs Branch

8 /s/ Michelle R. Bennett

9

MICHELLE R. BENNETT ERIC SOSKIN

10

DANIEL SCHWEI ARJUN GARG

11

Trial Attorneys U.S. Department of Justice

12

Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW

13

Washington, DC 20530 Tel: (202) 305-8902

14

Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov

15 arjun.garg@usdoj.gov

16 Attorneys for Defendants

17

/s/ Colleen Melody__________ Bob Ferguson, WSBA #26004 Attorney General Noah G. Purcell, WSBA #43492 Solicitor General Colleen M. Melody, WSBA #42275 Civil Rights Unit Chief
Anne E. Egeler, WSBA #20258 Deputy Solicitor Marsha Chien, WSBA #47020 Patricio A. Marquez, WSBA #47693 Assistant Attorneys General Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744 Noahp@atg.wa.gov
LORI SWANSON Attorney General State of Minnesota

18

19

20

21

22

23

24

25

26

JOINT STATUS REPORT

3

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 56 Filed 02/06/17 Page 4 of 4

1

CERTIFICATE OF SERVICE

2 I hereby certify that on February 6, 2017, I electronically filed the foregoing Opposition
3
4 to Plaintiff’s Motion for Temporary Restraining Order using the Court’s CM/ECF system,

5 causing a notice of filing to be served upon all counsel of record.

6

Dated: February 6, 2017

7

/s/Colleen Melody____

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

JOINT STATUS REPORT

4

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

 
 Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-1, Page 1 of 5

(1 of 26)

No. 17-35105 IN THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs and Appellees, v.
DONALD J. TRUMP, President of the United States, et al., Defendants and Appellants
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
HON. JAMES L. ROBART, JUDGE, CASE NO. 2:17-CV-00141
MOTION FOR LEAVE TO FILE BRIEF OF THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE

THE FRED T. KOREMATSU CENTER AKIN GUMP STRAUSS HAUER

FOR LAW AND EQUALITY

& FELD LLP

ROBERT S. CHANG 901 12TH AVENUE, SULLIVAN HALL SEATTLE, WA 98122-1090 TELEPHONE: 310.229.1000 FACSIMILE: 310.229.1001

JESSICA M. WEISEL 1999 AVENUE OF THE STARS, SUITE 600 LOS ANGELES, CA 90067 TELEPHONE: (310) 229-1999 FACSIMILE: (310) 229-1001
ROBERT ALAN JOHNSON, (ADMISSION TO BE FILED)
ONE BRYANT PARK NEW YORK, NY 10036 TELEPHONE: (212) 872-1000 FACSIMILE: (212) 872-1002

ATTORNEYS FOR AMICUS CURIAE, THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-1, Page 2 of 5

(2 of 26)

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE OF THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY
Pursuant to Federal Rule of Appellate Procedure 29(b), The Fred T. Korematsu Center for Law and Equality hereby submits this Motion for Leave to File a Brief Amicus Curiae in support of Plaintiffs-Appellees and Affirmance.1
INTEREST OF AMICUS CURIAE AND REASONS WHY THE MOTION SHOULD BE GRANTED
Amicus Curiae The Fred T. Korematsu Center for Law and Equality (“Korematsu Center”) is a non-profit organization based at the Seattle University School of Law. The Korematsu Center works to advance justice through research, advocacy, and education. Inspired by the legacy of Fred Korematsu, who defied military orders during World War II that ultimately led to the unlawful incarceration of 110,000 Japanese Americans, the Korematsu Center works to advance social justice for all. The Korematsu Center does not, in this brief or otherwise, represent the official views of Seattle University.
The Korematsu Center has a special interest in addressing government action toward persons based on race or nationality. Drawing from its experience and expertise, the Korematsu Center has a strong interest in ensuring that courts understand the historical – often racist – underpinnings of doctrines asserted to support the exercise of such legislative and executive power.
1 Plaintiffs-Appellees and Defendant-Appellants have consented to the filing of the proposed amicus brief.
1

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-1, Page 3 of 5

(3 of 26)

The proposed Brief Amicus Curiae is being filed concurrently with consent of the parties now pending in this Court. As the District Court concluded, “Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government” and that it in determining whether to grant the Plaintiffs-Appellants Temporary Restraining Order it must review the Executive Order of January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”) “to fulfill its constitutional role in our tripart government.” TRO Order at 7. The DefendantsAppellants maintain that this Court may not review the Executive Order, because the President has “unreviewable authority” to suspend admission of aliens to this country. Emergency Motion under Circuit Rule 27-3 for Administrative Stay and Motion for Stay Pending Appeal (“Mot.”) at 2. In Defendants-Appellants advancement of the plenary power doctrine in support of limiting the judicial branch’s authority to question any exercise of [his] executive power in this arena, the proposed Brief seeks to demonstrate that the plenary power doctrine derived from decisions like Chae Chan Ping v. United States, 130 U.S. 581 (1889) (“Chinese Exclusion Case”) and its progeny, that were premised on outdated racist and nativist precepts that we now reject and outdated understandings of sovereignty. We urge this Court to consider the historical conditions under which

2

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-1, Page 4 of 5

(4 of 26)

the plenary power doctrine developed and justified prior historical developments which we now recognize as anathema.
As the proposed Brief Amicus Curiae details, the influence of the plenary power doctrine has been steadily eroded in the immigration context. Separately, but equally significant, the proposed Brief reviews the historical threads of cases that abdicated judicial review of executive and legislative actions against entire races or nationalities and provided judicial sanction of discriminatory action taken against disfavored minorities.
CONCLUSION For these reasons, the Court should grant this Motion, and permit the Korematsu Center to file their concurrently submitted Brief Amicus Curiae.

Respectfully submitted, Dated: February 5, 2017

AKIN GUMP STRAUSS HAUER & FELD LLP

By /s/ Jessica M. Weisel

Jessica M. Weisel

1999 Avenue of the Stars, Suite 600

Los Angeles, California 90067

Telephone: (310) 229-1000

Facsimile: (310) 229-1001

Email:

jweisel@akingump.com

3

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-1, Page 5 of 5

(5 of 26)

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing 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 5, 2017.
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated: February 5, 2017

/s/ Jessica M. Weisel Jessica M. Weisel

4

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 1 of 21

(6 of 26)

No. 17-35105
IN THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs and Appellees, v.
DONALD TRUMP, President of the United States, et al., Defendants and Appellants.

APPEAL FROM UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON HON. JAMES L. ROBART, JUDGE, CASE NO. 2:17-CV-00141

AMICUS BRIEF OF THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY IN SUPPORT OF
APPELLEES

KOREMATSU CENTER FOR LAW AND EQUALITY
ROBERT S. CHANG 901 12TH AVENUE, SULLIVAN HALL SEATTLE, WA 98122-1090 TELEPHONE: (206) 398-4025 FACSIMILE: (206) 398-4261

AKIN GUMP STRAUSS HAUER & FELD LLP
JESSICA M. WEISEL 1999 AVENUE OF THE STARS, SUITE 600 LOS ANGELES, CA 90067 TELEPHONE: (310) 229-1000 FACSIMILE: (310) 229-1001

ROBERT A. JOHNSON (ADMISSION TO BE FILED) ONE BRYANT PARK NEW YORK, NY 10036 TELEPHONE: (212) 872-1000 FACSIMILE: (212) 872-1002

ATTORNEYS FOR AMICUS CURIAE, THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 2 of 21

(7 of 26)

CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(c)(1), undersigned counsel for amici make the following disclosures: The Fred T. Korematsu Center for Law and Equality is a research and advocacy organization based at Seattle University, a non-profit educational institution under Section 501(c)(3) of the Internal Revenue Code. The Korematsu Center does not have any parent corporation or issue stock and consequently there exists no publicly held corporation which owns 10 percent or more of its stock.

i

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 3 of 21

(8 of 26)

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT ....................................................... I
INTEREST OF AMICUS ........................................................................................1
SUMMARY OF ARGUMENT ...............................................................................1
ARGUMENT ...........................................................................................................3
I. The Plenary Power Doctrine Was Born Out Of Racist Notions And Outdated Understandings Of Sovereignty That Courts Now Reject. .........................................................................................3
II. History Repudiates Decisions That Abdicate Judicial Review Of Executive And Legislative Actions Against Entire Races Or Nationalities. ...................................................................................... 10
CONCLUSION ......................................................................................................12

ii

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 4 of 21

(9 of 26)

TABLE OF AUTHORITIES
Page(s)
Cases
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)............................................................................................11
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)........................................................................................2, 10
Chae Chan Ping v. United States, 130 U.S. 581 (1889).....................................................................................passim
Dred Scott v. Sandford, 60 U.S. 393 (1856)................................................................................................5
Fong Yue Ting v. United States, 149 U.S. 698 (1893)......................................................................................4, 7, 8
Harisiades v. Shaughnessy, 342 U.S. 580 (1952)..........................................................................................8, 9
Kerry v. Din, 135 S. Ct. 2128 (2015)..........................................................................................7
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)..........................................................................................4, 9
Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987) ............................................................................10
Nishimura Ekiu v. United States, 142 U.S. 651 (1892)..............................................................................................4
Obadele v. United States, 52 Fed. Cl. 432 (2002) ........................................................................................11
Plessy v. Ferguson, 163 U.S. 537 (1896)............................................................................2, 10, 11, 12
Raya-Ledesma v. I.N.S., 55 F.3d 418 (9th Cir. 1994) ..................................................................................9
iii

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 5 of 21

(10 of 26)

Reno v. Flores, 507 U.S. 292 (1993)..............................................................................................9
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)......................................................................................4, 8, 9
Tran v. Caplinger, 847 F. Supp. 469 (W.D. La. 1993) .....................................................................10
Statutes
Foreign Affairs Reform and Restructuring Act of 1998, 22 U.S.C. § 6501 et. seq. (1998)...............................................................................................6
Other Authorities
International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX) (Dec. 21, 1965), ratified by 140 Cong. Rec. S7634 (daily ed. June 24, 1994) .................................................6
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011) ................................11
Michael J. Klarman, The Plessy Era, 1998 Sup. Ct. Rev. 303 (1998) ....................11
Michael Kagan, Plenary Power is Dead! Long Live Plenary Power, 114 Mich L. Rev. First Impressions 21 (2015).....................................................7
Natsu Taylor Saito, The Enduring Effect of the Chinese Exclusion Cases: The Plenary Power Justification for On-Going Abuses of Human Rights, 10 Asian Am. L.J. 13 (2003) .......................................................4
Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990)..............................................................5
Stephen H. Legomsky, Ten More Years of Plenary Power: Immigration, Congress, and the Courts, 22 Hastings Const. L.Q. 925 (1995).............................................................................................................9
Susannah W. Pollvogt, Beyond Suspect Classifications, 16 U. Pa. J. Const. L. 739 (2014) ...........................................................................................12

iv

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 6 of 21

(11 of 26)

Symposium: The Changing Laws of War: Do We Need A New Legal Regime After September 11?: The Constitution of Necessity, 79 Notre Dame L. Rev. 1257 (2004) .......................................................................11
T. Alexander Aleinikoff, Citizens, Aliens, Membership and the Constitution, 7 Constitutional Commentary 9 (1990) ..........................................5
W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866 (1990) ........................6

v

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 7 of 21

(12 of 26)

INTEREST OF AMICUS Amicus Curiae The Fred T. Korematsu Center for Law and Equality (“Korematsu Center”) is a non-profit organization based at the Seattle University School of Law. The Korematsu Center works to advance justice through research, advocacy, and education. Inspired by the legacy of Fred Korematsu, who defied military orders during World War II that ultimately led to the unlawful incarceration of 110,000 Japanese Americans, the Korematsu Center works to advance social justice for all. The Korematsu Center does not, in this brief or otherwise, represent the official views of Seattle University. The Korematsu Center has a special interest in addressing government action toward persons based on race or nationality. Drawing from its experience and expertise, the Korematsu Center has a strong interest in ensuring that courts understand the historical – often racist – underpinnings of doctrines asserted to support the exercise of such legislative and executive power.1
SUMMARY OF ARGUMENT The government maintains that this Court may not review the Executive Order of January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”), because the President has
1 No counsel for any party authored this brief in whole or in part, and no person or entity other than amicus made a monetary contribution to its preparation or submission. This brief is filed with the consent of all parties. See Motion for Leave to File Amicus Brief, filed concurrently.
1

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 8 of 21

(13 of 26)

“unreviewable authority” to suspend admission of aliens to this country. Emergency Motion under Circuit Rule 27-3 for Administrative Stay and Motion for Stay Pending Appeal (“Mot.”) at 2. That argument advances the plenary power doctrine, which, like the “separate but equal” doctrine, is a relic of an odious past that has no role in modern American jurisprudence. Just as Plessy v. Ferguson was influenced by nineteenth century views anathema today, the plenary power doctrine derives from decisions like Chae Chan Ping v. United States, 130 U.S. 581 (1889) (“Chinese Exclusion Case”), that were premised on outdated racist and nativist precepts that we now reject.
When confronted with a similar precedent in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), the Supreme Court recognized that it “cannot turn the clock back” and decide its former cases differently. Instead, it would have to consider the subject of the law – public education in Brown, immigration policy here – “in the light of its full development and its present place in American life throughout the Nation.” Id. at 492-93. Consistent with that principle, courts have not given total deference to executive and legislative decisions on exclusion, but have engaged in appropriate judicial review. As the District Court concluded: “Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government” and that it must review the

2

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 9 of 21

(14 of 26)

Executive Order “to fulfill its constitutional role in our tripart government.” TRO Order at 6-7. This Court should do the same.
ARGUMENT I. THE PLENARY POWER DOCTRINE WAS BORN OUT OF RACIST
NOTIONS AND OUTDATED UNDERSTANDINGS OF SOVEREIGNTY THAT COURTS NOW REJECT. The birthplace of the plenary power doctrine, the Chinese Exclusion Case, relies on racist descriptions of Chinese immigrants that stoked xenophobia. The Court stereotyped Chinese laborers as “industrious,” “frugal” and “content with the simplest fare, such as would not suffice for our laborers and artisans.” 130 U.S. at 595 (emphasis added). These stereotypes informed the xenophobia of the opinion, driven by fear of “strangers in the land, residing apart by themselves, and adhering to the customs and usages of their own country”—whose presence amounted to “an Oriental invasion.” Id.; see also id. at 606 (“the government of the United States, though its legislative department,” could lawfully “consider[] the presence of foreigners of a different race…who will not assimilate with us, to be dangerous to its peace and security” despite the absence of “actual hostilities”) (emphasis added). Justice Field’s acceptance of Congress’s conclusion that Chinese immigrants are incompatible with American society due to “differences of race” drove the outcome in plenary power doctrine cases, which are “inextricably linked” to the

3

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 10 of 21

(15 of 26)

idea of the “‘Other’ in America today, whether by virtue of race, ethnicity, national origin, religion, or citizenship status.” Natsu Taylor Saito, The Enduring Effect of the Chinese Exclusion Cases: The Plenary Power Justification for On-Going Abuses of Human Rights, 10 Asian Am. L.J. 13, 13 (2003).
Similar racist and xenophobic justifications pervade plenary power doctrine cases flowing from the Chinese Exclusion Case. In these cases, the “right of selfpreservation” advanced as justification for the plenary power doctrine’s broad immunity in exclusion cases was racial self-preservation, not the preservation of borders or national security. E.g., Chinese Exclusion Case, 130 U.S. at 608; Saito at 15; see also, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 729-30 (1893) (discussing the requirement that Chinese aliens prove the fact of their U.S. residence “by at least one credible white witness” in order to remain in the country); Nishimura Ekiu v. United States, 142 U.S. 651, 664 & n.1 (1892) (exclusion of Japanese immigrant who was “likely to become a public charge”).2 These racial underpinnings have led courts to apply the plenary power doctrine, relying on an “aberrational form of the typical relationship between statutory

2 Later cases do not explicitly discuss or express support for race-based distinctions, but do so implicitly through their reliance on the reasoning of the Chinese Exclusion Case and its progeny. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950).

4

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 11 of 21

(16 of 26)

interpretation and constitutional law” in the area of immigration law. Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 549 (1990); see also T. Alexander Aleinikoff, Citizens, Aliens, Membership and the Constitution, 7 Constitutional Commentary 9, 33 (1990) (Chinese Exclusion laws “should serve as cautionary examples to those who would urge that the immigration power be left unconstrained by the Constitution in order to promote the maintenance of ‘communities of character.’”).
The overt racism of these cases contributes to an additional flaw in the doctrine – their reliance on an outdated and race-based meaning of sovereignty. The Chinese Exclusion Case states that “[t]he power of exclusion of foreigners” is “an incident of sovereignty belonging to the government of the United States . . . delegated by the [C]onstitution.”3 130 U.S. at 609. Since then, the concept of sovereignty has evolved to incorporate principles of fundamental human rights and anti-discrimination, shifting the system “from the protection of sovereigns to the

3 This same race-based concept of sovereignty is discussed at length in Dred Scott v. Sandford, which explained that, historically, “negroes of African race” were not “constituent members of this sovereignty[.]” 60 U.S. 393, 403-04 (1856). Therefore, they had “none of the rights and privileges” that the Constitution “provides for and secures to citizens of the United States” but only “such as those who held the power and the Government might choose to grant them.” Id. at 40405.

5

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 12 of 21

(17 of 26)

protection of people.” See W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866, 872 (1990). This change is reflected in congressional action incorporating these principles in federal law. See, e.g., Foreign Affairs Reform and Restructuring Act of 1998, 22 U.S.C. § 6501 et. seq. (1998) (adopting UN Convention Against Torture and issuing related regulations, which prevent the U.S. government from removing or extraditing an alien to a country where they may be subject to torture); International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX) (Dec. 21, 1965), ratified by 140 Cong. Rec. S7634 (daily ed. June 24, 1994); Motomura at 566 (“By the 1950s, aliens’ rights decisions beyond the scope of immigration law already conflicted with assumptions implicit in the plenary power doctrine.”). These changes require reinterpretation, or modernization, of other norms to avoid “the absurdity of mechanically applying an old norm without reference to fundamental constitutive changes.” Reisman at 873.
Perhaps reflective of the shift away from race-based characterizations and the outdated meaning of sovereignty, modern courts have refused to abdicate their power to judicially review immigration matters. Relying on early dissents in plenary power cases, numerous lower courts have applied contemporary constitutional principles in reviewing immigration actions by the political branches. After more than a century of erosion, the plenary power doctrine does
6

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 13 of 21

(18 of 26)

not appear to retain the support of a majority of justices on current Supreme Court. See Kerry v. Din, 135 S. Ct. 2128 (2015) (in visa denial case, plurality opinion did not rely on plenary power); see also See Michael Kagan, Plenary Power is Dead! Long Live Plenary Power, 114 Mich L. Rev. First Impressions 21 (2015) (noting that while the Court declined to repudiate the plenary power doctrine in Kerry v. Din, the split between the Justices suggests the doctrine is no longer as impactful as it once was). Courts have not - and should not - abdicate their responsibility to uphold constitutional safeguards in the area of immigration.
One of the earliest plenary power cases, Fong Yue Ting v. United States, 149 U.S. 698, generated three dissenting opinions, each of which highlighted a resident alien’s ties to the U.S. as a basis to justify greater legal protection. See, e.g., Fong Yue Ting, 149 U.S. at 738 (Brewer, J. dissenting) (“I deny that there is any arbitrary and unrestrained power to banish residents, even resident aliens.”). Justice Field – who announced the opinion of the court in the Chinese Exclusion Case – dissented in Fong Yue Ting. Even while praising the Chinese Exclusion Case, upon which the majority relied to reach its holding, Justice Field sought to limit the plenary power doctrine’s application with regard to non-citizen residents:
As men having our common humanity, they are protected by all the guaranties of the constitution. To hold that they are subject to any different law, or are less protected in any particular, than other persons, is, in my judgment, to ignore the teachings of our history, the practice of our
7

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 14 of 21

(19 of 26)

government, and the language of our constitution.
Fong Yue Ting, 149 U.S. at 754 (Fields, J. dissenting) (emphasis added).
Nearly a century later, judicial skepticism regarding an unrestrained plenary
power persisted. Dissenting in Harisiades v. Shaughnessy, 342 U.S. 580 (1952),
Justice Douglas drew on Justice Brewer’s dissent in Fong Yue Ting, arguing that
the implied power of deportation should not be given priority over the express
guarantee of the Fifth Amendment. Harisiades, 342 U.S. at 599-600 (Douglas, J.
dissenting). Justice Douglas repeated Justice Brewer’s warning:
‘This doctrine of powers inherent in sovereignty is one both indefinite and dangerous . . . The governments of other nations have elastic powers. Ours are fixed and bounded by a written constitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the adoption of this constitution, was not destitute of examples of the exercise of such a power; and its framers were familiar with history, and wisely, as it seems to me, they gave to this government no general power to banish.’
Id. (Douglas, J. dissenting) (emphasis added).
Along with Justices Black, Jackson, and Frankfurter, Justice Douglas
supported limitations to the plenary power doctrine. These Justices “expressed
serious concern that aliens would be denied access to judicial review in such harsh
and unremitting terms,” dissenting in influential McCarthy-era plenary power
cases. See Motomura at 560; see also Shaughnessy, 345 U.S. at 217 (Black, J.

8

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 15 of 21

(20 of 26)

dissenting) (“No society is free where government makes one person's liberty depend upon the arbitrary will of another. Dictatorships have done this since time immemorial. They do now.”); id. at 224 (Jackson, J. dissenting) (“I conclude that detention of an alien would not be inconsistent with substantive due process, provided – and this is where my dissent begins – he is accorded procedural due process of law.”).
Over time, the dissents in Mezei, Knauff, and Harisiades gained influence, leading to “an expansion in the number and range of claims that courts, including the Supreme Court, would hear in immigration cases.” Motomura at 560. Lower courts have declined to abdicate review entirely and instead have applied “the rational basis test to substantive due process and equal protection challenges [arising from deportation]; . . . the traditional Mathews v. Eldridge factors to procedural due process challenges; and . . . First Amendment standards to [immigration] restrictions [arising out of] political speech and association.” Stephen H. Legomsky, Ten More Years of Plenary Power: Immigration, Congress, and the Courts, 22 Hastings Const. L.Q. 925, 934–35 (1995); see e.g., Reno v. Flores, 507 U.S. 292, 306 (1993) (holding that despite the broad power of the political branches over immigration, INS regulations must meet the rational basis test by “rationally advancing some legitimate governmental purpose.”); RayaLedesma v. I.N.S., 55 F.3d 418, 420 (9th Cir. 1994) (finding application of
9

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 16 of 21

(21 of 26)

residency requirement for discretionary relief from deportation had a rational basis and therefore did not violate legal permanent resident’s right to equal protection); Tran v. Caplinger, 847 F. Supp. 469, 478-79 (W.D. La. 1993) (engaging in substantive due process analysis as to whether detention imposed was “merely incidental to another legitimate governmental purpose”); Lynch v. Cannatella, 810 F.2d 1363, 1366 (5th Cir. 1987) (“We hold that even excludable aliens are entitled to the protection of the due process clause while they are physically in the United States. . . .”).
Thus, as these cases have implicitly recognized, courts are not required to defer completely to the exercise of executive or legislative power over immigration matters. II. HISTORY REPUDIATES DECISIONS THAT ABDICATE JUDICIAL
REVIEW OF EXECUTIVE AND LEGISLATIVE ACTIONS AGAINST ENTIRE RACES OR NATIONALITIES. Perhaps it is not surprising that the Supreme Court that decided the Chinese Exclusion Case had largely the same composition of the Court that upheld racial segregation under the doctrine of “separate but equal” in Plessy v. Ferguson, 163 U.S. 537 (1896). Plessy was, of course, overturned on Equal Protection grounds in Brown, 347 U.S. 483, and, like other cases that establish broad authority to discriminate against entire races or nationalities, are now considered the nadir of American jurisprudence.

10

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 17 of 21

(22 of 26)

Korematsu and Plessy are considered cases that “embod[y] a set of propositions that all legitimate constitutional decisions must be prepared to refute.” Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 (2011); see also Michael J. Klarman, The Plessy Era, 1998 Sup. Ct. Rev. 303, 304 (1998) (“Commentators have called Plessy ‘ridiculous and shameful,’ ‘racist and repressive,’ and a ‘catastrophe.’”).
Like the government urges here, those decisions gave broad deference to the political branches of government to take action disfavored minorities. History, however, has rejected judicial sanction of those actions. Not only do we dismiss those cases as wrongly decided, we condemn those courts for allowing racist views to go unchecked by the judiciary. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 275 (1995) (Ginsburg, J. dissenting) (describing the use of strict scrutiny in Korematsu to “yield[] a pass for an odious, gravely injurious racial classification . . . A Korematsu-type classification . . . will never again survive scrutiny: Such a classification, history and precedent instruct, properly ranks as prohibited.”); Obadele v. United States, 52 Fed. Cl. 432, 441 (2002) (“Half a century of equal protection jurisprudence has confirmed the error of [Korematsu’s] wartime judicial abdication.”); see also Symposium: The Changing Laws of War: Do We Need A New Legal Regime After September 11?: The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1259 (2004) (complete “judicial
11

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 18 of 21

(23 of 26)

acquiescence or abdication” of performing checks on Presidential power “has a name. That name is Korematsu”); Susannah W. Pollvogt, Beyond Suspect Classifications, 16 U. Pa. J. Const. L. 739, 748-51 (2014) (deferential standard of review applied in Plessy was “incapable of identifying and addressing contemporary prejudices”).
History would look similarly at this case and this Court if it allows the Executive Order to evade review. Relying on the plenary power doctrine, a doctrine rooted in racism and xenophobia, to permit the Executive Order to stand will be seen for what it is – the judiciary’s abdication of its duty to stand as a bulwark against those who would undermine our core constitutional principles.
CONCLUSION For the foregoing reasons, this Court should deny the emergency motion.

12

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 19 of 21

(24 of 26)

Respectfully submitted, Dated: February 5, 2017

AKIN GUMP STRAUSS HAUER & FELD LLP
THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY
By /s/ Jessica M. Weisel Jessica M. Weisel
ATTORNEYS FOR AMICUS CURIAE, THE FRED T. KOREMATSU CENTER
FOR LAW AND EQUALITY

13

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 20 of 21

(25 of 26)

CERTIFICATE OF COMPLIANCE

I hereby certify that, pursuant to Fed. R. App. P. 29(d) and 9th Cir. R. 32-1,

the attached brief is double spaced, uses a proportionately spaced typeface of 14

points or more, and contains a total of 2,904 words, based on the word count

program in Microsoft Word.

Dated: February 5, 2017

AKIN GUMP STRAUSS HAUER & FELD LLP

THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY

By /s/ Jessica M. Weisel Jessica M. Weisel
ATTORNEYS FOR AMICUS CURIAE, THE FRED T. KOREMATSU CENTER
FOR LAW AND EQUALITY

14

Case: 17-35105, 02/05/2017, ID: 10302882, DktEntry: 20-2, Page 21 of 21

(26 of 26)

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing 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 5, 2017.

I certify that all parties in the case are registered CM/ECF users and that

service will be accomplished by the CM/ECF system.

Dated: February 5, 2017

By /s/ Jessica M. Weisel Jessica M. Weisel

15

 
 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 1 of 23

No. 17-35105
IN THE
United States Court of Appeals for the Ninth Circuit

DONALD J. TRUMP, et al., Defendants-Appellants,
v. STATE OF WASHINGTON, et al.,
Plaintiffs-Appellees
On Appeal from the United States District Court for the Western District of Washington, No. 2-17-cv-00141
District Judge James L. Robart

STATE OF HAWAII’S EMERGENCY MOTION TO INTERVENE UNDER FEDERAL RULE 24 AND CIRCUIT RULE 27-3

DOUGLAS S. CHIN Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA KIMBERLY T. GUIDRY DONNA H. KALAMA ROBERT T. NAKATSUJI
Deputy Attorneys General

NEAL K. KATYAL COLLEEN ROH SINZDAK MITCHELL P. REICH HOGAN LOVELLS US LLP 555 Thirteenth Street NW Washington, DC 20004 Telephone: (202) 637-5600 Fax: (202) 637-5910 Email: neal.katyal@hoganlovells.com

DEPARTMENT OF THE ATTORNEY THOMAS P. SCHMIDT

GENERAL, STATE OF HAWAI‘I

HOGAN LOVELLS US LLP

425 Queen Street

875 Third Avenue

Honolulu, HI 96813

New York, NY 10022

Telephone: (808) 586-1500

Telephone: (212) 918-3000

Fax: (808) 586-1239

Fax: (212) 918-3100

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 2 of 23
SARA SOLOW HOGAN LOVELLS US LLP 1835 Market St., 29th Floor Philadelphia, PA 19103 Telephone: (267) 675-4600 Fax: (267) 675-4601
Attorneys for Proposed Intervenor, State of Hawai‘i

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 3 of 23
CIRCUIT RULE 27-3 CERTIFICATE
The undersigned counsel certifies that the following is the information
required by Circuit Rule 27-3:
(1) Telephone numbers and addresses of the attorneys for the parties.
Counsel for Proposed Intervenor the State of Hawai‘i
Neal Katyal (neal.katyal@hoganlovells.com) Colleen Roh Sinzdak Mitchell Reich Thomas P. Schmidt Sara Solow Hogan Lovells US LLP 555 Thirteenth Street NW Washington, DC 20004 Telephone: (202) 637-5600 Fax: (202) 637-5910
Douglas S. Chin Clyde J. Wadsworth Deirdre Marie-Iha (deirdre.marie-iha@hawaii.gov) Kimberly T. Guidry Donna H. Kalama Robert T. Nakatsuji Department of the Attorney General, State of Hawai‘i 425 Queen Street Honolulu, HI 96813 Telephone: (808) 586-1500 Fax: (808) 586-1239
Counsel for Appellants Donald Trump, et al. Noel J. Francisco Chad A. Readler (Chad.A.Readler@usdoj.gov) August E. Flentje Douglas N. Letter (Douglas.Letter@usdoj.gov) Sharon Swingle (Sharon.Swingle@usdoj.gov) H. Thomas Byron (H.Thomas.Byron@usdoj.gov)
i

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 4 of 23
Lowell V. Sturgill Jr. (Lowell.Sturgill@usdoj.gov) Attorneys, Appellate Staff Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 (202) 514-3427
Counsel for Appellees.
For State of Washington: Colleen N. Melody (Coleenm1@atg.WA.Gov) Noah Guzzo Purcell (Noahp@atg.Wa.Gov) Anne Elizabeth Egeler (Annee1@atg.Wa.Gov) Patricio A. Marquez (Patriciom@atg.Wa.Gov) Marsha J. Chien (Marshac@atg.Wa.Gov) Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744
For State of Minnesota: Jacob Campion (Jacob.Campion@ag.State.Mn.Us) 445 Minnesota Street, Suite 1100 St. Paul, MN 55101 (651) 757-1459.
(2) Facts showing the existence and nature of the emergency.
As set forth in the Motion, the Government has moved for an emergency
stay of the District Court’s temporary restraining order, barring Appellants from
enforcing provisions of an Executive Order that would otherwise inflict irreparable
harm on the State of Hawai‘i. Hawai‘i filed a Complaint and Motion for
Temporary Restraining Order in the District Court for the District of Hawai‘i,
challenging the Executive Order, on February 4, 2017—just hours before the
ii

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 5 of 23
District Court’s TRO was issued in this case. Hawaii’s intervention in this appeal is necessary to protect its interests, because this Court’s decision could create binding circuit precedent that affects Hawaii’s case.
(3) When and how counsel notified. The undersigned counsel notified counsel for appellants and appellees by email, phone calls, and phone and text messages on February 4, 2017 and February 5, 2017, of the State of Hawaii’s intent to file this motion. Service will be effected by electronic service through the CM/ECF system.
iii

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 6 of 23
MOTION FOR INTERVENTION UNDER RULE 24 The State of Hawai‘i respectfully moves to intervene in this appeal through the present emergency motion. Hawai‘i moves for intervention as of right under Rule 24(a) of the Federal Rules of Civil Procedure; or, alternatively, for permissive intervention under Rule 24(b). If intervention is denied, Hawai‘i respectfully moves for leave to file the Brief as amicus curiae. This Motion and Brief comport with the provisions of Fed. R. App. P. Rule 27 and 9th Cir. R. 27-1. On February 4, 2017, undersigned counsel for the State of Hawai‘i contacted legal counsel for both parties. Counsel for the United States opposes Hawaii’s intervention. Counsel for the State of Washington and the State of Minnesota have not responded to Hawaii’s request for intervention.
STATEMENT On January 27, 2017, President Donald Trump signed the Executive Order that is the subject of this litigation and appeal. On January 30, 2017, the State of Washington filed a Complaint for Declaratory and Injunctive Relief and an Emergency Motion for a Temporary Restraining Order in the District Court for the Western District of Washington, seeking to enjoin Defendants from implementing Sections 3(c), 5(a)-(c) and 5(e) of the Executive Order. Those provisions implement a nationwide immigration ban for nationals from seven majorityMuslim countries, halt refugee admissions, and create a selective carve-out for
1

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 7 of 23
some Christian and non-Muslim refugees. (Case No. 17-141 (W.D. Wash.), Dkt. #1, #3). In the TRO motion, the State of Washington argued that the Executive Order violated the Fifth Amendment’s equal protection and due process guarantees, the Establishment Clause, and the Immigration and Nationality Act’s (INA) prohibition against discrimination on the basis of national origin. On February 1, the State of Minnesota joined this litigation as a plaintiff.
Also on February 1, 2017, the State of Washington filed a Supplemental Brief on Standing (Dkt. #17) and an Amended Complaint (Dkt. #18). On February 2, 2017, Defendants filed a Response. (Dkt. #50). The next day the District Court held a hearing on the TRO Motion. (Dkt. #53). At the end of the hearing, the court granted Plaintiffs’ Emergency Motion for a Temporary Restraining Order, thereby enjoining Defendants from enforcing Section 3(c), 5(a), 5(b), 5(c), and 5(e) of the Order. (Dkt. #52).
A few hours before this hearing concluded, and before the temporary restraining order was issued, the State of Hawai‘i filed a Complaint for Declaratory and Injunctive Relief and a Motion for a Temporary Restraining Order in the District Court for the District of Hawai‘i. (Case No. 17-00050 (D. Haw.), Dkt. #1, #2-1). In its TRO motion, Hawai‘i argued that the Executive Order violated both the Establishment Clause and the Fifth Amendment of the Constitution. Additionally, Hawai‘i argued that the Executive Order violated three provisions of
2

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 8 of 23
the INA—its prohibition on nationality-based classifications, its prohibition on religion-based classifications, and its limited grant of presidential discretion to suspend the entry of classes of immigrants and non-immigrants under Section 212(f). See Memorandum in Support of Plaintiff’s Motion for a Temporary Restraining Order, at 26-32 (Case No. 17-00050 (D. Haw.), Dkt. #2-1) [attached as Exhibit B]. Hawai‘i also argued that the implementation of the Executive Order violated the Administrative Procedure Act on both substantive and procedural grounds. See id. at 32-34. Hawai‘i requested that Defendants be enjoined from implementing Sections 3(c), 5(a)-(c) and 5(e).
Hawai‘i contended that it would suffer irreparable harm in the absence of immediate relief. Among other things, it averred, “the Order is inflicting irreparable harm on the State’s sovereign and dignitary interests by commanding instruments of Hawaii’s government to support discriminatory conduct that is offensive to its own laws and policies,” id. at 35; the “Order is inflicting permanent damage on Hawaii‘s economy and tax revenues,” particularly through its effect on tourism, id. at 36-37; and the Order is “subject[ing] a portion of its population to discrimination and marginalization, while denying all residents of the State the benefits of a pluralistic and inclusive society,” id. at 37.
On the evening of February 4, 2017, the Government filed its Notice of Appeal to the Ninth Circuit in the District Court. (Case No. 17-141 (W.D. Wash.),
3

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 9 of 23
Dkt. #53). Later that night, the Government filed its “appeal” in this Court. Hawai‘i filed the instant motion on February 5, 2017.
ARGUMENT “Intervention on appeal is governed by Rule 24 of the Federal Rules of Civil Procedure.” Bates v. Jones, 127 F.3d 870, 873 (9th Cir. 1997). Hawai‘i is entitled to intervene as of right under Rule 24(a)(2). In the alternative, the State easily satisfies the requirements for permissive intervention under Rule 24(b). That is particularly so because the Motion here is filed on behalf of the State, and to protect its sovereign interests. In the closely analogous Article III standing context, the Supreme Court has recognized that States receive “special solicitude,” due to “the long development of cases permitting States ‘to litigate as parens patriae to protect quasi-sovereign interests,’” including when “‘substantial impairment of the health and prosperity of [their residents] are at stake.” Massachusetts v. EPA, 549 U.S. 497, 521 n.17 (2007) (citation omitted). Those very interests are gravely at stake in this litigation. Other special factors distinguish Hawai‘i in ways that make intervention particularly appropriate, including the fact that Hawai‘i has already filed for a temporary restraining order to protect its sovereign and quasi-sovereign interests, and the fact that Hawaii’s action is pending in a district court within this Circuit such that any decision by this Court could have a binding effect on that
4

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 10 of 23
action. These factors, when layered on top of the Rule 24 analysis below, demonstrate why intervention is warranted for the State of Hawai‘i in this case. I. HAWAI‘I IS ENTITLED TO INTERVENE AS OF RIGHT
PURSUANT TO RULE 24(a). Rule 24(a)(2) grants a party the right to intervene if (1) its motion is “timely,” (2) it “ha[s] a significantly protectable interest relating to the property or transaction that is the subject of the action”; (3) it is “situated such that the disposition of the action may impair or impede the party’s ability to protect that interest”; and (4) it is “not  * * * adequately represented by existing parties.” Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (citing Fed. R. Civ. P. 24(a)(2)).
Hawai‘i plainly satisfies each requirement. (1) It filed this motion within hours of the Government’s appeal. (2) The appeal concerns the validity of an order that is protecting Hawai‘i and its citizens from irreparable harm, and that is identical to one Hawai‘i is seeking in the District of Hawai‘i. (3) The Court’s resolution of this matter will decide whether the State and its citizens are once again subjected to travel bans and discrimination, and may decide whether the State can secure a similar order in its own case. And (4) because Hawai‘i has suffered distinct harms, makes distinct arguments, and is a distinct sovereign from the plaintiffs, it must intervene to ensure its interests are adequately protected.
5

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 11 of 23
A. Hawaii’s Motion Is Timely. Hawai‘i moved to intervene in this appeal with extraordinary speed. The District Court issued its order on Friday, February 3. The Government filed its motion to appeal that order—directly threatening Hawaii’s interests—the evening of February 4. Hawai‘i moved to intervene the following day. It is inconceivable that the State could have acted with greater urgency, and no party can claim that it has been “prejudice[d]” by any delay. United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004). Hawai‘i, moreover, intervened “at th[e] particular stage of the lawsuit” in which its interests were implicated—when the Government challenged an order that directly implicates the State’s interests. Id.; see infra 6-13. By any standard its motion is timely. Cf. Day v. Apoliona, 505 F.3d 963, 965 (9th Cir. 2007) (deeming motion timely when made two years after case was filed); Smith v. Los Angeles Unified Sch. Dist., 830 F.3d 843, 854 (9th Cir. 2016) (deeming motion timely when made twenty years after case was filed). B. Hawai‘i Has A Significant Protectable Interest In The Outcome Of
This Appeal. The Ninth Circuit has explained that an applicant for intervention has adequate interests in a suit where “the resolution of the plaintiffs’ claims actually will affect the applicant.” S. California Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002) (emphasis added) (quoting Donnelly v. Glickman, 159 F.3d 405,
6

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 12 of 23
410 (9th Cir. 1998). This test does not establish “a clear-cut or bright-line rule,” and “[n]o specific legal or equitable interest need be established.” Id. (citation omitted)). Instead, courts must make “a ‘practical, threshold inquiry,’ ” designed to “involve[e] as many apparently concerned persons” in a suit “as is compatible with efficiency and due process.” Id. (citations omitted).
Hawaiʻi has two vital, “practical” interests in the outcome of this appeal. First, this appeal concerns the validity of an order that is protecting Hawai‘i and its citizens from grievous harm. For seven days, the Executive Order barred nationals of seven majority-Muslim nations from entering the country. As detailed at length in Hawaii’s motion in support of a temporary restraining order, this restriction inflicted multiple irreparable harms on the State. See Ex. B at 35-38. It halted tourism from the banned countries, and chilled tourism from many more, threatening one of the pillars of the State’s economy. Id. at 36-37. It prevented a number of Hawaii’s residents from traveling abroad. Id. at 38. It required Hawai‘i to participate in discrimination against members of the Muslim faith in violation of Hawaii’s laws and constitution. Id. at 36-37. And it threatened to tarnish Hawaii’s hard-won reputation as a place of openness and inclusion, and force the State to abandon its commitment to pluralism and respect. Id. at 35, 37-38.
The District Court’s order has temporarily put a stop to that. But the Government seeks to bring all of those harms back: to reinstate the Executive
7

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 13 of 23
Order, and thus to damage the State’s citizenry, hinder its economy, and trample on its laws and values. The State’s interest in preventing that from occurring could not be stronger. See, e.g., Alisal Water Corp., 370 F.3d at 919 (a “non-speculative, economic interest” is “sufficient to support a right of intervention”); Nuesse v. Camp, 385 F.2d 694, 669-701(D.C. Cir. 1967) (state banking commissioner’s “interest” in the construction of a federal banking statute—which could frustrate the purpose of a state banking statute—was sufficient for intervention).
Second, Hawai‘i has an interest in preventing the Ninth Circuit from establishing precedent that could impair its own pending motion for a temporary restraining order. Hours before the District Court entered its order, Hawai‘i filed suit challenging the Executive Order in the District of Hawai‘i. It argued that the Executive Order violated the Establishment Clause, the equal protection and due process components of the Due Process Clause, the Immigration and Nationality Act (INA), and the Administrative Procedure Act. See Ex. B at 12-34. It said that immediate relief was necessary to prevent irreparable harm to the State, and that the harm far outweighed any inconvenience the Government might face from putting the Order on hold. Id. at 35-39. And it asked for precisely the same interim relief later awarded by the court below: a temporary restraining order preventing the Defendants from enforcing sections 3(c), 5(a)-(c), and 5(e) of the Executive Order. Id. at 39.
8

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 14 of 23
The Government now argues that the Western District of Washington’s temporary restraining order was improper. In doing so, it makes arguments that might well apply to the order and injunction Hawai‘i seeks. It says that Washington “lacks Article III standing to bring this action.” Mot. at 9. It says that the President’s Executive Order does not violate the Constitution or the INA; that the balance of the equities tips in its favor; and that the State’s harms are not sufficiently serious to merit emergency relief. Id. at 12-15, 18-19, 22-23. Should the Court accept some or all of the Government’s arguments, it would establish precedent binding in every District Court in the Circuit—including, of course, the District of Hawai‘i—that might make it difficult or impossible for Hawai‘i to prevail in its own pending motion for temporary injunctive relief.
Hawai‘i has a cognizable interest in preventing that result. This Court has repeatedly recognized that a party has a protectable interest in the outcome of a suit that might, “as a practical matter, bear significantly on the resolution of [its] claims” in a “related action.” United States v. Stringfellow, 783 F.2d 821, 826 (9th Cir. 1986), vacated on other grounds sub nom. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987); see, e.g., In re Estate of Ferdinand E. Marcos Human Rights Litig., 536 F.3d 980, 986-87 (9th Cir. 2008) (holding intervention proper where “an issue [the intervenor] raised in one proceeding * * * lands in another proceeding for disposition”); U.S. ex rel. McGough v. Covington
9

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 15 of 23
Techs. Co., 967 F.2d 1391, 1396 (9th Cir. 1992) (finding no “serious[] dispute” that a party may intervene in a suit that might “preclude [it] from proceeding with claims” in a separate proceeding); United States v. State of Or., 839 F.2d 635, 638 (9th Cir. 1988) (granting intervention where “an appellate ruling will have a persuasive stare decisis effect in any parallel or subsequent litigation”). Indeed, this Court has previously permitted the State of Hawai‘i itself to intervene in a suit on the ground that it “may have a precedential impact” on its claims in a related action. Cf. Day v. Apoliona, 505 F.3d 963, 965 (9th Cir. 2007). Because this suit may heavily influence the merits of Hawaii’s separate motion for a TRO, the State should have a “voice” when “th[e] decision is made.” Smith v. Pangilinan, 651 F.2d 1320, 1325 (9th Cir. 1981).
C. The Disposition Of This Action May Impair Hawaii’s Ability To Protect Its Interests.
The third requirement of Rule 24(a)(2) follows from the second. It is satisfied when the suit “may as a practical matter impair or impede [an applicant’s] ability to safeguard [its] protectable interest.” Smith v. Los Angeles Unified Sch. Dist., 830 F.3d 843, 862 (9th Cir. 2016). For the reasons just discussed, that is true here. If the Court stays the district court’s temporary restraining order, it will immediately re-subject Hawaiʻi residents to the irreparable harms inflicted by the President’s order. At that point, Hawai‘i might have little recourse. Because this Court’s decision may well set precedent that could impede the ability of a judge in
10

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 16 of 23
the District of Hawai‘i to award the relief Hawai‘i requests, the State needs to press its claims in this Court and in this appeal.
D. Absent Intervention, Hawaii’s Interests Will Not Be Adequately Represented.
The final requirement of the test for intervention is “minimal,” and is satisfied so long as “the applicant can demonstrate that representation of its interests ‘may be’ inadequate.” Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 898 (9th Cir. 2011); see Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972). Three factors are relevant in conducting this inquiry: “(1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor’s arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect.” Citizens for Balanced Use, 647 F.3d at 898 (emphases added).
Here, these factors all point in the same direction. Washington and Minnesota have not made all of the arguments that Hawai‘i pressed in its TRO motion, and that Hawai‘i intends to make on appeal. Among other things, Washington’s TRO motion argues only that Section 5(b) of the Executive Order violates the Establishment Clause, and does not argue—as Hawai‘i does—that Section 3 and Section 5(e) also violate that Clause. Further, Washington presses only one of two statutory arguments made by Hawai‘i—that is, the argument about
11

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 17 of 23
nationality-based classifications under the INA. Hawai‘i has also argued that the Executive Order exceeds the limited grant of authority to the President under Section 212(f). Compare Mot. for Temporary Restraining Order, Washington v. Trump, No. 17-141 (W.D. Wash. Jan 30, 2017), Dkt. #3, with Ex. B at 28-34. Additionally, the Government’s Motion places great weight on the argument that the Executive Order is valid—and federal courts should not question the President’s judgment—because of the President’s “plenary powers” over immigration and foreign affairs. Mot. at 12-17. Washington’s TRO did not discuss the plenary powers doctrine; Hawaii’s TRO motion devotes considerable discussion to that point. See Ex. B. at 17-18, 23-25. Hawaii‘s proposed brief in response to the Government’s motion for a stay advances these points. See Br. at 6-7, 7-12 [attached at Exhibit A].
Moreover, because of Hawaii’s unique status, Washington and Minnesota are not “capable” of presenting the same theories of standing and irreparable injury as Hawai‘i. Hawai‘i suffers from the Order in distinct and particularly severe ways. By virtue of the State’s especially heavy reliance on tourism, the Executive Order’s travel restrictions could immediately inflict damage on its economy. In addition, because Hawai‘i is an island state, residents are entirely reliant on air travel to leave and return home, and, for the vast majority, to travel between islands. The travel ban, which discourages any use of airports by affected
12

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 18 of 23
individuals, thus effectively locks many of Hawaii’s residents not only in the State but on individual small islands as well. Finally, Hawaii’s most basic identity and values are implicated by the Executive Order in a way unique to the State as a result of its demography and history. Hawai‘i is our country’s most ethnically diverse state, it is home to more than 250,000 foreign-born residents, and it has the fifth-highest percentage of foreign born workers of any state. Complaint, ¶¶8-10, (Case No. 17-00050 (D. Haw.), Dkt. #1) [attached here as Exhibit C]. For many in the State, including state officials, the Executive Order conjures up memories of the Chinese Exclusion Acts and the imposition of martial law and Japanese internment after the bombing of Pearl Harbor. Comp. ¶ 81.
For these reasons, Hawai‘i may offer “necessary elements” to the current proceeding that the other parties might not present. If the standing of Washington and Minnesota are called into question, Hawai‘i may be critical to the Court’s retaining Article III jurisdiction over the case. Hawai‘i may also offer meritorious arguments that would otherwise be omitted. For example, Hawai’i intends to argue that the United States’ application for a stay should not be granted because temporary restraining orders—such as the District Court’s Order below—are not appealable. Further, Hawai‘i intends to argue that the United States should have sought mandamus relief; because it did not, this Court lacks jurisdiction.
13

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 19 of 23
In sum, Hawai‘i is entitled to intervene as of right to preserve its interest in maintaining a nationwide order that protects its residents from rank discrimination. II. IN THE ALTERNATIVE, HAWAI‘I SHOULD BE GRANTED
PERMISSIVE INTERVENTION PURSUANT TO RULE 24(b) Alternatively, Hawai‘i should be permitted to intervene in this appeal pursuant to Rule 24(b). Permissive intervention typically requires “(1) an independent ground for jurisdiction; (2) a timely motion; and (3) a common question of law and fact between the movant’s claim or defense and the main action.” Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 843 (9th Cir. 2011). If these criteria are satisfied, a court may deny a motion if intervention “will unduly delay the main action or will unfairly prejudice the existing parties.” Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998). Hawai‘i easily satisfies each of these requirements. First, because this is “a federal-question case” and Hawai‘i “does not seek to bring any counterclaims or cross-claims,” “the independent jurisdictional grounds requirement does not apply.” Freedom from Religion Found., 644 F.3d at 844 (explaining that in this circumstance, the court’s jurisdiction “is grounded in the federal question(s) raised by the plaintiff,” and so “the identity of the parties is irrelevant”). Second, Hawaii’s motion is timely. It was filed within two days of the entry of the TRO, and within a day of the Government’s appeal. Third, Hawaiʻi seeks precisely the same relief as Washington and Minnesota: preservation of the District Court’s
14

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 20 of 23

TRO. Hawai‘i is therefore not raising any claims significantly “different from the

issues in the underlying action.” S. California Edison Co. v. Lynch, 307 F.3d 794,

804 (9th Cir. 2002).

There is also no prospect that Hawaii’s intervention will cause undue delay

or prejudice. Hawai‘i asks for no delay, and intends to file briefs simultaneous

with the plaintiffs. Indeed, its well-developed legal arguments may speed the

Court’s consideration of this critically important matter.

Hawaiʻi should be permitted to participate in this matter, which is vital to the

outcome of its pending action and to the lives of its residents.

CONCLUSION

Hawaii’s motion to intervene as of right pursuant to Rule 24(a)(2) should be

granted. In the alternative, Hawaii’s motion for permissive intervention pursuant

to Rule 24(b)(1)(B) should be granted. If Hawaii’s motion to intervene is denied,

Hawai‘i should be granted leave to file the Brief as amicus curiae.

DATED: Honolulu, Hawai‘i, February 5, 2017.

Respectfully submitted,

/s/ Neal K. Katyal

DOUGLAS S. CHIN Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA KIMBERLY T. GUIDRY

NEAL K. KATYAL COLLEEN ROH SINZDAK MITCHELL P. REICH HOGAN LOVELLS US LLP 555 Thirteenth Street NW Washington, DC 20004

15

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 21 of 23

DONNA H. KALAMA ROBERT T. NAKATSUJI
Deputy Attorneys General

Telephone: (202) 637-5600 Fax: (202) 637-5910 Email: neal.katyal@hoganlovells.com

DEPARTMENT OF THE ATTORNEY THOMAS P. SCHMIDT

GENERAL, STATE OF HAWAI‘I

HOGAN LOVELLS US LLP

425 Queen Street

875 Third Avenue

Honolulu, HI 96813

New York, NY 10022

Telephone: (808) 586-1500

Telephone: (212) 918-3000

Fax: (808) 586-1239

Fax: (212) 918-3100

Email: deirdre.marie-iha@hawaii.gov

SARA SOLOW

HOGAN LOVELLS US LLP

1835 Market St., 29th Floor

Philadelphia, PA 19103

Telephone: (267) 675-4600

Fax: (267) 675-4601

Attorneys for Proposed Intervenor, State of Hawai‘i

16

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 22 of 23
CERTIFICATE OF COMPLIANCE I certify that the forgoing Motion complies with the type-volume limitation of Fed. R. App. 27 because it contains 3,517 words. This Motion complies with the typeface and type style requirements of Fed. R. App. P. 27 because this brief has been prepared in a proportionally spaced typeface using Word 14-point Times New Roman typeface.
/s/ Neal Kumar Katyal Neal Kumar Katyal

Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 23 of 23
CERTIFICATE OF SERVICE I hereby certify that on February 5, 2017, I 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. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
/s/ Neal Kumar Katyal Neal Kumar Katyal

 
 Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 1 of 19

(1 of 62)

No. 17-35105 ___________________________________________
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________________________________
STATE OF WASHINGTON, et al., Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.
_____________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
______________________________________________
MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE LAW PROFESSORS AND CLINICIANS
IN SUPPORT OF PLAINTIFFS-APPELLEES ______________________________________________
Fatma E. Marouf Professor of Law Director, Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 2 of 19

(2 of 62)

Undersigned law professors and law school clinicians respectfully move this Court for permission to file a brief amici curiae opposing the motion to stay the Temporary Restraining Order (TRO) issued by the U.S. District Court for the Western District of Washington. In support of this motion, proposed amici state as follows:
1. All parties have consented to the filing of this amici brief. Under Fed. R. App. P. 29(a)(2), a motion for leave to file an amicus brief is not required when all parties have consent to its filing. However, since that Rule applies to cases being decided on the merits and this case involved an emergency motion to stay a TRO, proposed amici file this motion in an abundance of caution.
2. Proposed amici are law professors and clinicians at institutions of higher education who have personal, professional, and academic connections to students, researchers, faculty, and staff from all over the world.
3. Law professors and clinicians have had first-hand experience with international students and faculty who have sought their direct assistance with immigration issues resulting from the President’s Executive Order 13769 (EO).
4. Law school clinicians, in particular, have worked hard in a climate of sudden chaos and confusion to assist international students and faculty
1

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 3 of 19

(3 of 62)

detained at airports and stranded abroad after participating in conferences, giving talks, or engaging in research. 5. We have also helped students and faculty navigate concerns about the impact of the revocation of their visas on their studies and employment, including the risk of being placed in removal proceedings. 6. In addition, we have scrambled to assist numerous noncitizens not affiliated with universities who have similarly been adversely affected by the EO. 7. Proposed amici have first-hand knowledge of the irreparable harm that the EO inflicts on international students and researchers with nonimmigrant visas, which is one of the critical issues before the Court. 8. Many of proposed amici are also immigration scholars and clinicians with deep knowledge of immigration law and have collectively produced extensive scholarship about all aspects of immigration law, including the constitutional and statutory rights of nonimmigrants. They are therefore well-positioned to assess the likelihood of success on the merits, another important issue before the Court. 9. Proposed amici are vitally interested in protecting the rights of their students, colleagues, and clients, whose status in the United States is jeopardized by the EO.
2

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 4 of 19

(4 of 62)

For the foregoing reasons, proposed amici respectfully request permission to

file the proposed brief amici curiae in support of Plaintiffs-Appellees.

DATED: February 5, 2017

Respectfully submitted,

/s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

*All affiliations listed for identification purposes only.

Nancy Abramowitz, American University Washington College of Law

Kathryn Abrams, Berkeley Law

John Acevedo, University of La Verne College of Law

Cynthia Adams, Indiana University McKinney School of Law

Deborah Ahrens, Seattle University School of Law

Raquel Aldana, McGeorge School of Law

Arléne Amarante, University of Nevada, Las Vegas School of Law

Farrin Anello, Seton Hall University School of Law

Deborah Anker, Harvard Immigration and Refugee Clinical Program,

Harvard Law School

Susan Appleton, Washington University School of Law

3

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 5 of 19

(5 of 62)

Sabrineh Ardalan, Harvard Immigration and Refugee Clinical Program Kif Augustine-Adams, J. Reuben Clark Law School, Brigham Young University Sahar Aziz, Texas A&M University School of Law Sabrina Balgamwalla, University of North Dakota School of Law David Baluarte, Washington and Lee University School of Law Caitlin Barry, Villanova University Charles Widger School of Law Marsha Baum, University of New Mexico School of Law Jennifer Baum, St. Vincent de Paul Legal Program, St. John's University School of Law, Child Advocacy Clinic Galya Ben-Arieh Ruffer, Northwestern University, Center for Forced Migration Studies Emily Benfer, Loyola University Chicago School of Law Susan Bennett, American University Washington College of Law Lenni Benson, New York Law School Jacqueline Bhabha, Harvard University W. Warren H. Binford, Willamette University College of Law Kaci Bishop, The University of North Carolina School of Law Blaine Bookey, UC Hastings Center for Gender & Refugee Studies Cynthia Bowman, Cornell Law School Shawn Marie Boyne, Indiana University Robert H. McKinney School of Law
4

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 6 of 19

(6 of 62)

Susan Brooks, Drexel University Kline School of Law Melissa Brown, Pacific McGeorge School of Law Margaret Burnham, Northeastern University School of Law Charles Calleros, Arizona State University College of Law Kristina Campbell, Univ. of District of Columbia David A. Clarke School of Law Nancy Cantalupo, Barry University School of Law Lauren Carasik, Western New England University School of Law Elizabeth Carroll, USC Gould School of Law Benjamin Casper Sanchez, University of Minnesota Law School, Center for New Americans Linus Chan, University of Minnesota Law School Kim D. Chanbonpin, The John Marshall Law School Marguerite Chapman, University of Tulsa College of Law (Professor Emerita) Matthew Charity, Western New England University School of Law Carol Chomsky, University of Minnesota Law School Eric Christiansen, Golden Gate University School of Law Janie Chuang, American University Washington College of Law Beth Cohen, Western New England University School of Law Donna Coker, University of Miami School of Law Ruth Colker, Ohio State University Moritz College of Law
5

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 7 of 19

(7 of 62)

Holly Cooper, UC Davis School of Law Immigration Law Clinic Avidan Cover, Case Western Reserve University School of Law Rachel Croskery-Roberts, University of California - Irvine School of Law Rose Cuison-Villazor, UC Davis School of Law Alina Das, New York University School of Law Immigrant Rights Clinic Julie Davies, University of the Pacific, McGeorge School of Law Angela Davis, American University Washington College of Law Amy Dillard, University of Baltimore School of Law Victoria Dodd, Suffolk University Law School Jennifer Drobac, Indiana University Robert H. McKinney School of Law Moira Duvernay, UC Hastings Center for Gender & Refugee Studies Maurice Dyson, Thomas Jefferson School of Law Pamela Edwards, CUNY School of Law Nancy Ehrenreich, University of Denver Sturm College of Law Floralynn Einesman, California Western School of Law Kathleen Engel-Rebitzer, Suffolk University Law School Kate Evans, University of Idaho College of Law Jessica Feinberg, Mercer Law School Zanita Fenton, University Miami School of Law Paul Finkelman, University of Pittsburgh School of Law
6

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 8 of 19

(8 of 62)

Angelina Fisher, NYU School of Law Barbara Flagg, Washington University Law Laurel Fletcher, Berkeley Law Taylor Flynn, Western New England School of Law Caroline Forell, University of Oregon Law Jacqueline Fox, University of South Carolina School of Law Eric Franklin, William S.Boyd School of Law, UNLV Ann Freedman, Rutgers Law School Niels Frenzen, University of Southern California Gould School of Law Maryellen Fullerton, Brooklyn Law School Paula Galowitz, New York University School of Law Susan Gary, University of Oregon School of Law Lauren Gilbert, St. Thomas University School of Law Jason Gillmer, Gonzaga School of Law Denise Gilman, University of Texas School of Law Immigration Clinic Barbara Glesner Fines, University of Missouri Kansas City School of Law Phyllis Goldfarb, George Washington University Law School Ezra Goldschlager, University of La Verne College of Law Naomi Goodno, Pepperdine University School of Law Joanne Gottesman, Rutgers Law School
7

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 9 of 19

(9 of 62)

Tiffany Graham, University of South Dakota School of Law Ariela Gross, University of Southern California, Gould School of Law Aya Gruber, University of Colorado Law School Anju Gupta, Rutgers Law School Immigrant Rights Clinic Egon Guttman, American University, Washington College of Law Gillian Hadfield, University of Southern California, Gould School of Law Rebecca Hamilton, American University, Washington College of Law Gail Hammer, Gonzaga University School of Law, University Legal Assistance Anna Han, Santa Clara Law School Jean Han, American University, Washington College of Law Jacqueline Hand, University of Detroit Mercy Law School Lindsay Harris, University of D.C. - David A. Clarke School of Law Keith M. Harrison, Savannah Law School Danielle Hart, Southwestern Law School Bruce Hay, Harvard Law School Dina Haynes, New England Law|Boston Geoffrey Heeren, Valparaiso University Law School Jennifer Hendricks, University of Colorado Laura A. Hernandez, Baylor Law School Kathy Hessler, Lewis & Clark Law School
8

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 10 of 19

(10 of 62)

Richard Hildreth, University of Oregon Law Bill Hing, Univ. of San Francisco Immigration and Deportation Defense Clinic Cynthia Ho, Loyola University of Chicago School of Law Sharona Hoffman, Case Western Reserve University School of Law Brooks Holland, Gonzaga University School of Law Mary Holper, Boston College Immigration Clinic Kari Hong, Boston College Law School, Ninth Circuit Appellate Program C. Quince Hopkins, Florida Coastal School of Law Emily Houh, University of Cincinnati College of Law Alan Hyde, Rutgers Law School Lisa Ikemoto, University of California, Davis School of Law Erin Jacobsen, Vermont Law School Sam Jacobson, Willamette University College of Law Regina Jefferies, University of Minnesota Law School Jamila Jefferson-Jones, University of Missouri - Kansas City Dalie Jimenez, University of Connecticut School of Law Paula Johnson, Syracuse University College of Law José (Beto) Juárez, University of Denver Sturm College of Law Doron Kalir, Civil Litigation Clinic, Cleveland Marshall College of Law Mary Kate Kearney, Widener Commonwealth Law School
9

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 11 of 19

(11 of 62)

Christine Kellett, Dickinson Law/Penn State Kathryn Kelly, The Catholic University of America Laura Kessler, University of Utah, S.J. Quinney College of Law Elizabeth Keyes, University of Baltimore School of Law Kathleen Kim, Loyola Law School Catherine Kim, University of North Carolina School of Law Andrew Kim, Syracuse University College of Law Diane Klein, University of La Verne College of Law Eunice Lee, UC Hastings Center for Gender & Refugee Studies Jennifer Lee Koh, Western State College of Law Daniel M. Kowalski, Bender's Immigration Bulletin (LexisNexis) Annie Lai, UC Irvine School of Law Prerna Lal, East Bay Community Law Center, Berkeley Law Laurie Leader Chicago-Kent College of Law, IIT Terri LeClercq, School of Law, Univeristy of Texas Evelyn Lewis, UCD Law Joellen Lind, Valparaiso University Law School Jeffrey Lubbers, American University, Washington College of Law Beth Lyon, Cornell Law School Elizabeth MacDowell, William S.Boyd School of Law, UNLV
10

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 12 of 19

(12 of 62)

Luis Mancheno, Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law Randi Mandelbaum, Rutgers Law School Susan Mandiberg, Lewis & Clark Law School Genevieve Mann, Gonzaga University School of Law Lynn Marcus, Immigration Law Clinic, University of Arizona James E. Rogers College of Law Jennifer Martin, St. Thomas University School of Law Elena Marty-Nelson, NSU College of Law Julie Marzouk, Chapman University, Fowler School of Law Dayna Matthew, University of Colorado School of Law Elizabeth McCormick, University of Tulsa College of Law Kris McDaniek-Miccio, University of Denver Sturm College of Law Janis McDonald, Professor of Law & Co-Director Cold Case Justice Initiative Amelia McGowan, Catholic Charities of Jackson, Mississippi Brian McGowan, Grambling State University Karla McKanders, University of Tennessee, College of Law Fiona McKenna, Golden Gate University School of Law Michelle McKinley, University of Oregon School of Law Mary Brigid McManamon, Delaware Law School
11

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 13 of 19

(13 of 62)

Judith McMorrow, Boston College Law School Stephen Meili, University of Minnesota Law School Chi Mgbako, Fordham University School of Law Binny Miller, American University, Washington College of Law Elliott Milstein, American University Washington College of Law Sherizaan Minwalla, American University, Washington College of Law Behzad Mirhashem, UNH School of Law Jennifer Moore, University of New Mexico School of Law Nancy Morawetz, NYU School of Law Kathleen Morris, Golden Gate Law School Mary-Beth Moylan, University of the Pacific, McGeorge School of Law Professor Ann Murphy, Gonzaga University School of Law Yxta Maya, Murray Loyola Law School Karen Musalo, UC Hastings Center for Gender & Refugee Studies Natalie Nanasi, SMU Dedman School of Law Jason Neidleman, University of La Verne Nise Nekheba, Florida A&M University College Of Law Lori Nessel, Seton Hall University School of Law Xuan-Thao Nguyen, Indiana University McKinney School of Law Fionnuala Ni Aolain, University of Minnesota, Human Rights Center
12

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 14 of 19

(14 of 62)

Blake Nordahl, McGeorge Law School Immigration Law Clinic Tracy Norton, Touro College Jacob F. Fuchsberg School of Law Kenneth Nunn, University of Florida College of Law Udoka Nwanna Southwestern Law School Mariela Olivares, Howard University School of Law Michael A. Olivas, University of Houston Law Center Laura Oren, University of Houston Law Center Maria Pabon, Loyola New Orleans College of Law Victoria Palacios, SMU Dedman Law School Sunita Patel, American University Washington College of Law Carole Petersen, William S. Richardson School of Law Huyen Pham, Texas A&M University School of Law Teresa Phelps, American University Washington College of Law Karen Pita Loor, Boston University Law School Nancy Polikoff, American University Washington College of Law Andrew Pollis, Case Western Reserve University School of Law Deborah Post, Touro Law Center Ana Pottratz Acosta, Mitchell Hamline School of Law Cynthia Prado-Guyer, University of Southern California Lynne Rambo Texas A&M University School of Law
13

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 15 of 19

(15 of 62)

Jaya Ramji-Nogales, Temple University Beasley School of Law Andrea Ramos Southwestern Law School Immigration Law Clinic Vernellia Randall, The University of Dayton School of Law Renee Redman, University of Connecticut School of LAw Nikki Reisch, NYU School of Law Paula R. Rhodes, University of Denver Sturm College of Law Ira Robbins, American University Washington College of Law Kalyani Robbins, FIU College of Law Jenny Roberts, American University, Washington College of Law Cassandra Burke Robertson, Case Western Reserve Univ. School of Law Eloisa Rodriguez-Dod, FIU College of Law Sarah Rogerson, Albany Law School Michael Rooke-Ley, Nova Southeastern University College of Law Leslie Rose, Golden Gate University School of Law Rand Rosenblatt, Rutgers University Law School Florence Rousman, Indiana U. Robert H. McKinney School of Law Judith Royster, University of Tulsa College of Law Rubén G. Rumbaut, University of California, Irvine Kevin Ruser, University of Nebraska College of Law Margaret Russell, Santa Clara University
14

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 16 of 19

(16 of 62)

C. Mario Russell, Catholic Charities NY, St. John's Law School Emily Ryo, USC Gould School of Law Jendayi Saada, Unversity of La Verne College of Law Laura Sager, New York University School of Law Richard Sander, UCLA School of Law Margaret Satterthwaite, NYU School of Law Irene Scharf, Univ of Massachusetts School of Law Erica Schommer, St. Mary's University School of Law Sean Scott, Loyola Law School Kim Thuy Seelinger, Human Rights Center, University of California, Berkeley Rachel Settlage, Wayne State Law School Sudha Setty, Western New England University School of Law Ragini Shah, Suffolk University Rebecca Sharpless, University of Miami School of Law Anette Sikka, University of Illinois Springfield Marjorie Silver, Touro Law Center Anita Sinha, American University Washington College of Law Matiangai Sirleaf, University of Pittsburgh Law School Gwynne Skinner, Willamette University College of Law Catherine Smith, University of Denver Sturm College of Law
15

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 17 of 19

(17 of 62)

William Snape, American University, Washington college of law Gemma Solimene, Fordham University School of Law Mary Spector, SMU Dedman School of Law Jane Spinak, Columbia Law School Elissa Steglich, University of Texas School of Law, Immigration Clinic Nomi Stolzenberg, University of Southern California Law School Christopher Strawn, Immigration Law Clinic, Univ. of Washington School of Law Jayashri Srikantiah, Stanford Law School Immigrants’ Rights Clinic S.I., Strong University of Missouri Ellen Suni, UMKC School of Law Maureen Sweeney, University of Maryland Carey School of Law Chantal Thomas, Cornell University Law School Claire Thomas, Safe Passage Project Immigration Clinic at New York Law School Michael Tigar, Washington College of Law Karen Tokarz, Washington University Civil Rights & Community Justice Clinic Mary Pat Treuthart, Gonzaga University School of Law Enid Trucios-Haynes, Brandeis School of Law, University of Louisville Tracy Turner, Southwestern Law School Diane Uchimiya, Justice and Immigration Clinic, Univ. of La Verne College of Law
16

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 18 of 19

(18 of 62)

Gloria Valencia-Weber, University of New Mexico School of Law Rachel Van Cleave, Golden Gate University School of Law Anthony Varona, American University Washington College of Law Lea B. Vaughn, University of Washington School of Law Kyle Velte, Texas Tech University School of Law Leti Volpp, Berkeley Law Julie Waterstone, Southwestern Law School Susan C. Wawrose, University of Dayton School of Law Jonathan Weinberg, Wayne State University Marley Weiss, University of Maryland Carey School of Law Marley Weiss, University of Maryland Carey School of Law Deborah Weissman, University of North Carolina Anna Welch, University of Maine School of Law Verna Williams, University of Cincinnati College of Law Wendy Williams, Georgetown Law Abby Wood, University of Southern California Gould School of Law Barbara Woodhouse, Emory Law School Karen Woody, Indiana University, Kelley School of Business Marcia Zug, University of South Carolina

17

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 19 of 19

(19 of 62)

CERTIFICATE OF SERVICE

I hereby certify that on February 5, 2017, I electronically filed the foregoing

with the Clerk of the court for the United States Court of Appeals for the Ninth

Circuit using the appellate CM/ECF system.

I certify that all participants in this case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

DATED: February 5, 2017

Respectfully submitted,

/s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

18

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 1 of 35

(20 of 62)

No. 17-35105 ___________________________________________
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________________________________
STATE OF WASHINGTON, et al., Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.
_____________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
______________________________________________
BRIEF OF AMICI CURIAE LAW PROFESSORS AND CLINICIANS SUPPORTING PLAINTIFFS-APPELLEES ______________________________________________
FATMA E. MAROUF Professor of Law Director, Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 2 of 35

(21 of 62)

TABLE OF CONTENTS
STATEMENT OF INTEREST.…...…………………………………………..…...1
INTRODUCTION………………………………………………………………….1
ARGUMENT………………………………………………………………….........2
I. THE EO INFLICTS IRREPARABLE HARM ON INTERNATIONAL STUDENTS AND RESEARCHERS…………..2
II. PLAINTIFFS-APPELLEES ARE LIKELY TO SUCCEED ON THE MERITS………………………………………………………...5
A. The EO Violates Due Process Rights of Nonimmigrants……...6
B. The EO Violates the Immigration and Nationality Act and Administrative Procedure Act…………………………………9
CONCLUSION…………………………………………………………………...12

i

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 3 of 35

(22 of 62)

TABLE OF AUTHORITIES
U.S. Federal Cases
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)……………………………………………….6
Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2012)……………………………………………….8
Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996)……………………………………………..11
Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62 (1st Cir. 2009)………………………………………………….6
Felkner v. Jackson, 562 U.S. 594 (2011)…………………………………………………………8
Fiallo v. Bell, 430 U.S. 787, 807 (1977).…………………………………………………...8
Franklin v. MA, 505 U.S. 788 (1992)………………………………………………….…….11
Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006).……………………………………………….8
Kerry v. Din, 135 S.Ct. 2128 (2015)……………………………………………………….7
Kleindienst v. Mandel, 408 U.S. 753 (1972)……………………………………………………….7-8
Louhghalam v. Trump, Civ. 17-10154-NMG (Feb. 3, 2017) ………………………………………...6

ii

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 4 of 35

(23 of 62)

Public Citizen v. United States Trade Representative, 5 F.3d 549 (D.C. Cir. 1993).……………………….………………………11
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ………………………………………………6
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)……………………………………………………………6
Title 8 of United States Code (Immigration and Nationality Act)
8 U.S.C. § 1152(a)(1)(A)……………………………………………………...10-11 8 U.S.C. § 1184(a) ……………………………………………………..………9, 11 8 U.S.C. § 1201(c)(2) …………………………………………………………….10 8 U.S.C. § 1201(h) ……………………………………………………………….10 8 U.S.C. § 1201(i) …………………………………………………………………3 8 U.S.C. § 1227(a)(1)(B) ………………………………………………………….2 8 U.S.C. § 1182(f) ………………………………………………………………..11 Title 5 of U.S. Code (Administrative Procedure Act)
5 U.S.C. § 706(2)(A) ……………………………………………………….…….11 5 U.S.C. § 706(2)(C) …………………………………………………………….11 5 U.S.C. § 706(2)(D) …………………………………………………………….11 Secondary Sources
Association of Public Land-Grand Universities, Public Universities Respond to New Immigration Executive Order (including statements from 140 public universities expressing concerns about the ban),
iii

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 5 of 35

(24 of 62)

http://www.aplu.org/members/councils/strategic-communications/immigrationactions/index.html (lasted visited Feb. 5, 2017)……………………………………4
Noah Bierman, Donald Trump’s Muslim ban was removed from the Website, but it’s back,” LOS ANGELES TIMES, Nov. 10, 2016, http://www.latimes.com/nation/politics/trailguide/la-na-updates-trail-guide-sowhat-s-the-deal-with-donald-trump-s-1478812963-htmlstory.html (lasted visited Feb. 5, 2017)………………………………………………………………………9
College Factual, How Trump’s Executive Order Affects Thousands of International Students in the U.S., Jan. 31, 2017, http://inside.collegefactual.com/blog/howtrumps-travel-ban-affects-thousands-of-international-students (lasted visited Feb. 5, 2017)…………………………………………………………………………...4-5
International Higher Education Consulting Blog, Running List of University/College and Higher Education Organization/Association Responses to President Trump’s Executive Order Entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals,” Jan. 27. 2017, http://ihecdjc.blogspot.com/2017/01/running-list-of-universitycollege-and.html (last visited Feb. 5, 2017)………………………………………………………………………..4
Elisa Labott, Over 900 US Career diplomats protest Trump Order, CNN, Jan. 31, 2017, http://www.cnn.com/2017/01/30/politics/career-diplomats-dissent-memo/ (last visited Feb. 5, 2017)…………………………………………………………10
Elizabeth Redden, Boycotting the U.S., Inside Higher Ed (Jan. 31, 2017), https://www.insidehighered.com/news/2017/01/31/protest-trump-entry-ban-somescholars-are-boycotting-us-based-conferences (last visited Feb. 5, 2017)…………5
Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally’, THE HILL, Jan. 28, 2017, http://thehill.com/homenews/administration/316726giuliani-trump-asked-me-how-to-do-a-muslim-ban-legally (last visited Feb. 5, 2017)………………………………………………………………………………..9

iv

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 6 of 35

(25 of 62)

Michael D. Shear, Mark Landler, Matt Apuzzo, and Eric Lichtblau, Trump Fires Acting Attorney General Who Defies Him, NEW YORK TIMES, Jan. 30, 2017, https://www.nytimes.com/2017/01/30/us/politics/trump-immigration-banmemo.html (last visited Feb. 5, 2017)…………………………………………….10
Press Release, Trump-Pence Campaign, Donald J. Trump Statement on Preventing Muslim Immigration, Dec. 7, 2015, https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration (last visited Feb. 5, 2017)………………………………………………………………………..9
U.S. Department of State, letter dated Jan. 27, 2017 (released by U.S. Department of Justice on Jan. 31, 2017), http://www.politico.com/f/?id=00000159-f6bd-d173a959-ffff671a0001(last visited Feb. 5, 2017)…………………………………….2-3
U.S. Department of State, Bureau of Consular Affairs, Important Announcement, Executive Order on Visas, https://travel.state.gov/content/travel/en/news/important-announcement.html (last visited Feb. 5, 2017)………………………………………………………………..3

v

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 7 of 35

(26 of 62)

STATEMENT OF INTEREST Amici are law professors and clinicians at institutions of higher education. Amici have personal, professional, and academic connections to students, researchers, faculty, and staff from all over the world. Many amici teach law school clinics and have had first-hand experience with international students, faculty, and clients who have sought their direct assistance with immigration issues resulting from the President’s recent Executive Order (EO). As law professors and clinicians, we have worked hard in a climate of chaos and confusion to assist international students and faculty detained at airports and stranded abroad after participating in conferences, giving talks, or engaging in research. We have also helped students and faculty navigate concerns about the impact of the revocation of their visas on their studies and employment, including the risk of being placed in removal proceedings. In addition, we have scrambled to assist numerous noncitizens not affiliated with universities who have similarly been affected by the EO. Amici submit this brief under Fed. R. App. P. 29, Circuit Rule 29(a)(2). All parties have consented to the submission of amici briefs in this case.
INTRODUCTION The Ninth Circuit should deny the motion for an emergency stay of the temporary restraining order (TRO) issued by the U.S. District Court for the Western District of Washington. The EO issued on January 27, 2017 creates a
1

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 8 of 35

(27 of 62)

serious risk of irreparable harm to our clients, students, and colleagues who have

nonimmigrant (temporary) visas at United States universities. In addition,

Plaintiffs-Appellees are likely to succeed on the merits of their constitutional and

statutory claims.

ARGUMENT

I.

THE EO INFLICTS IRREPARABLE HARM ON

INTERNATIONAL STUDENTS AND RESEARCHERS.

On January 31, 2017, the U.S. Department of Justice released a State

Department notice dated January 27, 2017, “provisionally revok[ing] all valid

nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia,

Sudan, Syria, and Yemen,” subject to narrow exceptions for diplomatic visas and

case-by-case determinations made in the national interest.1 This revocation of visas

made everyone with nonimmigrant visas from the seven countries, even those

within the United States, potentially deportable under 8 U.S.C. § 1227(a)(1)(B),

which provides: “Any alien who is present in the United States in violation of this

Act or any other law of the United States, or whose nonimmigrant visa (or other

1 U.S. Department of State, letter dated Jan. 27, 2017 (released by U.S. Department of Justice on Jan. 31, 2017), http://www.politico.com/f/?id=00000159-f6bd-d173a959-ffff671a0001.
2

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 9 of 35

(28 of 62)

documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i) is deportable.” (Emphasis added).2
On or about February 4, 2017, the State Department issued an announcement confirming that it had, “under the Executive Order, provisionally revoked all valid visas of nationals of those seven countries, with limited exceptions.”3 (Emphasis added). In light of the TRO issued by the U.S. District Court for the Western District of Washington, however, the State Department lifted the provisional revocation. Id.
The nationwide TRO currently protects thousands of international students and researchers in the United States. If the order is reversed, students and researchers will suffer irreparable harm, namely the inability to travel outside the United States and a fear that they may fall out of legal status and suffer deportation. They would be unable to leave the country to attend international symposia or conferences, engage in overseas field research, collaborate with colleagues in other countries, or visit their families without encountering impediments to their return.

2 The State Department invoked its authority under 8 U.S.C. § 1201(i), INA § 221(i), in its letter dated Jan. 27, 2017. See supra note 1. 3 U.S. Department of State, Bureau of Consular Affairs, Important Announcement, Executive Order on Visas, https://travel.state.gov/content/travel/en/news/important-announcement.html.
3

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 10 of 35

(29 of 62)

According to data collected from the Department of Homeland Security by
College Factual, a higher education data analytics and research company, there
were 23,763 students with F-1 and M-1 student visas at 596 universities in the
United States affected by the travel ban.4 Since this number only includes students,
not faculty, it actually underestimates the true number of individuals who are
affected and who may be subjected to deportation if their nonimmigrant visas
expired. Post-docs, medical residents, and faculty often work at United States
universities with other types of nonimmigrant visas, such as J-1 visas for exchange
visitors and H-1 visas for temporary workers.
Students’ and researchers’ concerns are consistent with those expressed by
numerous American universities.5 The students and researchers we work with and
represent provide critical, diverse viewpoints to university life. Their experiences
4 College Factual, How Trump’s Executive Order Affects Thousands of International Students in the U.S., Jan. 31, 2017, http://inside.collegefactual.com/blog/how-trumps-travel-ban-affects-thousands-ofinternational-students. 5 See Appendix A (list of hundreds of institutions of higher education that have expressed concerns about the EO); Association of Public Land-Grand Universities, Public Universities Respond to New Immigration Executive Order (including statements from 140 public universities expressing concerns about the ban), http://www.aplu.org/members/councils/strategic-communications/immigrationactions/index.html; International Higher Education Consulting Blog, Running List of University/College and Higher Education Organization/Association Responses to President Trump’s Executive Order Entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals,” Jan. 27. 2017, http://ihec-djc.blogspot.com/2017/01/running-list-of-universitycollege-and.html.
4

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 11 of 35

(30 of 62)

and perspectives enrich our understanding of new problems to be solved, and help identify original solutions to those problems.
Shortly after the EO was announced, over 3,000 international scholars signed a petition to “boycott international academic conferences held in the United States in solidarity with those affected by” the EO.6 Not only does this suppress intellectual activity and collaboration, but it also inflicts substantial financial harm. Furthermore, if international students from the seven banned countries are no longer able to attend school in the U.S., either because they are denied entry to the country or their visas expire, our universities stand to lose hundreds of millions of dollars.7 These financial losses, which would affect our programs, including our law school clinics, could be even greater if the ban also discourages students who are citizens of other Muslim-majority countries from studying in the United States.
II. PLAINTIFFS-APPELLEES ARE LIKELY TO SUCCEED ON THE MERITS
Unlike the First Circuit, the Ninth Circuit has never placed special emphasis on the “likelihood of success” factor, resulting in a different legal standard here than was applied in the Massachusetts case. See Exh. B to Emergency Motion for Stay (Louhghalam v. Trump, Civ. 17-10154-NMG, Order at 20 (Feb. 3, 2017))
6 Elizabeth Redden, Boycotting the U.S., Inside Higher Ed (Jan. 31, 2017), https://www.insidehighered.com/news/2017/01/31/protest-trump-entry-ban-somescholars-are-boycotting-us-based-conferences. 7 See College Factual, supra note 4 (estimating that revocation of student visas at 596 schools would result in losses of $700 million).
5

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 12 of 35

(31 of 62)

(citing Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009) (holding that the likelihood of success factor weighs most heavily in the decision). Here, the District Court judge correctly relied on Ninth Circuit precedents that consider all four factors using a sliding scale. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)).
A. The EO Violates Due Process Rights of Nonimmigrants Nonimmigrants who have been granted visas and are already living in the United States have due process rights to stay here; those who are abroad have a due process interest in proper adjudication of their rights to be in the United States. U.S. Const. amend. V. The EO affects not only nonimmigrants who are seeking entry for the first time, but also those who have established ties to the United States, including students and faculty who we have assisted in the past weeks as they grapple with the EO's impact. The EO inflicted irreparable harm on nonimmigrants within the United States who suddenly lost their ability to travel, had their visas revoked, and thereby feared deportation. Many of these students and faculty members have already been in the United States for years, are in the middle of degree programs, and have made significant intellectual contributions to the United States. They should receive due process protections commensurate with
6

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 13 of 35

(32 of 62)

their substantial ties to the United States. This Court need not determine the precise contours of the process due to nonimmigrants living in the United States (or those abroad) in deciding this appeal. It need only find a likelihood of success in showing that the process received by these nonimmigrants – which involved no notice, no opportunity to respond, and no individualized analysis of risk to national security – was insufficient.
Even if the Court applies the “facially legitimate and bona fide” standard that has been applied to individuals seeking admission, the EO fails to satisfy that test. While national security may, in some cases, be a facially legitimate reason, it is not legitimate when applied without any individualized analysis to entire nations. Cf. Kleindienst v. Mandel, 408 U.S. 753, 769 (1982) (finding a “facially legitimate and bona fide” reason for the denial of visa to an individual who had violated the conditions of his visa on two prior trips); Kerry v. Din, 135 S.Ct. 2128, 2140 (2015) (finding a “facially legitimate and bone fide” reason for the denial of a visa to an Afghan national who had previously been employed by the Taliban). Neither the Supreme Court nor the Ninth Circuit has ever held that national origin, religion, or race alone constitutes a “facially legitimate and bona fide reason.” The overbreadth of the EO reflects the type of “unfettered discretion” that the Supreme Court has explicitly rejected. See Kleindienst, 408 U.S. at 762; Fiallo v. Bell, 430 U.S. 787, 807 (1977).
7

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 14 of 35

(33 of 62)

Furthermore, even if national security provides a facially legitimate reason for the EO, it is not a bona fide reason for the ban on all individuals from seven Muslim-majority countries. As previously recognized by this Court, the “facially legitimate” and “bona fide” prongs of the test are distinct. See Bustamante v. Mukasey, 531 F.3d 1059, 1062-1063 (9th Cir. 2012) (examining the “bona fide” prong separately). The “bona fide” part of the test requires a court to distinguish between good faith reasons and pretextual excuses. In other contexts, appellate courts have given great deference to trial courts’ determinations of whether the government’s explanation is bona fide. See Kesser v. Cambra, 465 F.3d 351, 356 (9th Cir. 2006) (noting that the court of appeal gave “great deference to the trial court in distinguishing bona fide reasons from sham excuses”); Felkner v. Jackson, 562 U.S. 594, 596 (2011) (same).
Here, there is substantial evidence that the ban was motivated by animus against Muslims. For example, on January 28, 2017, a week after the inauguration, Former New York City Mayor Rudy Giuliani stated in an interview that President Trump had previously asked him about legally implementing a “Muslim ban.”8 Indeed, for nearly a year preceding the election, President Trump’s campaign

8Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally’, THE HILL, Jan. 28, 2017, http://thehill.com/homenews/administration/316726giuliani-trump-asked-me-how-to-do-a-muslim-ban-legally.
8

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 15 of 35

(34 of 62)

website referred to a “Muslim ban,” indicating discriminatory intent.9 The evidence that there was no bona fide reason for the ban will be developed further through discovery. In the interim, however, the TRO should remain in place to prevent irreparable harm to nonimmigrants.
B. The EO Violates the Immigration and Nationality Act and the Administrative Procedure Act
The INA provides the procedure due to arriving nonimmigrants with valid nonimmigrant visas. The EO violates those procedures in three ways. First, the statute requires that the procedure for admission be set through regulation. 8 U.S.C. § 1184(a) (“The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe[.]”). The EO was not promulgated as a regulation. It never went through the public notice and comment procedures that help ensure transparent, deliberate, well-reasoned policies under § 553 of the Administrative Procedure Act (APA). In fact, the EO was never even vetted by key agency officials or career diplomats with relevant expertise, hundreds of whom
9Noah Bierman, Donald Trump’s Muslim ban was removed from the Website, but it’s back,” LOS ANGELES TIMES, Nov. 10, 2016, http://www.latimes.com/nation/politics/trailguide/la-na-updates-trail-guide-sowhat-s-the-deal-with-donald-trump-s-1478812963-htmlstory.html; see also Press Release, Trump-Pence Campaign, Donald J. Trump Statement on Preventing Muslim Immigration, Dec. 7, 2015, https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration.
9

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 16 of 35

(35 of 62)

have since explicitly voiced their opposition to the EO, including the former Acting Attorney General, Sally Yates, who refused to defend the ban.10 The failure to use a transparent process also contributed to the chaos and confusion that ensued after the EO was suddenly issued.
Second, the statute requires that a nonimmigrant visa “shall be valid for the period the regulations proscribe.” Id. § 1201(c)(2). However, the EO effectively invalidated the visas for travel purposes. Third, the INA denies admission to nonimmigrants only when they are inadmissible under the INA or “any other provision of law.” 8 U.S.C. § 1201(h). The EO denies admission to all visa holders from the seven countries regardless of admissibility.
In addition, with respect to immigrant visas, the INA prohibits discrimination in admissions based on nationality. 8 U.S.C. § 1152(a)(1)(A). Congress enacted the nondiscriminatory provision after 8 U.S.C. § 1182(f), which authorizes the President to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” The provision allowing suspension of entry of
10 See Elisa Labott, Over 900 US Career diplomats protest Trump Order, CNN, Jan. 31, 2017, http://www.cnn.com/2017/01/30/politics/career-diplomats-dissentmemo/; Michael D. Shear, Mark Landler, Matt Apuzzo, and Eric Lichtblau, Trump Fires Acting Attorney General Who Defies Him, NEW YORK TIMES, Jan. 30, 2017, https://www.nytimes.com/2017/01/30/us/politics/trump-immigration-banmemo.html.
10

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 17 of 35

(36 of 62)

classes of aliens is therefore subject to the nondiscrimination requirement in 8 U.S.C. § 1152(a)(1)(A). Furthermore, the President’s authority under 8 U.S.C. § 1182(f) should not be interpreted to undermine the requirement that the procedures for nonimmigrant admission be set through regulation. 8 U.S.C. § 1184(a).
By violating the plain language of the INA, the EO is also arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of APA § 706(2)(A); in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, in violation of APA § 706(2)(C); and without observance of procedure required by law, in violation of § 706(2)(D).
Although the President is not an “agency” under the APA, Franklin v. MA, 505 U.S. 788, 797 (1992), an agency’s implementation of presidential directives must still conform to the APA. See, e.g., Chamber of Commerce v. Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996) (“that the Secretary’s regulations are based on the President’s Executive Order hardly seems to insulate them from judicial review under the APA, even if the validity of the Order were thereby drawn into question.); Public Citizen v. United States Trade Representative, 5 F.3d 549, 552 (D.C. Cir. 1993) (noting that the denial of judicial review over presidential actions “is limited to those cases in which the President has constitutional or statutory responsibility for the final step necessary for the agency action directly to affect the parties). Where, as here, immigration decisions require action by administrative
11

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 18 of 35

(37 of 62)

officials, courts routinely apply the APA and administrative law doctrines.

CONCLUSION

In order to protect the constitutional and statutory rights of nonimmigrants

and prevent irreparable harm to our colleagues and clients -- students and faculty

with nonimmigrant visas -- the Court should deny the motion to stay or vacate the

TRO issued by the U.S. District Court for the Western District of Washington. The

TRO should remain in place as parties conduct discovery and the trial court holds

an evidentiary hearing.

DATED: February 5, 2017

Respectfully submitted,

By: /s Fatma Marouf

Fatma E. Marouf, Esq. Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

*All affiliations listed for identification purposes only. Nancy Abramowitz, American University Washington College of Law Kathryn Abrams, Berkeley Law John Acevedo, University of La Verne College of Law Cynthia Adams, Indiana University McKinney School of Law

12

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 19 of 35

(38 of 62)

Deborah Ahrens, Seattle University School of Law Raquel Aldana, McGeorge School of Law Arléne Amarante, University of Nevada, Las Vegas School of Law Farrin Anello, Seton Hall University School of Law Deborah Anker, Harvard Immigration and Refugee Clinical Program, Harvard Law School Susan Appleton, Washington University School of Law Sabrineh Ardalan, Harvard Immigration and Refugee Clinical Program Kif Augustine-Adams, J. Reuben Clark Law School, Brigham Young University Sahar Aziz, Texas A&M University School of Law Sabrina Balgamwalla, University of North Dakota School of Law David Baluarte, Washington and Lee University School of Law Caitlin Barry, Villanova University Charles Widger School of Law Marsha Baum, University of New Mexico School of Law Jennifer Baum, St. Vincent de Paul Legal Program, St. John's University School of Law, Child Advocacy Clinic Galya Ben-Arieh Ruffer, Northwestern University, Center for Forced Migration Studies Emily Benfer, Loyola University Chicago School of Law Susan Bennett, American University Washington College of Law
13

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 20 of 35

(39 of 62)

Lenni Benson, New York Law School Jacqueline Bhabha, Harvard University W. Warren H. Binford, Willamette University College of Law Kaci Bishop, The University of North Carolina School of Law Blaine Bookey, UC Hastings Center for Gender & Refugee Studies Cynthia Bowman, Cornell Law School Shawn Marie Boyne, Indiana University Robert H. McKinney School of Law Susan Brooks, Drexel University Kline School of Law Melissa Brown, Pacific McGeorge School of Law Margaret Burnham, Northeastern University School of Law Charles Calleros, Arizona State University College of Law Kristina Campbell, Univ. of District of Columbia David A. Clarke School of Law Nancy Cantalupo, Barry University School of Law Lauren Carasik, Western New England University School of Law Elizabeth Carroll, USC Gould School of Law Benjamin Casper Sanchez, University of Minnesota Law School, Center for New Americans Linus Chan, University of Minnesota Law School Kim D. Chanbonpin, The John Marshall Law School Marguerite Chapman, University of Tulsa College of Law (Professor Emerita)
14

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 21 of 35

(40 of 62)

Matthew Charity, Western New England University School of Law Carol Chomsky, University of Minnesota Law School Eric Christiansen, Golden Gate University School of Law Janie Chuang, American University Washington College of Law Beth Cohen, Western New England University School of Law Donna Coker, University of Miami School of Law Ruth Colker, Ohio State University Moritz College of Law Holly Cooper, UC Davis School of Law Immigration Law Clinic Avidan Cover, Case Western Reserve University School of Law Rachel Croskery-Roberts, University of California - Irvine School of Law Rose Cuison-Villazor, UC Davis School of Law Alina Das, New York University School of Law Immigrant Rights Clinic Julie Davies, University of the Pacific, McGeorge School of Law Angela Davis, American University Washington College of Law Amy Dillard, University of Baltimore School of Law Victoria Dodd, Suffolk University Law School Jennifer Drobac, Indiana University Robert H. McKinney School of Law Moira Duvernay, UC Hastings Center for Gender & Refugee Studies Maurice Dyson, Thomas Jefferson School of Law Pamela Edwards, CUNY School of Law
15

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 22 of 35

(41 of 62)

Nancy Ehrenreich, University of Denver Sturm College of Law Floralynn Einesman, California Western School of Law Kathleen Engel-Rebitzer, Suffolk University Law School Kate Evans, University of Idaho College of Law Jessica Feinberg, Mercer Law School Zanita Fenton, University Miami School of Law Paul Finkelman, University of Pittsburgh School of Law Angelina Fisher, NYU School of Law Barbara Flagg, Washington University Law Laurel Fletcher, Berkeley Law Taylor Flynn, Western New England School of Law Caroline Forell, University of Oregon Law Jacqueline Fox, University of South Carolina School of Law Eric Franklin, William S.Boyd School of Law, UNLV Ann Freedman, Rutgers Law School Niels Frenzen, University of Southern California Gould School of Law Maryellen Fullerton, Brooklyn Law School Paula Galowitz, New York University School of Law Susan Gary, University of Oregon School of Law Lauren Gilbert, St. Thomas University School of Law
16

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 23 of 35

(42 of 62)

Jason Gillmer, Gonzaga School of Law Denise Gilman, University of Texas School of Law Immigration Clinic Barbara Glesner Fines, University of Missouri Kansas City School of Law Phyllis Goldfarb, George Washington University Law School Ezra Goldschlager, University of La Verne College of Law Naomi Goodno, Pepperdine University School of Law Joanne Gottesman, Rutgers Law School Tiffany Graham, University of South Dakota School of Law Ariela Gross, University of Southern California, Gould School of Law Aya Gruber, University of Colorado Law School Anju Gupta, Rutgers Law School Immigrant Rights Clinic Egon Guttman, American University, Washington College of Law Gillian Hadfield, University of Southern California, Gould School of Law Rebecca Hamilton, American University, Washington College of Law Gail Hammer, Gonzaga University School of Law, University Legal Assistance Anna Han, Santa Clara Law School Jean Han, American University, Washington College of Law Jacqueline Hand, University of Detroit Mercy Law School Lindsay Harris, University of D.C. - David A. Clarke School of Law Keith M. Harrison, Savannah Law School
17

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 24 of 35

(43 of 62)

Danielle Hart, Southwestern Law School Bruce Hay, Harvard Law School Dina Haynes, New England Law|Boston Geoffrey Heeren, Valparaiso University Law School Jennifer Hendricks, University of Colorado Laura A. Hernandez, Baylor Law School Kathy Hessler, Lewis & Clark Law School Richard Hildreth, University of Oregon Law Bill Hing, Univ. of San Francisco Immigration and Deportation Defense Clinic Cynthia Ho, Loyola University of Chicago School of Law Sharona Hoffman, Case Western Reserve University School of Law Brooks Holland, Gonzaga University School of Law Mary Holper, Boston College Immigration Clinic Kari Hong, Boston College Law School, Ninth Circuit Appellate Program C. Quince Hopkins, Florida Coastal School of Law Emily Houh, University of Cincinnati College of Law Alan Hyde, Rutgers Law School Lisa Ikemoto, University of California, Davis School of Law Erin Jacobsen, Vermont Law School Sam Jacobson, Willamette University College of Law
18

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 25 of 35

(44 of 62)

Regina Jefferies, University of Minnesota Law School Jamila Jefferson-Jones, University of Missouri - Kansas City Dalie Jimenez, University of Connecticut School of Law Paula Johnson, Syracuse University College of Law José (Beto) Juárez, University of Denver Sturm College of Law Doron Kalir, Civil Litigation Clinic, Cleveland Marshall College of Law Mary Kate Kearney, Widener Commonwealth Law School Christine Kellett, Dickinson Law/Penn State Kathryn Kelly, The Catholic University of America Laura Kessler, University of Utah, S.J. Quinney College of Law Elizabeth Keyes, University of Baltimore School of Law Kathleen Kim, Loyola Law School Catherine Kim, University of North Carolina School of Law Andrew Kim, Syracuse University College of Law Diane Klein, University of La Verne College of Law Eunice Lee, UC Hastings Center for Gender & Refugee Studies Jennifer Lee Koh, Western State College of Law Daniel M. Kowalski, Bender's Immigration Bulletin (LexisNexis) Annie Lai, UC Irvine School of Law Prerna Lal, East Bay Community Law Center, Berkeley Law
19

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 26 of 35

(45 of 62)

Laurie Leader Chicago-Kent College of Law, IIT Terri LeClercq, School of Law, Univeristy of Texas Evelyn Lewis, UCD Law Joellen Lind, Valparaiso University Law School Jeffrey Lubbers, American University, Washington College of Law Beth Lyon, Cornell Law School Elizabeth MacDowell, William S.Boyd School of Law, UNLV Luis Mancheno, Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law Randi Mandelbaum, Rutgers Law School Susan Mandiberg, Lewis & Clark Law School Genevieve Mann, Gonzaga University School of Law Lynn Marcus, Immigration Law Clinic, University of Arizona James E. Rogers College of Law Jennifer Martin, St. Thomas University School of Law Elena Marty-Nelson, NSU College of Law Julie Marzouk, Chapman University, Fowler School of Law Dayna Matthew, University of Colorado School of Law Elizabeth McCormick, University of Tulsa College of Law Kris McDaniek-Miccio, University of Denver Sturm College of Law
20

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 27 of 35

(46 of 62)

Janis McDonald, Professor of Law & Co-Director Cold Case Justice Initiative Amelia McGowan, Catholic Charities of Jackson, Mississippi Brian McGowan, Grambling State University Karla McKanders, University of Tennessee, College of Law Fiona McKenna, Golden Gate University School of Law Michelle McKinley, University of Oregon School of Law Mary Brigid McManamon, Delaware Law School Judith McMorrow, Boston College Law School Stephen Meili, University of Minnesota Law School Chi Mgbako, Fordham University School of Law Binny Miller, American University, Washington College of Law Elliott Milstein, American University Washington College of Law Sherizaan Minwalla, American University, Washington College of Law Behzad Mirhashem, UNH School of Law Jennifer Moore, University of New Mexico School of Law Nancy Morawetz, NYU School of Law Kathleen Morris, Golden Gate Law School Mary-Beth Moylan, University of the Pacific, McGeorge School of Law Professor Ann Murphy, Gonzaga University School of Law Yxta Maya, Murray Loyola Law School
21

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 28 of 35

(47 of 62)

Karen Musalo, UC Hastings Center for Gender & Refugee Studies Natalie Nanasi, SMU Dedman School of Law Jason Neidleman, University of La Verne Nise Nekheba, Florida A&M University College Of Law Lori Nessel, Seton Hall University School of Law Xuan-Thao Nguyen, Indiana University McKinney School of Law Fionnuala Ni Aolain, University of Minnesota, Human Rights Center Blake Nordahl, McGeorge Law School Immigration Law Clinic Tracy Norton, Touro College Jacob F. Fuchsberg School of Law Kenneth Nunn, University of Florida College of Law Udoka Nwanna Southwestern Law School Mariela Olivares, Howard University School of Law Michael A. Olivas, University of Houston Law Center Laura Oren, University of Houston Law Center Maria Pabon, Loyola New Orleans College of Law Victoria Palacios, SMU Dedman Law School Sunita Patel, American University Washington College of Law Carole Petersen, William S. Richardson School of Law Huyen Pham, Texas A&M University School of Law Teresa Phelps, American University Washington College of Law
22

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 29 of 35

(48 of 62)

Karen Pita Loor, Boston University Law School Nancy Polikoff, American University Washington College of Law Andrew Pollis, Case Western Reserve University School of Law Deborah Post, Touro Law Center Ana Pottratz Acosta, Mitchell Hamline School of Law Cynthia Prado-Guyer, University of Southern California Lynne Rambo Texas A&M University School of Law Jaya Ramji-Nogales, Temple University Beasley School of Law Andrea Ramos Southwestern Law School Immigration Law Clinic Vernellia Randall, The University of Dayton School of Law Renee Redman, University of Connecticut School of LAw Nikki Reisch, NYU School of Law Paula R. Rhodes, University of Denver Sturm College of Law Ira Robbins, American University Washington College of Law Kalyani Robbins, FIU College of Law Jenny Roberts, American University, Washington College of Law Cassandra Burke Robertson, Case Western Reserve Univ. School of Law Eloisa Rodriguez-Dod, FIU College of Law Sarah Rogerson, Albany Law School Michael Rooke-Ley, Nova Southeastern University College of Law
23

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 30 of 35

(49 of 62)

Leslie Rose, Golden Gate University School of Law Rand Rosenblatt, Rutgers University Law School Florence Rousman, Indiana U. Robert H. McKinney School of Law Judith Royster, University of Tulsa College of Law Rubén G. Rumbaut, University of California, Irvine Kevin Ruser, University of Nebraska College of Law Margaret Russell, Santa Clara University C. Mario Russell, Catholic Charities NY, St. John's Law School Emily Ryo, USC Gould School of Law Jendayi Saada, Unversity of La Verne College of Law Laura Sager, New York University School of Law Richard Sander, UCLA School of Law Margaret Satterthwaite, NYU School of Law Irene Scharf, Univ of Massachusetts School of Law Erica Schommer, St. Mary's University School of Law Sean Scott, Loyola Law School Kim Thuy Seelinger, Human Rights Center, University of California, Berkeley Rachel Settlage, Wayne State Law School Sudha Setty, Western New England University School of Law Ragini Shah, Suffolk University
24

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 31 of 35

(50 of 62)

Rebecca Sharpless, University of Miami School of Law Anette Sikka, University of Illinois Springfield Marjorie Silver, Touro Law Center Anita Sinha, American University Washington College of Law Matiangai Sirleaf, University of Pittsburgh Law School Gwynne Skinner, Willamette University College of Law Catherine Smith, University of Denver Sturm College of Law William Snape, American University, Washington college of law Gemma Solimene, Fordham University School of Law Mary Spector, SMU Dedman School of Law Jane Spinak, Columbia Law School Elissa Steglich, University of Texas School of Law, Immigration Clinic Nomi Stolzenberg, University of Southern California Law School Christopher Strawn, Immigration Law Clinic, Univ. of Washington School of Law Jayashri Srikantiah, Stanford Law School Immigrants’ Rights Clinic S.I., Strong University of Missouri Ellen Suni, UMKC School of Law Maureen Sweeney, University of Maryland Carey School of Law Chantal Thomas, Cornell University Law School Claire Thomas, Safe Passage Project Immigration Clinic at New York Law School
25

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 32 of 35

(51 of 62)

Michael Tigar, Washington College of Law Karen Tokarz, Washington University Civil Rights & Community Justice Clinic Mary Pat Treuthart, Gonzaga University School of Law Enid Trucios-Haynes, Brandeis School of Law, University of Louisville Tracy Turner, Southwestern Law School Diane Uchimiya, Justice and Immigration Clinic, Univ. of La Verne College of Law Gloria Valencia-Weber, University of New Mexico School of Law Rachel Van Cleave, Golden Gate University School of Law Anthony Varona, American University Washington College of Law Lea B. Vaughn, University of Washington School of Law Kyle Velte, Texas Tech University School of Law Leti Volpp, Berkeley Law Julie Waterstone, Southwestern Law School Susan C. Wawrose, University of Dayton School of Law Jonathan Weinberg, Wayne State University Marley Weiss, University of Maryland Carey School of Law Marley Weiss, University of Maryland Carey School of Law Deborah Weissman, University of North Carolina Anna Welch, University of Maine School of Law
26

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 33 of 35

(52 of 62)

Verna Williams, University of Cincinnati College of Law Wendy Williams, Georgetown Law Abby Wood, University of Southern California Gould School of Law Barbara Woodhouse, Emory Law School Karen Woody, Indiana University, Kelley School of Business Marcia Zug, University of South Carolina

27

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 34 of 35

(53 of 62)

CERTIFICATION OF COMPLIANCE This brief complies with the typeface and type style requirements of Fed. R. App. P. 32(a)(5)(a) and (a)(6) because it has been prepared in a proportionally spaced typeface, using Microsoft Word in Times New Roman 14-point font.

This brief complies with the type-volume limitations of Fed. R. App. P. 29(d) because it contains 2,577 words excluding the parts exempted by Fed. R. App. P. 32(a)(7)(B)(iii). (The maximum number of words is 2,600 for an amicus brief in connection with a motion, which has a word limit of 5,200 words under Fed. R. App. P. 27(d)(2)(A)).

Dated: February 5, 2017

/s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 35 of 35

(54 of 62)

CERTIFICATE OF SERVICE

I hereby certify that on February 5, 2017, I electronically filed the foregoing

with the Clerk of the court for the United States Court of Appeals for the Ninth

Circuit using the appellate CM/ECF system.

I certify that all participants in this case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

DATED: February 5, 2017

Respectfully submitted,

/s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 1 of 8

(55 of 62)

APPENDIX A TO AMICI BRIEF

LIST OF U.S. INSTITUTIONS OF HIGHER EDUCATION THAT HAVE ISSUED STATEMENTS EXPRESSING CONCERNS ABOUT THE EXECUTIVE ORDER 13769

1.

Adelphi University

2.

Amherst College

3.

Appalachian State University

4.

Auburn University

5.

Babson College

6.

Ball State University

7.

Bard College

8.

Barnard College

9.

Bates College

10.

Beloit College

11.

Bentley University

12.

Binghamton University

13.

Boston College

14.

Boston University

15.

Bowling Green State University

16.

Brandeis University

17.

Brown University

18.

Bryn Mawr College

19.

Bucknell University

20.

Butler University

21.

California Institute of Technology

22.

Carleton College

23.

Carlow University

24.

California State University, Dominguez Hills

25.

California State University, Fresno

26.

California State University, Fullerton

27.

California State University, Northridge

28.

California State University System

29.

Carnegie Mellon University

30.

Central Michigan University

31.

Chatham University

32.

Chestnut Hill College

33.

City University of New York

34.

Clemson University

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 2 of 8

(56 of 62)

35. Cleveland State University

36. Cleveland State University Faculty Senate

37. Colgate University

38.

College of Charleston

39.

College of William & Mary

40.

Colorado State University

41.

Columbia College Chicago

42.

Cornell University

43.

Creighton University

44.

Dakota State University

45.

Dartmouth College

46.

DePauw University

47.

DePaul University

48.

Drexel University

49.

Faculty of the Drexel University Thomas R. Kline School of Law

50.

Duke University

51.

Duquesne University

52.

Earlham College

53.

East Carolina University

54.

Eastern Michigan University

55.

Edmonds Community College

56.

Elizabethtown College

57.

Elon University

58.

Emerson College

59.

Fairleigh Dickinson University

60.

Florida International University

61.

Florida State University

62.

Foothill College

63.

Fordham University

64.

Georgia Institute of Technology

65.

Georgetown University

66.

George Mason University

67.

George Washington University

68.

Georgia Institute of Technology

69.

Georgia State University

70.

Grand Valley State University

71.

Grinnell College

72.

Hampshire College

73.

Harrisburg Area Community College

74.

Harvard University

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 3 of 8

(57 of 62)

75. Hiram College

76. Humboldt State University

77. Illinois Institute of Technology

78.

Illinois State University

79.

Indiana University

80.

Iowa State University

81.

Ithaca College

82.

James Madison University

83.

John Carroll University

84.

Johns Hopkins University

85.

Kalamazoo College

86.

Kansas State University

87.

Kent State University

88.

Kenyon College

89.

Lafayette College

90.

Lehigh University

91.

Lewis University

92.

Louisiana State University of Alexandria

93.

Loyola University Chicago

94.

Loyola University Maryland

95.

Loyola University New Orleans

96.

Macalester College

97.

Madison College

98.

Marquette University

99.

Marshall University

100. Massachusetts Institute of Technology

101. Marywood University

102. Miami University

103. Michigan State University

104. Michigan Technological University

105. Middlebury Institute of International Studies at Monterey

106. Minerva

107. Minnesota State University Mankato

108. Mississippi State University

109. Missouri University of Science and Technology

110. Missouri State University

111. Montana State University

112. Montclair State University

113. Mount Holyoke College

114. New Mexico State University

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 4 of 8

(58 of 62)

115. New York University 116. North Carolina State University 117. Northern Illinois University 118. Northwest Missouri State University 119. Northwestern University 120. Northwestern State University 121. Oberlin College 122. Ohio State University 123. Ohio University 124. Ohio Wesleyan University 125. Oklahoma State University 126. Old Dominion University 127. Oregon State University 128. Pacific Lutheran University 129. Pacific Oaks College 130. Pacific University 131. Park University 132. Pennsylvania State University 133. Pomona College 134. Portland State University 135. Princeton University 136. Purdue University 137. Ramapo College 138. Rice University 139. Rochester Institute of Technology 140. Rockefeller University 141. Roosevelt University 142. Rutgers, The State University of New Jersey 143. Rutgers University – Newark 144. Saint Xavier University 145. San Diego State University 146. San Francisco State University 147. Saybrook University 148. School for International Training (SIT) and SIT Graduate Institute 149. Seattle University 150. Seattle Pacific University 151. Smith College 152. Sonoma State University 153. South Dakota State University 154. Southern New Hampshire University

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 5 of 8

(59 of 62)

155. St. Louis University 156. St. Olaf College 157. Stanford University 158. State University of New York (SUNY) System 159. Stony Brook University 160. Suffolk University 161. Swarthmore College 162. Syracuse University 163. TCS Education System 164. Temple University 165. Texas A&M University 166. Texas Tech University 167. The Chicago School of Professional Psychology 168. The College of New Jersey 169. The College of Saint Rose 170. The Colleges of Law 171. Towson University 172. Trinity College 173. Troy University 174. Truman State University 175. Tufts University 176. University of Akron 177. University of Alabama 178. University of Alabama at Birmingham 179. University of Arizona 180. University of Arkansas Fayetteville 181. University of Buffalo 182. University of California, Berkeley 183. University of California, Davis 184. University of California, Irvine 185. University of California, Los Angeles 186. University of California, San Diego 187. University of California System 188. University of California Hastings College of the Law 189. University of Central Florida 190. University of Chicago and Letter to President Trump 191. University of Cincinnati 192. University of Colorado Boulder 193. University of Colorado Colorado Springs 194. University of Colorado Denver - Anschutz Medical Campus

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 6 of 8

(60 of 62)

195. University of Connecticut 196. University of Dayton 197. University of Delaware 198. University of Denver 199. University of Detroit Mercy 200. University of Evansville 201. University of Florida 202. University of Georgia 203. University of Hawai'i 204. University of Idaho 205. University of Illinois System 206. University of Illinois at Urbana-Champaign 207. University of Iowa 208. University of Kansas 209. University of Kentucky 210. University of Maryland 211. University of Maryland Baltimore County 212. University of Massachusetts Amherst 213. University of Massachusetts Boston 214. University of Massachusetts Dartmouth 215. University of Massachusetts Lowell 216. University of Massachusetts System 217. University of Memphis 218. University of Michigan 219. University of Minnesota 220. University of Mississippi 221. University of Missouri 222. University of Missouri-Kansas City 223. University of Missouri-St. Louis 224. University of Missouri System 225. University of Montana 226. University of Nebraska System 227. University of Nebraska-Lincoln 228. University of New Hampshire 229. University of New Mexico 230. University of Notre Dame 231. University of North Carolina at Chapel Hill 232. University of North Carolina at Charlotte 233. University of North Carolina at Greensboro 234. University of North Carolina at Wilmington

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 7 of 8

(61 of 62)

235. University of North Carolina System 236. University of North Texas 237. University of Oklahoma 238. University of Oregon 239. University of Pennsylvania 240. University of Pittsburgh 241. University of Portland 242. University of Rhode Island 243. University of Richmond 244. University of Rochester 245. University of San Diego 246. University of South Alabama 247. University of South Carolina 248. University of South Dakota 249. University of South Florida System 250. University of Southern California 251. University of Southern Indiana 252. University of Tennessee 253. University of Texas Arlington 254. University of Texas at Austin 255. University of Texas at Dallas 256. University of Texas System 257. University of Toledo 258. University of Tulsa 259. University of Vermont 260. University of Virginia 261. University of Washington 262. University of Washington International Student Services 263. University of Washington, Bothell 264. University of Wisconsin-Madison 265. University of Wisconsin-Eau Claire 266. University of Wisconsin-La Crosse 267. University of Wisconsin-Milwaukee 268. University of Wisconsin-Platteville 269. University of Wyoming 270. University System of Georgia 271. University System of Maryland 272. Utah State University 273. Valparaiso University 274. Vanderbilt University

Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 8 of 8

(62 of 62)

275. Virginia Commonwealth University 276. Virginia Polytechnic Institute and State University 277. Xavier University 278. Washington University 279. Washington State University 280. Wayne State University 281. Wellesley College 282. Wesleyan University 283. West Virginia University 284. Western Kentucky University 285. Western Michigan University 286. Western Washington University 287. Wichita State University 288. Williams College 289. Wilson College 290. Wofford College 291. Wright State University 292. Yale University

 
 Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-1, Page 1 of 5

(1 of 19)

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON; STATE OF MINNESOTA, Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, et al., Defendants-Appellants.
Appeal from the United States District Court Western District of Washington, Seattle D.C. No. 2:17-cv-00141-JLR

AMERICAN CIVIL LIBERTIES UNION AND ACLU OF WASHINGTON’S MOTION FOR LEAVE TO FILE BRIEF AS
AMICI CURIAE

Emily Chiang, WSBA No. 50517 ACLU OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, WA 98164 (206) 624-2184 echiang@aclu-wa.org
Daniel Mach Heather L. Weaver AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street NW Washington, DC 20005 (202) 675-2330 Attorneys for Amici (Additional Counsel on Subsequent Page)

Lee Gelernt Omar Jadwat Andre Segura Spencer Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 125 Broad Street New York, NY 10004 (212) 549-2500
Cecillia Wang Cody Wofsy AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 (415) 343-0770

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-1, Page 2 of 5

(2 of 19)

Paul J. Lawrence, WSBA No. 13557 Kymberly K. Evanson, WSBA No. 39973 Alanna E. Peterson, WSBA No. 46502 PACIFICA LAW GROUP LLP 1191 Second Avenue, Suite 2000 Seattle, WA 98101 (206) 245-1700

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-1, Page 3 of 5

(3 of 19)

The American Civil Liberties Union and ACLU of Washington respectfully seek leave to file the attached brief as amici curiae in opposition to Appellants’ motion for a stay of the Temporary Restraining Order. All parties consent to the filing of this brief. As set forth more fully in the attached brief, amici have significant expertise regarding the issues before the Court and a strong interest in the outcome of this motion.

February 6, 2017.

Respectfully submitted,

/s/ Emily Chiang Emily Chiang, WSBA No. 50517 ACLU OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, WA 98164 (206) 624-2184 echiang@aclu-wa.org
Lee Gelernt Omar Jadwat Andre Segura Spencer Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 125 Broad Street New York, NY 10004 (212) 549-2500

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-1, Page 4 of 5

(4 of 19)

Cecillia Wang Cody Wofsy AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 (415) 343-0770
Daniel Mach Heather L. Weaver AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street NW Washington, DC 20005 (202) 675-2330
Paul J. Lawrence, 39973 WSBA No. 13557 Kymberly K. Evanson, WSBA No. Alanna E. Peterson, WSBA No. 46502 PACIFICA LAW GROUP LLP 1191 Second Avenue, Suite 2000 Seattle, WA 98101 (206) 245-1700

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-1, Page 5 of 5

(5 of 19)

CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2017, I electronically filed the
foregoing with the Clerk for the United States Court of Appeals for the
Ninth Circuit by using the appellate CM/ECF system. All participants in this
case are registered CM/ECF users and will be served by the appellate
CM/ECF system. There are no unregistered participants.
/s/ Emily Chiang Emily Chiang, WSBA No. 50517 Dated: February 6, 2017

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 1 of 14

(6 of 19)

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON; STATE OF MINNESOTA, Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, et al., Defendants-Appellants.
Appeal from the United States District Court Western District of Washington, Seattle D.C. No. 2:17-cv-00141-JLR

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION AND ACLU OF WASHINGTON AS AMICI CURIAE IN OPPOSITION TO APPELLANTS’ MOTION FOR A STAY

Emily Chiang, WSBA No. 50517 ACLU OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, WA 98164 (206) 624-2184 echiang@aclu-wa.org
Daniel Mach Heather L. Weaver AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street NW Washington, DC 20005 (202) 675-2330 Attorneys for Amici (Additional Counsel on Subsequent Page)

Lee Gelernt Omar Jadwat Andre Segura Spencer Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 125 Broad Street New York, NY 10004 (212) 549-2500
Cecillia Wang Cody Wofsy AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 (415) 343-0770

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 2 of 14

(7 of 19)

Paul J. Lawrence, WSBA No. 13557 Kymberly K. Evanson, WSBA No. 39973 Alanna E. Peterson, WSBA No. 46502 PACIFICA LAW GROUP LLP 1191 Second Avenue, Suite 2000 Seattle, WA 98101 (206) 245-1700

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 3 of 14

(8 of 19)

CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 29(a)(4)(A) of the Federal Rules of Appellate Procedure, the American Civil Liberties Union Foundation and ACLU of Washington Foundation make the following disclosures:
1.) For non-governmental corporate parties please list all parent corporations: None
2.) For non-governmental corporate parties please list all publicly held companies that hold 10% of more of the party’s stock: None

Dated: February 6, 2017

Respectfully Submitted,
/s/ Emily Chiang Emily Chiang, WSBA No. 50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 (206) 624-2184 echiang@aclu-wa.org
Counsel for Amici

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 4 of 14

(9 of 19)

INTRODUCTION AND INTEREST OF AMICI The American Civil Liberties Union (“ACLU”) is a nationwide, nonprofit, nonpartisan organization dedicated to the principles of liberty and equality embodied in the Constitution and this Nation’s civil rights laws. The ACLU was founded in 1920, largely in response to the curtailment of liberties that accompanied America’s entry into World War I. In the intervening nine decades, the ACLU has frequently appeared before this and other courts during periods when the government has sought to abridge rights in the name of national security. The American Civil Liberties Union of Washington (“ACLU-WA”) is a statewide, nonpartisan, nonprofit organization of over 50,000 members carrying out the ACLU’s mission in the State of Washington. Like the national ACLU and other affiliates across the country, ACLU-WA has become a focal point to which many people harmed by the Executive Order have turned. Amici respectfully submit this brief in opposition to the government’s motion for a stay pending appeal.1

1 All parties have consented to the filing of this brief. Amici affirm that no counsel for any party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than Amici or their counsel made a monetary contribution to its preparation or submission.
1

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 5 of 14

(10 of 19)

The United States Constitution forbids the government from discriminating on the basis of religion. And yet, on January 27, 2017, President Donald J. Trump issued an Executive Order that, inter alia, banned from entering the United States all individuals from seven Muslimmajority countries—Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen— and gave preference to the processing of non-Muslim refugees over Muslim refugees from around the world. The Order is motivated by bias against Muslims, as confirmed by the President’s own public statements, as well as the absence of any rational justification for the categorical exclusion of individuals from the seven identified nations or the complete ban on refugees from around the world. The religious discrimination involved in the Executive Order is inconsistent with the bedrock Establishment Clause and equal protection principle that the government should never favor one religion over another.
The District Court properly granted a Temporary Restraining Order, putting a hold on the Executive Order until it can be more fully evaluated by the court. The government seeks to stay the Temporary Restraining Order and to reinstate the discriminatory and unlawful Executive Order. It invokes the doctrine of “plenary power” over immigration matters, arguing that this Court ought not engage in any real examination of the legality of this Order.

2

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 6 of 14

(11 of 19)

But the plenary power doctrine does not permit the government to override all constitutional rights and has never been applied to approve discrimination striking at the very core of the value of religious equality so central to this Nation’s founding.
The Order profoundly, directly, and irreparably harms people throughout the United States, destabilizing the lives of thousands of individuals and their families—including those seeking to live, find refuge, visit, study, or work in the State of Washington. Under the Order, U.S. citizens and legal permanent residents are unable to maintain their relationships with their families when their family members are denied entry at our borders. Those fleeing persecution cannot find a safe harbor here.. And workers and students with valid visas will lose their right to live, work, and study here if they travel abroad.
In light of the substantial and widespread injuries at stake—to citizens and noncitizens alike—Amici respectfully urge the Court to deny the government’s motion for a stay of the Temporary Restraining Order, and to leave in place this critical protection from further irreparable harm.

3

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 7 of 14

(12 of 19)

ARGUMENT A. The Government’s Invocation Of The “Plenary Power” Doctrine
Is Flawed. The United States invokes the plenary power doctrine to argue that the Order’s religious classifications should be subject to essentially no judicial scrutiny. See Appellant’s Br. 12-13, 16. But the Supreme Court’s recent immigration decisions have taken a far more measured approach to the plenary power doctrine than the government urges: the Court has repeatedly refused to insulate federal immigration statutes from meaningful constitutional review. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (rejecting government’s reliance on the plenary power doctrine, explaining that the government’s immigration “power is subject to important constitutional limitations”); INS v. St. Cyr, 533 U.S. 289, 304 (2001) (construing provision of immigration statute to avoid Suspension Clause concerns); INS v. Chadha, 462 U.S. 919, 940-41 (1983) (invalidating the legislative veto, stating that despite “[t]he plenary authority of Congress over aliens,” courts must inquire into “whether Congress has chosen a constitutionally permissible means of implementing that power”); Landon v. Plasencia, 459 U.S. 21, 32-35, 37 (1982) (holding that exclusion procedures for lawful permanent residents returning from brief trips abroad must comply with the Due Process Clause); see also Boumediene v. Bush, 553
4

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 8 of 14

(13 of 19)

U.S. 723, 771 (2008) (holding that statute applicable to noncitizens detained at Guantánamo Bay was unconstitutional, stating that “Congress must act in accordance with the requirements of the Suspension Clause”). In short, the government’s immigration powers are “subject to judicial intervention under the paramount law of the [C]onstitution.” Carlson v. Landon, 342 U.S. 524, 537 (1952) (internal quotation marks omitted).
In any event, the Supreme Court has never applied the plenary power doctrine to insulate from meaningful scrutiny an immigration classification that discriminates on the basis of religion in the manner that the Executive Order does here. The government can point to no legal or historical precedents to support the insulation of such discrimination from review. The Court therefore should not deviate in this case from “the clearest command of the Establishment Clause,” which is “that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). Now is not the point in our Nation’s history to begin placing judicial imprimatur on religious discrimination.
B. The Order’s Discrimination On The Basis of Religion Irreparably Harms Members Of Our Communities. Since the President issued the Executive Order on January 27, its
effects have reverberated across the entire country, including in Washington. Hundreds of individuals have contacted the ACLU, ACLU-WA, and other
5

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 9 of 14

(14 of 19)

ACLU state affiliates to report problems or seek advice on how best to protect themselves, their families, and their loved ones from the Order. Across the country, individuals feel uncertain about the future and question the stability of their employment, education, and right to travel freely. It is in the public interest to maintain interim injunctive relief to prevent substantial and ongoing nationwide harm. See Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005) (courts consider the public interest in determining whether to issue interim injunctive relief).
The individuals reaching out to the ACLU reflect the impact the Order has on people in Washington and throughout the Nation. The Order visits harm, among many others, against the following categories of people:
U.S. citizens with family or loved ones abroad. The Order impedes the ability of U.S. citizens to have friends and family from the seven affected countries visit or live with them, whether as immigrants or under tourist, work, or student visas. Amici have received many such reports and requests for help from citizens, including one report of a citizen who had waited two years for the issuance of visas for her husband and step-daughter, only to have their reunification blocked by the Order.
Legal permanent residents with family or loved ones abroad. The ban similarly obstructs the ability of legal permanent residents to have their

6

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 10 of 14

(15 of 19)

family or loved ones visit or join them in Washington and other places throughout the country. Many lawful permanent residents also fear leaving the country themselves, because the government’s many policy changes toward them during the past week have created an atmosphere of uncertainty and chaos. One permanent resident who contacted Amici, for example, feared visiting her elderly grandparents abroad. Her mother would also be unable to proceed with a planned visit here in the United States.
Individuals with refugee family members or friends fleeing persecution and conflict. The blanket ban on all refugees for 120 days, and on refugees from Syria indefinitely, exposes many refugees abroad to extreme danger. Those who are set to be admitted to the United States have already been extensively vetted, and many live in countries where their lives are at risk on a daily basis. For them, the Executive Order is literally a matter of life or death. Many of these refugees have family members or friends in the United States who are likewise harmed by the Order. A Syrian refugee family living in the United States, for example, contacted Amici to seek help for their son, daughter, and son-in-law, who had obtained the necessary approval to join the family in this country but were barred because of the Order. They are from Aleppo, Syria, and their daughter is pregnant.

7

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 11 of 14

(16 of 19)

Refugees residing in Washington who wish to reconnect with their families abroad. The ban also impedes the rights of refugees residing in Washington and other areas of the country to either have their families join them or to travel abroad to reconnect with their families. An Iraqi refugee, for example, contacted Amici because she has not seen her fiancée since she resettled in Washington two years ago, but now is afraid that if she leaves the country to visit him she will not be allowed to return.
For each of these stories, there are no doubt many other families being torn apart by the Order. The ban prevents student visa-holders from traveling abroad for study, travel, or to see their families. It restricts the ability of individuals working in the United States pursuant to employmentbased visas to travel as needed for their work. This has a profound effect on Washington companies in particular, which employ a significant number of skilled workers under employment-based visas in positions that require international travel. While purporting to advance national security, the ban is discriminatory and lacks a rational connection to national security, resulting in needless and irreparable harm to countless individuals living and working in this country.

8

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 12 of 14

(17 of 19)

CONCLUSION Amici respectfully request that the Court deny the government’s motion for a stay of the Temporary Restraining Order.

February 6, 2017.

Respectfully submitted,
/s/ Emily Chiang Emily Chiang, WSBA No. 50517 ACLU OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, WA 98164 (206) 624-2184 echiang@aclu-wa.org
Lee Gelernt Omar Jadwat Andre Segura Spencer Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 125 Broad Street New York, NY 10004 (212) 549-2500
Cecillia Wang Cody Wofsy AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 (415) 343-0770
9

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 13 of 14

(18 of 19)

Daniel Mach Heather L. Weaver AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street NW Washington, DC 20005 (202) 675-2330
Paul J. Lawrence, WSBA No. 13557 Kymberly K. Evanson, WSBA No. 39973 Alanna E. Peterson, WSBA No. 46502 PACIFICA LAW GROUP LLP 1191 Second Avenue, Suite 2000 Seattle, WA 98101 (206) 245-1700

10

Case: 17-35105, 02/06/2017, ID: 10302888, DktEntry: 24-2, Page 14 of 14

(19 of 19)

CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2017, I electronically filed the
foregoing with the Clerk for the United States Court of Appeals for the
Ninth Circuit by using the appellate CM/ECF system. All participants in
this case are registered CM/ECF users and will be served by the appellate
CM/ECF system. There are no unregistered participants.
/s/ Emily Chiang Emily Chiang, WSBA No. 50517 Dated: February 6, 2017

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief is 10 pages in length, excluding parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complied with typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because the brief has been prepared in a proportionally-spaced typeface using Microsoft Office 2011 in 14 point Times New Roman.
/s/ Emily Chiang Emily Chiang, WSBA No. 50517 Dated: February 6, 2017

 
 Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-1, Page 1 of 9

(1 of 31)

No. 17-35105 IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al. Plaintiffs-Appellees,

v.

DONALD TRUMP, et al., Defendants-Appellants.

On Motion for a Stay Pending Appeal of a Temporary Restraining Order Issued by the United States District Court
for the Western District of Washington Case No. 2:17-cv-141, Hon. James L. Robart
MOTION FOR LEAVE TO FILE BRIEF OF AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, SOUTHERN POVERTY LAW CENTER, AND AS AMICI CURIAE SUPPORTING APPELLEES AND DENIAL OF A STAY,
AND REQUEST TO FILE 2759-WORD BRIEF

KRISTI L. GRAUNKE MICHELLE R. LAPOINTE
Southern Poverty Law Center 1989 College Avenue NE Atlanta, GA 30317 (404) 521-6700
ANGELO J. CALFO KRISTIN W. SILVERMAN
Calfo Eakes & Ostrovsky PLLC 1301 Second Avenue Suite 2800 Seattle, WA 98101 (206) 407-2200

RICHARD B. KATSKEE ERIC ROTHSCHILD ANDREW L. NELLIS BRADLEY GIRARD KELLY M. PERCIVAL
Americans United for Separation of Church and State
1310 L Street, NW, Suite 200 Washington, DC 20005 (202) 466-3234

Counsel for Amici Curiae

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-1, Page 2 of 9

(2 of 31)

INTRODUCTION Currently before the Court is Defendants’ emergency motion for a stay of the temporary restraining order issued February 3, 2017, by the U.S. District Court for the Western District of Washington (Robart, J.). Pending determination of the State of Washington’s request for a preliminary injunction, for which the court directed the parties to set a briefing schedule so that the request could be decided with dispatch, the court restrained enforcement of Executive Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017), which bars immigrants and refugees from predominantly Muslim countries from entering or remaining in the United States. Defendants have impermissibly appealed an unappealable temporary restraining order and have sought a stay of that TRO pending resolution of their putative appeal. Americans United for Separation of Church and State and the Southern Poverty Law Center respectfully request leave to file the accompanying proposed amicus brief in support of Plaintiffs and against issuance of the requested stay.
Identity and Interest of Amici Curiae i. Amicus Americans United for Separation of Church and State is a national, nonsectarian public-interest organization. Its mission is twofold: (1) to advance the free-exercise rights of individuals and religious

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-1, Page 3 of 9

(3 of 31)

communities to worship as they see fit, and (2) to preserve the separation of church and state as a vital component of democratic government. Americans United represents more than 125,000 members and supporters across the country. Since its founding in 1947, Americans United has regularly participated as a party, as counsel, or as an amicus curiae in leading church–state cases decided by the United States Supreme Court and by federal and state trial and appellate courts throughout the country.
Americans United has long defended the fundamental rights of religious minorities in the United States by, among other things, bringing legal challenges to governmental action that singles out particular religions for favor or disfavor. See, e.g., Ziglar v. Abbasi, 2016 WL 7473962 (U.S. 2016) (supporting Muslim petitioners who were detained and tortured after the terror attacks of September 11, 2001); Hassan v. City of New York, 2014 WL 3572027 (3d Cir. 2015) (supporting challenge to New York City Police Department’s surveillance of Muslim communities); Awad v. Ziriax, 2011 WL 2118216 (10th Cir. 2012) (supporting challenge to Oklahoma law that singled out Islam for official disfavor). Americans United also advocated for the passage of the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb, under which a claim has been made in this case, as well as its sister statute, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc et seq., and routinely

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-1, Page 4 of 9

(4 of 31)

participates as counsel or as an amicus curiae in cases arising under these statutes. See, e.g., Holt v. Hobbs, 2014 WL 2361896 (2015). Notably, Americans United filed an amicus brief in Cutter v. Wilkinson, 544 U.S. 709 (2005), proposing the factors for the test of constitutionally permissible religious accommodations under RFRA and RLUIPA that the Supreme Court then adopted.
ii. Amicus Southern Poverty Law Center has provided pro bono civilrights representation to low-income persons in the Southeast since 1971, with particular focus on seeking justice for the most vulnerable people in society. SPLC has litigated numerous cases to enforce the civil rights of immigrants and refugees to ensure that they are treated with dignity and fairness. SPLC monitors and exposes extremists who attack or malign groups of people based on their immutable characteristics. SPLC is dedicated to reducing prejudice and improving intergroup relations. SPLC has a strong interest in opposing governmental action premised on unlawful discrimination that undermines the promise of civil rights for all.
REASONS WHY THE MOTION SHOULD BE GRANTED 1. The issues in this case have important ramifications for persons living across the United States and around the world. If the challenged TRO were to be stayed, families who currently find themselves living in different countries will be estranged. People fleeing war-torn regions will

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-1, Page 5 of 9

(5 of 31)

be turned away from this nation’s borders and given no opportunity to seek or obtain refuge from the horrors that they face in their countries of origin. Children coming to the United States for necessary medical care will be shunned. People lawfully residing and working in the United States will be prevented from traveling abroad by the threat that they will be detained and deported when they try to return home—or if they are already traveling abroad, they will have no way to avoid that consequence. And people lawfully in this country and not contemplating travel abroad are also at risk of being rounded up, detained, and deported. In short, nothing more than religion (albeit couched in the language of national origin or one-time residence) will determine whether hundreds of thousands of people have access (or continued access) to the opportunities of life in the United States.
2. What is more, it is not only the targeted Muslims who will be affected by the implementation of the Executive Order. The seismic shift in this Nation’s treatment of a religious minority will be felt by families, neighborhoods, houses of worship, local businesses, and, as the district court recognized, public universities and other public institutions. All will suffer the loss of valued employees, customers, relatives, and members of the community.

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-1, Page 6 of 9

(6 of 31)

3. The hardships in this country and around the world that will be caused by official discrimination against a single, disfavored religious group highlight the importance of correctly analyzing and deciding questions of religious-freedom rights—legal issues that amici are uniquely positioned to assist this Court in assessing. The proposed amicus brief explains why the Establishment Clause of the First Amendment to the U.S. Constitution bars enforcement of the anti-Muslim Executive Order, and hence why Plaintiffs are likely to succeed on the merits and why a stay of the TRO would be improper. As the brief explains, the government is forbidden to discriminate against Muslims. And it is forbidden to endorse or disfavor one religion as compared with others. The Executive Order does all of this and more.
4. All parties issued blanket consents to the filing of amicus briefs. At 10:34 p.m. PST (1:34 a.m. EST) on February 5, however, amici were informed that Defendants altered their position from straightforward consent to all amicus briefs, now giving consent solely if the amicus briefs were filed by the deadline for Plaintiffs’ brief of 11:59 p.m. PST (2:59 a.m. EST)—i.e., less than an hour and a half after the notice. Amici had been anticipating filing the brief in the morning on February 6. In light of Defendants’ changed position, amici immediately raced to finish and finalize their brief and this motion and endeavored to file them. It was

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-1, Page 7 of 9

(7 of 31)

simply not possible, however to do so by 11:59 p.m. PST, so amici filed very shortly thereafter, as soon as the technical aspects of the file the brief could be resolved in accordance with the rules. Because of the late notice of change of position from Defendants, Defendants may now be withholding consent. Amici request that the Court accept the brief, whether as uncontested or as contested.
5. Finally, amici respectfully request that the Court also grant leave to file the possibly overlength proposed brief. Circuit Rule 27-1 provides that motions may be no longer than twenty pages. Assuming that the normal rules for amicus briefs apply to amicus briefs supporting or opposing motions, amici would then have ten pages for their brief. Circuit Rule 32-3(2) provides that one may comply with the court’s length requirements by “filing a monospaced or proportionally spaced brief or other document in which the word count divided by 280 does not exceed the designated page limit.” Hence, we assume that the Rules allow for 2800-word amicus briefs supporting motions. The proposed brief is 2759 words. If amici have misunderstood the rules and the brief is overlength, we respectfully request that the Court grant leave to file it regardless.
CONCLUSION The Court should grant the request to file the proposed amicus brief and order the Clerk to accept the accompanying brief for filing.

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-1, Page 8 of 9

(8 of 31)

Date: February 6, 2017
KRISTI L. GRAUNKE MICHELLE R. LAPOINTE
Southern Poverty Law Center 1989 College Avenue NE Atlanta, GA 30317 (404) 521-6700
ANGELO J. CALFO KRISTIN W. SILVERMAN
Calfo Eakes & Ostrovsky PLLC
1301 Second Avenue Suite 2800 Seattle, WA 98101 (206) 407-2200

Respectfully submitted,
/s/ Richard B. Katskee RICHARD B. KATSKEE ERIC ROTHSCHILD* ANDREW L. NELLIS** BRADLEY GIRARD KELLY M. PERCIVAL*** Americans United for Separation of Church and State 1310 L Street NW, Suite 200 Washington, D.C. 20005 (202) 466-3234
* Admitted only in Pennsylvania. Supervised by Richard B. Katskee, a member of the D.C. bar.
** Admitted only in New York. Supervised by Richard B. Katskee, a member of the D.C. bar.
*** Admitted only in California. Supervised by Richard B. Katskee, a member of the D.C. bar.

Counsel for Amici Curiae Date: February 6, 2017

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-1, Page 9 of 9

(9 of 31)

CERTIFICATE OF SERVICE I certify that on February 6, 2017, the foregoing brief was filed using the Court’s CM/ECF system. All participants in the case are registered CM/ECF users and will be served electronically via that system.

/s/ Richard B. Katskee Counsel for Amici Curiae

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 1 of 22

(10 of 31)

No. 17-35105

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al. Plaintiffs-Appellees,
v.
DONALD TRUMP, et al., Defendants-Appellants.
On Motion for a Stay Pending Appeal of a Temporary Restraining Order Issued by the United States District Court for the Western District of Washington Case No. 2:17-cv-141, Hon. James L. Robart
BRIEF OF AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE AND THE SOUTHERN POVERTY LAW CENTER AS AMICI CURIAE SUPPORTING APPELLEE AND DENIAL OF A STAY

KRISTI L. GRAUNKE MICHELLE R. LAPOINTE
Southern Poverty Law Center
1989 College Avenue NE Atlanta, GA 30317 (404) 521-6700
ANGELO J. CALFO KRISTIN W. SILVERMAN
Calfo Eakes & Ostrovsky PLLC
1301 Second Avenue Suite 2800 Seattle, WA 98101 (206) 407-2200

RICHARD B. KATSKEE ERIC ROTHSCHILD* ANDREW L. NELLIS** BRADLEY GIRARD KELLY M. PERCIVAL***
Americans United for Separation of Church and State
1310 L Street, NW, Suite 200 Washington, DC 20005 (202) 466-3234
* Admitted in Pennsylvania only. Supervised by Richard B. Katskee, a member of the D.C. bar.
** Admitted in New York only. Supervised by Richard B. Katskee, a member of the D.C. bar.
*** Admitted in California only. Supervised by Richard B. Katskee, a member of the D.C. bar.

Counsel for Amici Curiae

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 2 of 22

(11 of 31)

CORPORATE DISCLOSURE STATEMENT Amici are nonprofit corporations. They have no parent corporations, and no publicly held corporation owns any portion of either of them.

i

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 3 of 22

(12 of 31)

TABLE OF CONTENTS
Interests of the Amici Curiae...............................................................................1 Introduction ..........................................................................................................1 Argument ..............................................................................................................2 The Temporary Restraining Order Was Warranted; A Stay Is Not..................2
A. Plaintiffs Are Likely To Succeed On The Merits Of Their Establishment Clause Claim. ...............................................................2 1. The Executive Order Fails The Larson Test. ................................3 2. The Executive Order fails the Lemon Test....................................6
B. The Balance Of Harms And The Public Interest Favor The TRO And Denial Of A Stay.................................................................11
Conclusion ........................................................................................................... 13

ii

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 4 of 22

(13 of 31)

TABLE OF AUTHORITIES
Cases
Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) .................................................................. 3
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 2002) .................................................................... 11
Edwards v. Aguillard, 482 U.S. 578 (1987) .................................................................................... 6
Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................ 11, 12
Epperson v. Arkansas, 393 U.S. 97 (1968) ...................................................................................... 2
Holt v. Hobbs, 135 S. Ct. 853 (2015) .................................................................................. 5
Joelner v. Vill. of Wash. Park, 378 F.3d 613 (7th Cir. 2004) .................................................................... 11
KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261 (11th Cir. 2006) ................................................................ 12
Larson v. Valente, 456 U.S. 228 (1982) ............................................................................ 2, 3, 4
Lemon v. Kurtzman, 403 U.S. 602 (1971) .................................................................................... 6
Lynch v. Donnelly, 465 U.S. 668 (1984) .......................................................................... 6, 7, 10
McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844 (2005) ...................................................................... 2, 6, 7, 10
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) .............................................................. 11, 12
New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ................................................................................ 12

iii

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 5 of 22

(14 of 31)

TABLE OF AUTHORITIES—continued
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) .......................................................................... 7, 8, 10
Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir. 2011) .................................................................... 8
United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483 (2001) .................................................................................. 12
Vernon v. City of L.A., 27 F.3d 1385 (9th Cir. 1994) ...................................................................... 6
Wallace v. Jaffree, 472 U.S. 38 (1985) ...................................................................................... 7
Statutes, Rules, and Regulations
Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) ................................................. 3, 4, 8, 9
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (2015) ...................................................................... 5
Other Authorities
Figures at a Glance, UNHCR, http://bit.ly/2cmTBiF .................................... 9
Diaa Hadid, What Muslims Do on Hajj, and Why, N.Y. TIMES (Sept. 8, 2016), http://nyti.ms/2kYGovS ................................ 5
Michael Edison Hayden & Maia Davis, World’s Airlines Are Told It’s Back to Business as Usual for US-bound Travelers in Wake of Judge’s Order, ABC NEWS (Feb. 4, 2017), http://abcn.ws/2l8PYvy ............................................................................ 11
Jens Manuel Krogstad & Jynnah Radford, Key Facts About Refugees to the U.S., PEW RES. CTR. (Jan. 30, 2017), http://pewrsr.ch/2kk7ro8............................................................................ 8
Message from U.S. Embassy Tel Aviv Consular Section, U.S. EMBASSY IN ISRAEL, http://bit.ly/2l0KWB8..................................... 10

iv

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 6 of 22

(15 of 31)

TABLE OF AUTHORITIES—continued
Ellen Nakashima, Domestic Extremists Have Killed More Americans than Jihadists Since 9/11. How the Government Is Responding, WASH. POST (Oct. 15, 2015), http://wapo.st/1Qh8Kft............................................................................... 5
Alex Nowrasteh, Where Do Terrorists Come From? Not the Nations Named in Trump Ban, NEWSWEEK (Jan. 31, 2017), http://bit.ly/2kWoddx.................................................................................. 5
PEW RES. CTR., THE GLOBAL RELIGIOUS LANDSCAPE (2012), http://bit.ly/2k4Us8B.................................................................................. 8

v

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 7 of 22

(16 of 31)

INTERESTS OF THE AMICI CURIAE1 As detailed in the accompanying motion, amici curiae are nonprofit public-interest organizations committed to preserving religious freedom. Because the Executive Order under challenge discriminates against Muslims based solely on their faith, and because constitutional injuries will accrue immediately if the temporary restraining order is stayed, amici have a strong interest in ensuring that the TRO remains in place.
INTRODUCTION Executive Order 13,769 makes good on President Trump’s promise to ban Muslims from entering the country. See First Am. Compl. ¶¶ 42–61. The Executive Order is unsupported by fact and is instead motivated by religious animus. It has already harmed scores of people; if reinstated, it will harm millions more. Accordingly, the district court issued a temporary restraining order and directed the parties to propose a briefing schedule on the State of Washington’s motion for a preliminary injunction. Instead of having the preliminary-injunction motion resolved with dispatch, the government appeals an unappealable order and seeks the extraordinary relief of an emergency stay, contending that being
1 No counsel for a party authored this brief in whole or in part, and no person other than amici, their members, or their counsel made a monetary contribution intended to fund the brief’s preparation or submission. As the motion details, the parties appear to have consented to this filing.
1

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 8 of 22

(17 of 31)

prevented from deporting and refusing entry to people based on their religion makes it, the government, the injured party. Nonsense.
The Executive Order harms the State, its institutions, and its citizens. And because the Executive Order on its face violates the Establishment Clause—among other constitutional provisions—it is indefensible as a matter of law. If it goes into effect, it will do immediate and irreparable damage to individuals, families, and entire communities. Should this Court consider the merits of this impermissible appeal, therefore, it should conclude as the district court did: The Executive Order cannot stand—even for a day. The request for a stay should be denied.
ARGUMENT THE TEMPORARY RESTRAINING ORDER WAS WARRANTED; A STAY IS NOT.
A. Plaintiffs Are Likely To Succeed On The Merits Of Their Establishment Clause Claim.
“[T]he First Amendment mandates governmental neutrality” with respect to religion, forbidding official discrimination. Epperson v. Arkansas, 393 U.S. 97, 104 (1968); accord, e.g., McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 860 (2005); Larson v. Valente, 456 U.S. 228, 246 (1982). Ignoring this clear constitutional command, the government has singled out one religious group—Muslims—for official disfavor and maltreatment. By instituting a wide-ranging, punishing ban on Muslim immigrants, the government runs roughshod over core First Amendment
2

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 9 of 22

(18 of 31)

protections. The district court therefore correctly concluded that the State is likely to succeed on the merits of its claims.
1. The Executive Order Fails The Larson Test. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson, 456 U.S. at 244. Thus, when the government designates one denomination for different treatment—favorable or unfavorable—its action is subject to strict scrutiny under Larson v. Valente, supra. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1128 (10th Cir. 2012) (applying strict scrutiny to and invalidating state law disfavoring Islam). The Executive Order singles out countries that are almost entirely Muslim and subjects those who were born in or come from those countries—i.e., Muslims—to harsh legal disabilities and punishments, including exclusion, detention, and expulsion. Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017). Even legal U.S. residents are targeted and put at severe risk of detention and deportation because of their officially disfavored Muslim faith. First Am. Compl. Ex. 10. The Executive Order also favors refugees who are “religious minorit[ies]” in their home countries, again assigning legal rights based on religious denomination. See Exec. Order No. 13,769 § 5(b), (e). To be sure, affording refuge to victims of religious persecution would be
3

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 10 of 22

(19 of 31)

constitutionally permissible. But merely being “a minority religion in the individual’s country of nationality” (id. § 5(b)) does not automatically make one a victim of persecution, so affording preferred status on that basis is “precisely the sort of official denominational preference that the Framers of the First Amendment forbade” (Larson, 456 U.S. at 255). And because most refugees worldwide currently come from Muslim countries, the preference will primarily benefit non-Muslims (see infra Section A.2), making the preference run against a disfavored minority faith in this country.2 The Executive Order is thus “suspect” and the courts should “apply strict scrutiny in adjudging its constitutionality.” Larson, 456 U.S. at 246.
The government counters by asserting an interest in “stop[ping] attacks by foreign nationals . . . admitted to the United States.” Exec. Order No. 13,769 § 1. To be sure, preventing terrorism is a compelling interest. But the Executive Order must be “closely fitted to further the interest.” Larson, 456 U.S. at 248. It isn’t.
National security is not furthered by a policy of suddenly, flatly, and universally excluding Muslims whose entry the government has already
2 The government’s suggestion that it merely “recognize[s] that religious minorities are more likely to face persecution” (Emer. Mot. 19) cannot be squared with the Executive Order’s text, which makes merely belonging to a minority faith the basis for receiving favorable treatment (Exec. Order No. 13,769 § 5(b)).
4

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 11 of 22

(20 of 31)

approved. Much less is the policy closely fitted to that end. People from the
seven countries listed in the Executive Order have, collectively, killed zero
people in terrorist attacks in the United States since 1975. Alex
Nowrasteh, Where Do Terrorists Come From? Not the Nations Named in
Trump Ban, NEWSWEEK (Jan. 31, 2017), http://bit.ly/2kWoddx. None of the
top five countries of origin for foreign-born perpetrators of terrorism in the
United States are listed in or covered by the Executive Order. See id. And
homegrown terrorism—by non-Muslims—is a far greater (and
unaddressed) threat. See, e.g., Ellen Nakashima, Domestic Extremists
Have Killed More Americans than Jihadists Since 9/11. How the
Government Is Responding, WASH. POST (Oct. 15, 2015),
http://wapo.st/1Qh8Kft. Hence, the policy’s fit with the defendants’
asserted interest is not merely loose; it is nonexistent. As the district court
stated from the bench, the Executive Order would not survive even
rational-basis review—much less strict scrutiny.3
3 Because the Executive Order cannot withstand strict scrutiny, it also violates the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (2015). RFRA applies strict scrutiny to substantial government-imposed burdens on religion. See Holt v. Hobbs, 135 S. Ct. 853, 859 (2015). Under the Executive Order, visa-holding Muslim residents of the United States cannot make a pilgrimage to Mecca—a mandatory religious obligation to be fulfilled at least once in a practicing Muslim’s lifetime (Diaa Hadid, What Muslims Do on Hajj, and Why, N.Y. TIMES (Sept. 8, 2016), http://nyti.ms/2kYGovS). For if they leave the country and then try to return, they will be detained and deported. Being jailed and then expelled
5

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 12 of 22

(21 of 31)

2. The Executive Order fails the Lemon Test. The Executive Order also violates the Lemon Test, which requires that governmental action have a preeminently secular purpose (McCreary, 545 U.S. at 864) and a “principal or primary effect . . . that neither advances nor inhibits religion” (Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)). a. The secular-purpose requirement is violated if the “government’s actual purpose is to endorse or disapprove of religion.” Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring)). The government’s articulated “secular purpose . . . has to be genuine, not a sham, and not merely secondary to a religious objective.” McCreary, 545 U.S. at 864. The secular-effect requirement is violated whenever “it would be objectively reasonable for the government action to be construed as sending primarily a message of either endorsement or disapproval of religion.” Vernon v. City of L.A., 27 F.3d 1385, 1398 (9th Cir. 1994). “[T]he government may not favor one religion over another” by appearing to endorse the one or condemn the other. McCreary, 545 U.S. at 875.

because of religious exercise surely meets any definition of a substantial burden.
6

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 13 of 22

(22 of 31)

b. Taking these requirements together, the constitutional question is “‘whether an objective observer . . . would perceive” the government to have placed its stamp of approval or disapproval on religion or a particular faith. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (quoting Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O’Connor, J., concurring)); accord, e.g., McCreary, 545 U.S. at 862 (purpose determined from same perspective). This Court must therefore consider whether a hypothetical reasonable, objective observer would understand the government either (i) to have intended to mark Muslims as “outsiders, not full members of the political community” or (ii) to have actually conveyed that message. Santa Fe, 530 U.S. at 309 (quoting Lynch, 465 U.S. at 688 (O’Connor, J., concurring).
Because “reasonable observers have reasonable memories,” the Court must not “turn a blind eye to the context” but must “look to the record of evidence showing the progression leading up to” the challenged policy. McCreary, 545 U.S. at 866, 868. For the objective observer is “presumed to be familiar with the history of the government’s actions and competent to learn what history has to show” (id. at 866), which means that all publicly available information about the genesis, evolution, and implementation of the challenged policy speaks directly to whether it is an unconstitutional religious endorsement. And even officially repudiated
7

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 14 of 22

(23 of 31)

past acts are not “dead and buried” but remain in the reasonable observer’s memory, affecting how the final policy is viewed. Id. at 870; accord Trunk v. City of San Diego, 629 F.3d 1099, 1119 n.19 (9th Cir. 2011). Finally, the Establishment Clause is violated by “both perceived and actual endorsement of religion” (Santa Fe, 530 U.S. at 305), so a message of endorsement is unconstitutional even if the government did not intend it.
c. Disapproval of Islam and favoritism toward other faiths is apparent from the bare text of the Executive Order. It singles out for detention, deportation, and exclusion persons from seven overwhelmingly Muslim nations: Iran (99.5% Muslim), Iraq (99.0% Muslim), Libya (96.6% Muslim), Somalia (99.8% Muslim), Sudan (90.7% Muslim), Syria (92.8% Muslim), and Yemen (99.1% Muslim). Exec. Order No. 13,769 § 3(c); PEW RES. CTR., THE GLOBAL RELIGIOUS LANDSCAPE 45–50 (2012), http://bit.ly/2k4Us8B.
It also blocks entry of all refugees temporarily and of Syrian refugees indefinitely (Exec. Order No. 13,769 § 5(a), (c)), again disproportionately affecting Muslims. Not only is Syria overwhelmingly Muslim, but Muslims made up a plurality of all refugees resettled in the United States last year, the number of Muslim refugees having increased almost every year over the past decade. Jens Manuel Krogstad & Jynnah
8

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 15 of 22

(24 of 31)

Radford, Key Facts About Refugees to the U.S., PEW RES. CTR. (Jan. 30, 2017), http://pewrsr.ch/2kk7ro8.
The disfavor toward Islam is compounded by the Executive Order’s favoritism toward refugees who belong to minority religions (see Exec. Order No. 13,769 § 5(b), (e)), as most refugees worldwide currently come from Muslim-majority countries (Figures at a Glance, UNHCR, http://bit.ly/2cmTBiF (last visited Feb. 2, 2017)).
d. While these features of the Executive Order alone communicate official preference against Islam, the objective observer also perceives much more.
First, the precursor to the Executive Order was then-candidate Trump’s repeated promise of a “total and complete shutdown of Muslims entering the United States.” First Am. Compl. Ex. 1. Second, after public outcry that a Muslim ban would be unconstitutional, candidate Trump explained that he would get around the Constitution by papering over the targeting of Islam: “I’m talking territory instead of Muslim.” First Am. Compl. Ex. 4, at 6. Indeed, he publicly described this change not as “a pullback” but as “an expansion” of the Muslim ban. First Am. Compl. Ex. 4, at 1 (emphasis added). Third, after the election, President-elect Trump asked Rudy Giuliani (then being considered for Secretary of State) to figure out how the “Muslim ban” could be implemented “legally.” First Am. Compl.
9

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 16 of 22

(25 of 31)

Ex 17. Fourth, in an interview with the Christian Broadcasting Network on January 27, 2017—the day he issued the Executive Order—President Trump declared that the government would now expressly give priority to Christians over other refugees. First Am. Compl. Ex. 8. And fifth, he exempted from the ban everyone in the seven listed countries who holds an Israeli passport (and therefore is likely Jewish). See Message from U.S. Embassy Tel Aviv Consular Section, U.S. EMBASSY IN ISRAEL, http://bit.ly/2l0KWB8 (last visited Feb. 2, 2017).
Taking all of that into account, an objective observer could hardly help but perceive governmental condemnation of Islam and endorsement of other faiths. Indeed, for more than a year President Trump has bombarded the public with the message that Muslims are “outsiders, not full members of the political community.” Santa Fe, 530 U.S. at 309 (quoting Lynch, 465 U.S. at 688 (O’Connor, J., concurring)). The Executive Order thus communicates that Muslims are a disfavored caste in this country.
That is not a message that the government can or should convey: “When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship.” McCreary, 545

10

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 17 of 22

(26 of 31)

U.S. at 883 (O’Connor, J., concurring). The violation of the Establishment Clause is forthright and flagrant.
B. The Balance Of Harms And The Public Interest Favor The TRO And Denial Of A Stay.
The remaining factors likewise favor denial of a stay. The TRO is necessary, as the district court determined, to protect against imminent and unconstitutional official discrimination against Muslims. Since its issuance on Friday afternoon, the TRO has already resulted in reinstatement of some 60,000 visas revoked under the Executive Order from people whom the government had previously screened and approved for entry. Michael Edison Hayden & Maia Davis, World’s Airlines Are Told It’s Back to Business as Usual for US-bound Travelers in Wake of Judge’s Order, ABC NEWS (Feb. 4, 2017), http://abcn.ws/2l8PYvy. There can be little doubt that the government would immediately reinstate the mass revocation if the TRO were stayed. For those whose visas are in jeopardy, there would then be no adequate remedy for the harms. What is more, “it is always in the public interest to protect First Amendment liberties.” Joelner v. Vill. of Wash. Park, 378 F.3d 613, 620 (7th Cir. 2004) (quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 2002)); accord Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.

11

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 18 of 22

(27 of 31)

2012). Because the Executive Order violates First Amendment rights, the injuries that it inflicts are irreparable as a matter of law. Elrod v. Burns, 427 U.S. 347, 373 (1976). And, of course, “[t]he public has no interest in enforcing an unconstitutional” law. KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272–73 (11th Cir. 2006). Quite the contrary.
On the other side of the equation, the government asserts unfettered discretion to exclude an entire “class of aliens” whenever it makes “the predictive judgment” that the “class” threatens national security; and it argues that judicial review of those decisions offends the public interest. Emer. Mot. 21–22. But the government has no legitimate interest, much less a weighty one, in enforcing unconstitutional policies. See Melendres, 695 F.3d at 1002. It has no legitimate interest in discriminating on the basis of religion. It has made no showing that there is any serious risk from the people whom it has already vetted and granted the right to be in the United States. And it has made no showing that judicial review of unconstitutional conduct undermines governmental authority.4 Rather, judicial review is the principled constitutional bulwark against naked abuse of political power that confers legitimacy on all governmental action.
4 The cases on which the government purports to rely (United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483 (2001); New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345 (1977)) implicate no constitutional rights.
12

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 19 of 22

(28 of 31)

The harms to Plaintiffs and the public from a stay are imminent and

extreme; the purported harms to the government are not legally

cognizable. All factors favor the TRO and denial of a stay.

*

*

*

The Executive Order is what President Trump promised all along: a

“Muslim ban.” No amount of rebranding can change that. People are

excluded, detained, and deported for no reason other than their deity and

preferred holy book. The Executive Order is an insult to the fundamental

principles of religious freedom enshrined in our Constitution. It cannot

stand—even for a day.

CONCLUSION

The temporary restraining order was warranted. The stay request

should be denied.

13

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 20 of 22

(29 of 31)

Respectfully submitted,

/s/ Richard B. Katskee

KRISTI L. GRAUNKE MICHELLE R. LAPOINTE Southern Poverty Law Center
1989 College Avenue NE Atlanta, GA 30317 (404) 521-6700

RICHARD B. KATSKEE ERIC ROTHSCHILD* ANDREW L. NELLIS** BRADLEY GIRARD KELLY M. PERCIVAL***
Americans United for

Separation of Church

ANGELO J. CALFO

and State

KRISTIN W. SILVERMAN Calfo Eakes & Ostrovsky PLLC

1310 L Street, NW Washington, DC 20005

1301 Second Avenue

(202) 466-3234

Suite 2800

Seattle, WA 98101 (206) 407-2200

* Admitted in Pennsylvania only. Supervised by Richard B. Katskee, a member of the

D.C. bar.

** Admitted in New York only.

Supervised by Richard B.

Katskee, a member of the

D.C. bar.

*** Admitted in California

only. Supervised by Richard B.

Katskee, a member of the D.C.

bar.

Counsel for Amici Curiae

Date: February 6, 2017

14

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 21 of 22

(30 of 31)

CERTIFICATE OF COMPLIANCE The undersigned counsel for amici curiae certifies that: (i) Pursuant to Federal Rule of Appellate Procedure 29(a)(5), this brief can be no longer than one-half the maximum length of the party briefs; and (ii) under Circuit Rule 32-3(2), a proportionally spaced brief with the word count divided by 280 cannot not exceed the maximum page limit of ten pages, half of the pages allowed by Circuit Rule 27-1(1)(d), making the maximum word count 2800. (iii) This brief complies with the type-volume limitation of Circuit Rule 27-1(1)(d) and Circuit Rule 32-3(2) because it contains 2759 words including footnotes and excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii); and (iv) complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared using Microsoft Office Word 2010 and is set in proportionally sized Century Schoolbook font in a size equivalent to 14 points or larger.

/s/ Richard B. Katskee

Case: 17-35105, 02/06/2017, ID: 10302890, DktEntry: 26-2, Page 22 of 22

(31 of 31)

CERTIFICATE OF SERVICE I certify that on February 6, 2017, this brief was filed using the Court’s CM/ECF system. All participants in the case are registered CM/ECF users and will be served electronically via that system.

/s/ Richard B. Katskee

 
 Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 1 of 25

No. 17-35105 ______________________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
______________________________________________________________________________

STATE OF WASHINGTON, et al., Plaintiffs-Appellees,

v.

DONALD TRUMP, President of the United States, et al., Defendants-Appellants.
______________________________________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, THE HONORABLE JAMES L. ROBART PRESIDING, CASE NO. 2:17-cv-00141-JLR.
______________________________________________________________________________

BRIEF OF AMICUS CURIAE HIAS, INC., IN SUPPORT OF PLAINTIFFS-APPELLEES ______________________________________________________________________________

Steven P. Blonder Edward D. Shapiro Anthony C. Valiulis Joanne A. Sarasin Jonathan L. Loew Daniel Hantman Much Shelist, PC 191 North Wacker Drive Suite 1800 Chicago, IL 60606 Tel. (312) 521-2000 sblonder@muchshelist.com eshapiro@muchshelist.com avaliulis@muchshelist.com jsarasin@muchshelist.com jloew@muchshelist.com

Robert J. Stein III DiVincenzo Schoenfield Stein 3 Park Plaza Suite 1650 Irvine, CA 92614 Tel. (714) 881-7002 rob@dss.law

Counsel for Amicus Curiae Dated: February 6, 2017 1

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 2 of 25
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................................................ 3 FRAP RULE 26.1 AND FRAP 29(a)(4)(E) DISCLOSURE STATEMENT ............................................................... 5 STATEMENT OF INTEREST OF AMICUS CURIAE ............................................................................................ 1
I. The Executive Order Violates the INA............................................................................................... 6 II. The Executive Order Is Putting People at Risk, And The Stay Should Not be Lifted. ...................... 11 CONCLUSION............................................................................................................................................... 18
2

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 3 of 25

TABLE OF AUTHORITIES CASES

Page

Barajas-Romero v. Lynch, No. 13-70520, 2017 WL 192711 (9th Cir. Jan. 18, 2017)...................................13

Chan v. Lothridge, No. C 94-1827 SAW, 1994 WL 411723 (N.D. Cal. Aug. 5, 1994) ............. 10, 11

Chan v. Lothridge, 81 F.3d 167 (9th Cir. 1996)........................................................................... 10, 11

Exodus Refugee Immigration, Inc. v. Pence, 838 F.3d 902 (7th Cir. 2016)................................................................... 10, 13, 14

OTHER AUTHORITIES
Senate Report No. 256: 96th Cong., 2d Sess. Reprinted in U.S. Code Cong. and Admin. News 142.......................................................................................... 10, 11
Amy Pope, How We're Welcoming Syrian Refugees While Ensuring Our Safetey, Nov. 17 2015, 2015 WL 7251679 (The White House, Office of Communications) .................................................................................................13
The Screening Process for Entry into the United States, Nov. 20, 2015, 2015 WL 7307828 (The White House, Office of Communications) ..................................14
United States Citizenship and Immigration, Refugee Screening, available at www.uscis.gov/refugeescreening#GeneralRefugee, last visited Feb. 6, 2017 ...................................................................................7, 14
United States Department of State, Refugee Admissions, available at http://www.state.gov/j/prm/ra/, last visited Feb. 6, 2017.......................................7

3

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 4 of 25
STATUTES Immigration and National Security Act
8 U.S.C. §§ 1101 et seq. ..................................................................................8, 10 8 U.S.C. § 1101 ....................................................................................................13 8 U.S.C. § 1157 ............................................................................................. 11, 12
4

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 5 of 25

FRAP RULE 26.1 AND FRAP 29(a)(4)(E) DISCLOSURE STATEMENT

HIAS, Inc. is a 501(c)(3) not-for-profit refugee protection organization, with

no parent corporation and no publicly traded stock. This brief was authored by

counsel for HIAS, without the involvement of counsel for any party in this matter.

No party or counsel for such party contributed money that was intended to fund

preparing or submitting this brief. No person other than the amicus or its counsel

contributed money that was intended to fund preparing or submitting this brief.

Dated: February 6, 2017

/s/ Robert J. Stein Robert J. Stein Counsel for Amicus Curiae

5

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 6 of 25
STATEMENT OF INTEREST OF AMICUS CURIAE HIAS (“Amicus”) is an organization dedicated to rescuing people whose lives are in danger for being who they are. HIAS protects the most vulnerable refugees, helping them build new lives and reuniting them with their families in safety and freedom, as well as advocating for the protection of refugees and assuring that displaced people are treated with dignity and respect. Through offices in twelve countries, HIAS protects refugees around the world, and resettles refugees in the United States. HIAS is one of the non-profit refugee resettlement agencies working through cooperative agreements with the United States Department of State and Department of Health and Human Services.
Amicus further seeks to edify the Court about the needless difficulties and dangers that President Trump’s executive order has caused its clients with actual examples of the details of the hazards they now face. HIAS writes to shed light on the history and purpose of United States refugee laws and the requirements Congress placed on the President to consult with it on decisions about the number of refugees that the President decides should be allowed into the United States.
Amicus submits this brief under Fed. R. App. P. 29. This brief should be permitted to be filed without an accompanying motion for leave to file or leave of court because all parties have consented to its filing. Fed. R. App. P. 29(a).
1

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 7 of 25
STATEMENT OF AMICUS
Founded in the 1880s to help resettle Jews fleeing persecution in tsarist Russia, HIAS is the world’s oldest refugee agency. Today, HIAS provides services to any refugees who are in need of assistance, regardless of their national, ethnic, or religious background. Although most of the refugees HIAS serves today are not Jewish, HIAS assists and advocates for them as an expression of Jewish values like tikkun olam (that is, acts of kindness performed to perfect or repair the world) and welcoming and protecting the stranger. Since its founding, HIAS has helped more than 4.5 million refugees start new lives by recovering and gaining control of their future. In 2016, HIAS assisted more than 350,000 refugees and asylum seekers globally and resettled thousands of refugees to the United States. Besides providing direct services such as social, legal, and integration assistance, HIAS advocates for the protection of refugees to ensure that displaced people are treated with respect and dignity.
U.S. Refugee Admissions Program Since its founding, the United States has offered safety and the hope of a new life to refugees fleeing violence and persecution. The U.S. Refugee Admissions Program (USRAP) continues that legacy—it is a sophisticated humanitarian program designed to admit certain eligible refugees, set them up to quickly become self-sufficient, and enable them to restart their lives in safety.
2

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 8 of 25
A refugee is someone who has fled from his or her home country and cannot return because he or she has a well-founded fear of persecution based on religion, race, nationality, political opinion or membership in a particular social group1. The first step for most refugees, as stated by the U.S. Department of State, is to register with the United Nations High Commissioner for Refugees (UNHCR) in the country to which s/he has fled. The U.S. Department of State continues, UNHCR determines if an individual qualifies as a refugee and, if so, works toward the best possible durable solution for each refugee: safe return to the home country, local integration, or third-country resettlement.
The U.S. Refugee Admissions Program is a multistep process that necessitates governmental and non-government agency partnerships coordinated by the U.S. Department of State. Applicants are subject to intensive biographic and biometric security checks. Applicants are referred to the program by the UNHCR. Before being accepted for resettlement in the U.S., applicants are interviewed by the U.S. Citizenship and Immigration Services. Refugee applicants have the highest level of background and security checks of any category of traveler to the United States2.
1 U.S. Department of State, Refugee Admissions, https://www.state.gov/j/prm/ra/ 2 U.S. Citizenship and Immigration Services, Refugee Processing and Security Screening, https://www.uscis.gov/refugeescreening
3

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 9 of 25
Of the more than 60 million displaced people around the world, 21.3 million are refugees3. The UNHCR, estimates that only one percent of the world’s refugees will ever be able to resettle in a third country. The UNHCR defines resettlement as “the transfer of refugees from an asylum country to another State that has agreed to admit them and ultimately grant them permanent settlement”4. By nationality, the main beneficiaries of UNHCR-facilitated resettlement programs during [2016] were refugees from the Syrian Arab Republic (71,600), the Democratic Republic of the Congo (20,400), Iraq (11,000) and Somalia (9,600) according to the UNHCR.
SUMMARY OF ARGUMENT On January 27, 2017, President Donald Trump issued an executive order which purported to by its title “Protect the Nation from Foreign Terrorist Entry Into the United States” (the “Executive Order”). Among other things the Executive Order suspends the United States Refugee Admissions Program (“Refugee Program”) for 120 days, thereby effectively cutting off refugee movement into the United States for at least several months. President Trump claimed his authority for the Executive Order under the laws of the United States including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq. However, the Executive Order
3 U.S. Department of State, Refugee Admissions, https://www.state.gov/j/prm/ra/ 4 UNHCR, Resettlement, http://www.unhcr.org/en-us/resettlement.html
4

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 10 of 25
was signed without statutory compliance and in derogation of the purpose and objectives of the Act, including its amendment by the 1980 Refugee Act.
The Executive Order claims that its purpose is to prevent individuals with terrorist ties from entering the United States and attacking the country, as occurred on September 11, 2001. It asserts that it is necessitated by the need to 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.” But the Executive Order focuses on preventing immigration only from countries whose citizens were not involved in the September 11 attacks and from which no radicalized Muslims have actually killed Americans in the United States since September 11, 2001. Moreover, there is no rational basis for the suspension of the Refugee Program because refugees trying to enter the United States are already subject to an intensive investigation, which can last for as long as two years, and which includes personal interviews and biometric analyses, and vetting by the United Nations High Commission on Refugees, the National Counterterrorism Center, the FBI's Terrorist Screening Center and the departments of State, Defense and Homeland Security. And contrary to the express purpose of the Refugee Act, the Executive Order has exacerbated the life-threatening position that an untold number of refugees find themselves in. Indeed, to the extent that the stay is lifted, the refugees would be subject to increased vulnerability in a myriad of ways.
5

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 11 of 25
By entering its temporary restraining order, (Doc. 52), the district court correctly acknowledged these salient points. Its order should not be disturbed.
ARGUMENT I. THE EXECUTIVE ORDER VIOLATES THE INA.
In signing this executive order, President Trump violated his obligations under the Immigration and Nationality Act (“INA”). The INA regulates immigration to the United States by refugees. Exodus Refugee Immigration, Inc. v. Pence, 838 F.3d 902, 903 (7th Cir. 2016) (citing 8 U.S.C. §§ 1101 et seq.).
The Refugee Act of 1980 (“Refugee Act”), which amended the INA, was enacted, in part, “to bring the United States law into conformity with our international treaty obligations under the United Nations Protocol Relating to the Status of Refugees . . . .” Chan v. Lothridge, No. C 94-1827 SAW, 1994 WL 411723, at *3 (N.D. Cal. Aug. 5, 1994), aff'd, 81 F.3d 167 (9th Cir. 1996) (citing Senate Report No. 256, 96th Cong., 2d Sess., reprinted in U.S. Code Cong. and Admin. News 142). According to the relevant Senate Report, there were several basic objectives that the Refugee Act was designed to accomplish. These objectives included repealing the then-current immigration law's “discriminatory treatment of refugees by providing a new definition of refugee that recognizes the plight of the homeless people all over the world, and by according refugee admissions the same immigration status given all other immigrants.” Id. at *3
6

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 12 of 25
(citing Senate Report No. 256, 96th Cong., 2d Sess., reprinted in U.S. Code Cong.
and Admin. News 142).
Besides ensuring the non-discriminatory treatment of refugees, a basic
objective of the INA was to provide a statutory requirement that Congress be
consulted as to the admission of refuges into the United States. Chan v. Lothridge,
No. C 94-1827 SAW, 1994 WL 411723, at *7 (N.D. Cal. Aug. 5, 1994), aff'd, 81
F.3d 167 (9th Cir. 1996). The Refugee Act thus requires the President to engage in
“appropriate consultation” regarding limitations on the number of refugees
admitted to the U.S. 8 U.S.C.A. § 1157. “Appropriate consultation” means:
discussions in person by designated Cabinet-level representatives of the President with members of the Committees on the Judiciary of the Senate and of the House of Representatives to review the refugee situation or emergency refugee situation, to project the extent of possible participation of the United States therein, to discuss the reasons for believing that the proposed admission of refugees is justified by humanitarian concerns or grave humanitarian concerns or is otherwise in the national interest, and to provide such members with the following information:
(1) A description of the nature of the refugee situation.
(2) A description of the number and allocation of the refugees to be admitted and an analysis of conditions within the countries from which they came.
(3) A description of the proposed plans for their movement and resettlement and the estimated cost of their movement and resettlement.
(4) An analysis of the anticipated social, economic, and demographic impact of their admission to the United States.
7

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 13 of 25
(5) A description of the extent to which other countries will admit and assist in the resettlement of such refugees. (6) An analysis of the impact of the participation of the United States in the resettlement of such refugees on the foreign policy interests of the United States. (7) Such additional information as may be appropriate or requested by such members. 8 U.S.C.A. § 1157. By not engaging in such consultation, the Executive Order violates the Refugee Act. The requirements of the Refugee Act cannot be ignored by appealing to alleged national security concerns. Such arguments ignore that refugees are carefully screened to ensure the safety of all in the United States. As this Court knows, the INA itself and current vetting measures ensure that refugee admission into the U.S. does not run counter to the need for safety. In fact, the INA’s definition of refugee expressly excludes those who could harm the U.S. Under the INA, the term “refugee” excludes “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” Barajas-Romero v. Lynch, No. 13-70520, 2017 WL 192711, at *4 (9th Cir. Jan. 18, 2017) (citing 8 U.S.C. § 1101(a)(42)). Additionally, all refugees are subject to the myriad exclusionary grounds in Section 212 (a) of the
8

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 14 of 25
INA, including exclusion on health-related grounds, moral/criminal grounds, or misrepresentation of facts on visa applications.
Indeed, “all persons seeking to enter the United States as refugees are required to undergo multiple layers of screening by the federal government, following screening by the United Nations High Commissioner for Refugees, before they can be admitted to the United States.” Exodus Refugee Immigration, 838 F.3d at 903. As the White House Communications Office noted in 2015, refugees are “subject to the highest level of security checks of any category of traveler to the United States, including the involvement of the National Counterterrorism Center, the FBI's Terrorist Screening Center, the Department of Homeland Security, the Department of State, and the Department of Defense.” Amy Pope, How We’re Welcoming Syrian Refugees While Ensuring Our Safety, Nov. 17, 2015, 2015 WL 7251679, at *1 (The White House, Office of Office of Communications). The Department of Homeland Security notes on its website that, “refugee applicants are subject to intensive biographic and biometric security checks. Through close coordination with the federal law enforcement and intelligence communities, these checks are continually reviewed and enhanced to address specific populations that may pose particular threats.”5
5 www.uscis.gov/refugeescreening#GeneralRefugee.
9

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 15 of 25
As the White House Communications Office has pointed out, the screening process involves more than nine detailed steps, including document collection, repeated biographic security checks, Department of Homeland Security Interviews and medical checks. See, The Screening Process for Entry into the United States, White House Communications Office, 11/20/15, 2015 WL 7307828, at *1–2. Only applicants who are strong candidates for resettlement even move forward from the earlies stages and those candidates make up less than 1% of global refugee population.” Id. The screening process can take up to two years. Exodus v. Pence, 838 F.3d at 903.
Accordingly, there was no justification for the President to ignore his legal requirement to seek and engage in appropriate consultation before issuing this overly broad, unnecessary, and hurtful executive order. Lifting the stay at this juncture merely exacerbates the problems caused by the Executive Order.
10

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 16 of 25
II. THE EXECUTIVE ORDER IS PUTTING PEOPLE AT RISK, AND THE STAY SHOULD NOT BE LIFTED.
A. Client #1 The Executive Order has fractured many refugee families whose safety and desire for unification were already fragile, and risks the lives of many who relied on the promises of the United States when they received their visas. Those people made irreversible plans to leave the countries in which they were residing, and followed established procedures to obtain their visas and permission to enter the United States. The Executive Order closes the door to their hope of avoiding the immense dangers that they currently face, leaving them in the perilous situation created by the Executive Order may never allow for it to be reopened for these individuals. For example, Scott6 is a United States citizen of Iraqi origin who lives in White Marsh, Maryland. He came to the United States in 2009 as a refugee. In 2006, three days after his uncle and cousin were murdered and he received death threats, Scott fled Iraq for Syria. In Syria, he was followed and watched. In 2007, Scott applied for refugee status through the United Nations High Commissioner for Refugees. He was approved, and came to the United States as a refugee in August 2009. He arrived with his wife and two daughters, also refugees.
6 The individual names have been changed to protect the identity of the individual refugees and their families.
11

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 17 of 25
All four are now United States citizens. Scott and his wife had a third daughter after they arrived in the United States. In March 2015, Scott applied for an I-130 immigration visa for his parents who remained in Iraq with one of his sisters. Another sister now lives in Virginia. His parents are retired teachers living in Baghdad. They were interviewed in September 2016 at the United States embassy in Baghdad, and were then informed that their visas had been approved. In December 2016, in response to a request for an update on the status of the visas, Scott’s parents were informed that their cases required administrative processing. Because they anticipated coming to the United States early in 2017, Scott’s parents sold their furniture and prepared to move. After learning of President Trump’s executive order through the news, Scott’s parents understood this travel ban would prevent them from joining their son and his family. The Executive Order would unnecessarily perpetuate this family’s separation.
B. Client #2 Among those who the Executive Order punishes are brave foreign nationals who risked their lives to provide critical assistance to the United States military during the Iraq war. Mark is a case in point. Barred from entry into the United States and living just one hour from Mosul, his life is in imminent danger because it is known that he assisted the United States. Also endangered are the lives of his wife and three children, who were to arrive in Los Angeles this week.
12

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 18 of 25
Mark is an Iraqi citizen who helped the United States Army in Operation Iraqi Freedom and later military operations. Like many Iraqi men and women who helped the United States in military operations, Mark served the United States as an interpreter. He also served in combat, fighting alongside American troops and risking his life in military operations in northern and southern Iraq. After his term of service ended, Mark passed through a rigorous screening process to enter the United States with a Special Immigrant Visa, which grants its recipients refugee status and benefits upon arrival in the United States. Mark is increasingly anxious to emigrate from Iraq because his service to the United States has put his life in danger in Iraq. The Islamic State of Iraq and Levant (ISIL) is engaged in a military struggle for the city of Mosul, Iraq, a one-hour drive from where Mark lives. Information about Iraqi citizens who served with the United States military is readily available in Iraq. ISIL operatives target these individuals for kidnappings and murders. Compounding this danger is Mark’s proximity to Mosul, which is now a warzone. He can hear the airplanes, bombs, and shooting from his house.
Chief among Mark’s concerns are his 12-year-old son, who was born with Down’s Syndrome. The entire family—Mark, his wife, his two sons, and his daughter—were originally booked to arrive in Los Angeles on February 9, 2017. When President Donald Trump signed an Executive Order barring individuals originating from Iraq from arriving in the United States, the United States Embassy
13

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 19 of 25
in Jordan called Mark to inform him that his travel had to be cancelled, as he and his family members are Iraqi citizens. He had had his visa and his airline tickets ready. He called his closest friend, a man who also served with the United States military in Iraq and now lives in Chula Vista, California. Mark told his friend that he had packed his bags, and sold all of his belongings. He also no longer had his job and did not know what to do.
While his friend waits in Chula Vista, Mark and his family wait to escape the dangers in Iraq. They are now rescheduled to arrive in Los Angeles on February 14, 2017. If they cannot travel then, they risk having to renew their medical screenings, which expire on February 23, 2017. They also risk the fear of being discovered and harmed or killed by ISIL or by artillery related to the battles in Mosul.
C. Client #3 HIAS is also familiar with the situation of a U.S. citizen of Syrian origin who lives in Cleveland, Ohio and works as a warehouse manager for a furniture store. He is married and has a young son and daughter. His entire family, including his parents, all live is Cleveland and are all US citizens. But one part of the family has not yet found in safety in the United States: Robert, the warehouse manager’s brother, Robert’s pregnant wife, and their seven year old daughter are in Dubai waiting for resettlement to the United States.
14

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 20 of 25
The Executive Order threatens the safety of this Syrian refugee family, headed by a father who, having cleared every hurdle necessary to enter the United States, gave notice to his employer and sold all of his belongings. He now has literally nothing. If he cannot enter into the United States, he faces deportation to Syria, the very country from which he fled civil war. His pregnant wife also faces the strong likelihood that she will deliver their child while separated from her husband.
Robert has been outside of Syria since 2008. His U.S. citizen brother filed an I-130 petition in 2016 for Robert to join him in Cleveland and be resettled as a refugee. Robert cleared extensive background and medical checks, and prepared to leave Dubai. Robert, an electrical engineer, was in Dubai on a work permit and once he left his job, he was only permitted to stay 20 days before being deported.
Robert and his family were booked to travel to the United States on February 12, 2017. In preparation for travel to the US, he gave notice to his employer, who in turn revoked his work permit. Robert then sold his belongings and gave notice that he would be vacating his apartment. When President Trump signed the Executive Order, Robert and his family were told they could not resettle in the United States. Robert and his family are at risk of deportation from Dubai, have no apartment or belongings in Dubai, and his daughter was removed from school.
15

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 21 of 25
If Robert does not leave Dubai by February 20, he will be deported to Syria. Robert’s wife is 6 months pregnant and will need to travel before her third trimester or her medical clearance will expire and security and medical checks will need to restart for all members of the family. His U.S. citizen brother, puts it this way: “Seeing my brother and his family here with us is the most important thing. 12 years I haven’t seen him, we’re hoping to see him here, with us. The most important thing is the impact of him and his family. How bad he feels? I can’t even explain. All they know about the US is freedom.”
D. Client #4 Similarly, a United States Lawful Permanent Resident of Iranian origin lives in Seattle, Washington. She arrived in the United States in 2011 as a refugee from Iran and is now finishing her last quarter of schooling to become a dental assistant. She last spoke with her close friend, Mary, a fellow refugee from Iran, two weeks ago. Mary’s plight embodies the precarious position and absolute despair that many refugees find themselves in, which will only be heightened if the stay is lifted. Mary, a former nurse, is classified as a “Woman At Risk” by the United Nations High Commissioner for Refugees. She fled Iran with her son and twin daughters in 2014, and has had a transient living situation in Turkey while waiting to the resettle in the United States through the United States Refugee Program. The
16

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 22 of 25
family had scheduled a flight to Seattle. Shortly before the flight, the International Organization of Migration, the organization responsible for refugee travel, called the family and told them that the flight had been cancelled because President Trump had signed an order stating that people from seven countries—including Iran—could not travel to the United States. According to Mary’s friend, they were so sad. The family sold everything they had, and they no longer had a home or other place to live. On February 5, 2017, following the stay of the executive order, the International Organization for Migration rescheduled Mary’s family to travel to the United States on February 8, 2017. For now, they remain in Turkey, hoping they will not be denied a future in the United States.
The clients discussed above – from Iraq, iran and Syria would all be subject to a ban on admission to the United States under the Refugee program if the Executive Order stands. They face ongoing separation, and heightened vulnerabilities having taken steps to prepare to come to the United states, in reliance upon their acceptance into the U.S. Refugee Program.
17

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 23 of 25

CONCLUSION

For these reasons, Amicus respectfully requests that the Court affirm the

district court’s temporary restraining order and not stay that order.

Dated: February 6, 2017

/s/ Robert J. Stein Robert J. Stein III DiVincenzo Schoenfield Stein 3 Park Plaza Suite 1650 Irvine, CA 92614 Tel. (714) 881-7002 rob@dss.law

and

Steven P. Blonder Edward D. Shapiro Anthony C Valiulis Joanne A. Sarasin Jonathan L. Loew Daniel A. Hantman Much Shelist, PC 191 North Wacker Drive Suite 1800 Chicago, IL 60606 Tel. (312) 521-2000 sblonder@muchshelist.com eshapiro@muchshelist.com avaliulis@muchshelist.com jsarasin@muchshelist.com jloew@muchshelist.com dhantman@muchshelist.com

Counsel for Amicus Curiae

18

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 24 of 25

STATEMENT OF RELATED CASES

Pursuant to Circuit Rule 28-2.6, undersigned counsel declares that there are

no known related cases pending in this Court.

Dated: February 6, 2017

/s/ Robert J. Stein Robert J. Stein

19

Case: 17-35105, 02/06/2017, ID: 10302891, DktEntry: 27, Page 25 of 25
CERTIFICATE OF SERVICE I hereby certify that on February 6, 2017, I filed the foregoing Brief Amici Curiae HIAS, Inc., in Support of Plaintiffs-Appellees with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the CM/ECF system. All participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system. I also served the Brief upon Michelle R. Bennett, U.S. Department of Justice, Civil Division, Federal Programs Branch, 20 Massachusetts Ave. NW, Washington, D.C. 20530 by depositing a copy so addressed with proper postage prepaid in the United States mail at 191 N. Wacker Dr., Suite 1800 Chicago, IL 60606.
/s/ Robert J. Stein Robert J. Stein
20

 
 Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-1, Page 1 of 4

(1 of 52)

NO.17-35105

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON and STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.

DECLARATION OF NOAH G. PURCELL IN SUPPORT OF RESPONSE TO EMERGENCY MOTION FOR STAY PENDING APPEAL

DONALD TRUMP, President of the United States, et al.,

Defendants-Appellants.

Pursuant to 28 U.S.C. § 1746(2), I, Noah G. Purcell, hereby declare as

follows:

1. I am over the age of eighteen and competent to testify.

2. I am the Solicitor General for the State of Washington. I make this

declaration as a representative of the State of Washington (“State”) in support

of the Response to Emergency Motion Under Circuit Rule 27-3 for

Administrative Stay and Motion for Stay Pending Appeal.

3. Attached hereto as Purcell Declaration Exhibit A is a true and correct

copy of a printout dated February 5, 2017, from the U.S. Department of State,

1

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-1, Page 2 of 4

(2 of 52)

Bureau of Consular Affairs’ website containing an “Important Announcement” dated February 4, 2017, titled “Executive Order on Visas.” 4. Attached hereto as Purcell Declaration Exhibit B is a true and correct copy of a printout of a news article from the Washington Post dated February 4, 2017, titled “A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follow.” 5. Attached hereto as Purcell Declaration Exhibit C is a true and correct copy of a printout of a news article from Reuters dated February 4, 2017, titled “U.S. moves to resume admitting refugees, including Syrians.” 6. Attached hereto as Purcell Declaration Exhibit D is a true and correct copy of a printout of a news article from the New York Times dated February 4, 2017, titled “Appeals Court Rejects Request to Immediately Restore Travel Ban.” 7. Attached hereto as Purcell Declaration Exhibit E is a true and correct copy of a printout dated February 4, 2017, from the U.S. Department of Homeland Security’s website containing a press release dated February 4, 2017, titled “DHS Statement on Compliance with Recent Court Order.” 8. Attached hereto as Purcell Declaration Exhibit F is a true and correct copy of a printout dated February 5, 2017, from the U.S. Customs and Border
2

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-1, Page 3 of 4

(3 of 52)

Protection’s website containing a notice last published February 4, 2017, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” 9. Attached hereto as Purcell Declaration Exhibit G is a true and correct copy of a printout dated February 4, 2017, from the airline Emirates’ website containing an operational update dated February 4, 2017, titled “Update on US entry requirements – 4th February 2017.” 10. Attached hereto as Purcell Declaration Exhibit H is a true and correct copy of a printout dated February 5, 2017, from Qatar Airways’ website containing a travel alert dated February 4, 2017, titled “Changes to entry requirements to the United States.” 11. Attached hereto as Purcell Declaration Exhibit I is a true and correct copy of a printout dated February 5, 2017, from Etihad Airways’ website containing an announcement titled “US travel restrictions.” 12. Attached hereto as Purcell Declaration Exhibit J is a true and correct copy of a printout dated February 5, 2017, from Lufthansa’s website containing current travel information titled “Immigration restrictions for travel to the USA lifted.” 13. On February 5, 2017, I contacted trial counsel for Defendants to propose a briefing schedule for the States’ motion for a preliminary injunction. I
3

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-1, Page 4 of 4

(4 of 52)

propose to have briefing completed by February 17, 2017. Attached hereto as Purcell Declaration Exhibit K is a true and correct copy of my email to trial counsel for Defendants dated February 5, 2017. I have not received a reply from Defendants’ counsel.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 5th day of February 2017.
s/ Noah G. Purcell NOAH G. PURCELL

4

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-2, Page 1 of 3

(5 of 52)

Purcell Declaration Exhibit A

Important Announcement

Page 1 of(62 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-2, Page 2 of 3

I t t A travel.state.gov

U.S. Passports & International Travel

Executive Order on Visas - Important Announcement

t Students Abroad U.S. Visa

•

Intercountry Adoption

International Parental Child Abduction

|

Contact Us

close
Find U.S. Embassies & Consulates

ALERT
FEBRUARY 4, 2017

Important Announcement

travel.state.gov > Newsroom > Important Announcement

Executive Order on Visas

Print Email

An order issued by a U.S. District court in the state of Washington on February 3 bars the U.S. government from enforcing certain provisions of Executive Order 13769, “Protecting the Nation from Terrorist Attacks by Foreign Nationals,” including those related to visas and travel for nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen.

The Department of State had, under the Executive Order, provisionally revoked all valid visas of nationals of those seven countries, with limited exceptions. That provisional revocation is now lifted, and those visas are now valid for travel to the United States, if the holder is otherwise eligible. Individuals whose visas are expired, or were physically cancelled, must apply for a new visa at a U.S. embassy or consulate, absent a Customs and Border Patrol (CBP) decision to grant parole or waive the visa requirement at the port of entry. We are looking further into this issue and will revise this site with any updates.

We are working closely with the Departments of Justice and Homeland Security and we will provide further updates as soon as information is available.

On January 27, 2017, President Trump signed Executive Order 13769 on Protecting the Nation from Terrorist Attacks by Foreign Nationals which directs us to review current screening procedures, while protecting national security – our top priority when issuing visas.

The U.S. government’s national security screening and vetting procedures for visitors are constantly reviewed and refined to improve security and more effectively identify individuals who could pose a threat to the United States. We welcome every opportunity to continue to review and improve our systems and procedures. In implementing this executive order, the Department of State had temporarily stopped scheduling appointments and halted processing of immigrant and nonimmigrant visa applications for individuals from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen, with limited exceptions. Processing of those applications has now resumed and appointments will be scheduled.

•

Information on the Executive Order and Lawful Permanent Residents (LPR) - DHS

•

FAQs on the Executive Order - Department of Homeland Security

About Us Newsroom Reports and Statistics

Find a U.S. Embassy or Consulate Contact Us

STAY CONNECTED
Dipnote Blog

@travelgov

https://travel.state.gov/content/travel/en/news/important-announcement.html

2/5/2017

Important Announcement

Page 2 of(72 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-2, Page 3 of 3

Legal Considerations

Careers Consular Notification and Access

Facebook Flickr

Youtube RSS

travel.state.gov

U.S. Passports & International Travel

Students Abroad

U.S. Visa

Intercountry Adoption

International Parental Child Abduction

Privacy Copyright & Disclaimer FOIA No FEAR Act Data Office of the Inspector General This site is managed by the Bureau of Consular Affairs, U.S. Department of State.

USA.gov

GobiernoUSA.gov

https://travel.state.gov/content/travel/en/news/important-announcement.html

2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 1 of 7

(8 of 52)

Purcell Declaration Exhibit B

A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follo... Page 1 of(96 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 2 of 7
National
A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follow.
By Karen Weintraub, Michael E. Miller and Justin Jouvenal February 4 at 7:37 PM
BOSTON — Most of the more than 40 people from Iran who arrived at Logan International Airport on Saturday afternoon were ecstatic, the first large wave of travelers to come to the United States a week after President Trump banned them from entering the country.
The decision late Friday by a federal judge to temporarily halt Trump’s denial of entry to travelers from seven majority-Muslim countries had created an opening — and in a frantic race on the other side of the globe, thousands of people rushed to book flights to the United States, uncertain of how long the opportunity would last.
Flights carrying previously barred travelers reached Logan on Saturday afternoon, with more expected at airports across the country starting Sunday.
But amid the euphoria and excitement, the Jalili family of Iran passed through the checkpoints at Logan and onto American soil in a heartbroken state, even though their dream to emigrate — 10 years in the making — had been revived by the federal judge.
https://www.washingtonpost.com/local/virginia-politics/travelers-from-iran-board-flights-to... 2/5/2017

A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follo... Page 2 o(1f 06 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 3 of 7
At the last minute, after passing through security in the Tehran airport, officials would not let their oldest daughter, 19-year-old Helya, board the Boston-bound plane. She was kept back with about 15 others whose names were called. They got no explanation.
After a quick and agonizing decision, and with Helya’s urging, the rest of the family boarded the plane with heavy hearts. They spent most of the flight crying, next to Helya’s empty seat.
The family’s plight was emblematic of the confusion that continued Saturday — even as government officials and airlines tried to restore normalcy after a week of chaos surrounding the entry ban — amid protests and legal challenges, and after the issuance of the nationwide stay.
“We were very, very sad last night,” said Hamid Jalili. “If [my daughter] will come here tomorrow, our gladness will be complete.”
Only a small number of citizens of the seven Middle Eastern and North African countries covered in Trump’s banning order arrived at U.S. airports Saturday, but attorneys representing them expected a flood in the coming days.
Becca Heller, the director of the International Refugee Assistance Project (IRAP) in New York, said considerable problems remained as citizens of the seven nations — Libya, Iran, Iraq, Yemen, Somalia, Sudan and Syria — trickled Saturday into the United States.
“It’s just completely unclear what coordination is happening. . . . What we’re witnessing is the Wild West of immigration law,” she said. “And the people who are suffering are the people who desperately need to come to the U.S.”
She said her group is hearing reports from travelers of inconsistencies in how airlines are complying with the judge’s order; it appeared that some low-level employees of some carriers were still unaware Saturday that a stay of Trump’s ban had been issued.
Nevertheless, Heller urged travelers to book flights soon, given the Trump administration’s impending challenge of the stay, which was issued by U.S. District Judge James L. Robart in Seattle but affects the entire nation.
“There’s a window right now. No one knows how long the window will last,” Heller said. “People that need to get to the United States for an urgent reason should get on a plane as soon as possible.”
https://www.washingtonpost.com/local/virginia-politics/travelers-from-iran-board-flights-to... 2/5/2017

A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follo... Page 3 o(1f 16 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 4 of 7
IRAP was preparing packets of information for travelers to present to authorities if they encounter any problems. The documents explain their right to travel to the United States.
A number of airlines — including Qatar Airways, Etihad Airways, Air France and Lufthansa — announced that they would allow travelers from the seven nations to board flights after the State Department said Saturday that it was restoring visas that had been revoked under Trump’s Jan. 27 executive order.
And Department of Homeland Security workers were told at the start of their shifts to start processing travelers with visas as normal.
The Jalili family and others at Logan described few problems when they arrived in the country, a marked change from the previous weekend, when some travelers from countries named in the banning order were detained for hours and some sent out of the country on return flights.
Hamid and Bahareh Jalili and two of their daughters, Helya and Hanya, 13, had been issued immigrant visas to join Hamid’s brother, who moved to the United States 40 years ago, and the brothers’ recently widowed mother.
They had spent most of the first leg, from Tehran to Frankfurt, Germany, in shock after being separated from Helya.
In Frankfurt, they received text messages from Helya saying that their names had been called just after they left — officials had wanted to keep them, too. But the Seattle judge’s decision, which came before they left for Boston, had shifted the situation, and they were hopeful again, Hamid said in halting English.
Arriving in Boston, Bahareh with tears in her eyes and Hanya looking stunned, the family was greeted by a small but enthusiastic crowd of well-wishers, lawyers and relatives of other passengers.
The family applied for visas in 2004. The visas came through at the end of October, and the family decided to leave at the end of January. Then came Trump’s entry ban.
Brothers Reza and Hamid had not seen each other in three years. Hamid could not attend their father’s funeral last year. He worried that his mother, 84 and with a heart ailment, would die before he could reach the United States.
https://www.washingtonpost.com/local/virginia-politics/travelers-from-iran-board-flights-to... 2/5/2017

A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follo... Page 4 o(1f 26 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 5 of 7
Reza had tried to reassure Hamid when Trump’s executive order was announced. “I said, ‘There’s no way they can take this away from you.’ ” Now, he said, “I have egg on my face.”
Asked whether the situation had changed his view of the United States, Reza Jalili said: “I’ve been here 40 years. You cannot change my view now.”
He said he was upset that such a thing could happen in what he called a country of immigrants, “but at the same time, I want to thank the other half of America that has nothing to do with this.”
The Jalilis were not the only travelers who had to scramble to get on flights.
Syrian national Nael Zaino had spent three days at airports, unable to sleep because his cellphone kept buzzing with the latest news about Trump’s temporary ban on refugees and the U.S. courts’ reaction to the ban.
Zaino’s wife and 18-month-old son had received asylum and entered the United States last year; now he was increasingly desperate to join them.
At the airport in Istanbul, where he has lived since fleeing Syria two years ago, Zaino was told a half-hour before his flight was scheduled to leave that he would not be allowed on. He had already twice been barred from boarding U.S.-bound flights.
He went to find a place to sit and wait for his next chance, when his name was called. The court had just reversed the U.S. entry ban and Zaino would be allowed to fly. He grabbed his bags and ran full-tilt to the gate, the last to board the Boston flight.
He was still nervous when he landed, worried that he would be sent back.
It sank in that he was safe, he said, only when a customs officer handed his passport back to him.
“He told me go start your new life with your son. Choose a very good doctor for him, a very good school,” Zaino said in accented but fluid English, choking back emotion.
As some waited for loved ones at airports, protesters in New York, Miami, the District and other cities around the world turned out to express anger at the entry ban. Hundreds gathered near the White House in Lafayette Square.
https://www.washingtonpost.com/local/virginia-politics/travelers-from-iran-board-flights-to... 2/5/2017

A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follo... Page 5 o(1f 36 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 6 of 7

Many in the crowd wore Statue of Liberty foam crowns or displayed posters with the Statue of Liberty’s face plastered with the words: “Silence Equals Violence.”
Jessica Fix, 27, of the District, attended Saturday’s protest at the White House just as she did the previous week. She said she is Jewish and that her ancestors had migrated to the United States from Russia.
“In my opinion, this is how the Holocaust started,” said Fix, a senior at the University of Baltimore. “It’s important to come out and fight for people who are too scared to.”

Today's Headlines newsletter The day's most important stories.

Sign up

Back at Logan Airport, immigration lawyer Susan Church spent the afternoon keeping a record of arriving foreigners and offering pro bono services from American lawyers.

As people from the listed countries walked out of customs and into Logan’s lobby, lawyers and others cheered and offered them flowers, pastries and gift bags.

Church welcomed most of them, shaking their hands and saying, “I’m sorry.”

Kate Jubboori, from the Boston suburb of Hopkinton, stopped at Logan just before 6 p.m. to drop off goody bags for arriving migrant children. Jubboori, whose father-in-law migrated to the United States from Iraq in the 1960s, said the family had toys left over from her son’s fourth birthday party earlier Saturday. She had printed labels that said “Welcome home” on the small gold-colored bags. Asked why she made the effort, Jubboori said she was “just being a human.”
Ian Shapira and Abigail Hauslohner in Washington, Vera Haller in New York, Steve Freiss in Detroit, Leah Sotille in Portland, Ore., Lornet Turnbull in Seattle, Camille Pendley in Atlanta, Mark Guarino in Chicago, Francisco Alvarado in Miami and Rob Kuznia contributed to this report.

Michael E. Miller is a reporter on the local enterprise team. ¬ Follow @MikeMillerDC

PAID PROMOTED STORIES

Recommended by

https://www.washingtonpost.com/local/virginia-politics/travelers-from-iran-board-flights-to... 2/5/2017

A race to get to the U.S. begins; a wave of travelers arrives in Boston, with others to follo... Page 6 o(1f 46 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-3, Page 7 of 7

The Absolute Best Sheets You Will Ever Find. Period.
Business Insider

How To: Get Rid of Dark Under Eye Circles
Health Headlines

10 Most Luxurious Cars Under $35k
Kelley Blue Book

50 Little Things Your Pet Is Doing to Try to Talk to You
Reader's Digest

Librarians Love It - The One Website Book Lovers Need to Know
The Book Insider

The 6 Most Iconic European Places to Snap a Photo
British Airways on AARP

https://www.washingtonpost.com/local/virginia-politics/travelers-from-iran-board-flights-to... 2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-4, Page 1 of 5

(15 of 52)

Purcell Declaration Exhibit C

U.S. moves to resume admitting refugees, including Syrians | Reuters

Page 1 o(1f 64 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-4, Page 2 of 5

EDITION: UNITED STATES

U.S. moves to resume admitting refugees, including Syrians

POLITICS | Sat Feb 4, 2017 | 10:29pm EST
U.S. moves to resume admitting refugees, including Syrians

FILE PHOTO - An internally displaced Syrian boy looks out his tent in the Bab Al-Salam refugee camp, near the Syrian-Turkish border, northern Aleppo province, Syria December 26, 2016. REUTERS/Khalil Ashawi

TRENDING STORIES
1 Trump immigration ban in limbo after appeals court ruling
2 German magazine defends cover showing Trump beheading Statue of Liberty
3 Tale of Two Donalds: Trump gives Europe splitting headache
4 Commentary: Trump has broken his oath to God – and America
5 Iran vows 'roaring missiles' if threatened, defies new sanctions

http://www.reuters.com/article/us-usa-trump-immigration-refugees-idUSKBN15K01D

2/5/2017

U.S. moves to resume admitting refugees, including Syrians | Reuters

Page 2 o(1f 74 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-4, Page 3 of 5

By Julia Edwards Ainsley | WASHINUG.ST.OmNoves to resume admitting refugees, including Syrians
The U.S. State Department on Saturday moved to begin admitting refugees, including Syrians, as soon as Monday after a federal judge on Friday blocked a Trump administration temporary ban on refugee admissions.An email from the State Department's refugee office reviewed by Reuters Saturday said the U.S. government is working with its legal team and interagency and overseas partners to comply with the ruling.

Trump's Jan. 27 executive order had suspended refugee admissions for 120 days and indefinitely barred Syrian refugees but U.S. Judge James Robart in Seattle on Friday blocked the president's order.

A U.S. State Department official told Reuters on Saturday that officials "expect some refugees to arrive Monday."

The U.S. instructed the International Organization for Migration "to rebook refugees of all nationalities, including Syrians, who were" to schedule to arrive since the Trump's order was signed, the email said.

"We are focusing on booking refugee travel through February 17. We are asking that arrivals resume this Monday, the first normal travel day of the week, if possible. We are aware that some refugees may not be ready to depart on short notice," the email said.

A United Nations spokesman, Leonard Doyle, told the New York Times about 2,000 refugees were ready to travel.

Refugees do not usually enter on weekends, a U.S. official said, as the department hews to a strict set of rules on how their admissions are processed.

Other travelers from seven Muslim majority countries affected by President Donald Trump's week-old curb on immigration can rework their flights after the judge's order, as long as they have valid visas.

Refugees fleeing war, hunger and persecution have less autonomy. Advocates working on their behalf urged the government to move quickly on admitting them.

International Refugee Assistance Project Director Becca Heller called for "the instant resumption of the U.S. Refugee Admissions Program to immediately take the most vulnerable refugees out of harm's way."

During the week of the ban, the government admitted 843 refugees - but no Syrian refugees, government figures show. Officials previously told Reuters that they were "in transit" and had already been cleared for resettlement before the ban took effect.

For refugee families, they are trying to keep expectations in check and hope they do not end up back where they started.

Ayham Oubeid, a Syrian living in Cleveland, has been waiting for over a year for his brother George's family to come to the United States as refugees. His brother, who has health issues, is living in Dubai on a work visa that covers him, his six-year-old daughter and five-months pregnant wife.

PICTURES

George left his job and moved the family out of their apartment when he was told they would be resettled in the United States on Feb. 13. But the family's plane tickets were

http://www.reuters.com/article/us-usa-trump-immigration-refugees-idUSKBN15K01D

2/5/2017

U.S. moves to resume admitting refugees, including Syrians | Reuters

Page 3 o(1f 84 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-4, Page 4 of 5

canceled when Trump announcUe.dS.tmheovteesmtoproesruamryebaadmn.itWtinigthreofuugt eGees,oinrgcleu’dsinjogbS,yrtihanesfamily could lose the work visa and be sent back to Syria in the midst of its deadly civil war.

Upon hearing of the judge's ruling from Friday, Oubeid called George. He was careful not to be too hopeful, knowing the judge's order could be overturned.

"I don’t want to get excited. I don’t want my brother to get excited. Because it was hard for him when he lost everything and was told he couldn't come," Oubeid said.

ALSO IN POLITICS
Tale of Two Donalds: Trump gives Europe splitting headache

(Reporting by Julia Edwards and David Shepardson in Washington, Alex Dobuzinskis in Los Angeles; Editing by Mary Milliken, Dan Grebler and Diane Craft)

Pictures of the month

Trump immigration ban in limbo after appeals court ruling

NEXT IN POLITICS

'So-called judge' derided by Trump known for fairness, work with youth
U.S. Judge James Robart emerged from relative obscurity on Saturday as the first justice to come under fire from the president since he took office after his temporary order to lift Donald Trump's immigration ban.
MORE FROM REUTERS
Philadelphia Fox affiliate suspends TV host for Conway remark: media
North Korean elite turning against leader Kim: defector
Warren Buffett: I bought $12 billion of stock after Trump won
American steel unlikely to get Keystone boost despite Trump order

Trump's whirlwind start draws admiration on French far-right
LYON, France Donald Trump's first two weeks in office have left some European politicians leaders aghast but are drawing cheers from France's farright National Front (FN) as its leader Marine Le Pen launches her own bid for power.
SPONSORED CONTENT
Before Applying For A Citi Card, Check If You Pre-Qualify Citi Motley Fool Releases Rare Triple-Buy Alert
The Motley Fool
The U.S. has been a tale of two economies — see the signs of growth. Capital Ideas Massive tsunami about to hit market and blindside investors. Money and Markets The Rare Advice Jim Cramer Is Giving To Individual Investors Real Money
Promoted by Dianomi

SPONSORED TOPICS
• Motley Fool Releases Rare Triple-Buy Alert
The Motley Fool
• Before Applying For A Citi Card, Check If You Pre-Qualify Citi
• My #1 Rule: Don't Buy Options Investing Daily
• The U.S. has been a tale of two economies — see the signs of growth. Capital Ideas
• Homeowners Must Claim Their $4272 Early in 2017 Innovative Metrics

Commentary: Trump has broken his oath to God – and America

FROM AROUND THE WEB

Promoted by Revcontent

http://www.reuters.com/article/us-usa-trump-immigration-refugees-idUSKBN15K01D

2/5/2017

U.S. moves to resume admitting refugees, including Syrians | Reuters

Page 4 o(1f 94 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-4, Page 5 of 5

U.S. moves to resume admitting refugees, including Syrians

How to Get Solar Panels from WA Government for Free
Savings-scanner

Putin Exposes Mind Blowing Photos of Life in Russia
Detonate.com

Long-lost Navajo Remedy May "Fix" Hearing Loss in 14 Days
Navajo Hearing Fix

Shocking Ways Your Body Changes when You Drink Just One Diet Soda
Nucific

This $0.39 Marijuana Stock Set to Soar April 15th
Agorafinancial

Homeowners: How Will You Spend Your $5,088 Mortgage Rebate?
The Mortgage Insider

Follow Reuters:

Subscribe: Feeds | Newsletters | Podcasts | Apps

Reuters News Agency | Brand Attribution Guidelines | Careers
Reuters is the news and media division of Thomson Reuters. Thomson Reuters is the world's largest international multimedia news agency, providing investing news, world news, business news, technology news, headline news, small business news, news alerts, personal finance, stock market, and mutual funds information available on Reuters.com, video, mobile, and interactive television platforms. Learn more about Thomson Reuters products:

EIKON
Information, analytics and exclusive news on financial markets delivered in an intuitive desktop and mobile interface

ELEKTRON
Everything you need to empower your workflow and enhance your enterprise data management

WORLD-CHECK
Screen for heightened risk individual and entities globally to help uncover hidden risks in business relationships and human networks

WESTLAW
Build the strongest argument relying on authoritative content, attorney-editor expertise, and industry defining technology

ONESOURCE
The most comprehensive solution to manage all your complex and everexpanding tax and compliance needs

CHECKPOINT
The industry leader for online information for tax, accounting and finance professionals

All quotes delayed a minimum of 15 minutes. See here for a complete list of exchanges and delays. © 2017 Reuters. All Rights Reserved. Site Feedback Corrections Advertising Guidelines Cookies Terms of Use Privacy Policy

http://www.reuters.com/article/us-usa-trump-immigration-refugees-idUSKBN15K01D

2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 1 of 9

(20 of 52)

Purcell Declaration Exhibit D

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(211oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 2 of 9

https://nyti.ms/2kzzP5O
POLITICS
Appeals Court Rejects Request to Immediately Restore Travel Ban
By MARK LANDLER FEB. 4, 2017 WEST PALM BEACH, Fla. — A federal appeals court early Sunday rejected a request by the Justice Department to immediately restore President Trump’s targeted travel ban, deepening a legal showdown over his authority to tighten the nation’s borders in the name of protecting Americans from terrorism.
In the legal back and forth over the travel ban, the United States Court of Appeals for the Ninth Circuit in San Francisco said a reply from the Trump administration was now due on Monday.
The ruling meant that travelers from seven predominantly Muslim nations — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — as well as vetted refugees from all nations could, for now, continue to enter the country. Those foreigners had been barred by an executive order signed by the president on Jan. 27.

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(222oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 3 of 9

After a Federal District Court in Seattle blocked Mr. Trump’s order nationwide on Friday, the Justice Department appealed the ruling late Saturday, saying that the president had the constitutional authority to order the ban and that the court ruling “second-guesses the president’s national security judgment.”
On Saturday night, as Mr. Trump arrived at a Red Cross gala at Mar-a-Lago, his waterfront Florida resort, where he was spending the first getaway weekend of his presidency, reporters asked him if he was confident he would prevail in the government’s appeal. “We’ll win,” he replied. “For the safety of the country, we’ll win.”
The legal maneuvering led Mr. Trump to lash out at Judge James Robart of the Federal District Court in Seattle throughout the day, prompting criticism that the president had failed to respect the judicial branch and its power to check on his authority.
In a Twitter post on Saturday, Mr. Trump wrote, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
The Justice Department’s filing sought to have the United States Court of Appeals for the Ninth Circuit block the Seattle judge’s decision and asked that the lower court’s ruling be stayed pending the appeal.
In its argument for an appeal, the Justice Department had said the president had an “unreviewable authority” to suspend the entry of any class of foreigners. It said the ruling by Judge Robart was too broad, “untethered” to the claims of the State of Washington, and in conflict with a ruling by another federal district judge, in Boston, who had upheld the order.
The Ninth Circuit court moved quickly to reject the administration’s appeal, a measure of the urgency and intense interest in the case.
The Justice Department argued that the president acted well within his constitutional authority. Blocking the order, it concluded, “immediately harms the

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(233oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 4 of 9

public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment.”
Judge Robart, who was appointed by President George W. Bush, declared in his ruling on Friday that “there’s no support” for the administration’s argument that “we have to protect the U.S. from individuals” from the affected countries.
His ruling also barred the administration from enforcing its limits on accepting refugees. The State Department said Saturday that refugees, including Syrians, could begin arriving as early as Monday. Syrians had faced an indefinite ban under the executive order.
Despite Mr. Trump’s vehement criticism of the ruling and the certainty that it would be appealed, the government agencies at the center of the issue, the State Department and the Department of Homeland Security, moved quickly to comply.
Lawrence Bartlett, the State Department’s director of refugee resettlement, wrote in a departmental email that officials were working to rebook travel for refugees who had previously been scheduled to leave for the United States over a three-week period that will end Feb. 17. A State Department official said the extended time frame accounted for the fact that some refugees will have to make difficult journeys back to airports from refugee camps.
A United Nations spokesman, Leonard Doyle, said about 2,000 refugees were ready to travel.
Airlines, citing American customs officials, were telling passengers from the seven countries that their visas were once again valid. Those carriers, however, have yet to report an uptick in travel, and there appeared to be no rush to airports by visa holders in Europe and the Middle East intent on making their way to the United States.
Etihad Airways, the United Arab Emirates’ national carrier, said in a statement: “Following advice received today from the U.S. Customs and Border Protection unit at Abu Dhabi Airport, the airline will again be accepting nationals from the seven

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(244oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 5 of 9

countries named last week.” Other Arab carriers, including Qatar Airways, issued similar statements.
A group of advocacy organizations that had worked to overturn the executive order and help immigrants and refugees stranded at airports issued a statement on Saturday afternoon encouraging travelers “to rebook travel to the United States immediately.”
“We have been in contact with hundreds of people impacted by the ban, and we are urging them to get on planes as quickly as possible,” Clare Kane, a law student intern at the Jerome N. Frank Legal Services Organization at Yale Law School, one of the groups involved, said in a statement.
But some officials were being more cautious, advising travelers to wait for further clarity. The American Embassy in Baghdad said it was waiting for additional guidance from Washington. “We don’t know what the effect will be, but we’re working to get more information,” the embassy told The Associated Press in a statement.
The Department of Homeland Security said it had suspended implementation of the order, including procedures to flag travelers from the countries designated in Mr. Trump’s order. It said it would resume standard inspection procedures. But in a statement, the department defended the order as “lawful and appropriate.”
In his first statement on the matter on Friday evening, the White House press secretary, Sean Spicer, described the Seattle judge’s action as “outrageous.” Minutes later, the White House issued a new statement deleting the word outrageous.
Mr. Trump’s Twitter post showed no such restraint. It recalled the attacks he made during the presidential campaign on a federal district judge in California who was presiding over a class-action lawsuit involving Trump University.
Democrats said the president’s criticism of Judge Robart was a dangerous development. Senator Patrick J. Leahy of Vermont, a member of the Judiciary Committee, said in a statement that Mr. Trump seemed “intent on precipitating a constitutional crisis.” Gov. Jay Inslee of Washington, whose state filed the suit that

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(255oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 6 of 9

led to the injunction, said the attack was “beneath the dignity” of the presidency and could “lead America to calamity.”
Senator Chuck Schumer of New York, the Democratic leader, said in a statement that Mr. Trump’s outburst could weigh on the confirmation process for Judge Neil M. Gorsuch, the president’s nominee for the Supreme Court.
Until now, Mr. Trump had been comparatively restrained about the multiple federal judges who have ruled against parts of his immigration order, even as he staunchly defended its legality. Some analysts had speculated that he did not want a repeat of the storm during the campaign when he accused Judge Gonzalo P. Curiel of having a conflict of interest in the Trump University case because the judge’s family was of Mexican heritage. Mr. Trump, who had painted Mexicans as rapists and criminals, settled that case after the election.
But on Saturday morning, Mr. Trump let loose, and in the afternoon he unleashed another volley of attacks on the ruling. In one Twitter message, he questioned why a judge could “halt a Homeland Security travel ban,” which would allow “anyone, even with bad intentions,” to enter the country. An hour later, he complained about the “terrible decision,” saying it would let “many very bad and dangerous people” pour into the country.
Earlier, Mr. Trump had asserted, without evidence, that some Middle Eastern countries supported the immigration order. “Interesting that certain Middle-Eastern countries agree with the ban,” he wrote. “They know that if certain people are allowed in it’s death & destruction!”
The Washington State case was filed on Monday, and it was assigned to Judge Robart that day. He asked for briefs on whether the state had standing to sue, with the last one due on Thursday. On Wednesday, Minnesota joined the suit.
On Friday evening, Judge Robart issued a temporary restraining order, requiring the government to revert to its previous immigration policies as the case moved forward. He found that the states and their citizens had been injured by Mr. Trump’s order.

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(266oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 7 of 9

“The executive order adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel,” Judge Robart wrote. He said the states had been hurt because the order affected their public universities and their tax bases.
Still, Judge Robart’s order left many questions, said Josh Blackman, a professor at South Texas College of Law in Houston.
“Does the executive order violate the equal protection of the laws, amount to an establishment of religion, violate rights of free exercise, or deprive aliens of due process of law?” Professor Blackman asked. “Who knows? The analysis is bare bones, and leaves the court of appeals, as well as the Supreme Court, with no basis to determine whether the nationwide injunction was proper.”
While large crowds had yet to materialize at airports, there were individual stories of people trying to enter the country.
Nael Zaino, 32, a Syrian who had tried unsuccessfully for nearly a week to fly to the United States to join his wife and American-born son, was allowed to board a flight from Istanbul and then Frankfurt late Friday. He landed in Boston around 1 p.m. Saturday and emerged from immigration two hours later, said his sister-in-law Katty Alhayek.
Mr. Zaino was believed to be among the first revoked visa holders to enter the United States since the executive order went into effect. His advocates had sought a waiver for him from the State Department, citing family reunification. “Mine must be a very special case,” Mr. Zaino said by phone from Istanbul.
Iranians, many of them students on their way to American universities, also rushed to book flights to transfer destinations in other Persian Gulf countries, Turkey and Europe. Pedram Paragomi, a 33-year-old Iranian medical student bound for the University of Pittsburgh, who had been caught up in the initial chaos over the travel ban, flew to Frankfurt on Saturday, where he was to transfer to a flight to Boston.

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(277oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 8 of 9

“I’m anxious,” he said from Frankfurt. “The rules keep on changing, but I think I will make it this time.”
Reporting was contributed by Alexander Burns, Russell Goldman, Nicholas Kulish and Somini Sengupta from New York; Adam Liptak, Gardiner Harris, Ron Nixon, Eric Lichtblau and Noah Weiland from Washington; and Thomas Erdbrink from Tehran.
A version of this article appears in print on February 5, 2017, on Page A1 of the New York edition with the headline: Administration Files an Appeal of Travel Ruling.

Access to NYTimes.com and all NYTimes apps Unlimited article access, anytime, anywhere Learn more ►
Times Insider Access, including behind-the-scenes stories, exclusive events, podcasts, and e-books 1 complimentary digital subscription to give anyone you'd like Learn more ►

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Appeals Court Rejects Request to Immediately Restore Travel Ban - The New York Times

Page(288oof f852)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-5, Page 9 of 9

Customized delivery options such as Sunday only, Fri.-Sun., weekday delivery, or daily delivery The weekly Sunday magazine and monthly T Magazine 2 complimentary digital subscriptions to give anyone you'd like Learn more ►
© 2017 The New York Times Company

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html

2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-6, Page 1 of 3

(29 of 52)

Purcell Declaration Exhibit E

DHS Statement on Compliance with Recent Court Order | Homeland Security

Page 1 o(3f 02 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-6, Page 2 of 3

Official website of the Department of Homeland Security

Contact Us Quick Links Site Map A-Z Index

DHS Statement on Compliance with Recent Court Order
Release Date: February 4, 2017
For Immediate Release Office of the Press Secretary Contact: 202-282-8010
WASHINGTON - In accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States."
This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order.
DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.
At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the president's Executive Order, which is lawful

https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-court-order

2/4/2017

DHS Statement on Compliance with Recent Court Order | Homeland Security

Page 2 o(3f 12 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-6, Page 3 of 3

and appropriate. The order is intended to protect the homeland and the American people, and the president has no higher duty and responsibility than to do so.

###

Topics: Immigration Enforcement (/topics/immigration-enforcement) , International (/topics/international) Keywords: immigration (/keywords/immigration) , DOJ (/keywords/doj) , international travel (/keywords/international-travel)
Last Published Date: February 4, 2017

https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-court-order

2/4/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-7, Page 1 of 5

(32 of 52)

Purcell Declaration Exhibit F

Protecting the Nation from Foreign Terrorist Entry into the United States | U.S. Customs ... Page 1 o(3f 34 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-7, Page 2 of 5
Official website of the Department of Homeland Security
U.S. Customs and Border Protection
Protecting the Nation from Foreign Terrorist Entry into the United States
In accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States." This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the President's Executive Order, which is lawful and appropriate. The Order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so.
Individuals who may be affected by this Executive Order may visit the CBP INFO Center website for additional information. On the webpage, travelers may also request additional guidance by clicking on the ‘Email us your Question’ button
Below are the actions taken in accordance with the Executive Order signed January 27, 2017. CBP Executive Order Actions
Recommended Denial of Boarding 1,222 Visa holders granted waivers 87
(Statistics are valid as of February 2, 2017)
Download a PDF of the Questions and Answers
https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states 2/5/2017

Protecting the Nation from Foreign Terrorist Entry into the United States | U.S. Customs ... Page 2 o(3f 4 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-7, Page 3 of 5
Questions and Answers about the Executive Order
When did enforcement of the Executive Order start? Does this affect travelers at all ports of entry? How many people are currently detained at Ports of Entry as a result of the Executive Order? What do the two exemptions in the Executive Order mean? How are they applied to individual cases? What is the process for considering an individual for an exemption under the Executive Order? Does “from one of the seven countries” mean citizen, national or born in? How does the lawsuit/stay affect DHS operations in implementing this executive order? Does this Executive Order apply to green card holders from one of the seven countries listed? Will nationals of restricted countries with valid green cards (LPRs) be allowed to return to the United States? How many Lawful Permanent Residents have not been allowed to enter pursuant to the Exception to the Executive Order? Has CBP been pressuring detainees to either withdraw their applications for admission into the country or sign documents rescinding their green cards? There are reports that CBP is confiscating green cards. Does this Executive Order apply to dual nationals of the seven countries who want to enter the United States? If they apply for entry based on their citizenship from one of the countries NOT on the list, will they be allowed entry? Can a dual national traveling with a passport from an unrestricted country travel to the United States?
https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states 2/5/2017

Protecting the Nation from Foreign Terrorist Entry into the United States | U.S. Customs ... Page 3 o(3f 54 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-7, Page 4 of 5
Can a dual national who holds nationality with a restricted country and is currently overseas, apply for an immigrant or nonimmigrant visa to the United States? How does the Executive Order affect college students from the seven countries, such as F1/J1/M1 visa holders? Are they included in the Executive Order? What kind of guidance is being given to foreign students from these countries legally in the U.S.? Can USCIS continue refugee interviews of religious minorities and for countries with which we have an agreement? Will the U.S. accept emergency requests to process a refugee who will then travel? Can the exception for refugee admission be used in I-730 cases (family members following to join) for the petition of refugee/asylee relatives? What about refugees who are considered to be “in transit?” Does the Executive Order apply to those currently being adjudicated for naturalization? Will Canadian immigrants affected by the Executive Order be eligible for entry to the United States? Can Canadian immigrants affected by the Executive Order apply for an immigrant or nonimmigrant visa to the United States? Will Iraqi Passport holders with a valid Special Immigrant Visa be eligible for entry to the United States? How many aliens with special immigrant visas have been denied entry? Has CBP issued clear guidance to CBP officers at Ports of Entry on the Executive Order and the court orders? What coordination is being done between CBP and the carriers? What additional screening will nationals of restricted countries (as well as any visa applications) undergo as a result of the Executive Order? Does CBP have the authority to search individuals’ electronics? What happened to the two men at JFK who were released?
https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states 2/5/2017

Protecting the Nation from Foreign Terrorist Entry into the United States | U.S. Customs ... Page 4 o(3f 64 of 52) Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-7, Page 5 of 5
Last published: Saturday, February 4, 2017 - 11:23 Tags: Border Security
https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states 2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-8, Page 1 of 5

(37 of 52)

Purcell Declaration Exhibit G

Operational updates | About Emirates | Emirates United States

Page 1 o(3f 84 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-8, Page 2 of 5

(/us/english/)
t

Operational updates
Flight suspension ()

Security alert ()

Check flight status Operational changes ()

News flash
Last updated: February 4, 2017, 17:40 Dubai (GMT+4)
Update on US entry requirements - 4th February 2017
As directed by the U.S. Customs and Border Protection (CBP), nationals of the seven affected countries listed below and all refugees seeking admission presenting a valid, unexpired U.S. visa or Lawful Permanent Resident (LPR) card (Green Card) will be permitted to travel to the United States. Entry requirements to the U.S. may change, and travellers are advised to check the latest information prior to travel. Emirates will continue to comply with guidance provided by the U.S. Customs and Border Protection.
Last updated: 28 January 2017, 22:07 Dubai (GMT+4) Changes to entry requirements to the United States The U.S Customs and Border Protection has issued an Immigration Advisory Notice with regards to new U.S immigration entry requirements affecting the nationals of the following countries: Sudan, Libya, Somalia, Syria, Iran, Iraq, Yemen Nationals from these countries may travel to the U.S. only if they are in possession of a permanent resident card (Green card) or any of the below visas:
• A1 & A2 (Government Officials and immediate family) • C2 (Travel to U.N.)

https://www.emirates.com/us/english/about/operational_updates/operational_updates.aspx 2/5/2017

Operational updates | About Emirates | Emirates United States

Page 2 o(3f 94 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-8, Page 3 of 5

• G1 & G2 (Representative & employees of international organisations) • G3 & G4 (Representatives to and employees of international organisations) • NATO For more information, please visit the U.S. Customs and Border Protection site (http://www.cbp.gov/). Emirates is offering rebooking and refund options for affected passengers who are booked to fly to/from the USA between 28 January and 28 February. Terms and conditions apply. Please contact your booking agent if you need to change your travel arrangements.
Back to top

Flight suspension

We don't have any updates at the moment.
Security alert

Back to top

We don't have any updates at the moment.

Back to top

https://www.emirates.com/us/english/about/operational_updates/operational_updates.aspx 2/5/2017

Operational updates | About Emirates | Emirates United States

Page 3 o(4f 04 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-8, Page 4 of 5

Operational changes

Last updated: April 25, 2016, 11:06 Dubai (GMT+4)
UAE visa for GCC residence permit holders
As of April 29, 2016, GCC residence permit holders will need to apply for a UAE visa (/us/english/plan_book/essential_information/visa_passport_information/uae_visas.aspx) before arriving in Dubai.

Last updated: April 11, 2016, 11:48 Dubai (GMT+4)
Baggage policy for Africa
For tickets issued on or after April 15, 2016 For itineraries beginning from any destination in Africa, the piece concept applies. Customers beginning their journey in Africa are allowed two bags of up to 23 kg each in Economy Class, and two bags of up to 32 kg each in First Class or Business Class. This will apply regardless of the country in which the ticket was purchased. If the free baggage allowance is exceeded, excess charges apply.
For tickets issued before April 15, 2016 The baggage allowance for passengers with tickets issued before this date on journeys originating in Africa will continue to be based on the weight concept. This applies regardless of the date of travel. If the free baggage allowance is exceeded, excess charges apply.
To see details of the baggage policies and the excess baggage rates for your trip, please use our baggage allowance calculator (/us/english/plan_book/essential_information/baggages/baggage_calculator.aspx).
Back to top

About us
Our company (/us/english/about/) News (/us/english/about/media-centre/news.aspx) History (/us/english/about/history.aspx) Careers (http://www.emiratesgroupcareers.com) Annual reports (/us/english/about/annual-reports.aspx) Emirates Official Store (https://www.emiratesofficialstore.com) The environment (/us/english/environment/environment.aspx)

More

https://www.emirates.com/us/english/about/operational_updates/operational_updates.aspx 2/5/2017

Operational updates | About Emirates | Emirates United States

Page 4 o(4f 14 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-8, Page 5 of 5

International and government affairs (/us/english/about/int-and-gov-affairs/international-and-government-affairsnew.aspx) Sponsorships (/us/english/about/emirates-sponsorships/sponsorships.aspx) Operational updates (/us/english/about/operational_updates/operational_updates.aspx) Rules and notices (/us/english/plan_book/essential_information/rules_and_notices/rules_notices.aspx) Emirates Skywards program rules (/us/english/skywards/about/skywards-programme-rules.aspx) Emirates destinations (/us/english/destinations/) Advanced Seat Reservation (/us/english/plan_book/advance-seat/reservation-policy.aspx)

© 2016 The Emirates Group. All rights reserved.
Accessibility (/us/english/sitetools/accessibility.aspx) Contact us (/us/english/help/contact-emirates/) Privacy policy (/us/english/sitetools/privacy_policy.aspx) Terms and conditions (/us/english/sitetools/terms_and_conditions.aspx) Optional services (https://cdn.ek.aero/downloads/ek/pdfs/Essential_Information/Optional-Services.pdf) Customer Service Plan (https://cdn.ek.aero/downloads/ek/pdfs/customer_service_plan/ek_customer_service_plan_v1.pdf)

https://www.emirates.com/us/english/about/operational_updates/operational_updates.aspx 2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-9, Page 1 of 3

(42 of 52)

Purcell Declaration Exhibit H

Travel Alerts | Qatar Airways

Page 1 o(4f 32 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-9, Page 2 of 3

Book

Travel

Holidays

Privilege Club

Help

Search

English ‫اﻟﻌﺭﺑ ّﻳﺔ‬

Book a flight

Manage a booking

Check-in online

Flight status

Timetable search

Travel alerts

Manage booking Visa & passport requirements Qatar transit visa
Travel alerts
South Africa child travel requirements Advance passenger information oneworld

Changes to entry requirements to the United States
Update 4 February 2017 ‫ﻋﻣﻼً ﺑﺗﻭﺟﻳﻬﺎﺕ إﺩاﺭﺓ اﻟﺟﻣﺎﺭﻙ ﻭ ﺣﻣﺎﻳﺔ اﻟﺣﺩﻭﺩ ﻓﻲ اﻟﻭﻻﻳﺎﺕ اﻟﻣﺗﺣﺩﺓ اﻷﻣﺭﻳﻛﻳﺔ ﻳﺳﻣﺢ ﻟﺣﺎﻣﻠﻲ ﺟﻧﺳﻳﺎﺕ اﻟﺩﻭﻝ اﻟﺳﺑﻌﺔ اﻟﻣﺑﻳﻧﺔ أﺩﻧﺎﻩ ﻭ ﺟﻣﻳﻊ ﻁﺎﻟﺑﻲ‬
‫اﻟﻠﺟﻭء اﻟﺣﺎﻣﻠﻳﻥ ﻟﺗﺄﺷﻳﺭاﺕ ﺩﺧﻭﻝ ﺳﺎﺭﻳﺔ اﻟﻣﻔﻌﻭﻝ إﻟﻰ اﻟﻭﻻﻳﺎﺕ اﻟﻣﺗﺣﺩﺓ اﻷﻣﺭﻳﻛﻳﺔ أﻭ ﻣﻥ ﻳﺣﻣﻠﻭﻥ إﻗﺎﻣﺔ ﺩاﺋﻣﺔ أﻭ ﻏﺭﻳﻥ ﻛﺎﺭﺩ ﺑﺎﻟﺳﻔﺭ إﻟﻰ اﻟﻭﻻﻳﺎﺕ‬ . ‫اﻟﻣﺗﺣﺩﺓ اﻷﻣﺭﻳﻛﻳﺔ‬

Contact us

‫ اﻟﻳﻣﻥ‬, ‫ اﻟﻌﺭاﻕ‬, ‫ إﻳﺭاﻥ‬, ‫ ﺳﻭﺭﻳﺎ‬, ‫ اﻟﺻﻭﻣﺎﻝ‬, ‫ ﻟﻳﺑﻳﺎ‬, ‫اﻟﺳﻭﺩاﻥ‬ As directed by the U.S. Customs and Border Protection (CBP), nationals of the seven affected countries listed below and all refugees seeking admission presenting a valid, unexpired U.S. visa or Lawful Permanent Resident (LPR) card (Green Card) will be permitted to travel to the United States and will be processed accordingly upon arrival.

Sudan, Libya, Somalia, Syria, Iran, Iraq, Yemen 28 January 2017

Find your local Qatar Airways office contact details.

‫ﻧﻅﺭا ﻟﻠﺗﻐﻳﺭاﺕ اﻟﺟﺩﻳﺩﺓ ﻣﻥ ﻗﺑﻝ اﺩاﺭﺓ اﻟﻬﺟﺭﺓ ﻭاﻟﺟﻭاﺯاﺕ ﻓﻲ اﻟﻭﻻﻳﺎﺕ اﻟﻣﺗﺣﺩﺓ ﺳﻭﻑ ﺗﺗﻐﻳﺭ ﻣﺗﻁﻠﺑﺎﺕ اﻟﺩﺧﻭﻝ ﻟﻣﻭاﻁﻧﻳﻥ اﻟﺩﻭﻝ اﻟﺗﺎﻟﻳﺔ اﻟﻰ اﻟﻭﻻﻳﺎﺕ‬
:‫اﻟﻣﺗﺣﺩﺓ اﻻﻣﺭﻳﻛﻳﺔ‬ ‫ اﻟﻌﺭاﻕ ﻭاﻟﻳﻣﻥ‬،‫اﻳﺭاﻥ‬،‫ﺳﻭﺭﻳﺎ‬،‫اﻟﺻﻭﻣﺎﻝ‬،‫ﻟﻳﺑﻳﺎ‬،‫اﻟﺳﻭﺩاﻥ‬
‫ﻭﻳﻣﻛﻥ ﻟﺣﺎﻣﻠﻲ اﻟﺟﻧﺳﻳﺎﺕ اﻟﻣﺫﻛﻭﺭﺓ اﻟﺳﻔﺭ اﻟﻰ اﻟﻭﻻﻳﺎﺕ اﻟﻣﺗﺣﺩﺓ ﻓﻲ ﺣﺎﻝ ﺣﻣﻠﻬﻡ ﻟﺑﻁﺎﻗﺔ اﻻﻗﺎﻣﺔ اﻟﺩاﺋﻣﺔ )اﻟﺑﻁﺎﻗﺔ اﻟﺧﺿﺭاء( اﻭ اﻱ ﻣﻥ اﻟﺗﺄﺷﻳﺭاﺕ‬ :‫اﻟﺗﺎﻟﻳﺔ‬

(‫ )ﻣﻣﺛﻠﻲ اﻟﺣﻛﻭﻣﺎﺕ ﻭ اﻻﻗﺭﺑﺎء اﻟﻣﺑﺎﺷﺭﻳﻥ‬A2 ‫ ﻭ‬A1 C2
(‫ )ﻣﻣﺛﻠﻳﻥ ﻭ ﻣﻭﻅﻔﻳﻥ اﻟﻣﻧﻅﻣﺎﺕ اﻟﺩﻭﻟﻳﺔ‬G2 ‫ﻭ‬G1
( ‫ )ﻣﻣﺛﻠﻳﻥ ﻭ ﻣﻭﻅﻔﻳﻥ اﻟﻣﻧﻅﻣﺎﺕ اﻟﺩﻭﻟﻳﺔ‬G3 and G4 NATO

.‫ﻳﺭﺟﻰ اﻟﺗﻭاﺻﻝ ﻣﻊ ﻭﻛﻳﻝ ﺳﻔﺭﻛﻡ ﻓﻲ ﺣﺎﻝ اﻟﺣﺎﺟﺔ اﻟﻰ ﺗﻐﻳﺭ اﻟﺣﺟﻭﺯاﺕ‬ .‫ﻟﻠﻣﺯﻳﺩ ﻣﻥ اﻟﻣﻌﻠﻭﻣﺎﺕ ﻳﺭﺟﻰ ﺯﻳﺎﺭﺓ ﻣﻭﻗﻊ اﺩاﺭﺓ اﻟﻬﺟﺭﺓ ﻭاﻟﺟﻭاﺯاﺕ اﻻﻣﺭﻳﻛﻳﺔ‬

Per an Immigration Advisory Notice from U.S Customs and Border Protection with regards to new U.S immigration entry requirements affecting the nationals of the following countries
Sudan, Libya, Somalia, Syria, Iran, Iraq, Yemen
Nationals from these countries may travel to the U.S. only if they are in possession of a permanent resident card (Green card) or any of the below visas:
A1 - A2 (Government Officials and immediate family) C2 (Travel to U.N.) G1 - G2 (Representative & employees of international organisations) G3 - G4 (Representatives to and employees of international organisations) NATO
Please contact your booking agent if you require amendment to your travel arrangements. For more information, please visit the U.S. Customs and Border Protection site.
Galaxy Note 7
Effective immediately, passengers are not permitted to bring Samsung Galaxy Note 7 devices on board the aircraft or in checked luggage. This prohibition applies to all flights.
‫ ﻋﻠﻰ ﻣﺗﻥ اﻟﻁﺎﺋﺭﺓ اﻭ ﺣﻣﻠﻬﺎ ﻓﻲ اﻻﻣﺗﻌﺔ اﻟﻣﺳﺟﻠﺔ ﻋﻠﻰ ﺟﻣﻳﻊ ﺭﺣﻼﺕ اﻟﺧﻁﻭﻁ‬٧ ‫اﺑﺗﺩاء ﻣﻥ اﻻﻥ ﻳﻣﻧﻊ ﺣﻣﻝ اﺟﻬﺯﺓ ﺳﺎﻣﺳﻭﻧﺞ ﺟﺎﻻﻛﺳﻲ ﻧﻭﺕ‬ ‫اﻟﺟﻭﻳﺔ اﻟﻘﻁﺭﻳﺔ‬
Updated on 15/10/2016 @ 09:55 GMT
Zika Virus
Passengers considering travel to Zika-affected nations may find more information here:

http://www.qatarairways.com/global/en/travel-alerts.page

2/5/2017

Travel Alerts | Qatar Airways

Page 2 o(4f 42 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-9, Page 3 of 3

Company
About Qatar Airways Careers Media room Sponsorship Affiliate programme e-Procurement Trade partners

World Health Organisation Centers for Disease Control and Prevention United Nations World Tourism Organisation
For latest flight status information please use the flight status panel at the top of this page.
Flight status updates can also be found at http://fs.qatarairways.com/fltstatus/pages/flight_status.jsf

Qatar Airways Group
Qatar Airways Cargo Qatar Duty Free Qatar Executive Hamad International Airport

Corporate Solutions
Corporate travel Qbiz corporate loyalty Meetings and events

Contact us
FAQs Worldwide offices Enquiries & feedback

bacjrxvz
© Qatar Airways. All rights reserved.

Legal
Legal Privacy policy Cookie policy Accessibility

http://www.qatarairways.com/global/en/travel-alerts.page

2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-10, Page 1 of 2

(45 of 52)

Purcell Declaration Exhibit I

US travel restrictions

Page 1 o(4f 61 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-10, Page 2 of 2

NATIONAL AIRLINE OF THE UAE

FAQ Contact us

United States

My Etihad Guest login

Plan and book Etihad experience Before you fly Deals Destinations Vacations Etihad Guest About us

Announcement
Home > Announcement
US travel restrictions
Following advice received today from the U.S. Customs and Border Protection unit at Abu Dhabi Airport, the airline will again be accepting nationals from the seven countries - Iran, Iraq, Sudan, Somalia, Syria, Yemen and Libya – who were listed in changes to U.S. immigration entry requirements last week. Acceptance will naturally be subject to checks completed by U.S. authorities, as existed prior to the issuance of the Executive Order on 27 January. Our customer service offices around the world will be working to ensure that the information is shared with passengers, and we will provide updated advice and assistance to our guests so their journeys can go ahead as planned. The Etihad Airways contact centre can also be contacted on +971 2 599 0000. For more information, please contact a U.S. Consulate or visit the U.S. Customs and Border Protection website.

Announcements

More about Etihad
About Etihad Airways Etihad Holidays Hala Abu Dhabi Etihad Cargo Etihad Airways Engineering Careers Cookie Policy

Where we fly
Etihad destinations Flights to Hyderabad Flights to Mumbai Flights to Banglore Flights to New Delhi Flights to Chennai

Terms and Conditions

Privacy Policy

Sitemap

Useful links
Payment Options Baggage information Subscribe to offers Facts & figures Etihad BusinessConnect Optional services and fees
FLYING REIMAGINED

Stay connected
Facebook Twitter YouTube Linked-in Google +
Copyright 2017 Etihad Airways. All rights reserved.

http://www.etihad.com/en-us/announcements/us-travel-restrictions/

2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-11, Page 1 of 4

(47 of 52)

Purcell Declaration Exhibit J

Current Travel Information - Lufthansa ® Germany

Page 1 o(4f 83 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-11, Page 2 of 4

 (/dCe/uenr/Hroemenpatget)ravel information

 

See below for the latest news about our current flight operation.

Immigration restrictions for travel to the USA lifted



The United States federal court has blocked the travel ban to the USA with immediate effect.
Visitors with a passport issued by 7 countries - Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen - and holding a valid immigrant or non-immigrant visa for the US are again allowed to travel to the USA. However, short notice changes to the immigration regulations may occur at any time. The final decision regarding immigration lies with the US authorities.

Travel to/ via Canada: Electronic Travel Authorization (eTA) mandatory as of 10 November 2016



Samsung Galaxy Note 7 banned on all flights



Passport Controls within the Schengen Area



Current travel information for flights within the European Community



No lithium battery-powered personal devices on board 

Information for transport of weapons with departures

ex Brussels



aTgorpeeeImrtsoonopauolrizretcaaonnodktiimecpprhoolviaceyn.y(oghutertpws:/e/wbfwsoiwtre.leuUxftphSear-nieesnanc.cetortmhyi/sdrese/iteengu/Cusoelosakctieoioso-kPnieessr.soBhnyaaulisvzienedg-sLbuHre.fcineogmn) , you

http://www.lufthansa.com/de/en/Travel-information

2/5/2017

Current Travel Information - Lufthansa ® Germany

Page 2 o(4f 93 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-11, Page 3 of 4

imposed on short notice

Air Passenger Duty (APD): Who is exempt from paying APD?



Secure Flight



All about your booking
Here you can check the current status of your booking, change your booking if necessary, check in directly and make use of many other services related to your booking.
 My Bookings (https://www.lufthansa.com/deeplink/cockpit?country=DE&language=en)
Lufthansa on Twitter
With Lufthansa’s Twitter channel you can receive the latest news about flight services at any time.
 Follow Lufthansa on Twitter (https://twitter.com/)

Share this page:

(http://delicious.com/post?url=http%3A%2F%2Fwww.lufthansa.com%2Fde%2Fen%2FTravel-

(http://www.staralliance.com)

Imprint (/de/en/Imprint) Terms & Conditions (/online/portal/lh/cmn/generalinfo?nodeid=1873532378&l=en&cid=18002) Passenger Rights (/cmn/en/passenger-rights) Privacy Statement (/de/en/Privacy-statement) Terms of use (/online/portal/lh/de/local?nodeid=2017120&l=en&cid=18002)
To personalize and improve your website experience this site uses cookies. By using LH.com, you agree to our cookie policy. (http://www.lufthansa.com/de/en/Cookies-Personalized-surfing)

http://www.lufthansa.com/de/en/Travel-information

2/5/2017

Current Travel Information - Lufthansa ® Germany

Page 3 o(5f 03 of 52)

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-11, Page 4 of 4

To personalize and improve your website experience this site uses cookies. By using LH.com, you agree to our cookie policy. (http://www.lufthansa.com/de/en/Cookies-Personalized-surfing)

http://www.lufthansa.com/de/en/Travel-information

2/5/2017

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-12, Page 1 of 2

(51 of 52)

Purcell Declaration Exhibit K

Case: 17-35105, 02/06/2017, ID: 10302893, DktEntry: 29-12, Page 2 of 2

(52 of 52)

From: To: Cc: Subject: Date:

Purcell, Noah (ATG) michelle.bennett@usdoj.gov; arjun.garg@usdoj.gov Melody, Colleen (ATG) Schedule for preliminary injunction briefing Sunday, February 05, 2017 12:11:31 PM

Counsel: It was nice meeting you on Friday. I write to confer about the preliminary injunction briefing schedule as directed by the court. Washington and Minnesota propose the following: 1.      Plaintiffs’ motion for a preliminary injunction filed by 11:59pm PST on February 9, 2017 2.      Defendants’ opposition filed by 11:59pm PST on February 15, 2017 3.      Plaintiffs’ reply filed by 11:59pm on February 17, 2017 The order indicates that the court itself will handle hearing scheduling. Please let me know if this schedule is acceptable to the Department. My office will prepare a pleading.

Sincerely, Noah Purcell Solicitor General Washington State Attorney General’s Office 1125 Washington Street SE Olympia, WA 98504 (360) 753-2536

 
 Case: 17-35105, 02/06/2017, ID: 10304200, DktEntry: 77, Page 1 of 2
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FEB 06 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

STATE OF WASHINGTON and STATE OF MINNESOTA,
Plaintiffs-Appellees, STATE OF HAWAII,
Intervenor-Pending, v. DONALD J. TRUMP, President of the United States; et al.,
Defendants-Appellants.

No. 17-35105 D.C. No. 2:17-cv-00141 Western District of Washington, Seattle
ORDER

Before: CANBY, CLIFTON, and FRIEDLAND, Circuit Judges. The State of Hawaii’s emergency motion to intervene (Docket Entry No. 21)
is denied for the purposes of this appeal only. The State of Hawaii’s motion for leave to file an amicus curiae brief (Docket Entry No. 21) is granted. The State of Hawaii’s amicus brief has been filed.
Appellants and appellees shall appear by telephone for oral argument on Tuesday, February 7, 2017 at 3:00 p.m. PST. Each side will be permitted 30 minutes of argument time. Call-in instructions will be provided to the appearing
MOATT

Case: 17-35105, 02/06/2017, ID: 10304200, DktEntry: 77, Page 2 of 2
parties. A recording of the oral argument will be made available to the public promptly following the conclusion of oral argument.
All other pending motions will be addressed by separate order.

MOATT

2

17-35105

 
 Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-1, Page 1 of 4

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD J. TRUMP, President of the United States, et al., Defendants-Appellants.

From the United States District Court, Western District of Washington The Honorable James L. Robart, Case No. C17-0141JLR
MOTION FOR LEAVE TO FILE BRIEF OF CONSTITUTIONAL SCHOLARS AS AMICI CURIAE IN SUPPORT OF APPELLEES

JONES DAY Meir Feder 250 Vesey Street New York, NY 10281 Telephone: (212) 326-3939
Rasha Gerges Shields Erna Mamikonyan 555 South Flower Street, 50th Floor Los Angeles, CA 90071 Telephone: (213) 489-3939

Of Counsel:
Kristin Collins Judith Resnik Stephen I. Vladeck Burt Neuborne
Counsel for Amici Curiae Constitutional Scholars

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-1, Page 2 of 4
MOTION FOR LEAVE TO FILE BRIEF OF CONSTITUTIONAL SCHOLARS AS AMICI CURIAE IN SUPPORT OF APPELLEES Kristin Collins, Judith Resnik, Stephen I. Vladeck, and Burt Neuborne (collectively, “Amici”) respectfully move for leave to file an amicus curiae brief in support of Appellees’ Response to the Government’s Emergency Motion for Stay Pending Appeal. Counsel for all parties have consented to the filing of an amicus brief; however, out of an abundance of caution, Amici file this motion to request the Court’s leave to file an amicus brief by 11:00 a.m. on February 6, 2007. Amici state as follows: 1. Amici are professors of law who are in the course of preparing a brief in a related matter on behalf of a larger group of scholars of federal constitutional law, federal court jurisdiction, immigration and citizenship. Amici are concerned about the constitutional implications of the Executive Order issued on January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” Amici are particularly concerned with the Government’s disturbing claim that the Executive Order is effectively beyond the reach of the Constitution and the courts. 2. The proposed amicus brief, attached to this motion as Exhibit A, explains how the President’s authority to restrict admission to the United States is not unfettered—it is limited by the Constitution.
- 1 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-1, Page 3 of 4
3. Although it is our understanding that all parties consented to the filing of an amicus brief, amici file this motion out of an abundance of caution because the filing of an amicus brief in connection with a motion for a stay is not clearly authorized under the Federal Rules of Appellate Procedure or this Court’s Rules, even when the parties have consented to this filing.
4. Moreover, with respect to amicus briefs filed in connection with initial consideration of a case on the merits, Rule 29(a)(6) of the Federal Rules of Appellate Procedure requires that amicus briefs be filed no later than 7 days after the principal brief of the party being supported is filed. In light of the expedited briefing schedule on the Government’s emergency motion, it is unclear when all amicus briefs are due. The Court ordered that Appellees file their opposition by 1:00 a.m. on February 6, 2017, and Appellants file their reply by 3:00 p.m. on February 6, 2017. Out of an abundance of caution, amici request leave to file their amicus brief within 10 hours after Appellees’ brief was filed, by 11:00 a.m. on February 6, 2017.
- 2 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-1, Page 4 of 4

CONCLUSION

Amici respectfully request that this Court grant them leave to file the amicus

brief attached hereto as Exhibit A.

Dated: February 6, 2017

Respectfully submitted,

JONES DAY
/s/ Meir Feder Meir Feder Nicole Henning 250 Vesey Street New York, NY 10281 Telephone: (212) 326-3939
Rasha Gerges Shields Erna Mamikonyan 555 South Flower Street, 50th Floor Los Angeles, CA 90071 Telephone: (213) 489-3939

Counsel for Amici Curiae Constitutional Scholars

Of counsel: Kristin Collins Judith Resnik Stephen I. Vladeck Burt Neuborne

- 3 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 1 of 25

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD J. TRUMP, President of the United States, et al., Defendants-Appellants.

From the United States District Court, Western District of Washington The Honorable James L. Robart, Case No. C17-0141JLR
BRIEF OF CONSTITUTIONAL SCHOLARS AS AMICI CURIAE IN SUPPORT OF APPELLEES
(Filed With Consent of All Parties)

JONES DAY Meir Feder Nicole Henning 250 Vesey Street New York, NY 10281 Telephone: (212) 326-3939
Rasha Gerges Shields Erna Mamikonyan 555 South Flower Street, 50th Floor Los Angeles, CA 90071 Telephone: (213) 489-3939

Of Counsel: Kristin Collins Judith Resnik Stephen I. Vladeck Burt Neuborne
Counsel for Amici Curiae Constitutional Scholars

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 2 of 25

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE ........................................................................1

ARGUMENT ...........................................................................................................1

CONCLUSION......................................................................................................15

ADDENDUM

-i-

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 3 of 25
TABLE OF AUTHORITIES Page
CASES Arizona v. United States,
132 S. Ct. 2492 (2012)........................................................................................10 Boumediene v. Bush,
553 U.S. 723 (2008)..........................................................................................4, 8 Chae Chan Ping v. U.S.,
130 U.S. 581 (1889)..............................................................................................4 Ex Parte Quirin,
317 U.S. 1 (1942)................................................................................................13 Fiallo v. Bell,
430 U.S. 787 (1977)..............................................................................................7 Fong Yue Ting v. U.S.,
149 U.S. 698 (1893)..............................................................................................4 Galarza v. Szalczyk,
745 F.3d 634 (3d Cir. 2014) ...............................................................................11 Hamdi v. Rumsfeld,
542 U.S. 507 (2004)............................................................................................12 INS v. Chadha,
462 U.S. 919 (1983)..............................................................................................7 INS v. St. Cyr,
533 U.S. 289 (2001)..............................................................................................8 Jean v. Nelson,
472 U.S. 846 (1985)..............................................................................................9
-ii-

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 4 of 25
Kerry v. Din, 135 S. Ct. 2128 (2015)..........................................................................................7
Kleindienst v. Mandel, 408 U.S. 753 (1972)..........................................................................................6, 7
Korematsu v. United States, 323 U.S. 214 (1944)............................................................................................13
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953)..............................................................................................4
Landon v. Plasencia, 459 U.S. 21 (1982)................................................................................................7
Mukasey v. Rajah, 544 F.3d 427 (2d Cir. 2008) .................................................................................9
Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979)..............................................................................9
Printz v. United States, 521 U.S. 898 (1997)............................................................................................10
Reno v. Arab-Am. Anti-Discrimination Comm., 525 U.S. 471 (1999)..............................................................................................8
Zadvydas v. Davis, 533 U.S. 678 (2001)..........................................................................................4, 8
STATUTES 8 U.S.C. § 1182(d)(5)(A) ...........................................................................................9 8 U.S.C. § 1182(f)..................................................................................................5, 6
OTHER AUTHORITIES T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and
Impact of Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365 (2002)..........................4
-iii-

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 5 of 25
Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998) ....................................................................................................................5
Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Tex. L. Rev. 1 (2002)...................................................5
Congressional Research Service, Executive Authority to Exclude Aliens: In Brief (Jan. 23, 2017).............................................................................6
Nancy F. Cott, Marriage and Women’s Citizenship in the United States, 1830-1934, 103 Am. Hist. Rev. 1140 (Dec. 1998) .................................14
Henry M. Hart, Jr. and Herbert Weschsler, THE FEDERAL COURTS AND THE FEDERAL SYSTEM (1953)..............................................................................14
Louis Henkin, THE AGE OF RIGHTS (1990)................................................................5
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380 (2011) ................................14
Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255 (1984) ........................................5
Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990)..............................................................4
Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proceedings of the American Philosophical Society 117 (2016).........................................................................8
Peter Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1 (1984) ........................................................................................................4
Carlos M. Vázquez, “Not a Happy Precedent”: The Story of Ex parte Quirin, in FEDERAL COURTS STORIES (Vicki Jackson and Judith Resnik eds., Foundation Press, 2010).................................................................14
-iv-

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 6 of 25
Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezi, 143 U. Pa. L. Rev. 933 (1995)........................................................................................15
-v-

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 7 of 25
INTERESTS OF AMICI CURIAE Amici curiae are professors of law who are in the course of preparing a brief in another case also challenging the Executive Order, and are working on behalf of scholars of federal constitutional law, federal court jurisdiction, immigration and citizenship.1 In light of the claims advanced in this case about Executive authority, Amici believe that it will be helpful to the parties and the court to provide a brief overview of the governing legal principles.
ARGUMENT With the consent of the parties, Amici bring to the Court’s attention that they are in the midst of preparing an amicus brief on behalf of constitutional scholars, including those expert in the law of the jurisdiction of the federal courts and of citizenship and immigration, to be filed under the current schedule on February 13, 2017 in Darweesh v. Trump, No. 17-480 (E.D.N.Y. 2017). Having learned of the briefing schedule in Washington v. Trump, No. 17-35105 (9th Cir. 2017), Amici believe it proper to provide this Court with a brief overview of the research now underway and of the concerns that have prompted them to provide an amicus brief.
1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), Amici hereby certify that (a) no party’s counsel authored any part of this brief, (b) no party or party’s counsel contributed money that was intended to fund the preparation or submission of this brief, and (c) no person other than Amici or their counsel contributed money that was intended to fund the preparation or submission of this brief. All parties have consented to the filing of this brief.
- 1 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 8 of 25
Specifically, Amici wish to address the contention that the political branches’ control over immigration is “plenary” and that the Executive consequently has “unreviewable authority” to suspend the admission of “any class of aliens”—even, apparently, if the Executive’s selection of a particular class were to reflect invidious discrimination based on religion, race, or sex. That contention goes too far: While the Executive’s actions in this area are indeed entitled to deference, important constitutional obligations remain, as does a critical role for the courts. Moreover, our constitutional history cautions strongly against proceeding with haste, and without careful factual development, in addressing Executive claims that national security requires it to target sets of individuals of particular nationalities. Such haste has more than once resulted in decisions now widely recognized as serious errors and sources of deep regret.
In this case, the unusual selection of seven countries whose nationals are precluded from using the valid visas that they have or from obtaining visas for a period of time, coupled with the apparently extensive evidence that the seven countries were selected because of the religion of their citizens, raises a host of constitutional questions as to the rationality of the Executive Order and as to its discriminatory impact. Further, the Executive Order has caused great disorder through its abrupt and dramatic disruption of the specific federal statutory scheme in place. In addition to dislodging layers of law and regulation, the Executive
- 2 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 9 of 25
Order has had a substantial impact on states, citizens, and on non-citizens, and specifically those who—through the issuance of visas—have entered into a significant relationship with the United States, which has found them eligible for entry. The assertion of unfettered Executive authority, resting in part on congressional legislation from a 1952 statute, is breathtaking in its disruption of the procedures in place, and would authorize even what in the domestic context would be recognized as the most clearly unlawful invidious discrimination.
Amici’s effort as scholars is to understand the law and to identify its parameters. Their concern is that the Government’s claim of unlimited authority is an inaccurate and incomplete picture of the law. As noted, Amici are preparing a more detailed submission for filing next week. Here Amici provide a brief overview of multiple ways in which a claim of blanket and unquestionable authority fails under American constitutional law.
1. As a descriptive matter, the federal courts have repeatedly reviewed issues related to immigration—from exclusion to detention to deportation. Notwithstanding occasionally overbroad descriptions of legislative and executive authority over immigration—or antiquated precedents embodying limited Nineteenth Century views of constitutional rights—it has long been settled, in a range of contexts, that the political branches of the federal government do not have unlimited power over immigrants and immigration. For example, the Supreme
- 3 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 10 of 25
Court has insisted on constitutional limits on the federal government’s power to prevent resident non-citizens from returning to the country after traveling abroad, see Kwong Hai Chew v. Colding, 344 U.S. 590 (1953); to detain individuals pending their removal from the country, see Zadvydas v. Davis, 533 U.S. 678 (2001); and to deny judicial review to non-citizens held outside the United States as “enemy combatants,” see Boumediene v. Bush, 553 U.S. 723 (2008).
Indeed, the few long-ago holdings that endorsed discriminatory legislation governing immigration now provide evidence of a profoundly misguided and morally indefensible period in American immigration law. The Chinese Exclusion cases of the late nineteenth century, sustaining the exclusion and removal of Chinese nationals, Chae Chan Ping v. U.S., 130 U.S. 581 (1889) (sustaining exclusion of Chinese nationals); Fong Yue Ting v. U.S., 149 U.S. 698 (1893) (sustaining deportation of Chinese nationals), pre-date the recognition of the central constitutional protections recognized in the Civil Rights era and beyond. See, e.g., Peter Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 4 (1984) (describing demise of plenary power doctrine in light of emerging equal protection and due process norms); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990) (same); T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of
- 4 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 11 of 25
Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365 (2002) (describing “radical shift” in immigration law to extend due process protections to aliens); Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1, 54-58 (1998) (showing how due process and equal protection norms trump plenary power in recent immigration cases); Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255 (1984) (identifying departures from plenary power principles as rooted in equality and due process norms). These cases and the racially discriminatory laws they upheld have become the subject of universal condemnation. See, e.g., Louis Henkin, THE AGE OF RIGHTS 137 (1990) (“The Chinese Exclusion Case—its very name an embarrassment—should join the relics of a bygone, unproud era”).
Thus, during the last several decades, the breadth of the “plenary power” notion that arose from the Chinese exclusion era cases has come to be understood as located in Nineteenth Century visions of sovereignty that predate the elaboration in the Twentieth Century of the due process and equal protection protections of the constitution. See generally Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Tex. L. Rev. 1 (2002). The Department of Justice’s representation of the President’s power under 8 U.S.C. § 1182(f) as unreviewable
- 5 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 12 of 25
by Article III courts reflects an untenably broad view of Executive authority and an equally untenable dismissal of any role for the federal courts in enforcing the Constitution. The Supreme Court has rejected that approach in prior cases and has taken a more measured approach to the plenary power doctrine in the immigration field.
In no case since the Chinese Exclusion cases has the Supreme Court blessed the sort of discriminatory immigration rule at issue there. To be sure, the government observes that every President over the last thirty years has issued at least one Executive Order pursuant to 8 U.S.C. § 1182(f), and that many of those orders excluded aliens on the basis of nationality. However, those orders were targeted restrictions on individuals that had engaged in culpable conduct—not categorical exclusions of broad classes deemed to pose a risk, as here—and, critically, none of the previous executive orders has discriminated on the basis of religion. See Congressional Research Service, Executive Authority to Exclude Aliens: In Brief, at 6-10 (Jan. 23, 2017) (listing and describing all Executive Orders issued pursuant to Section 1182(f) and observing that “in no case to date, though, has the Executive purported to take certain types of action, such as . . . explicitly distinguishing between categories of aliens based on their religion.”).
Further, the courts have steadily retreated from the notion that immigration decisions are intrinsically free from scrutiny. For example, in Kleindienst v.
- 6 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 13 of 25
Mandel, 408 U.S. 753 (1972), the Court declined to hold that the Executive may exclude an alien even absent a “facially legitimate and bona fide reason.” Id. at 770. Similarly, in Fiallo v. Bell, 430 U.S. 787 (1977), the Court recognized a “limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens….” Id. at 793 n.5 (emphasis added). More recently, in Kerry v. Din, the Court considered whether the denial of a visa to a non-citizen non-visa holding spouse of a citizen required additional review under the Kleindienst v. Mandel principle. 135 S. Ct. 2128, 2139 (2015). The controlling opinion of Justice Kennedy, joined by Justice Alito, held that the reasons provided sufficed only because the “facially legitimate and bona fide” standard of Kleindienst was satisfied. Id. at 2140.
Kerry is consistent with the Court’s modern plenary power jurisprudence. Since Kleindienst and Fiallo were decided, the Supreme Court has consistently been reluctant to insulate immigration legislation and Executive action from constitutional scrutiny. See, e.g., Landon v. Plasencia, 459 U.S. 21, 32-35, 37 (1982) (holding that exclusion procedures for lawful permanent residents returning from brief trips abroad must comply with due process); INS v. Chadha, 462 U.S. 919, 940-41 (1983) (invalidating a provision authorizing one house of Congress to veto a decision by the Executive to grant relief from deportation, stating that although “[t]he plenary authority of Congress over aliens . . . is not open to
- 7 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 14 of 25
question,” the Court must inquire into “whether Congress has chosen a constitutionally permissible means of implementing that power”); Zadydas, 533 U.S. at 690 (rejecting government’s argument that the plenary power doctrine justified an expansive construction of statute authorizing immigration detention, emphasizing that a “statute permitting indefinite detention of an alien would raise a serious constitutional problem”); INS v. St. Cyr, 533 U.S. 289, 304 (2001) (construing provision of immigration statute to avoid Suspension Clause concerns); Boumediene, 553 U.S. at 771 (holding that statute applicable to non-citizens detained at Guantanamo was unconstitutional, stating that “[i]f the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause”). In short, the “border” is an important site in American law, but it is both constructed through legal regimes (shifting authority both on and off shore) and governed by law. See Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proceedings of the American Philosophical Society 117 (2016).
2. In applying Kleindienst, the Supreme Court has never held that an individual’s race, religion, or national origin constitutes a sufficiently “facially legitimate and bona reason” for excluding or deporting an alien. Indeed, in Reno v. Arab-American Anti-Discrimination Committee, 525 U.S. 471, 492 (1999), the Court suggested that reversal would be appropriate in cases of “outrageous”
- 8 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 15 of 25
discrimination. In Jean v. Nelson, 472 U.S. 846 (1985), the Supreme Court exercised review over the denial of parole to Haitian arrivals pursuant to a statute delegating to the Attorney General authority to grant parole to undocumented aliens arriving in the United States “in his discretion.” 8 U.S.C. § 1182(d)(5)(A). In that case, plaintiffs argued that the new policy of denying parole to all undocumented aliens violated their equal protection rights because it discriminated against them because they were black and Haitian. Reversing the Eleventh Circuit’s conclusion that the plenary power permitted the executive branch to discriminate on the basis of national-origin in making parole decisions, the Supreme Court employed the doctrine of constitutional avoidance to construe the statute and its implementing regulations to preclude such consideration of national origin.
Further, the lower courts have tolerated such national origin classifications only in narrow circumstances. In Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979), during the height of the Iran hostage crisis, the D.C. Circuit sustained a regulation requiring Iranian students to undergo special registration procedures. More recently, in the aftermath of the September 11 terrorist attacks, a number of circuit courts sustained a similar program requiring nationals of various countries to undergo special registration procedures. See, e.g., Mukasey v. Rajah, 544 F.3d 427 (2d Cir. 2008). Those cases are a far cry from the present situation in
- 9 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 16 of 25
which individuals who held valid visas, and some of whom had worked and lived in the United States, and have family members here, were abruptly told they were no longer permitted to be here—and also told that coming to the place they understood to be their current home put them at risk of new penalties. In addition to the substantive constitutional prohibitions this implicates, it also raises substantial procedural due process problems by excluding these visa holders without any individualized determination, based solely on gross generalizations based on their nationality and religion.
3. Additional constraints on plenary powers, even when invoked in the context of national security and safety, have come from the structure of “Our Federalism.” As is familiar, the Supreme Court recently affirmed the federal government’s exclusive authority to criminalize violations of the immigration laws. See Arizona v. United States, 132 S. Ct. 2492, 2501 (2012). But the exercise of that authority provides another example of limits on claims of plenary powers and of unfettered discretion when allegations of national security are made. The federal authority over immigration does not translate into the ability to require states to participate in all federal immigration programs, as is reflected in decisions by lower court decisions addressing the interaction between immigration powers and the non-commandeering principle of Printz v. United States, 521 U.S. 898 (1997), as well as the impact of the Fourth and the Fourteenth Amendments. An
- 10 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 17 of 25
example comes from the Third Circuit decision in Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014), brought by a citizen who had been held pursuant to an immigration detainer on suspicion of being an illegal alien. The county claimed that the detainer was mandatory, but the court held that such an interpretation would violate the Tenth Amendment prohibition against commandeering. As the Third Circuit explained, “Under the Tenth Amendment, immigration officials may not order state and local officials to imprison suspected aliens subject to removal at the request of the federal government. Essentially, the federal government cannot command the government agencies of the states to imprison persons of interest to federal officials.” Id. at 643. Thus, the court read the relevant federal statute to avoid compelling detention. Congressional statutes likewise invite state participation in programs such as “secure communities” but are respectful of states’ role in this federalism.
In short, although the Executive has substantial power to regulate immigration, it is not the unlimited open-ended charter, such as that described in the filings by the Department of Justice in the present case. Constitutional checks, both structural and substantive, restrain its use. The federal courts have repeatedly played a role to ensure that restrictions imposed on immigration are at the very least based on “facially legitimate and bona fide reason.”
4. Deployment of the term “national security” has not and cannot stop
- 11 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 18 of 25
appropriate judicial inquiry into the legality of, or the basis for, a particular government action. The role for courts is especially relevant here, as the Executive Order has been explained in the press as animated by views that link together individuals of a particular religion, faith and national origin with blanket allegations of terrorist efforts.
On the record provided thus far, the Executive Order appears to lack a rational basis for such accusations. Rationality is the touchstone of constitutional governance, just as the exercise of arbitrary power is its antithesis. At a minimum, serious questions have been raised about the factual basis for the Executive Order. The religious animus that has been alleged to underlie the order, if proved, would be a sad exemplar of an arbitrary basis for government action.
Moreover, since the terrible events of September 11, courts have repeatedly responded to issues of national security and addressed the merits of claims of individuals subjected to government orders flowing from 9/11. In those cases, the Government regularly argued that the political branches could not be checked by the judiciary where they were responding to “national security” concerns. Despite such arguments—which are echoed in the Department of Justice briefing in this case—the judiciary has several times discharged its constitutional obligation. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In short, Executive claims based on national security are properly entitled to a significant measure of deference, but
- 12 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 19 of 25
that deference is not a blank check. The courts retain a critical role in ensuring that there is a basis for such claims and that the action so justified does not transgress constitutional requirements.
5. Several of the constitutional questions raised by the Executive Order (and the plaintiffs’ legal challenge thereto) are as important as they are unsettled, and thus demand careful and deliberate consideration—rather than a rush to judgment. The district court’s TRO quelled the litigation chaos and has now permitted an opportunity for the development of the facts and for the evaluation of the legal principles at stake, restoring a status quo that the Government has not shown to pose any imminent risk of harm, or, indeed, to have ever resulted in any of the harms said to justify the Executive Order.
Several times in our history, the Government has pressed for courts to defer to claims of national security and of threats identified with people from particular nationalities, with often tragic results. Ex Parte Quirin, 317 U.S. 1 (1942) and Korematsu v. United States, 323 U.S. 214 (1944) are examples of undue hasty and tragic approval of government activity justified in the name of national security and focused against individuals based on national origin. Quirin—decided in 1942 and addressing the question of the permissibility of a military tribunal to try alleged German saboteurs—has come to stand for an important proposition, much invoked after 9/11: that, despite a president’s claim in an executive order to divest
- 13 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 20 of 25
courts of jurisdiction, courts retained habeas jurisdiction. However, as recounted in detail by Carlos Vázquez, when making that decision in a few short days, the Court abandoned its deliberative practices and decided the merits, resulting in executions that came before the Court’s opinion was written. See Carlos M. Vázquez, “Not a Happy Precedent”: The Story of Ex parte Quirin, in FEDERAL COURTS STORIES 219, 219-246 (Vicki Jackson and Judith Resnik eds., Foundation Press, 2010). As the title of that book chapter reflects, Justice Frankfurter famously described Quirin as “not a happy precedent.” See also Henry M. Hart, Jr. and Herbert Weschsler, THE FEDERAL COURTS AND THE FEDERAL SYSTem 336, 1239 n.5 (1953).
Quirin is not the only instance in which courts have failed on the merits to see critical issues of liberty and constitutional commitments to the rule of law. Korematsu is another such instance, and one for which Congress has issued formal apologies to those whose internment the Court approved. Such precedents are viewed now as an “anti-canon” – as examples of what U.S. law no longer understands to be constitutional. See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380, 396, 456-60 (2011).
The Chinese Exclusion cases are similarly sources of national embarrassment, as is the de-nationalization of U.S. citizen women who married citizens of certain countries. Nancy F. Cott, Marriage and Women’s Citizenship in
- 14 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 21 of 25
the United States, 1830-1934, 103 Am. Hist. Rev. 1140, 1458 (Dec. 1998). Further, while the Supreme Court’s decisions in Knauff and Mezei are often invoked as the basis for plenary powers, the Supreme Court has long since retreated from such notions of unfettered and unreviewable government power in the immigration sphere. See also Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezi, 143 U. Pa. L. Rev. 933, 938 (1995).
* * * In short, at issue in cases now pending around the United States are questions that go to the heart of American constitutional law and to the respective roles of the branches of the federal government and of the states. Constitutional history demonstrates the importance of deliberation to ensure that rulings respect individual rights and liberties, and appreciate the contributions, concerns, and place in the federal system of state governments. Courts are more than needed to insist on fact-based analysis as they assess whether the legislature or Executive has run afoul of constitutional and statutory commitments that prohibit certain forms of discrimination and have breached the American law of justice.
CONCLUSION The Court should deny the Appellants’ motion for stay pending appeal.
- 15 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 22 of 25

Dated: February 6, 2017

Respectfully submitted,
JONES DAY
/s/ Meir Feder Meir Feder 250 Vesey Street New York, NY 10281 Telephone: (212) 326-3939
Rasha Gerges Shields Erna Mamikonyan 555 South Flower Street, 50th Floor Los Angeles, CA 90071 Telephone: (213) 489-3939
Counsel for Amici Curiae Constitutional Scholars
Of counsel: Kristin Collins Judith Resnik Stephen I. Vladeck Burt Neuborne

- 16 -

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 23 of 25
ADDENDUM List of Amici constitutional scholars2: Kristin Collins, Professor of Law and Associate Dean for Intellectual Life, Boston University Judith Resnik, Arthur Liman Professor of Law, Yale Law School Stephen I. Vladeck, Professor of Law, University of Texas School of Law Burt Neuborne, Norman Dorsen Professor of Civil Liberties and Founding Legal Director of the Brennan Center for Justice, New York University School of Law
2 Institutional affiliations are provided for identification purposes only; this brief does not purport to represent the institutional views of any entity with which Amici are affiliated.

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 24 of 25

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing 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 6, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: February 6, 2017

/s/ Rasha Gerges Shields Rasha Gerges Shields Jones Day 555 South Flower Street, 50th Floor Los Angeles, CA 90071 (213) 489-3939
Counsel for Amici Curiae

Case: 17-35105, 02/06/2017, ID: 10303342, DktEntry: 43-2, Page 25 of 25
Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28-1.1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 17-35105
Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief. I certify that (check appropriate option):

This brief complies with the length limits permitted by Ninth Circuit Rule 28-1.1.

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-1.

The brief is 3,524 words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a

single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a

longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P.

32(a)(5) and (6).

This brief complies with the longer length limit authorized by court order dated

The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2

(a) and is

words or

pages, excluding the portions exempted by Fed. R. App. P. 32

(f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2

(c)(2) or (3) and is

words or

pages, excluding the portions exempted by Fed. R.

App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and

(6).

This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or Unrepresented Litigant

/s/

Rasha

Gerges

Shields

("s/" plus typed name is acceptable for electronically-filed documents)

Date Feb 6, 2017
(Rev.12/1/16)

 
 Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-1, Page 1 of 4

No. 17-35105 ___________________________________________

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________________________________

STATE OF WASHINGTON, et al., Plaintiffs-Appellees,

v.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.
_____________________________________________

On Appeal from an Order of the United States District Court for the Western District of Washington
______________________________________________

United States District Judge James L. Robart Case No. 2:17-cv-00141-JLR
______________________________________________

MOTION FOR LEAVE TO FILE 20-PAGE MEMORANDUM OF LAW BY AMICI CURIAE STATES IN SUPPORT OF PLAINTIFFS-APPELLEES ______________________________________________

Dated: February 6, 2017

MAURA HEALEY Attorney General Commonwealth of Massachusetts
By: GENEVIEVE C. NADEAU
Assistant Attorney General One Ashburton Place Boston, MA 02108 Genevieve.Nadeau@MassMail.State.MA.US (617) 963-2121

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-1, Page 2 of 4
Pursuant to Rule 29 of the Federal Rules of Appellate Procedure and Circuit Rule 29(a)(5), amici curiae States1, by and through undersigned counsel, respectfully move for leave to file a 20-page, or 5,600 word, memorandum of law in support of Appellees’ Opposition to Appellants’ Emergency Motion for Stay Pending Appeal. The Amici state as follows:
1. Amici are many States within the United States which are harmed by the Executive Order issued on January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”).
2. The Executive Order inflicts significant harm on States across the Country, including upon the Amici. It harms, among other things, state colleges and universities, state medical institutions, and state tax revenues from students, tourists and business visitors.
3. The proposed amicus response explains that States have standing to challenge the Executive Order in light of the harm it inflicts on them and that Appellants’ Emergency Motion for Stay should be denied because granting it would not preserve the status quo and would cause further chaos.
1 The full list of amici in addition to New York is: California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia, and the District of Columbia.
1

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-1, Page 3 of 4
4. Though no such consent is required for States under Fed. R. App. P. 29(a)(2), counsel for Appellants and Appellees both have consented to the filing of an amicus response.
5. Because of the number of different States involved in this response and the desire of each to detail specific harm to it caused by the Executive Order as well as to fully brief the issues therein, the Amici have required additional space.
6. Fed. R. App. P. 29(a)(5) states that, “[e]xcept by the Court’s permission, an amicus brief may be no more than one-half the maximum length authorized by these rules for a party’s principal brief.” Fed. R. App. P. 27 and Circuit Rule 27-1(1)(d) do not speak in terms of “briefs,” instead stating that, except with the Court’s permission, “a motion or response to a motion may not exceed 20 pages,” or 5,600 words pursuant to Circuit Rule 32-3(2). If the Rule 29 language applies to a response to a motion, an amicus would be limited to 10 pages, or 2,800 words.
7. Out of an abundance of caution, the Amici file this motion to request the Court’s leave to file a 20-page (or 5,600-word) memorandum of law under the provisions of Rule 27, Circuit Rule 27-1, and Circuit Rule 32-3(2)
8. Amici believe that a 20-page memorandum is necessary to detail the specific harm caused by the Executive Order to a number of different States and is warranted in light of the importance and novelty of the issues presented.
2

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-1, Page 4 of 4
9. Accordingly, Amici respectfully request that the Court grant this motion and permit the Amici leave to file a 20-page memorandum of law.
Respectfully Submitted, MAURA HEALEY
Attorney General Commonwealth of Massachusetts By: GENEVIEVE C. NADEAU Assistant Attorney General One Ashburton Place Boston, MA 02108 Genevieve.Nadeau@MassMail.State.MA.US (617) 963-2121 February 6, 2017
3

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 1 of 25

No. 17-35105

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.

On Appeal from an Order of the United States District Court for the Western District of Washington
MEMORANDUM OF LAW OF THE STATES OF NEW YORK, CALIFORNIA, CONNECTICUT, DELAWARE, ILLINOIS, IOWA,
MAINE, MARYLAND, MASSACHUSETTS, NEW MEXICO, OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, AND
VIRGINIA, AND THE DISTRICT OF COLUMBIA AS AMICI CURIAE STATES IN SUPPORT OF PLAINTIFFS-APPELLEES

MAURA HEALEY Attorney General Commonwealth of
Massachusetts One Ashburton Place Boston, MA 02108

ERIC T. SCHNEIDERMAN Attorney General State of New York 120 Broadway, 25th Floor New York, NY 10271 (212) 416-8921

JOSH SHAPIRO

Attorney General

Commonwealth of

Pennsylvania

Strawberry Square, 15th Floor

Harrisburg, PA 17120

Dated: February 6, 2017

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 2 of 25

TABLE OF CONTENTS

Page

INTERESTS OF AMICI ............................................................................................1
ARGUMENT ..........................................................................................................2
I. Washington, Minnesota, and Other States Have Standing to Challenge the Executive Order Because of the Harm It Inflicts on the States Themselves. .....................................................................................................2
A. Disruption and Additional Costs at State Colleges and Universities. ............................................................................................. 3
B. Disruption to State Medical Institutions..................................................8
C. Diminished Tax Revenues from Students, Tourists, and Business Visitors ....................................................................................................9
D. Irreparable Harm from Establishment Clause Violations .....................12
E. Harm to Sovereign and Quasi-Sovereign Interests ...............................13
II. The Emergency Motion for a Stay Should Be Denied Because Granting It Would Cause Further Chaos. ......................................................16
CONCLUSION ........................................................................................................22

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 3 of 25
INTERESTS OF AMICI The State of New York, together with the States California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, New Mexico, Oregon, Rhode Island, and Vermont, the Commonwealths of Massachusetts, Pennsyvania, and Virginia, and the District of Columbia submit this brief as amici curiae in support of appellees the States of Washington and Minnesota. The Executive Order at issue in this suit bars entry into the United States of nationals of seven majority-Muslim countries, including those who hold valid U.S. visas for work, study, and travel. It hinders the free exchange of information, ideas, and talent between the affected countries and the States, including at the States’ many educational institutions; harms the States’ life sciences, technology, health care, finance, and other industries, as well as innumerable small businesses throughout the States; and inflicts economic harm on the States through diminished tax revenues and other means. Although the residents, institutions, industries, and economies of the amici States differ, all stand to face the concrete, immediate, and irreparable harms caused by the Executive Order. Indeed, several amici have filed or intervened or sought to intervene in parallel lawsuits raising similar claims. Those lawsuits may well be affected by the decision in this case.

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 4 of 25
ARGUMENT I. Washington, Minnesota, and Other States Have Standing to
Challenge the Executive Order Because of the Harm It Inflicts on the States Themselves. The Executive Order is inflicting actual, concrete, and particularized injuries to
the States’ proprietary, sovereign, and quasi-sovereign interests. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Alfred L. Snapp & Son, Inc. v.
Puerto Rico ex rel. Barez, 458 U.S. 592, 601-08 (1982).1 These injuries2 include
harm to state colleges and universities, medical institutions, tax revenues; States’
interests in seeing the Establishment Clause upheld within our jurisdictions; and
States’ interests in ensuring the health, welfare, and civil rights of our residents.3
1 See also Massachusetts v. EPA, 549 U.S. 497, 518-20 (2007) (recognizing that a state’s “stake in protecting its quasi-sovereign interests” entitles it to “special solicitude” in a standing analysis); United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973) (emphasizing that the standing inquiry focuses on the fact of an injury, not its magnitude).
2 All of the amici States support the legal arguments put forward in this brief, although some of the facts alleged do not apply uniformly to them. For example, the State of Delaware does not have a state medical hospital and is still in the process of attempting to verify some of the other specified harms incurred by other amici states.
3 Moreover, because many of these harms are caused directly by the Executive Order’s effect on nonimmigrant visa-holders, these injuries are not ameliorated by the federal government’s current position that long-term permanent residents are unaffected by the Executive Order (notwithstanding the plain language in Section 3(c) of the order).
2

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 5 of 25
A. Disruption and Additional Costs at State Colleges and Universities.
The Executive Order has inflicted and continues to inflict harm on state colleges and universities across the country, including in the amici States, which rely on faculty and students from across the world.
First, the Executive Order has disrupted our state educational institutions’ ability to meet their staffing needs. The Order is already preventing and dissuading scholars from coming to our institutions—including scholars who had already committed to filling positions. The University of Massachusetts has more than 120 employees who are affected by the Executive Order; the City University of New York has 46 such employees; and the University of Maryland, College Park, has about 350 such members of its community. While there is no absolute right to the maintenance or continuation of a visa, our state educational institutions rely on predictability in the visa system. Moreover, foreign-born faculty who are here on visas typically have specialized expertise that cannot easily be replaced. Colleges and universities are already forming task forces and making contingency plans to fill these particular voids in their faculty rosters. These efforts represent a considerable expenditure of scarce resources and may not be successful.
Contrary to the federal government’s suggestion, these expenditures are compelled by the Executive Order, and are not merely elective or speculative. The amici States are aware of numerous staffing-related harms to specific programs in
3

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 6 of 25
our state institutions. These include foreign scholars from the affected countries holding duly-issued, otherwise-valid J-1 visas who have abandoned their plans to come to the United States and teach because of the Executive Order. In some such cases, the scholars were expected to teach during the spring semester of 2017, leaving holes in faculty rosters that our institutions must immediately fill.
Additional immediate disruption to staffing has occurred in the context of medical residency staffing. State medical schools participate in the “match” program for purposes of placing residents in their various university hospital programs. These medical residents perform crucial services at our hospitals, including, in many cases, providing medical care for underserved residents. The state institutions’ decisions on ranking these future residents are due on February 22; the computerized “match” occurs on March 17; and matched residents are expected to begin work on July 1. Many programs regularly match medical residents from the seven affected countries and, prior to the Executive Order, medical schools like the University of Massachusetts Medical School were already actively considering and had interviewed specific applicants from the affected countries. These programs must
4

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 7 of 25
forgo ranking applicants from the affected countries or risk having insufficient medical residents to meet staffing needs.4
Second, the Executive Order creates uncertainty and will impose additional costs related to nonimmigrant faculty and other employees who are already present in the United States. Because of the “at least” 90-day freeze on processing of visa applications under section 3(c) of the Executive Order, state institutions face the imminent prospect of paying an additional $1,225 fee per visa for “Premium Processing Service” to expedite the approval of certain eligible visas.5
Third, the Executive Order has disrupted the process of admitting students for enrollment and imminently threatens the loss of hundreds of millions of tuition dollars. State colleges and universities across the country enroll thousands of students from the affected countries. The City University of New York has more than 800 affected undergraduate students; the University of California’s ten
4 If a program “matches” with an applicant who is then unable to come into the country, the program is left with an open slot. The only way to fill the slot is to seek a waiver from the National Resident Matching Program. Such a waiver puts a medical school in the difficult position of trying to hire a resident from the pool of applicants who did not match anywhere else, and the school may be unable to find a resident at all. These problems are described in detail in Louhghalam v. Trump, Declaration of Michael F. Collins, MD, No. 17-cv-10154-NMG, Dkt. No. 52-2, at 2 (D. Mass. Feb. 2, 2017).
5 Information regarding U.S. Citizenship and Immigration Services’ expediting service, including the fee, is available at https://www.uscis.gov/i-907.
5

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 8 of 25
campuses have almost 500 affected graduate students and 40 affected undergraduates; the State University of New York has 320 affected undergraduates; the University of Massachusetts has 300 affected graduate and undergraduate students; the California State University System has more than 1,300 students from the affected countries with immigrant status and more than 250 students on student visas; and there are more than 350 affected students at Virginia’s public institutions, including Virginia Commonwealth University, Virginia Tech, George Mason University, the University of Virginia, and William & Mary. The University of Illinois has over 300 enrolled students from the affected countries and has already admitted 20 students for Fall 2017 from the affected countries. Other public institutions like the Pennsylvania State University, Texas A&M University, the University of Central Florida, the University of Houston System, the University of Texas at Arlington, and Arizona State University each have hundreds of affected students.6
The Executive Order has already disrupted the on-going admissions process for the 2017-2018 school year. The amici States’ colleges and universities have already extended some offers of admission to students from the affected countries
6 Abby Jackson, The 10 U.S. Colleges That Stand to Lose the Most from Trump’s Immigration Ban, Business Insider (Feb. 1, 2017), https://amp.businessinsider.com/colleges-potentially-most-affected-trumpimmigration-ban-2017-2.
6

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 9 of 25
who may now be unable to attend, and anticipate that—but for the Executive Order—they would admit many more over the coming months. Already, the amici States are aware of students from the affected countries who have had to abandon plans to enroll in their programs due to the Executive Order and students who have withdrawn applications. As a result, these public institutions must now alter their admissions processes because admitted students may not be able to accept or attend, depriving these schools of tuition dollars. While public colleges and universities are always subject to federal immigration law and policy, the Executive Order has injured them unexpectedly, by up-ending with no advance notice the established framework around which these institutions have designed their enrollment processes.
Finally, the President’s Order has in many cases eliminated the ability of faculty and students from the affected countries with nonimmigrant visas to travel. The amici States are aware of specific examples where that inability to travel is harming our institutions’ core missions of education and scholarship. These include graduate and undergraduate students who traveled to see families abroad over winter break and became trapped abroad; admitted students and recent faculty hires who cannot now reach the United States; and faculty and doctoral students who are in the United States but unable to travel abroad for fieldwork or conferences because they will not be able to reenter. In some cases, such travel is necessary to complete a
7

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 10 of 25
dissertation or remain on the tenure track. Even if reentry ultimately may become possible for foreign faculty and students who leave the country, the amici States are concerned that the Executive Order’s suspension of the Visa Interview Waiver Program will greatly prolong visa approval wait times, making travel more difficult and unpredictable. See Executive Order, Sec. 8.
B. Disruption to State Medical Institutions The Executive Order has also inflicted or imminently threatens to inflict similar injuries on state medical institutions and the provision of medical care within the amici States—including at institutions serving some of our neediest populations. In addition to disrupting the matching process by which our state medical schools staff hospitals through medical residents, the Executive Order also has affected medical residents who are already here and serving our patient populations as they train in multi-year programs. If such residents are unable to renew or extend their nonimmigrant visas, state medical schools will be unable to continue to employ them; the schools will be left with unfilled positions in their years-long programs for training physicians; and staffing gaps will open up at hospitals. Moreover, if the residents are unable to complete their medical residencies, they will not be able to become licensed physicians to serve the public. The University of Massachusetts Medical School, for example, is particularly known for its primary care program— at a time when primary care physicians are in short supply in many areas across the
8

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 11 of 25
country—and currently has six medical residents from the affected countries under employment contracts.
Public medical institutions, including medical schools and public hospitals, also employ individuals from the affected countries in many other positions, including as fully trained physicians, research faculty, and post-doctoral researchers. For example, 307 licensed healthcare professionals in Pennsylvania have trained in one of the affected countries. The amici States are aware of employment offers from public entities that have already been extended to and accepted by individuals from the affected countries, who are now waiting for visas to be approved and uncertain if and when they will be able to begin their employment. And the amici States have current employees, located in the United States, who, for the time being, cannot renew or extend their visas or statuses. Hospitals and medical schools will suffer decreased staffing as a result. Although the federal government dismisses such eventualities as speculative, they are not. Patients at our medical facilities cannot wait for care, and those facilities must immediately adapt to these changed circumstances—and spend precious time and resources to do so.
C. Diminished Tax Revenues from Students, Tourists, and Business Visitors
The Executive Order is also immediately causing the amici States to lose tax revenue—and poses a grave, long-term threat to internationally-linked industries that, in many cases, are the lifeblood of our economies. Such economic injuries, even
9

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 12 of 25
by themselves, give rise to Article III standing. See, e.g., City of Sausalito v. O’Neill, 386 F.3d 1186, 1199 (9th Cir. 2004).
Every foreign student, tourist, and business visitor to the amici States contributes to our respective economies—through tuition and room and board payments to state schools as well as through sales tax receipts from our hotel, retailers, and other businesses. The Executive Order abruptly halted the entry of such consumers from seven countries—and their tax revenue. As described above, the amici States are aware of specific individuals—scholars, students, and others— whose trips were abruptly cancelled. If the Order is not enjoined during the pendency of this litigation, it will cost the States weeks or months of additional tax revenues from such visitors, even if Washington and Minnesota ultimately prevail. Indeed, even assuming the Executive Order continues to be enjoined, it has already created economic damage that cannot be undone.
The collective amounts at issue are immense, even just with respect to student tax dollars. In New York, in 2015, there were almost 1,000 nationals from the affected countries studying on temporary visas, who collectively contributed $30.4 million to the State’s economy, including direct payments for tuition and fees and living expenses.7 This figure does not include indirect economic benefits, such as
7 See http://www.iie.org/Research-and-Publications/Open-Doors/Data/ Economic-Impact-of-International-Students.
10

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 13 of 25
the contributions of international students and scholars to innovation in academic and medical research. In 2014-15, more than 50,000 foreign students contributed an estimated $1.5 billion to the economy of Illinois.8 And these are not the only States affected. For example, in the 2014-2015 academic year, Iran sent 11,338 students to institutions across the United States, yielding an estimated economic impact of $323 million.9 California universities and colleges host the largest number of students from the seven targeted countries. The overwhelming majority of them are from Iran, with 1,286 visas issued to students headed to California institutions in 2015.10 The Executive Order abruptly prevented a large number of anticipated tourists and students from traveling to the States, directly and immediately decreasing the revenues flowing to state academic institutions and tax authorities.11
8 See Open Doors 2016 Fact Sheet: Illinois, Institute of International Education, http://bit.ly/2lfVfBr.
9 Open Doors Data, Fact Sheets for Iran: 2015, at http://www.iie.org/Research-and-Publications/Open-Doors/Data/Fact-Sheets-byCountry/2015#.WJfgjGczWUk.
10 See T. Watanabe and R. Xia, Trump Order Banning Entry from Seven Muslim-Majority Countries Roils California Campuses, Los Angeles Times (January 30, 2017).
11 This case is thus unlike Pennsylvania v. Kleppe, 533 F.2d 668, 679-80 (1976) and Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985)
11

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 14 of 25
The long-term harms to the amici States’ tax revenue caused by the Executive Order from loss of tourism and business investment are certainly greater. Although our regional economies may vary, we all depend on remaining internationally competitive, attractive destinations for companies in the life sciences, technology, finance, health care, and other industries, and for tourists and entrepreneurs. In Illinois alone, for example, 22.1% of entrepreneurs are foreign-born, and immigrantand refugee-owned businesses employ more than 281,000 people.12 The Executive Order will create broad harm because it hampers the movement of people and ideas from the affected countries into our States.
D. Irreparable Harm from Establishment Clause Violations The amici States have also suffered irreparable harm because the Executive Order violates the Establishment Clause of the First Amendment. Where an Establishment Clause violation is alleged, “infringement occurs the moment the government action takes place—without any corresponding individual conduct.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006). This conclusion follows from “the inchoate, one-way nature of Establishment Clause violations, which inflict an ‘erosion of religious liberties [that] cannot be deterred by awarding damages to the victims of such erosion[.]’” Id. (quoting ACLU of Ill. v.
12 See The Contributions of New Americans in Illinois at 2, New American Economy (Aug. 2016), http://bit.ly/2kRVaro.
12

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 15 of 25
City of St. Charles, 794 F.2d 265, 275 (7th Cir. 1986)). Thus, “where a movant alleges a violation of the Establishment Clause, this is sufficient, without more, to satisfy the irreparable harm prong for purposes of the preliminary injunction determination.” Id.13
E. Harm to Sovereign and Quasi-Sovereign Interests In addition to the injuries that the Executive Order is inflicting on States’ proprietary interests, the Executive Order also harms the amici States’ wellestablished sovereign and quasi-sovereign interests. See, e.g., Snapp, 458 U.S. at 602-608 (describing those interests). These harms further underscore the existence of State standing to sue the federal government to invalidate the Executive Order.
1. Enforcing Antidiscrimination Laws As the United States Supreme Court has observed, States have a sovereign interest in “the exercise of sovereign power over individuals and entities within . . . [their] jurisdiction” that includes “the power to create and enforce a legal code, both civil and criminal.” Id. at 601. States also possess a quasi-sovereign interest in protecting the civil rights of all residents within their jurisdiction. Id. at 609.
13 See also ACLU v. McCreary Cnty, 354 F.3d 438, 445 (6th Cir. 2003) (presuming irreparable harm where plaintiffs were likely to succeed on the merits of their Establishment Clause claim); Parents’ Ass’n of P.S. 16 v. Quinones, 803 F.2d 1235, 1242 (2d Cir 1986) (same).
13

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 16 of 25
The Executive Order harms these sovereign and quasi-sovereign interests by
preventing states from enforcing regimes of non-discrimination created by their state
constitutions and laws. Residents and businesses in many of the amici States—and
indeed many of the amici States themselves—are prohibited by state law from taking
national origin and religion into account in determining to whom to extend
employment and other opportunities.14 Although the States, state residents and state
businesses are always constrained in their employment decisions by validly-enacted
federal immigration law, the Executive Order represents an act of unconstitutional
discrimination. It is well recognized that States have standing to sue the federal
government where a federal law or federal action with the force of law impairs their
legitimate, sovereign interest in the continued enforceability of their own statutes.15
14 See, e.g., Cal. Const. art. I, §§ 7-8; Cal. Gov’t Code §§ 11135-11137; Conn. Gen. Stat. § 46a-60; 5 Maine Rev. Stat. Ann. §§ 784, 4551-4634 (2013). Mass. Gen. L. ch. 151B, §§ 1, 4; Mass. Gen. L. ch. 93, § 102; Md. Code Ann., State Gov’t § 20606; N.Y. Exec. Law §§ 291 (1)-(2); 296(1)a-e; 296(1-a) a-d; 296(2); 296(2-a); 296(3-b); 296(4); 296(5)(a)1-3,(b)1-2, (c)1-2,(d); 296(10)a; 296(13);296-c (2)a-c; 43 P.S. § 952(a); 43 P.S. § 952(b); 43 P.S. § 953; 43 P.S. § 955; Pa. Const. Art. I, § 1; Pa. Const. Art. I, § 3; Pa. Const. Art. I, § 26.
15 See, e.g., Gonzales v. Oregon, 546 U.S. 243, 273-75 (2006) (state challenge to federal rule that purported to bar dispensing of controlled substances in the face of state medical regime permitting such conduct); Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1239-40 (10th Cir. 2008) (state challenge to federal agency’s assertion that the federal definition of a statutory term controlled the meaning of the same term in a state statute that defined the term differently).
14

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 17 of 25
2. Ensuring the Benefits of Existing Federal Laws and Regulations A State has a legally cognizable “interest, independent of the benefits that might accrue to any particular individual, in assuring that the benefits of the federal system are not denied to its general population.” Snapp, 458 U.S. at 608. Here, in direct violation of that interest, individuals arriving at the amici States from the seven designated countries have been denied a variety of rights and procedures established by federal statutes and regulations. Individuals arriving at a port of entry in the United States are entitled to certain rights and procedures specified by the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq. Sections 1158 and 1225 of the INA entitle aliens present or arriving in the United States to apply for asylum. Section 1231 provides that an alien may not be removed to a country where his or her life or freedom would be threatened on certain specified grounds, and entitles an alien to attempt to make such a showing. Id. § 1231(b)(3). Federal regulations set out detailed procedures for effectuating these rights. For example, where an arriving alien subject to expedited removal “indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country,” the alien is entitled to a credible fear interview with an asylum officer and review by an immigration judge. See 8 C.F.R. § 235.3(b)(1)(i), (4); see also id. §§ 208.30(g), 208.30(g)(2).
15

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 18 of 25
3. Protecting Our Residents, Businesses, and Communities The Executive Order also harms state interests far broader than the injuries to any single person who has been denied entry under the Executive Order. These interests include States’ unique concern for their economies, academic institutions, and public health. See, e.g., Snapp, 458 U.S. at 602 (noting States’ independent interest “in the well-being of [their] populace”). The harm that the Executive Order threatens to non-state academic institutions and non-state providers of essential health-care services exacerbates the injuries that research and public health sectors already suffer from the Executive Order’s effect on state institutions. See supra at 3-9. In addition, the Executive Order threatens key sectors of the States’ economies, such as technology and finance, that rely heavily upon the talents and contributions of immigrants. See Br. for Tech. Cos. & Other Bus. as Amici Curiae Supporting Plaintiffs-Appellees at 8-21, Washington v. Trump, No. 17-35105 (9th Cir. Feb. 5, 2017), ECF No. 19-2. II. The Emergency Motion for a Stay Should Be Denied Because
Granting It Would Cause Further Chaos. A stay is not a matter of right, but an “exercise of judicial discretion that is dependent upon the circumstances of the particular case.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (citations and internal quotation marks omitted). In evaluating a stay motion, this Court’s discretion is guided by a four factor analysis that asks (1) whether the applicant “is likely to succeed on the merits;” (2) “whether
16

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 19 of 25
the applicant will be irreparably injured absent a stay;” (3) whether issuance of the
stay will “substantially injure” other interested parties; and (4) “where the public
interest lies.” Id. (quoting Nken v. Holder, 556 U.S. 418, 434 (2009).) The party
requesting the stay “bears the burden of showing that the circumstances justify an
exercise of this Court’s discretion.” Lair, 697 F.3d at 1203 (quoting Nken, 556 U.S.
at 433-34) (brackets omitted).16
As the District Court concluded, Washington is likely to succeed on the
merits of its challenge to the Executive Order. Indeed, in the ten days since the
Executive Order was signed, district courts across the Nation have determined—
both expressly and by implication—that claims like those advanced by Washington
and Minnesota are likely to succeed on the merits.17
16 In the past, this Court has sometimes applied an alternative standard in the context of issuing stays, allowing the moving party to demonstrate that the case raised “‘serious legal questions’” and that the balance of the hardships tipped “‘sharply in its favor.’” Golden Gate Restaurant Ass’n v. City and County of San Francisco, 512 F.3d 1112, 1116 (9th Cir. 2008) (quoting Lopez v. Heckler, 713 F.3d 1432, 1435 (9th Cir. 1983). Since the Supreme Court’s decision in Nken, this Court has indicated that this alternative approach remains available in the stay context. See Leiva-Perez v. Holder, 640 F.3d 962, 964-966 (9th Cir. 2011) (per curiam). Regardless of which approach this Court applies, the stay requested by the federal government in this case should be denied.
17 See, e.g., Darweesh v. Trump, No. 17-cv-480, Dkt. No. 8 (E.D. N.Y. Jan. 28, 2017); Vayeghan v. Kelly, No. 17-cv-702, Dkt. No. 6 (C.D. Cal., Jan. 29, 2017); Mohammed v. United States, No. 17-cv-786 (C.D. Cal., Jan 31, 2017); Arab-
17

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 20 of 25
The States have already been harmed by this Executive Order and its shifting implementation by the federal government. See Emergency Mot. Ex. C at 4-5 (district court order); see supra Section I.A.-I.E. The Executive Order “unleashed global chaos” almost as soon as it was issued on January 27.18 Customs and border control officials arrived at airports on January 28 without instructions on how to implement it.19 The lack of advance warning led to “homeland security officials ‘flying by the seat of their pants[]’ to try to put policies in place.”20 Officials at different airports applied different policies.21 Visitors to our country—and many lawful permanent residents as well—were detained for days at airports, often without
American Civil Rights League v. Trump, No. 17-cv-10310, Dkt. No. 8 (E.D. Mich. Feb. 2, 2017); Aziz v. Trump, No. 17-cv-116, Dkt. No. 38 (E.D. Va. Feb. 3, 2017).
18 M. Shear & R. Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017), available at https://www.nytimes.com/2017/01/29/us/politics/donald-trump-rush-immigrationorder-chaos.html?_r=0 (last visited Feb. 5, 2017)
19 Id. 20 Id. 21 See, e.g., J. Allen & B. O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017), available at www.reuters.com/article/us-usa-trump-immigration-confusion-idUSKBN15D07S (last visited Feb. 5, 2017) (while many visa-holders reported being “allowed into the country without a problem,” some lawful permanent residents were “turned away”).
18

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 21 of 25
access to counsel.22 If this Court were to grant the stay that the federal government now seeks, it would only exacerbate that harm.
This uncertainty was compounded by the actions of officials at the highest levels of the federal government, who vacillated over how to interpret and apply the Executive Order. For example, the federal government changed its mind multiple times about whether the Executive Order applies to lawful permanent residents.23 On February 1, the White House Counsel acknowledged “that there has been reasonable uncertainty about whether” the travel ban applies to lawful permanent residents of the United States, and “clarif[ied] that Sections 3(c) and 3(e) [of the Order] do not apply to such individuals.”24

22 M. Shear et al., Judge Blocks Trump Order on Refugees Amid Chaos and Outcry Worldwide, N.Y. Times (Jan. 28, 2017), available at https://goo.gl/OrUJEr (last visited Feb. 5, 2017); A. Whiting, Despite Court Order, US Officials Won’t Allow Lawyers at Dulles to See Detainees, Washingtonian (Jan. 29, 2017), available at https://www.washingtonian.com/2017/01/29/customs-and-border-protectionstill-not-allowing-lawyers-to-see-detainees/ (last visited Feb. 5, 2017).

23 See, e.g., E. Perez, Inside the Confusion of the Trump Executive Order and

Travel

Ban

(Jan.

30,

2017),

available

at

http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html (last

visited Feb. 5, 2017); Press Release, U.S. Department of Homeland Security,

Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents

Into The United States (Jan. 29, 2017), available at https://goo.gl/6krafi (last visited

Feb. 5, 2017).

24 See Memorandum to the Acting Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security from Donald F. McGahn II (Feb.

19

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 22 of 25
The District Court’s temporary restraining order returned the policies and
procedures regarding travel to the United States to the status quo that existed before
the Executive Order. Emergency Mot. Ex. C at 5-6 (district court order). As a result
of the court’s order, the Department of Homeland Security announced on February
4 that it “has suspended any and all actions implementing the affected sections of
the Executive Order” and that “DHS personnel will resume inspection of travelers
in accordance with standard policy and procedure.”25 In the aftermath of that
announcement, international airlines announced that they would allow citizens of
the affected nations onto flights bound for the United States.26 News outlets are
reporting that travelers from those countries have already boarded planes headed to
the United States.27
1, 2017), available at www.politico.com/f/?id=00000159-fb28-da98-a77dfb7dba170001 (last visited Feb. 5, 2017).
25 Press Release, U.S. Department of Homeland Security, DHS Statement on Compliance with Recent Court Order (Feb. 4, 2017), available at https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-courtorder (last visited Feb. 5, 2017).
26 A. Dewan, Airlines Allow Passengers After Judge Blocks Travel Ban (Feb. 4, 2017), available at http://www.cnn.com/2017/02/04/politics/airlines-airportstrump-travel-ban/index.html (last visited Feb. 5, 2017).
27 See J. Kaleem, Department of Homeland Security Halts Enforcement of Controversial Travel Ban, Los Angeles Times (Feb. 4, 2017), available at http://www.latimes.com/politics/washington/la-na-essential-washington-updatesdepartment-of-homeland-security-halts-1486224232-htmlstory.html
20

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 23 of 25
If this Court were to grant a stay, it would resurrect the chaos experienced in our airports beginning on the weekend of January 28 and 29, and cause harm to the States—including to state institutions such as public universities, to the businesses that sustain our economies, and to our residents. See supra Sections I & II. Travelers with valid visas to enter the United States, who boarded planes to our country in reliance on the order below and the guidance of the Department of Homeland Security, will be stopped, detained, and turned around yet again. That shift would exacerbate the confusion and uncertainty that has already harmed the amici States and the public at large. See supra Section I.D.28
Under these circumstances, the federal government cannot carry its burden of showing that a stay is warranted. The District Court’s temporary restraining order merely preserves the status quo that existed before President Trump’s Executive Order. In contrast to the abstract injuries that the federal government asserts it has suffered, a stay would lead to real and immediate hardships for the States, our
28 See also Pl.’s Emergency Mot. for TRO at 21-22, Washington v. Trump, No. 17-cv-00141 (W.D. Wash. Jan. 30, 2017), ECF No. 3; Br. for Am. Civil Liberties Union as Amici Curiae Supporting Pl. at 3-10, Washington, No. 17-cv00141 (W.D. Wash. Feb. 2, 2017), ECF No. 26-1; Br. for Serv. Employees Int’l Union as Amici Curiae Supporting Pl. at 2-7, Washington, No. 17-cv-00141 (W.D. Wash. Feb. 2, 2017), ECF No. 42-2; Br. for Wash. State Labor Council as Amici Curiae Supporting Pl. at 8-11, Washington, No. 17-cv-00141 (W.D. Wash. Feb. 2, 2017), ECF No. 46-1; Decl. of Emily Chiang Supporting Pl.’s Emergency Mot. for TRO at 2-8, Washington, No. 17-cv-00141 (W.D. Wash. Jan. 30, 2017), ECF No. 3.
21

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 24 of 25

residents, businesses, and institutions. The interests of the public, the States, and the

Nation would be best served by keeping the temporary restraining order in place—

and avoiding further turmoil—pending a more thorough review by the Court.

CONCLUSION For the foregoing reasons, this Court should affirm the Temporary Restraining

Order and deny the Emergency Motion for Stay.

ERIC T. SCHNEIDERMAN Attorney General State of New York BARBARA D. UNDERWOOD Solicitor General ANISHA S. DASGUPTA Deputy Solicitor General 120 Broadway, 25th Floor New York, NY 10271
JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania JONATHAN SCOTT GOLDMAN Executive Deputy Attorney General Civil Law Division Strawberry Square, 15th Floor Harrisburg, PA 17120
XAVIER BECERRA Attorney General State of California Suite 11000 455 Golden Gate Avenue San Francisco, CA 94102

Respectfully submitted, MAURA HEALEY Attorney General Commonwealth of Massachusetts ELIZABETH N. DEWAR GENEVIEVE C. NADEAU JONATHAN B. MILLER
Assistant Attorneys General One Ashburton Place Boston, MA 02108
MATTHEW P. DENN Attorney General State of Delaware Carvel State Building, 6th Floor 820 North French Street Wilmington, DE 19801

22

Case: 17-35105, 02/06/2017, ID: 10303835, DktEntry: 58-2, Page 25 of 25

GEORGE JEPSEN Attorney General State of Connecticut
55 Elm Street Hartford, CT 06106
THOMAS J. MILLER Attorney General State of Iowa 1305 E. Walnut Street Des Moines, IA 50319
JANET T. MILLS Attorney General State of Maine 6 State House Station Augusta, ME 04333
BRIAN E. FROSH Attorney General State of Maryland 200 Saint Paul Place, 20th Floor Baltimore, MD 21202
HECTOR BALDERAS Attorney General State of New Mexico 408 Galisteo Street Santa Fe, NM 87501
ELLEN F. ROSENBLUM Attorney General State of Oregon 1162 Court Street N.E. Salem, OR 97301
Dated: February 6, 2017

LISA MADIGAN Attorney General State of Illinois 100 West Randolph Street, 12th Floor Chicago, IL 60601
PETER F. KILMARTIN Attorney General State of Rhode Island 150 South Main Street Providence, RI 02903
THOMAS J. DONOVAN, JR. Attorney General State of Vermont 109 State Street Montpelier, VT 05609
MARK R. HERRING Attorney General State of Virginia 202 North 9th Street Richmond, VA 23219
KARL A. RACINE Attorney General District of Columbia Suite 1100 South 441 4th Street, NW Washington, DC 20001

23

 
 Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 1 of 36

No. 17-35105

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

MOTION FOR EXTENSION OF TIME TO FILE AMICUS CURIAE BRIEF OF THE ANTI-
DEFAMATION LEAGUE IN SUPPORT OF THE PLAINTIFFS-APPELLEES

RICHARD D. BARTON (Bar No. 102613) SHELLEY A. CARDER (Bar No. 137755) KENDRA J. HALL (Bar No. 166836) Procopio, Cory, Hargreaves & Savitch, LLP 12544 High Bluff Dr., Ste. 300 San Diego, CA 92130 (619) 515-3299 rick.barton@procopio.com

JOHN B. HARRIS Counsel for Amicus Curiae ADL Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, NY 10022 (212) 705-4823 jharris@fkks.com

STEVEN M. FREEMAN The Anti-Defamation League 605 Third Avenue New York, New York 10158 (212) 885-7700 sfreeman@adl.org

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 2 of 36

MOTION TO EXTEND TIME & DEEM BRIEF TIMELY-FILED
The undersigned respectfully moves this Court for a request an extension of time to file the amicus curiae brief concurrently filed and for an order deeming the brief timely filed. This motion is filed pursuant to FRAP, Rule 26 and the declaration of Shelley A. Carder

Dated: February 6, 2017

Respectfully submitted,

/s/ Shelley A. Carder

/s/ John B. Harris

/s/ Steven M. Freeman

RICHARD D. BARTON (Bar No. 102613) SHELLEY A. CARDER (Bar No. 137755) KENDRA J. HALL (Bar No. 166836) Procopio, Cory, Hargreaves & Savitch, LLP 12544 High Bluff Dr., Ste.300 San Diego, CA 92130 (619) 515-3299 rick.barton@procopio.com

JOHN B. HARRIS Counsel for Amicus Curiae ADL Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, NY 10022 (212) 705-4823 jharris@fkks.com

STEVEN M. FREEMAN The Anti-Defamation League 605 Third Avenue New York, New York 10158 (212) 885-7700 sfreeman@adl.org

DECLARATION OF SHELLEY A. CARDER I, Shelley A. Carder, declare and state, as follows: 1. I am a resident of the County of San Diego, State of California and am a member of the law firm of Procopio, Cory, Hargreaves & Savitch, LLP in the position of Senior Counsel. I make this declaration based on matters within my personal knowledge, save and except for those matters based on information and belief, which I

2
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 3 of 36
believe to be true, and if called would and could testify thereto under penalty of perjury under the laws of the United States.
2. I am an attorney admitted to practice in the State of California and before the Ninth Circuit Court of Appeals. My bar no. is 13755. I last appeared before this Court in the matter of Dennis Wilcox v. Hi-Desert Memorial Healthcare, et al., Case No. 0:13-cv-55299.
3. Yesterday, I had the privilege of being asked to participate in the filing of an amici curiae brief by the e Anti-Defamation League (“ADL”) opposing the motion to stay the Temporary Restraining Order (TRO) issued by the U.S. District Court for the Western District of Washington.
4. Unfortunately, I was unable to log in to my ECF/Pacer account to accomplish the filing. I began trying to gain access early in the evening yesterday, Sunday February 5, 2017, waited through the system maintenance downtime and tried again after midnight, attempting to get the brief filed by the 1:00 AM deadline. Despite my best efforts, I received an error message that my PACER user account is currently inactive. One of the error windows I received said: :”For information on how to make your account status active, contact the PACER Service Center at (800) 676-6856 Monday through Friday between 8 AM and 6 PM CT. . . ” Another error message I received said: “You logged in to the CM/ECF Document Filing System with a PACER account that does not have e-filing privileges. Please choose one of the following
3
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 4 of 36
options to continue.” Although I attempted to link my PACER account from my old
firm, Di Caro, Coppo & Popcke, and did just about everything else I could think of, I
could not gain access. In fact, I also attempted to set up an new account and my boss,
Richard D. Barton attempted to do so, as well. Despite our best efforts, we could not
gain access to the e-filing system.
5. This morning, I called PACER at or about 8 AM and went through
several steps and was told that the Court was not recognizing my account. I next called
the Court and received the recorded message that I am required to send an e-mail to
'cmecf_ca9help@ca9.uscourts.gov'. This was accomplished by 9:03 a.m. I next spoke
with a motions clerk regarding how to seek relief and file this request for extension of
time and an order deeming the brief of the Anti-Defamation League timely filed.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 6th day of February 2017 at San Diego,
California.
Respectfully submitted,
/s/ Shelley A. Carder RICHARD D. BARTON (Bar No. 102613) SHELLEY A. CARDER (Bar No. 137755) KENDRA J. HALL (Bar No. 166836) Procopio, Cory, Hargreaves & Savitch, LLP 12544 High Bluff Dr., Ste. 300 San Diego, CA 92130 (619) 515-3299 rick.barton@procopio.com shelley.carder@procopio.com
4
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 5 of 36

No. 17-35105

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

AMICUS CURIAE BRIEF OF THE ANTIDEFAMATION LEAGUE IN SUPPORT OF THE
PLAINTIFFS-APPELLEES

RICHARD D. BARTON (Bar No. 102613) SHELLEY A. CARDER (Bar No. 137755) KENDRA J. HALL (Bar No. 166836) Procopio, Cory, Hargreaves & Savitch, LLP 12544 High Bluff Dr., Ste. 300 San Diego, CA 92130 (619) 515-3299 rick.barton@procopio.com shelley.carder@procopio.com

JOHN B. HARRIS Counsel for Amicus Curiae ADL Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, NY 10022 (212) 705-4823 jharris@fkks.com

STEVEN M. FREEMAN The Anti-Defamation League 605 Third Avenue New York, New York 10158 (212) 885-7700 sfreeman@adl.org

5
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 6 of 36
TABLE OF CONTENTS Page
I. America’s Aspirations as a Refuge for the Oppressed....................................5 II. America Has Been at its Best When it Honors ItsCommitment to Its Core
Values ..............................................................................................................9 III. When America Closed its Doors and Allowed Its Core Values to be
Compromised, The Country Later Looked Back in Shame ..........................13 A. The St. Louis .......................................................................................14 B. The “Chinese Exclusion” ....................................................................17 C. The Japanese Internment .....................................................................21 CERTIFICATE OF SERVICE ................................................................................27
i
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 7 of 36
TABLE OF AUTHORITIES Page(s)
FEDERAL CASES Stormans, Inc. v. Selecky
586 F.3d 1109 (9th Cir., 2009) .............................................................................3 Winter v. Nat. Res. Def. Council, Inc.
555 U.S. 7 (2008)..................................................................................................3 FEDERAL STATUTES, REGULATIONS, AND RULES 50 United States Code
§ 4201..................................................................................................................23 § 4202............................................................................................................22, 24 Federal Rules of Appellate Procedure 29 ........................................................................................................................... 2 29(a)(2) ..............................................................................................................1, 2 29(a)(4)(E), ............................................................................................................. 1
ii
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 8 of 36

STATEMENT OF INTEREST The Anti-Defamation League (“ADL”) respectfully submits this brief as Amicus Curiae in support of the relief sought by Plaintiffs-Appellees declaring invalid portions of the Executive Order dated January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” (the “Executive Order”). Accordingly, Amicus asks this Court to affirm the February 3, 2017 Order of the United States District Court for the Western District of Washington (Robart, J.) insofar as it temporarily enjoined the Defendants-Appellants from enforcing portions of the Executive Order. 1 Founded in 1913, ADL is a civil rights and human relations organization that seeks to stop the defamation of the Jewish people, and to secure justice and fair treatment for all people. Through its 26 regional offices throughout the United States, including seven offices within the Ninth Circuit alone, ADL provides materials, programs and services to combat anti-Semitism and all forms of bigotry. Because of its history of fighting discrimination, including with respect to prejudice toward immigrants and religious minorities, ADL can provide unique and important insights for the Court in addressing the Executive Order and in considering the historical context of the Executive Order’s provisions limiting or

1

Pursuant to FRAP 29(a)(4)(E), Amicus Curiae states that no counsel for any party authored this

brief in whole or in part and no entity or person, aside from Amicus and their counsel, made any monetary

contribution toward the preparation or submission of this brief. Pursuant to this Court’s Rule 29(a)(2), we

are advised that both plaintiffs and defendants have consented to the filing of amicus briefs from

interested parties.

1
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 9 of 36
barring entry into the United States of persons coming from seven majorityMuslim nations.2 The ADL submits this brief under Fed. R. App. P. 29, Circuit Rule 29(a)(2). All parties have consented to the submission of amici briefs in this case.

2

ADL is aware that the parties dispute whether the Executive Order constitutes a ban of

Muslims as opposed a ban of persons from certain countries that the United States believes pose

a terrorist threat. Inasmuch as the vast majority of the persons affected by the Executive Order

are of the Muslim faith and inasmuch as the President has indicated that the ban does not apply

in the same manner to Syrians of the Christian faith, ADL considers the Executive Order to

implicate religion in a significant manner.

2
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 10 of 36
Background ADL recognizes that the United States is a nation dedicated to the ideals of equality, liberty and justice. Adhering to these principles under changing domestic and international circumstances is often a work in progress. Throughout the history of the United States, and often with respect to immigration, our ideals have been tested. Sometimes the nation rises to meet the challenge, upholding the values that make America exceptional. (Point II below). At other times, when prejudice and fear predominate over reason and compassion, we falter, often with devastating consequences, as set forth below in connection with the St. Louis tragedy, the Japanese internment and the Chinese exclusion. When we later realize that we have strayed from our principles, we are left to apologize to people who have suffered (and, too often, to their descendants) and to promise to learn from our mistakes and not to repeat them. (Point III below). As the Ninth Circuit has held: “The proper legal standard for preliminary injunctive relief requires a party to demonstrate (1) ‘that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir., 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). This brief seeks to provide important insight regarding how the Executive
3
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 11 of 36
Order, absent injunctive relief, will almost certainly cause irreparable harm, similar to other harms for which the United States has later apologized when it failed to live up to values and the promise embodied in the Constitution. It also seeks to demonstrate that the public interest lies squarely in support of injunctive relief, as America has always been at its best when it opens its doors to refugees and immigrants.
ADL was created at a time when fear and prejudice against Jews were so great that a Jewish man, Leo Frank, was falsely accused of murder, convicted after a trial marked by overt anti-Semitism and then lynched in 1915.3 ADL regularly confronts discrimination against perceived outsiders, foreigners and strangers. As an organization founded by immigrants in a nation of immigrants, as an organization sworn to protect the interest of religious and ethnic minorities, ADL believes that when our nation’s values are threatened we must look back at the founding principles that propelled the United States – in the hope that future generations can celebrate our resolve.

3

After the lynching, armed mobs ran through the streets of Atlanta, forcing Jewish

businesses to shutter their doors and about half of Georgia’s Jewish population to flee. Sixty

years later, the State of Georgia, faced with evidence of Frank’s innocence, posthumously

pardoned Frank and apologized for failing to protect him.

4
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 12 of 36

ARGUMENT I. America’s Aspirations as a Refuge for the Oppressed
The promise of America has been manifest since before the American Revolution. John Winthrop, while still on his transatlantic voyage to the New World, admonished the future colonists of Massachusetts to always remember that their new community would be “as a city upon a hill,” with the entire world watching.4 In fulfilling this vision, the country welcomed in its early years those disfavored and persecuted in their homelands based on their religious beliefs, including the Pilgrims, the Puritans and the Huguenots. Since then, our nation’s wisest leaders have been guided by Winthrop’s inspiring vision and have strived toward a more inclusive democracy.5
The birth of the United States came in part because the Founders sought to cast off the shackles of Europe’s endless religious wars and sectarian conflict in order to form a more perfect union. In beseeching the country to separate from

4

John Winthrop, A Model of Christian Charity (1630).

5

“History will not judge our endeavors,” said President-elect John F. Kennedy in a speech

invoking Winthrop, “merely on the basis of color or creed or even party affiliation.” Speech to

the General Court of Massachusetts, January 9, 1961. Ronald Reagan also referred to

Winthrop’s vision of America on the eve of his election as President in 1980:

These visitors to that city on the Potomac do not come as white or black, red or yellow; they are not Jews or Christians; conservatives or liberals; or Democrats or Republicans. They are Americans awed by what has gone before, proud of what for them is still…a shining city on a hill.

Ronald Reagan, Election Eve Address, November 3, 1980.
5
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 13 of 36
England, Thomas Paine recognized that Europe was “too thickly planted with kingdoms to be long at peace” and believed the discovery of America had a divine purpose: “to open a sanctuary to the persecuted in future years, when home should afford neither friendship nor safety.”6 Seven months later, the Declaration of Independence enunciated the “self-evident truths” that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Less quoted from the Declaration is the Founders’ burning grievance that the English King had restricted free immigration, having “endeavoured to prevent the population of these States; for that reason obstructing the Laws for the Naturalization of Foreigners [and] refusing to pass others to encourage their migrations hither.”
After the United States won its independence, it faced the challenge of designing laws that embodied the enlightened vision of the new nation. In 1785, James Madison published “Memorial and Remonstrance Against Religious Assessments” in opposition to a bill proposed to Virginia’s General Assembly that would have levied a modest tax to support Christian education. Madison warned that any measure, no matter how slight, that gave a preference to one religion over

6

Thomas Paine, Common Sense (January 10, 1776).

6
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 14 of 36
another would constitute “a dangerous abuse of power” and would betray the
vision of “a city upon a hill:”
Because the proposed establishment is a departure from that generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an Asylum to the persecuted, it is itself a signal of persecution. . . . Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthrophy in their due extent, may offer a more certain repose from his Troubles. (emphasis supplied)
Virginia recognized Madison’s wisdom. It rejected the establishment bill
and instead adopted Thomas Jefferson’s “Statute for Religious Freedom,” which
firmly separated church from state and enshrined the principles of religious liberty
for all. When Madison went to the Constitutional Convention in 1787, he fought
for Jefferson’s view to become the law of the land, and it became a bedrock of the
rights confirmed by the First Amendment.
Although the makeup of the United States was overwhelmingly Christian at
its birth, our Founders were clear that the nation’s new laws prohibiting religious
discrimination extended to people of all faiths and backgrounds. When Jefferson
later reflected on his Statute for Religious Freedom, he extolled the broad
application of the law, which was evidence that the legislators “meant to
7
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 15 of 36
comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and the Mahometan [Muslim], the Hindoo [Hindu], and every Infidel of every denomination.”7
The American values of accepting people into this country regardless of their faith, race or nationality have been celebrated by our leaders. In 1855, Abraham Lincoln confronted the burgeoning anti-immigrant “Know Nothing” movement, soundly rejecting the Know Nothings vision of an America in which “all men are created equal, except negroes, and foreigners, and Catholics." He said of the movement: “When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty -- to Russia, for instance, where despotism can be taken pure …”
The vision of the “shining city on the hill” has also inspired poets. Walt Whitman wrote: “These States are the amplest poem, here is not merely a nation but a teeming Nation of nations.” Emma Lazarus’ immortal poem on the pedestal of the Statue of Liberty urged “ancient hands” to give America “your tired, your poor, your huddled masses yearning to breathe free … Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!”
In his 1959 book, “A Nation of Immigrants,” future President John F. Kennedy studied the history of immigration in this country, both in terms of those

7

Thomas Jefferson, Autobiography, Works 1:71 (1821).

8
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 16 of 36

subject to religious persecution and those facing other overpowering hardship. He wrote: “America has always been a refuge from tyranny. As a nation conceived in liberty, it has held out to the world the promise of respect for the rights of man.”8 II. America Has Been at its Best When it Honors ItsCommitment to Its
Core Values There are numerous examples where the United States has met its aspirations as Winthrop’s “shining city on the hill,” opening itself to “anyone with the will and the heart to get here.”9 At its best, the United States has been a beacon of hope for refugees from war-town countries, victims of religious persecution, natural disasters or other emergencies – fulfilling what President Kennedy described in Nation of Immigrants as the “natural humanitarian impulses of the American people which is in keeping with our traditions of shelter to the homeless and refuge for the oppressed.”10 Indeed, many of these refugees have contributed immeasurably to the fabric of America. With the Truman Directive in 1945, and the Displaced Persons Act of 1948, the United States – for the first time since its founding – began explicitly to focus on its identity as a sanctuary for those fleeing persecution, as the first Americans

8

John F. Kennedy, A Nation of Immigrants (Harper Perennial, January 2008), at p. 7.

9

Ronald Reagan, “Farewell Address to the Nation," January 11, 1989, The American

Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=29650 (last visited February. 3,

2017).

10 Kennedy, Nation of Immigrants, at p. 46.
9
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 17 of 36
had done hundreds of years earlier.11 President Truman led the assistance and reconstruction effort to resettle hundreds of thousands of European Jews and other Europeans displaced from their home countries who could not return in the aftermath of WWII.12
In so doing, the country gave truth to Thomas Paine’s prophecy that the United States would “open a sanctuary to the persecuted in future years, when home should afford neither friendship nor safety.” The refugees welcomed to the United States during or after World War II have made immeasurable contributions to politics, science, literature, music, art, and social and scientific studies. Refugees from that period include Madeleine Albright, Hannah Arendt, Bela Bartok, Marc Chagall, Marlene Deitrich, Albert Einstein, Enrico Fermi, Henry Kissinger, Raphael Lemkin, Vladimir Nabokov, Claude Levi-Strauss, Dr. Ruth Westheimer, and Billy Wilder. American culture and science stands on the shoulders of many of these contributions.
With the onset of the Cold War, Congress began assisting groups of refugees from Communist regimes including those from the Soviet Union, Cuba, Hungary, Poland, and Yugoslavia, as well as those fleeing Southeast Asia after the Vietnam

11 David W. Haines, “Learning From our Past: The Refugee Experience in the United States,” reported at http://www.americanimmigrationcouncil.org/research/refugee-experienceunited-states.

12

Id.

10
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 18 of 36
War. The openness to asylum seekers reflected in these efforts also demonstrated a growing recognition that many refugees have significant education, skills, strong family structures and commitment to hard work and success that make them ideal new citizens.13
In the wake of the publication of A Nation of Immigrants, Congress enacted the Immigration and Nationality Act of 1965, which allowed increased numbers of people to migrate to the United States from Asia, Africa, the Middle East, and Southern and Eastern Europe. Examples of notable refugees that came to the United States from this period are: Sergey Brin, Joseph Brodsky, Gloria Estefan, Milos Forman, Miriam Makeba, Thomas Petterffly, Regina Spektor, Roberto Suarez, and David Tran.
In 1968 the United States was one of the first countries to sign the United Nations Protocol Relating to the Status of Refugees, a key treaty in international refugee law. The 1974 Jackson-Vanik Amendment ultimately permitted approximately 500,000 Jews, evangelical Christians and Catholics to escape religious persecution in the former Soviet Union by coming to the United States. And in 1980 Congress signed the Refugee Act which standardized the resettlement process and services for all refugees admitted to the United States.
13 Haines, supra, “Learning From our Past: The Refugee Experience in the United States.”
11
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 19 of 36
Since the 1980s, the United States has resettled refugees from Darfur fleeing genocide and violence; refugees from Bhutan forced out of their country; and Syrian, Iraqi and Afghan refugees displaced by war. In addition, the U.S. has facilitated the naturalization of Hmong veteran refugees who served in Laos in support of U.S. forces and during the Vietnam War;14 assisted the children of Vietnamese re-education camp survivors through the “McCain Amendment;” assisted former Soviet and Indochinese nationals with a credible fear of persecution through the “Lautenberg Amendment”; and assisted Iranian religious minorities through the “Specter Amendment.15 Since 1975, the US has settled over 3 million refugees.16
It should come as no surprise that more than 40 percent of Fortune 500 companies were founded by recent immigrants or their children (even though such immigrants account for roughly 10.5 percent of the US population); or that the revenue generated by these companies is greater than the GDP of every country in the world outside the U.S. except China and Japan; or that successful global
14 William J. Clinton: "Statement on Signing the Hmong Veterans Naturalization Act of 2000," May 26, 2000, The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=58559 (last visited Feb. 5, 2017) 15 Andora Bruno: “Refugee Admissions and Resettlement Policy,” November 30, 2016, Congressional Research Service, Federation of American Scientists, https://fas.org/sgp/crs/misc/RL31269.pdf (last visited Feb. 4, 2017). 16 Ruth Igielnick and Jens Manuel Krogstad, “Where Refugees to the U.S. Come From,” Feb. 3, 2017, PEW RESEARCH CENTER, http://www.pewresearch.org/fact-tank/2017/02/03/whererefugees-to-the-u-s-come-from/ (last visited 2/5/2017).
12
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 20 of 36
companies founded by American immigrants and refugees or their children span all sectors of the economy, including some of the most valuable brands in the world (Apple, Google, eBay, AT&T, General Electric, IBM, McDonald’s).17 As of 2016, roughly 2 million veterans of the U.S. Armed forces living in the U.S. – of a total 18.8 million – are refugees/immigrants or have refugee/immigrant parents.18 As President Kennedy observed, “[t]here is no part of our nation that has not been touched by our immigrant background.”19 III. When America Closed its Doors and Allowed Its Core Values to be
Compromised, The Country Later Looked Back in Shame In sharp contrast to the times when the United States has shown its “natural humanitarian impulses,” at other times the country has closed itself to others and has succumbed to fear or bigotry, with tragic consequences. Sometimes the victims of this xenophobia and prejudice were Jews (the “St. Louis” tragedy) or other religious minorities, sometimes they were from nations that were regarded as undesirable (the “Chinese exclusion”) and sometimes they were groups the
17 Partnership For the New American Economy, “The ‘New American’ Fortune 500,” June 2011, http://www.renewoureconomy.org/sites/all/themes/pnae/img/new-american-fortune-500june-2011.pdf (Last visited February 4, 2017). 18 Jie Song and Jeanne Batalova, “Immigrant Veterans in the United States,” Migration Policy Institute, http://www.migrationpolicy.org/article/immigrant-veterans-united-states (Last visited February 5, 2017). 19 Kennedy, Nation of Immigrants at p. 3.
13
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 21 of 36
government suspected as disloyal (the Japanese internment during World War II). In each case, the United States apologized years too late.
A. The St. Louis The tragedy of the vessel St. Louis illustrates the devastating consequences that can result when the United States turns its back on refugees in need. In May 1939, on the eve of World War II and after Kristallnacht (the “Night of Broken Glass” in November 1938, in which hundreds of Jews were beaten, killed, or sent to concentration camps),20 the St. Louis left Hamburg, Germany, carrying 937 passengers, nearly all of whom were Jews fleeing Nazi persecution. The ship was headed to Havana, Cuba with the hope of having its passengers granted sanctuary in the United States. Prior to the ship’s departure, most of the Jewish passengers had obtained valid paperwork permitting their entry to Cuba and had also applied for U.S. visas, planning to stay in Cuba only until their entry to the U.S. was approved. By the time the St. Louis arrived in Cuba on May 27, 1939, however, the Cuban president had invalidated most of the passengers’ travel certificates.21 While United States-
20 The United States Holocaust Memorial Museum, “Kristallnacht,” Holocaust Encyclopedia, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005201. (Last visited February 5, 2017). 21 The United States Holocaust Memorial Museum, “Voyage of the St. Louis,” Holocaust Encyclopedia, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267. (Last visited February 5, 2017.
14
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 22 of 36
based Jewish organizations negotiated with Cuban officials to persuade them to
admit the other passengers, the United States refused to formally intercede on the refugees’ behalf or publicly pressure the Cuban government to admit them.22
After negotiations with Cuba failed, the St. Louis headed towards Miami in
June 1939, coming within sight of the Florida coastline. Despite pleas from
passengers on board, President Roosevelt and the State Department refused to accept the Jewish refugees into the United States,23 reflecting anti-immigrant and
anti-Semitic sentiments prevailing at the time. (A Gallup poll taken in January
1939 asked Americans if the government should allow 10,000 refugee children,
mostly Jewish, from Germany to be taken care of in American homes; 61 percent opposed).24 A State Department telegram to a passenger on the ship explained the
government’s position that the passengers must “await their turns on the [visa]
22 Id. See also Dara Lind, “How America’s Rejection of Jews Fleeing Nazi Germany Haunts Our Refugee Policy Today,” Vox, http://www.vox.com/policy-andpolitics/2017/1/27/14412082/refugees-history-holocaust (Last visited February on 5, 2017).
23 Kristine Guerra, “What the U.S. Learned from Turning Away Refugees who Fled the Nazis,” The Washington Post, January 29, 2017, available at https://www.washingtonpost.com/news/post-nation/wp/2017/01/29/what-the-u-s-learned-fromturning-away-refugees-who-fled-the-nazis/?utm_term=.e91085b6c047. (Last visited on February 5, 2017). 24 See Ishaan Tharoor, “What Americans Thought of Jewish Refugees on the Eve of World War II,” The Washington Post, November 17, 2015. https://www.washingtonpost.com/news/worldviews/wp/2015/11/17/what-americans-thought-ofjewish-refugees-on-the-eve-of-world-war-ii/?utm_term=.a67eb4b68817 (Last visited on February 5, 2017).
15
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 23 of 36
waiting list and qualify for and obtain immigration visas before they may be admissible into the United States.”25
Ultimately, the United States refused entry to the passengers of the St Louis, forcing it to sail back to Europe. Historians estimate that more than a quarter of the St. Louis passengers – 254 people – died in the Holocaust, including a number at Auschwitz, after being refused entry in this country.26 (Added to this number are thousands of other Jews who died in the Holocaust because of denied visas to come to the United States, including Anne Frank).
In 2012, the United States government issued a formal apology for the country’s refusal to provide refuge for the Jewish passengers aboard the St. Louis.27 Addressing the 14 surviving passengers, a State Department official stated: “To the survivors of the MS St. Louis, on behalf of the president and Secretary of State, I am honored to say what we should’ve said so long ago,
25 The United States Holocaust Memorial Museum, “Voyage of the St. Louis,” Holocaust Encyclopedia, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267. (Last visited on February 5, 2017). 26 The United States Holocaust Memorial Museum, “Voyage of the St. Louis,” Holocaust Encyclopedia, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267. (Last visited on February 5, 2017). 27 Kamrel Eppinger, “State Department apologizes to Jewish refugees,” Scripps Howard Foundation Wire, September. 26, 2012, http://www.shfwire.com/state-department-apologizesjewish-refugees/. (Last visited on February 5, 2017).
16
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 24 of 36
welcome.”28 (Archival photographs from the St. Louis are contained in the Appendix).
B. The “Chinese Exclusion” In the late 1860s and early 1870s, Chinese immigrants, including both skilled and unskilled laborers, enjoyed easy passage to this country under the terms of a treaty between the United States and China.29 Even with the treaty’s relaxed standards, annual Chinese immigration never exceeded 40,000 people, and in 1890 there were only 107,000 Chinese nationals living in the United States.30 Nevertheless, hostility towards the Chinese escalated within certain portions of the American public, who blamed wage decreases and other economic difficulties on Chinese laborers.31 Although Government leaders initially resisted constituent

28 Id. Before the St. Louis sailed, Congress also rejected a bill that would have allowed

20,000 German children to settle in this country. Opponents took an “America-First” approach

to reject the proposal, arguing that America should first focus on its own needy and homeless

citizens. The wife of the United States immigration commissioner, Laura Delano Houghteling,

testified that “120,000 charming children would all too soon grow into 2,000 ugly adults. Dara

Lind, “How America’s Rejection of Jews Fleeing Nazi German Haunts our Refugee Policy

Today,”

http://www.vox.com/policy-and-politics/2015/11/19/9760060/refugees-history-

holocaust (Last visited on February 5, 2017).

29 See H. Res. 683, April 14, 2016, available at https://www.congress.gov/bill/114thcongress/house-resolution/683/text. See also Kennedy, Nation of Immigrants at p. 40.

30 Kennedy, Nation of Immigrants at p. 40.

31 Chinese Exclusion Act (1882), Harvard University Library Open Collections Program, available at http://ocp.hul.harvard.edu/immigration/exclusion.html.

17
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 25 of 36

pressure to stop Chinese immigration,32 as John Kennedy noted in A Nation of Immigrants, a “campaign of organized violence against Chinese communities took form, and the hysteria led to public pressure too violent to be resisted.”33
The Chinese Exclusion Act of 1882, signed into law by President Arthur, was the “first federal law ever passed excluding a group of immigrants solely on the basis of race or nationality.”34 The thrust of the Chinese Exclusion Act was that it barred Chinese laborers from entering the United States for 10 years,35 but it also put in place other discriminatory systems, including a registry for all Chinese (including non-laborers) who were then legally present in the United States.36 Additionally, Chinese laborers already in the country would have to obtain a “certificate” to return to the United States, if they ever wanted to leave the country.37 The Act also explicitly prohibited all state and federal courts from naturalizing people of Chinese origin, regardless of whether they were legally in

32 President Arthur initially vetoed the bill, which he viewed as incompatible with the Burlingame Treaty. See “Veto of the Chinese Exclusion Act (April 4, 1882)” available at http://millercenter.org/president/arthur/speeches/veto-of-the-chinese-exclusion-act.

33 Kennedy, Nation of Immigrants at p. 41.

34 “Chinese Americans in California,” California State Legislature, SJR-23, August 28, 2014, available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SJR23.

35 Chinese Exclusion Act, text available at http://avalon.law.yale.edu/19th_century/chinese_exclusion_act.aspSJR-23.

36

Id.

37 Id. See also SJR-23.
18
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 26 of 36
this country.38 These sweeping restrictions were explained only by this statement in the law’s preamble: “in the opinion of the Government of the United States the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof[.]”39
The Chinese Exclusion Act was followed by a series of other laws designed to exclude Chinese individuals from the United States both physically and politically. The Scott Act of 1888 precluded Chinese laborers from leaving and reentering the United States entirely and cancelled all previously issued “certificates” as referenced in the Exclusion Act.40 This action prevented the return of approximately 20,000 Chinese laborers who were abroad and counting on their lawfully-obtained certificates to reenter.41 It also froze the migration of an additional 600 Chinese individuals who were physically en route to the United States at the time of its enactment.42 When the Chinese Exclusion Act was set to expire in 1892, Congress passed the Geary Act, which extended it for another ten

38 Chinese Exclusion Act, section 14. See also SJR-23.

39 Chinese Exclusion Act, preamble.
40 S.Res.201, October 6, 2011, available at https://www.congress.gov/bill/114thcongress/senate-resolution/201. See also H. Res. 683.

41

S.Res.201.

42

S.Res.201.

19
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 27 of 36

years and introduced still further additional restrictions.43 It was not until 1943 that Congress finally began repealing certain – and eventually all – of these discriminatory laws.44
In October 2011, the United States Senate issued an apology for the Chinese Exclusion Act and other laws.45 A similar report was announced by the United States House of Representatives46 and, later, by the California State Legislature.47 In each instance, the government noted that the Chinese Exclusion Act and its companion laws were and remain “incompatible with the basic founding principles recognized in the Declaration of Independence that all persons are created equal[.]”48 The announcements expressed commitment to “diversity in the United States that contributes to the country’s economic, cultural, technological, academic, an political growth[.]”49

43

S.Res.201.

44

S.Res.201.

45

S.Res.201.

46

H. Res. 683

47

SJR-23.

48 S.Res.201. See also SJR-23 (Pointing out that, “[p]aradoxically, the very same year that the Chinese Exclusion Act was passed, financing abroad was completed for the Statute of Liberty. . . . While the Statute of Liberty was being built, legislators were contradicting those very ideals by discriminating against Chinese immigrants and lobbying Congress to do the same[.]”).

49

SJR-23.

20
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 28 of 36
In its apology the California legislature observed that “[t]he Chinese Exclusion Act set the precedent for racist foreign and national policy that led to broader exclusion laws and fostered an environment of racism that quickly led to the Jim Crow laws of the 1880s, and further segregation legislation that would tear our nation apart through most of the 20th Century[.]”50 Simply put, it concluded that racism breeds racism, and any governmental policies that conflict with the fabric of this country cannot be allowed to stand.
C. The Japanese Internment The internment of Japanese-Americans was authorized by Executive Order 9066,51 which President Roosevelt issued in early 1942, ten weeks after the Pearl Harbor attack. Executive Order 9066 gave to the Secretary of War and the military commanders to whom he delegated authority, the power to exclude any and all persons, citizens and aliens from designated areas in order to provide security against sabotage and espionage.52 The Order makes no reference to the Japanese, just as the current Executive Order does not reference Muslims. However, within a week of the issuance of the order, Lt. General John L. DeWitt issued the first of 108 relocation orders resulting in the forcible evacuation of approximately 120,000

50

Id.

51 7 Fed.Reg. 1407 (Feb. 19, 1942)

52

Id.

21
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 29 of 36
Japanese-Americans, including 70,000 citizens, to concentration camps in desolate areas of the United States for the duration of World War II.53
The justification for Executive Order 9066 was “military necessity.”54 However, Congress has since acknowledged that “these actions were carried out without adequate security reasons and … were motivated largely by racial prejudice, wartime hysteria, and a failure of political leadership.”55 (Anti-Japanese bias was palpable: polls taken in 1944 indicated that more than 60 percent of Americans thought that whites should be prioritized in hiring decisions over Japanese Americans).56 This conclusion was bolstered by the fact that no effort was made to invoke Executive Order 9066 to authorize internment of GermanAmericans and/or Italian-Americans.57
In 1976, President Gerald Ford issued a proclamation acknowledging that “not only was that evacuation wrong, but Japanese Americans were and are loyal Americans.” In 1982, the Commission on Wartime Relocation and Interment of
53 See Roger Daniels, Concentration Camps USA: Japanese Americans and World War II 33, 104 (1972) 54 U.S. Comm'n on Wartime Relocation and Internment of Civilians, Congress of 1980, Report: Personal Justice Denied, at 6-8 (1982). 55 50 U.S.C. § 4202. 56 Stephen White, “Many Americans Support Trump’s Immigration Order; Many Americans Backed Japanese Internment Camps, Too,” The Washington Post, February 2, 2017. 57 See U.S. Comm’n on Wartime Relocation and Internment of Civilians, Congress of 1980, Report: Personal Justice Denied, at 3 (1982).
22
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 30 of 36
Civilians issued a report entitled, “Personal Justice Denied,” which set the stage for the moment in 1988 when President Ronald Reagan signed the Civil Liberties Act, which offered a formal apology and reparations for the “grave injustice” of evacuating, relocating and interning tens of thousands of Japanese Americans during the war.58 President Reagan, in his remarks on signing the Act, made clear that the internment of Japanese Americans was a “grave wrong.”59 Congress too acknowledged that this measure – carried out under the false banner of “national security” – amounted to a “fundamental violation[] of the basic civil liberties and constitutional rights of [] individuals of Japanese ancestry” and caused “enormous damages, both material and intangible, … which resulted in significant human suffering[.]”60
Conclusion The ADL believes that the decision by the United States District Court for the Western District of Washington enjoining provisions of the Executive Order is consistent with the principles underlying the Constitution. Absent injunctive relief, there will almost certainly be irreparable harm to countless people, just as there was when the United States shamefully turned away those on the St. Louis
58 See 50 U.S.C. § 4201 et seq. 59 President Ronald Reagan, Remarks on Signing the Bill Providing Restitution for the Wartime Internment of Japanese-American Civilians (Aug. 10, 1988), http://www.reagan.utexas.edu/archives/speeches/1988/081088d.htm. 60 50 U.S.C. § 4202.
23
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 31 of 36

desperately seeking safety. As with the 254 passengers aboard the St. Louis who

died in the Holocaust, an apology years later would be woefully insufficient to

address the damage done. ADL believes that enforcing the Executive Order risks

once again sacrificing the nation’s core values in favor of prejudice and fear – a

sacrifice that history has repeatedly proven has profound consequences both to the

persons who suffer as a result and to the still-vibrant vision of the shining city on

the hill.

Dated: February 6, 2017

Respectfully submitted,

/s/ John B. Harris JOHN B. HARRIS Jeremy Goldman Caren Decter Jessica Smith Rayna Lopyan Lily Landsman-Roos Lakendra Barajas Counsel for Amicus Curiae ADL Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, NY 10022 (212) 705-4823 jharris@fkks.com

SIGNATURES CONTINUE ON NEXT PAGE

24
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 32 of 36
/s/ Shelley A. Carder RICHARD D. BARTON (Bar No. 102613) SHELLEY A. CARDER (Bar No. 137755) KENDRA J. HALL (Bar No. 166836) Procopio, Cory, Hargreaves & Savitch, LLP 12544 High Bluff Dr., Ste. 300 San Diego, CA 92130 (619) 515-3299 rick.barton@procopio.com shelley.carder@procopio.com /s/ Steven M. Freeman STEVEN M. FREEMAN Lauren A. Jones Michelle N. Deutchman Michael Lieberman The Anti-Defamation League Anti-Defamation League 605 Third Avenue New York, New York 10158
25
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 33 of 36

CERTIFICATION OF COMPLIANCE

This brief complies with the type-volume limitations of Fed. R. App. P.

29(a)(5) because it contains 4,849 words excluding the parts exempted by Fed. R.

App. P. 32(a)(7)(B)(ii).

Dated: February 6, 2017

/s/ Shelley A. Carder

RICHARD D. BARTON (Bar No. 102613) SHELLEY A. CARDER (Bar No. 137755) KENDRA J. HALL (Bar No. 166836) Procopio, Cory, Hargreaves & Savitch, LLP 12544 High Bluff Dr., Ste. 300 San Diego, CA 92130 (619) 515-3299 rick.barton@procopio.com shelley.carder@procopio.com

26
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 34 of 36
CERTIFICATE OF SERVICE I hereby certify that on February 5, 2017, I electronically filed the foregoing with the Clerk of the court for the United States Court of Appeals for the Ninth Circuit using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: February 6, 2017

/s/Kendra J. Hall
RICHARD D. BARTON (Bar No. 102613) SHELLEY A. CARDER (Bar No. 137755) KENDRA J. HALL (Bar No. 166836) Procopio, Cory, Hargreaves & Savitch, LLP 12544 High Bluff Dr., Ste. 300 San Diego, CA 92130 (619) 515-3299 rick.barton@procopio.com shelley.carder@procopio.com

27
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 35 of 36

Passengers on the St. Louis

Appendix

Source: Dara Lind, “How America’s Rejection of Jews Fleeing Nazi German Haunts our Refugee Policy Today,” http://www.vox.com/policy-and-politics/2015/11/19/9760060/refugees-history-holocaust (Last visited on February 5, 2017).
Source: “Some of the 907 passengers on board the St. Louis arriving in Belgium after being refused entry into Cuba and the U.S.,” American Jewish Joint Distribution Committee Archives, “The Story of the S.S. St. Louis (1939)”; accessible at http://archives.jdc.org/educators/topic-guides/the-story-of-the-ss-st.html.
28
DOCS 999999-901086/2808386.1

Case: 17-35105, 02/06/2017, ID: 10303410, DktEntry: 44, Page 36 of 36
In the wake of the Executive Order, and as a tribute to Holocaust Remembrance Day on January 27, 2017, a Twitter account was established in the name of the St. Louis Manifest (@Stl_Manifest, accessible at https://twitter.com/stl_manifest , which has tweeted out the names and stories of the ship’s passengers, examples of which appear below:
29
DOCS 999999-901086/2808386.1

 
 Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-1, Page 1 of 3

FATMA E. MAROUF Professor of Law Director, Immigrant Rights Clinic Texas A&M University School of Law 307 W. 7th St. Suite LL50 Fort Worth, TX 76102 Telephone: (817) 212-4123 Fax: (817) 212-4124 fatma.marouf@law.tamu.edu
On behalf of Amici Law Professors and Clinicians
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al., Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States,
Defendant-Appellants.

NO. 17-35105
UNOPPOSED MOTION TO SUBSTITUTE CORRECTED AMICI BRIEF AND CORRECTED MOTION FOR LEAVE TO FILE AMICI BRIEF ON BEHALF OF LAW PROFESSORS AND CLINICIANS

Amici Law Professors and Clinicians, through undersigned counsel, hereby move the Court for leave to file a corrected amici brief and corrected motion for leave to file that brief. On the night of February 5, 2017, amici filed a motion for

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-1, Page 2 of 3
leave to file an amici brief, along with the proposed brief. The brief included signons from over 200 law professors and clinicians. On the morning of February 6, 2017, amici noticed minor errors and omissions in the list of sign-ons. See Exhibit 1 (Declaration of Counsel). Counsel has corrected those errors and is filing a substitute motion for leave to file and substitute amici brief for the Court consider. No changes have been made to the text of the motion or brief itself. Counsel for Defendant-Appellants do not oppose this motion. Id.

DATED: February 6, 2017

Respectfully submitted,
/s Fatma E. Marouf ____________________ FATMA E. MAROUF Professor of Law Director, Immigrant Rights Clinic Texas A&M University School of Law
Counsel for Amici Law Professors and Clinicians

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-1, Page 3 of 3

CERTIFICATE OF SERVICE

I hereby certify that on February 6, 2017, I electronically filed the foregoing

with the Clerk of the court for the United States Court of Appeals for the Ninth

Circuit using the appellate CM/ECF system.

I certify that all participants in this case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

DATED: February 6, 2017

Respectfully submitted,

/s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-2, Page 1 of 1
Exhibit 1 Declaration by Fatma E. Marouf 1. I am an attorney admitted to and in good standing with the Ninth Circuit Court of Appeals and the California State Bar. I am employed as a Professor of Law and Director of the Immigrant Rights Clinic at Texas A&M University School of Law. 2. On February 5, 2017, I submitted a motion for leave to file an amici curiae brief, along with the proposed brief, on behalf of Law Professors and Clinicians, supporting the Plaintiffs-Appellees. 3. I am filing this declaration in support of a motion to substitute a corrected brief for the one filed late last night. 4. After filing the brief, I discovered minor errors and omissions in the list of sign-ons, which includes over 200 law professors and clinicians. I have corrected those errors. 5. I wish to substitute the corrected version for the one that was filed. 6. I contacted counsel for Defendant-Appellants regarding this substitution request and they had no opposition. I attest under penalty of perjury that the foregoing is true and correct. This statement was executed on February 6, 2017 in Fort Worth, TX.
/s Fatma E. Marouf FATMA MAROUF

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 1 of 35
No. 17-35105 ___________________________________________
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________________________________
STATE OF WASHINGTON, et al., Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.
_____________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
______________________________________________
BRIEF OF AMICI CURIAE LAW PROFESSORS AND CLINICIANS SUPPORTING PLAINTIFFS-APPELLEES ______________________________________________
FATMA E. MAROUF Professor of Law Director, Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 2 of 35
TABLE OF CONTENTS STATEMENT OF INTEREST.…...…………………………………………..…...1 INTRODUCTION………………………………………………………………….1 ARGUMENT………………………………………………………………….........2
I. THE EO INFLICTS IRREPARABLE HARM ON INTERNATIONAL STUDENTS AND RESEARCHERS…………..2
II. PLAINTIFFS-APPELLEES ARE LIKELY TO SUCCEED ON THE MERITS………………………………………………………...5 A. The EO Violates Due Process Rights of Nonimmigrants……...6 B. The EO Violates the Immigration and Nationality Act and Administrative Procedure Act…………………………………9
CONCLUSION…………………………………………………………………...12
i

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 3 of 35
TABLE OF AUTHORITIES
U.S. Federal Cases
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)……………………………………………….6
Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2012)……………………………………………….8
Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996)……………………………………………..11
Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62 (1st Cir. 2009)………………………………………………….6
Felkner v. Jackson, 562 U.S. 594 (2011)…………………………………………………………8
Fiallo v. Bell, 430 U.S. 787, 807 (1977).…………………………………………………...8
Franklin v. MA, 505 U.S. 788 (1992)………………………………………………….…….11
Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006).……………………………………………….8
Kerry v. Din, 135 S.Ct. 2128 (2015)……………………………………………………….7
Kleindienst v. Mandel, 408 U.S. 753 (1972)……………………………………………………….7-8
Louhghalam v. Trump, Civ. 17-10154-NMG (Feb. 3, 2017) ………………………………………...6
ii

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 4 of 35
Public Citizen v. United States Trade Representative, 5 F.3d 549 (D.C. Cir. 1993).……………………….………………………11
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ………………………………………………6
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)……………………………………………………………6
Title 8 of United States Code (Immigration and Nationality Act)
8 U.S.C. § 1152(a)(1)(A)……………………………………………………...10-11 8 U.S.C. § 1184(a) ……………………………………………………..………9, 11 8 U.S.C. § 1201(c)(2) …………………………………………………………….10 8 U.S.C. § 1201(h) ……………………………………………………………….10 8 U.S.C. § 1201(i) …………………………………………………………………3 8 U.S.C. § 1227(a)(1)(B) ………………………………………………………….2 8 U.S.C. § 1182(f) ………………………………………………………………..11 Title 5 of U.S. Code (Administrative Procedure Act)
5 U.S.C. § 706(2)(A) ……………………………………………………….…….11 5 U.S.C. § 706(2)(C) …………………………………………………………….11 5 U.S.C. § 706(2)(D) …………………………………………………………….11 Secondary Sources
Association of Public Land-Grand Universities, Public Universities Respond to New Immigration Executive Order (including statements from 140 public universities expressing concerns about the ban),
iii

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 5 of 35
http://www.aplu.org/members/councils/strategic-communications/immigrationactions/index.html (lasted visited Feb. 5, 2017)……………………………………4
Noah Bierman, Donald Trump’s Muslim ban was removed from the Website, but it’s back,” LOS ANGELES TIMES, Nov. 10, 2016, http://www.latimes.com/nation/politics/trailguide/la-na-updates-trail-guide-sowhat-s-the-deal-with-donald-trump-s-1478812963-htmlstory.html (lasted visited Feb. 5, 2017)………………………………………………………………………9
College Factual, How Trump’s Executive Order Affects Thousands of International Students in the U.S., Jan. 31, 2017, http://inside.collegefactual.com/blog/howtrumps-travel-ban-affects-thousands-of-international-students (lasted visited Feb. 5, 2017)…………………………………………………………………………...4-5
International Higher Education Consulting Blog, Running List of University/College and Higher Education Organization/Association Responses to President Trump’s Executive Order Entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals,” Jan. 27. 2017, http://ihecdjc.blogspot.com/2017/01/running-list-of-universitycollege-and.html (last visited Feb. 5, 2017)………………………………………………………………………..4
Elisa Labott, Over 900 US Career diplomats protest Trump Order, CNN, Jan. 31, 2017, http://www.cnn.com/2017/01/30/politics/career-diplomats-dissent-memo/ (last visited Feb. 5, 2017)…………………………………………………………10
Elizabeth Redden, Boycotting the U.S., Inside Higher Ed (Jan. 31, 2017), https://www.insidehighered.com/news/2017/01/31/protest-trump-entry-ban-somescholars-are-boycotting-us-based-conferences (last visited Feb. 5, 2017)…………5
Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally’, THE HILL, Jan. 28, 2017, http://thehill.com/homenews/administration/316726giuliani-trump-asked-me-how-to-do-a-muslim-ban-legally (last visited Feb. 5, 2017)………………………………………………………………………………..9
iv

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 6 of 35
Michael D. Shear, Mark Landler, Matt Apuzzo, and Eric Lichtblau, Trump Fires Acting Attorney General Who Defies Him, NEW YORK TIMES, Jan. 30, 2017, https://www.nytimes.com/2017/01/30/us/politics/trump-immigration-banmemo.html (last visited Feb. 5, 2017)…………………………………………….10 Press Release, Trump-Pence Campaign, Donald J. Trump Statement on Preventing Muslim Immigration, Dec. 7, 2015, https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration (last visited Feb. 5, 2017)………………………………………………………………………..9 U.S. Department of State, letter dated Jan. 27, 2017 (released by U.S. Department of Justice on Jan. 31, 2017), http://www.politico.com/f/?id=00000159-f6bd-d173a959-ffff671a0001(last visited Feb. 5, 2017)…………………………………….2-3 U.S. Department of State, Bureau of Consular Affairs, Important Announcement, Executive Order on Visas, https://travel.state.gov/content/travel/en/news/important-announcement.html (last visited Feb. 5, 2017)………………………………………………………………..3
v

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 7 of 35
STATEMENT OF INTEREST Amici are law professors and clinicians at institutions of higher education. Amici have personal, professional, and academic connections to students, researchers, faculty, and staff from all over the world. Many amici teach law school clinics and have had first-hand experience with international students, faculty, and clients who have sought their direct assistance with immigration issues resulting from the President’s recent Executive Order (EO). As law professors and clinicians, we have worked hard in a climate of chaos and confusion to assist international students and faculty detained at airports and stranded abroad after participating in conferences, giving talks, or engaging in research. We have also helped students and faculty navigate concerns about the impact of the revocation of their visas on their studies and employment, including the risk of being placed in removal proceedings. In addition, we have scrambled to assist numerous noncitizens not affiliated with universities who have similarly been affected by the EO. Amici submit this brief under Fed. R. App. P. 29, Circuit Rule 29(a)(2). All parties have consented to the submission of amici briefs in this case.
INTRODUCTION The Ninth Circuit should deny the motion for an emergency stay of the temporary restraining order (TRO) issued by the U.S. District Court for the Western District of Washington. The EO issued on January 27, 2017 creates a
1

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 8 of 35

serious risk of irreparable harm to our clients, students, and colleagues who have

nonimmigrant (temporary) visas at United States universities. In addition,

Plaintiffs-Appellees are likely to succeed on the merits of their constitutional and

statutory claims.

ARGUMENT

I.

THE EO INFLICTS IRREPARABLE HARM ON

INTERNATIONAL STUDENTS AND RESEARCHERS.

On January 31, 2017, the U.S. Department of Justice released a State

Department notice dated January 27, 2017, “provisionally revok[ing] all valid

nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia,

Sudan, Syria, and Yemen,” subject to narrow exceptions for diplomatic visas and

case-by-case determinations made in the national interest.1 This revocation of visas

made everyone with nonimmigrant visas from the seven countries, even those

within the United States, potentially deportable under 8 U.S.C. § 1227(a)(1)(B),

which provides: “Any alien who is present in the United States in violation of this

Act or any other law of the United States, or whose nonimmigrant visa (or other

1 U.S. Department of State, letter dated Jan. 27, 2017 (released by U.S. Department of Justice on Jan. 31, 2017), http://www.politico.com/f/?id=00000159-f6bd-d173a959-ffff671a0001.
2

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 9 of 35
documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i) is deportable.” (Emphasis added).2
On or about February 4, 2017, the State Department issued an announcement confirming that it had, “under the Executive Order, provisionally revoked all valid visas of nationals of those seven countries, with limited exceptions.”3 (Emphasis added). In light of the TRO issued by the U.S. District Court for the Western District of Washington, however, the State Department lifted the provisional revocation. Id.
The nationwide TRO currently protects thousands of international students and researchers in the United States. If the order is reversed, students and researchers will suffer irreparable harm, namely the inability to travel outside the United States and a fear that they may fall out of legal status and suffer deportation. They would be unable to leave the country to attend international symposia or conferences, engage in overseas field research, collaborate with colleagues in other countries, or visit their families without encountering impediments to their return.
2 The State Department invoked its authority under 8 U.S.C. § 1201(i), INA § 221(i), in its letter dated Jan. 27, 2017. See supra note 1. 3 U.S. Department of State, Bureau of Consular Affairs, Important Announcement, Executive Order on Visas, https://travel.state.gov/content/travel/en/news/important-announcement.html.
3

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 10 of 35
According to data collected from the Department of Homeland Security by
College Factual, a higher education data analytics and research company, there
were 23,763 students with F-1 and M-1 student visas at 596 universities in the
United States affected by the travel ban.4 Since this number only includes students,
not faculty, it actually underestimates the true number of individuals who are
affected and who may be subjected to deportation if their nonimmigrant visas
expired. Post-docs, medical residents, and faculty often work at United States
universities with other types of nonimmigrant visas, such as J-1 visas for exchange
visitors and H-1 visas for temporary workers.
Students’ and researchers’ concerns are consistent with those expressed by
numerous American universities.5 The students and researchers we work with and
represent provide critical, diverse viewpoints to university life. Their experiences
4 College Factual, How Trump’s Executive Order Affects Thousands of International Students in the U.S., Jan. 31, 2017, http://inside.collegefactual.com/blog/how-trumps-travel-ban-affects-thousands-ofinternational-students. 5 See Appendix A (list of hundreds of institutions of higher education that have expressed concerns about the EO); Association of Public Land-Grand Universities, Public Universities Respond to New Immigration Executive Order (including statements from 140 public universities expressing concerns about the ban), http://www.aplu.org/members/councils/strategic-communications/immigrationactions/index.html; International Higher Education Consulting Blog, Running List of University/College and Higher Education Organization/Association Responses to President Trump’s Executive Order Entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals,” Jan. 27. 2017, http://ihec-djc.blogspot.com/2017/01/running-list-of-universitycollege-and.html.
4

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 11 of 35
and perspectives enrich our understanding of new problems to be solved, and help identify original solutions to those problems.
Shortly after the EO was announced, over 3,000 international scholars signed a petition to “boycott international academic conferences held in the United States in solidarity with those affected by” the EO.6 Not only does this suppress intellectual activity and collaboration, but it also inflicts substantial financial harm. Furthermore, if international students from the seven banned countries are no longer able to attend school in the U.S., either because they are denied entry to the country or their visas expire, our universities stand to lose hundreds of millions of dollars.7 These financial losses, which would affect our programs, including our law school clinics, could be even greater if the ban also discourages students who are citizens of other Muslim-majority countries from studying in the United States.
II. PLAINTIFFS-APPELLEES ARE LIKELY TO SUCCEED ON THE MERITS
Unlike the First Circuit, the Ninth Circuit has never placed special emphasis on the “likelihood of success” factor, resulting in a different legal standard here than was applied in the Massachusetts case. See Exh. B to Emergency Motion for Stay (Louhghalam v. Trump, Civ. 17-10154-NMG, Order at 20 (Feb. 3, 2017))
6 Elizabeth Redden, Boycotting the U.S., Inside Higher Ed (Jan. 31, 2017), https://www.insidehighered.com/news/2017/01/31/protest-trump-entry-ban-somescholars-are-boycotting-us-based-conferences. 7 See College Factual, supra note 4 (estimating that revocation of student visas at 596 schools would result in losses of $700 million).
5

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 12 of 35
(citing Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009) (holding that the likelihood of success factor weighs most heavily in the decision). Here, the District Court judge correctly relied on Ninth Circuit precedents that consider all four factors using a sliding scale. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)).
A. The EO Violates Due Process Rights of Nonimmigrants Nonimmigrants who have been granted visas and are already living in the United States have due process rights to stay here; those who are abroad have a due process interest in proper adjudication of their rights to be in the United States. U.S. Const. amend. V. The EO affects not only nonimmigrants who are seeking entry for the first time, but also those who have established ties to the United States, including students and faculty who we have assisted in the past weeks as they grapple with the EO's impact. The EO inflicted irreparable harm on nonimmigrants within the United States who suddenly lost their ability to travel, had their visas revoked, and thereby feared deportation. Many of these students and faculty members have already been in the United States for years, are in the middle of degree programs, and have made significant intellectual contributions to the United States. They should receive due process protections commensurate with
6

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 13 of 35
their substantial ties to the United States. This Court need not determine the precise contours of the process due to nonimmigrants living in the United States (or those abroad) in deciding this appeal. It need only find a likelihood of success in showing that the process received by these nonimmigrants – which involved no notice, no opportunity to respond, and no individualized analysis of risk to national security – was insufficient.
Even if the Court applies the “facially legitimate and bona fide” standard that has been applied to individuals seeking admission, the EO fails to satisfy that test. While national security may, in some cases, be a facially legitimate reason, it is not legitimate when applied without any individualized analysis to entire nations. Cf. Kleindienst v. Mandel, 408 U.S. 753, 769 (1982) (finding a “facially legitimate and bona fide” reason for the denial of visa to an individual who had violated the conditions of his visa on two prior trips); Kerry v. Din, 135 S.Ct. 2128, 2140 (2015) (finding a “facially legitimate and bone fide” reason for the denial of a visa to an Afghan national who had previously been employed by the Taliban). Neither the Supreme Court nor the Ninth Circuit has ever held that national origin, religion, or race alone constitutes a “facially legitimate and bona fide reason.” The overbreadth of the EO reflects the type of “unfettered discretion” that the Supreme Court has explicitly rejected. See Kleindienst, 408 U.S. at 762; Fiallo v. Bell, 430 U.S. 787, 807 (1977).
7

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 14 of 35
Furthermore, even if national security provides a facially legitimate reason for the EO, it is not a bona fide reason for the ban on all individuals from seven Muslim-majority countries. As previously recognized by this Court, the “facially legitimate” and “bona fide” prongs of the test are distinct. See Bustamante v. Mukasey, 531 F.3d 1059, 1062-1063 (9th Cir. 2012) (examining the “bona fide” prong separately). The “bona fide” part of the test requires a court to distinguish between good faith reasons and pretextual excuses. In other contexts, appellate courts have given great deference to trial courts’ determinations of whether the government’s explanation is bona fide. See Kesser v. Cambra, 465 F.3d 351, 356 (9th Cir. 2006) (noting that the court of appeal gave “great deference to the trial court in distinguishing bona fide reasons from sham excuses”); Felkner v. Jackson, 562 U.S. 594, 596 (2011) (same).
Here, there is substantial evidence that the ban was motivated by animus against Muslims. For example, on January 28, 2017, a week after the inauguration, Former New York City Mayor Rudy Giuliani stated in an interview that President Trump had previously asked him about legally implementing a “Muslim ban.”8 Indeed, for nearly a year preceding the election, President Trump’s campaign
8Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally’, THE HILL, Jan. 28, 2017, http://thehill.com/homenews/administration/316726giuliani-trump-asked-me-how-to-do-a-muslim-ban-legally.
8

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 15 of 35
website referred to a “Muslim ban,” indicating discriminatory intent.9 The evidence that there was no bona fide reason for the ban will be developed further through discovery. In the interim, however, the TRO should remain in place to prevent irreparable harm to nonimmigrants.
B. The EO Violates the Immigration and Nationality Act and the Administrative Procedure Act
The INA provides the procedure due to arriving nonimmigrants with valid nonimmigrant visas. The EO violates those procedures in three ways. First, the statute requires that the procedure for admission be set through regulation. 8 U.S.C. § 1184(a) (“The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe[.]”). The EO was not promulgated as a regulation. It never went through the public notice and comment procedures that help ensure transparent, deliberate, well-reasoned policies under § 553 of the Administrative Procedure Act (APA). In fact, the EO was never even vetted by key agency officials or career diplomats with relevant expertise, hundreds of whom
9Noah Bierman, Donald Trump’s Muslim ban was removed from the Website, but it’s back,” LOS ANGELES TIMES, Nov. 10, 2016, http://www.latimes.com/nation/politics/trailguide/la-na-updates-trail-guide-sowhat-s-the-deal-with-donald-trump-s-1478812963-htmlstory.html; see also Press Release, Trump-Pence Campaign, Donald J. Trump Statement on Preventing Muslim Immigration, Dec. 7, 2015, https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration.
9

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 16 of 35
have since explicitly voiced their opposition to the EO, including the former Acting Attorney General, Sally Yates, who refused to defend the ban.10 The failure to use a transparent process also contributed to the chaos and confusion that ensued after the EO was suddenly issued.
Second, the statute requires that a nonimmigrant visa “shall be valid for the period the regulations proscribe.” Id. § 1201(c)(2). However, the EO effectively invalidated the visas for travel purposes. Third, the INA denies admission to nonimmigrants only when they are inadmissible under the INA or “any other provision of law.” 8 U.S.C. § 1201(h). The EO denies admission to all visa holders from the seven countries regardless of admissibility.
In addition, with respect to immigrant visas, the INA prohibits discrimination in admissions based on nationality. 8 U.S.C. § 1152(a)(1)(A). Congress enacted the nondiscriminatory provision after 8 U.S.C. § 1182(f), which authorizes the President to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” The provision allowing suspension of entry of
10 See Elisa Labott, Over 900 US Career diplomats protest Trump Order, CNN, Jan. 31, 2017, http://www.cnn.com/2017/01/30/politics/career-diplomats-dissentmemo/; Michael D. Shear, Mark Landler, Matt Apuzzo, and Eric Lichtblau, Trump Fires Acting Attorney General Who Defies Him, NEW YORK TIMES, Jan. 30, 2017, https://www.nytimes.com/2017/01/30/us/politics/trump-immigration-banmemo.html.
10

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 17 of 35
classes of aliens is therefore subject to the nondiscrimination requirement in 8 U.S.C. § 1152(a)(1)(A). Furthermore, the President’s authority under 8 U.S.C. § 1182(f) should not be interpreted to undermine the requirement that the procedures for nonimmigrant admission be set through regulation. 8 U.S.C. § 1184(a).
By violating the plain language of the INA, the EO is also arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of APA § 706(2)(A); in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, in violation of APA § 706(2)(C); and without observance of procedure required by law, in violation of § 706(2)(D).
Although the President is not an “agency” under the APA, Franklin v. MA, 505 U.S. 788, 797 (1992), an agency’s implementation of presidential directives must still conform to the APA. See, e.g., Chamber of Commerce v. Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996) (“that the Secretary’s regulations are based on the President’s Executive Order hardly seems to insulate them from judicial review under the APA, even if the validity of the Order were thereby drawn into question.); Public Citizen v. United States Trade Representative, 5 F.3d 549, 552 (D.C. Cir. 1993) (noting that the denial of judicial review over presidential actions “is limited to those cases in which the President has constitutional or statutory responsibility for the final step necessary for the agency action directly to affect the parties). Where, as here, immigration decisions require action by administrative
11

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 18 of 35

officials, courts routinely apply the APA and administrative law doctrines.

CONCLUSION

In order to protect the constitutional and statutory rights of nonimmigrants and prevent irreparable harm to our colleagues and clients -- students and faculty

with nonimmigrant visas -- the Court should deny the motion to stay or vacate the

TRO issued by the U.S. District Court for the Western District of Washington. The

TRO should remain in place as parties conduct discovery and the trial court holds

an evidentiary hearing.

DATED: February 5, 2017

Respectfully submitted,

By: /s Fatma Marouf
Fatma E. Marouf, Esq. Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

*All affiliations listed for identification purposes only.

Nancy Abramowitz, American University Washington College of Law Kathryn Abrams, University of California, Berkeley School of Law John Acevedo, University of La Verne College of Law Cynthia Adams, Indiana University McKinney School of Law Deborah Ahrens, Seattle University School of Law

12

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 19 of 35
Raquel Aldana, McGeorge School of Law Arléne Amarante, Univ. of Nevada, Las Vegas, William S. Boyd School of Law Farrin Anello, Seton Hall University School of Law Deborah Anker, Harvard Immigration and Refugee Clinical Program Susan Appleton, Washington University School of Law Sabrineh Ardalan, Harvard Immigration and Refugee Clinical Program Kif Augustine-Adams, J. Reuben Clark Law School, Brigham Young University Sahar Aziz, Texas A&M University School of Law Sabrina Balgamwalla, University of North Dakota School of Law David Baluarte, Washington and Lee University School of Law Caitlin Barry, Villanova University Charles Widger School of Law Marsha Baum, University of New Mexico School of Law Jennifer Baum, St. Vincent de Paul Legal Program, St. John's Univ School of Law,
Child Advocacy Clinic Galya Ben-Arieh Ruffer, Northwestern University,
Center for Forced Migration Studies Emily Benfer, Loyola University Chicago School of Law Susan Bennett, American University Washington College of Law Lenni Benson, New York Law School Jacqueline Bhabha, Harvard University W. Warren H. Binford, Willamette University College of Law
13

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 20 of 35
Kaci Bishop, University of North Carolina School of Law Blaine Bookey, UC Hastings Center for Gender & Refugee Studies Cynthia Bowman, Cornell Law School Shawn Marie Boyne, Indiana University Robert H. McKinney School of Law Susan Brooks, Drexel University Kline School of Law Melissa Brown, Pacific McGeorge School of Law Margaret Burnham, Northeastern University School of Law Naomi Cahn, George Washington University Law School Charles Calleros, Arizona State University College of Law Kristina Campbell, Univ. of District of Columbia David A. Clarke School of Law Nancy Cantalupo, Barry University School of Law Lauren Carasik, Western New England University School of Law Elizabeth Carroll, USC Gould School of Law Benjamin Casper Sanchez, University of Minnesota Law School,
Center for New Americans Linus Chan, University of Minnesota Law School Kim D. Chanbonpin, The John Marshall Law School Marguerite Chapman, University of Tulsa College of Law (Professor Emerita) Matthew Charity, Western New England University School of Law Carol Chomsky, University of Minnesota Law School
14

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 21 of 35
Eric Christiansen, Golden Gate University School of Law Janie Chuang, American University Washington College of Law Beth Cohen, Western New England University School of Law Donna Coker, University of Miami School of Law Ruth Colker, Ohio State University Moritz College of Law Holly Cooper, UC Davis School of Law Immigration Law Clinic Avidan Cover, Case Western Reserve University School of Law Rachel Croskery-Roberts, University of California - Irvine School of Law Rose Cuison-Villazor, UC Davis School of Law Alina Das, New York University School of Law Immigrant Rights Clinic Julie Davies, University of the Pacific, McGeorge School of Law Angela Davis, American University Washington College of Law Amy Dillard, University of Baltimore School of Law Victoria Dodd, Suffolk University Law School Jennifer Drobac, Indiana University Robert H. McKinney School of Law Moira Duvernay, UC Hastings Center for Gender & Refugee Studies Maurice Dyson, Thomas Jefferson School of Law Ingrid Eagly, UCLA School of Law Pamela Edwards, CUNY School of Law Nancy Ehrenreich, University of Denver Sturm College of Law
15

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 22 of 35
Floralynn Einesman, California Western School of Law Kathleen Engel-Rebitzer, Suffolk University Law School Kate Evans, University of Idaho College of Law Jessica Feinberg, Mercer Law School Zanita Fenton, University Miami School of Law Paul Finkelman, University of Pittsburgh School of Law Angelina Fisher, NYU School of Law Barbara Flagg, Washington University Law Laurel Fletcher, Berkeley Law Taylor Flynn, Western New England School of Law Caroline Forell, University of Oregon Law Jacqueline Fox, University of South Carolina School of Law Eric Franklin, William S.Boyd School of Law, UNLV Ann Freedman, Rutgers Law School Niels Frenzen, University of Southern California Gould School of Law Maryellen Fullerton, Brooklyn Law School Paula Galowitz, New York University School of Law Susan Gary, University of Oregon School of Law Lauren Gilbert, St. Thomas University School of Law Jason Gillmer, Gonzaga School of Law
16

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 23 of 35
Denise Gilman, University of Texas School of Law, Immigration Clinic Barbara Glesner Fines, University of Missouri Kansas City School of Law Phyllis Goldfarb, George Washington University Law School Ezra Goldschlager, University of La Verne College of Law Naomi Goodno, Pepperdine University School of Law Joanne Gottesman, Rutgers Law School Tiffany Graham, University of South Dakota School of Law Ariela Gross, University of Southern California, Gould School of Law Aya Gruber, University of Colorado Law School Anju Gupta, Rutgers Law School Immigrant Rights Clinic Egon Guttman, American University, Washington College of Law Gillian Hadfield, University of Southern California, Gould School of Law Rebecca Hamilton, American University, Washington College of Law Gail Hammer, Gonzaga University School of Law, University Legal Assistance Anna Han, Santa Clara Law School Jean Han, American University, Washington College of Law Jacqueline Hand, University of Detroit Mercy Law School Lindsay Harris, University of D.C. - David A. Clarke School of Law Keith M. Harrison, Savannah Law School Danielle Hart, Southwestern Law School
17

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 24 of 35
Bruce Hay, Harvard Law School Dina Haynes, New England Law|Boston Geoffrey Heeren, Valparaiso University Law School Jennifer Hendricks, University of Colorado Laura A. Hernandez, Baylor Law School Luz Herrera, Texas A&M University School of Law Kathy Hessler, Lewis & Clark Law School Richard Hildreth, University of Oregon Law Bill Hing, Univ. of San Francisco, Immigration and Deportation Defense Clinic Cynthia Ho, Loyola University of Chicago School of Law Sharona Hoffman, Case Western Reserve University School of Law Brooks Holland, Gonzaga University School of Law Mary Holper, Boston College Immigration Clinic Kari Hong, Boston College Law School, Ninth Circuit Appellate Program C. Quince Hopkins, Florida Coastal School of Law Emily Houh, University of Cincinnati College of Law Alan Hyde, Rutgers Law School Lisa Ikemoto, University of California, Davis School of Law Erin Jacobsen, Vermont Law School Sam Jacobson, Willamette University College of Law
18

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 25 of 35
Regina Jefferies, University of Minnesota Law School Jamila Jefferson-Jones, University of Missouri - Kansas City Dalie Jimenez, University of Connecticut School of Law Paula Johnson, Syracuse University College of Law José (Beto) Juárez, University of Denver Sturm College of Law Doron Kalir, Civil Litigation Clinic, Cleveland Marshall College of Law Mary Kate Kearney, Widener Commonwealth Law School Christine Kellett, Dickinson Law/Penn State Kathryn Kelly, The Catholic University of America Laura Kessler, University of Utah, S.J. Quinney College of Law Elizabeth Keyes, University of Baltimore School of Law Kathleen Kim, Loyola Law School Catherine Kim, University of North Carolina School of Law Andrew Kim, Syracuse University College of Law Diane Klein, University of La Verne College of Law Eunice Lee, UC Hastings Center for Gender & Refugee Studies Jennifer Lee Koh, Western State College of Law Daniel M. Kowalski, Bender's Immigration Bulletin (LexisNexis) Annie Lai, UC Irvine School of Law Prerna Lal, East Bay Community Law Center, Berkeley Law
19

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 26 of 35
Laurie Leader Chicago-Kent College of Law, IIT Terri LeClercq, School of Law, Univeristy of Texas Evelyn Lewis, UCD Law Joellen Lind, Valparaiso University Law School Jeffrey Lubbers, American University, Washington College of Law Beth Lyon, Cornell Law School Elizabeth MacDowell, William S. Boyd School of Law, UNLV Luis Mancheno, Kathryn O. Greenberg Immigration Justice Clinic,
Benjamin N. Cardozo School of Law Randi Mandelbaum, Rutgers Law School Susan Mandiberg, Lewis & Clark Law School Genevieve Mann, Gonzaga University School of Law Lynn Marcus, Immigration Law Clinic, University of Arizona
James E. Rogers College of Law Jennifer Martin, St. Thomas University School of Law Elena Marty-Nelson, NSU College of Law Julie Marzouk, Chapman University, Fowler School of Law Dayna Matthew, University of Colorado School of Law Elizabeth McCormick, University of Tulsa College of Law Kris McDaniek-Miccio, University of Denver Sturm College of Law Janis McDonald, Professor of Law & Co-Director Cold Case Justice Initiative
20

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 27 of 35
Amelia McGowan, Catholic Charities of Jackson, Mississippi Brian McGowan, Grambling State University Karla McKanders, University of Tennessee, College of Law Fiona McKenna, Golden Gate University School of Law Michelle McKinley, University of Oregon School of Law Mary Brigid McManamon, Delaware Law School Judith McMorrow, Boston College Law School Stephen Meili, University of Minnesota Law School Chi Mgbako, Fordham University School of Law Binny Miller, American University, Washington College of Law Elliott Milstein, American University, Washington College of Law Sherizaan Minwalla, American University, Washington College of Law Behzad Mirhashem, UNH School of Law Jennifer Moore, University of New Mexico School of Law Nancy Morawetz, NYU School of Law Kathleen Morris, Golden Gate Law School Angela Morrison, Texas A&M University School of Law Hiroshi Motomura, UCLA School of Law Mary-Beth Moylan, University of the Pacific, McGeorge School of Law Professor Ann Murphy, Gonzaga University School of Law
21

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 28 of 35
Yxta Maya, Murray Loyola Law School Karen Musalo, UC Hastings Center for Gender & Refugee Studies Natalie Nanasi, SMU Dedman School of Law Ranjana Natarajan, Univeristy of Texas School of Law, Civil Rights Clinic Jason Neidleman, University of La Verne Nise Nekheba, Florida A&M University College Of Law Lori Nessel, Seton Hall University School of Law Xuan-Thao Nguyen, Indiana University McKinney School of Law Fionnuala Ni Aolain, University of Minnesota, Human Rights Center Blake Nordahl, McGeorge Law School Immigration Law Clinic Tracy Norton, Touro College Jacob F. Fuchsberg School of Law Kenneth Nunn, University of Florida College of Law Udoka Nwanna Southwestern Law School Mariela Olivares, Howard University School of Law Michael A. Olivas, University of Houston Law Center Laura Oren, University of Houston Law Center Maria Pabon, Loyola New Orleans College of Law Victoria Palacios, SMU Dedman Law School Sunita Patel, American University Washington College of Law Carole Petersen, William S. Richardson School of Law
22

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 29 of 35
Huyen Pham, Texas A&M University School of Law Teresa Phelps, American University Washington College of Law Karen Pita Loor, Boston University Law School Nancy Polikoff, American University Washington College of Law Andrew Pollis, Case Western Reserve University School of Law Deborah Post, Touro Law Center Ana Pottratz Acosta, Mitchell Hamline School of Law Cynthia Prado-Guyer, University of Southern California Srividhya Ragavan, Texas A&M University School of Law Lynne Rambo Texas A&M University School of Law Jaya Ramji-Nogales, Temple University Beasley School of Law Andrea Ramos Southwestern Law School Immigration Law Clinic Vernellia Randall, The University of Dayton School of Law Renee Redman, University of Connecticut School of LAw Nikki Reisch, NYU School of Law Paula R. Rhodes, University of Denver Sturm College of Law Ira Robbins, American University Washington College of Law Kalyani Robbins, FIU College of Law Jenny Roberts, American University, Washington College of Law Cassandra Burke Robertson, Case Western Reserve Univ. School of Law
23

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 30 of 35
Eloisa Rodriguez-Dod, FIU College of Law Sarah Rogerson, Albany Law School Michael Rooke-Ley, Nova Southeastern University College of Law Leslie Rose, Golden Gate University School of Law Rand Rosenblatt, Rutgers University Law School Florence Rousman, Indiana U. Robert H. McKinney School of Law Judith Royster, University of Tulsa College of Law Kevin Ruser, University of Nebraska College of Law Margaret Russell, Santa Clara University C. Mario Russell, Catholic Charities NY, St. John's Law School Emily Ryo, USC Gould School of Law Jendayi Saada, Unversity of La Verne College of Law Laura Sager, New York University School of Law Richard Sander, UCLA School of Law Margaret Satterthwaite, NYU School of Law Irene Scharf, University of Massachusetts School of Law Erica Schommer, St. Mary's University School of Law Sean Scott, Loyola Law School Kim Thuy Seelinger, Human Rights Center, University of California, Berkeley Rachel Settlage, Wayne State Law School
24

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 31 of 35
Sudha Setty, Western New England University School of Law Ragini Shah, Suffolk University Law School, Immigration Clinic Rebecca Sharpless, University of Miami School of Law, Immigration Clinic Anette Sikka, University of Illinois Springfield Marjorie Silver, Touro Law Center Anita Sinha, American University Washington College of Law Matiangai Sirleaf, University of Pittsburgh Law School Gwynne Skinner, Willamette University College of Law Catherine Smith, University of Denver, Sturm College of Law William Snape, American University, Washington college of law Gemma Solimene, Fordham University School of Law Mary Spector, SMU Dedman School of Law Jane Spinak, Columbia Law School Elissa Steglich, University of Texas School of Law, Immigration Clinic Nomi Stolzenberg, University of Southern California Law School Christopher Strawn, Univ. of Washington School of Law, Immigration Law Clinic Jayashri Srikantiah, Stanford Law School Immigrants’ Rights Clinic S.I. Strong, University of Missouri School of Law Ellen Suni, UMKC School of Law Maureen Sweeney, University of Maryland Carey School of Law
25

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 32 of 35
Chantal Thomas, Cornell University Law School Claire Thomas, Safe Passage Project Immigration Clinic at New York Law School Michael Tigar, Washington College of Law Karen Tokarz, Washington University Civil Rights & Community Justice Clinic Mary Pat Treuthart, Gonzaga University School of Law Enid Trucios-Haynes, Brandeis School of Law, University of Louisville Tracy Turner, Southwestern Law School Diane Uchimiya, University of La Verne College of Law,
Justice and Immigration Clinic Gloria Valencia-Weber, University of New Mexico School of Law Rachel Van Cleave, Golden Gate University School of Law Anthony Varona, American University Washington College of Law Lea B. Vaughn, University of Washington School of Law Kyle Velte, Texas Tech University School of Law Leti Volpp, Univeristy of California, Berkeley School of Law Julie Waterstone, Southwestern Law School Susan C. Wawrose, University of Dayton School of Law Jonathan Weinberg, Wayne State University Law School Marley Weiss, University of Maryland Carey School of Law Marley Weiss, University of Maryland Carey School of Law
26

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 33 of 35
Deborah Weissman, University of North Carolina School of Law Anna Welch, University of Maine School of Law Verna Williams, University of Cincinnati College of Law Wendy Williams, Georgetown University Law Center Abby Wood, University of Southern California Gould School of Law Barbara Woodhouse, Emory Law School Karen Woody, Indiana University, Kelley School of Business Marcia Zug, University of South Carolina School of Law
27

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 34 of 35

CERTIFICATION OF COMPLIANCE This brief complies with the typeface and type style requirements of Fed. R. App. P. 32(a)(5)(a) and (a)(6) because it has been prepared in a proportionally spaced typeface, using Microsoft Word in Times New Roman 14-point font.

This brief complies with the type-volume limitations of Fed. R. App. P. 29(d) because it contains 2,577 words excluding the parts exempted by Fed. R. App. P. 32(a)(7)(B)(iii). (The maximum number of words is 2,600 for an amicus brief in connection with a motion, which has a word limit of 5,200 words under Fed. R. App. P. 27(d)(2)(A)).

Dated: February 5, 2017

/s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-3, Page 35 of 35

CERTIFICATE OF SERVICE

I hereby certify that on February 5, 2017, I electronically filed the foregoing

with the Clerk of the court for the United States Court of Appeals for the Ninth

Circuit using the appellate CM/ECF system.

I certify that all participants in this case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

DATED: February 5, 2017

Respectfully submitted,

/s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 1 of 20
No. 17-35105 ___________________________________________
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________________________________
STATE OF WASHINGTON, et al., Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.
_____________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
______________________________________________
MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE LAW PROFESSORS AND CLINICIANS
IN SUPPORT OF PLAINTIFFS-APPELLEES ______________________________________________
Fatma E. Marouf Professor of Law Director, Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 2 of 20
Undersigned law professors and law school clinicians respectfully move this Court for permission to file a brief amici curiae opposing the motion to stay the Temporary Restraining Order (TRO) issued by the U.S. District Court for the Western District of Washington. In support of this motion, proposed amici state as follows:
1. All parties have consented to the filing of this amici brief. Under Fed. R. App. P. 29(a)(2), a motion for leave to file an amicus brief is not required when all parties have consent to its filing. However, since that Rule applies to cases being decided on the merits and this case involved an emergency motion to stay a TRO, proposed amici file this motion in an abundance of caution.
2. Proposed amici are law professors and clinicians at institutions of higher education who have personal, professional, and academic connections to students, researchers, faculty, and staff from all over the world.
3. Law professors and clinicians have had first-hand experience with international students and faculty who have sought their direct assistance with immigration issues resulting from the President’s Executive Order 13769 (EO).
4. Law school clinicians, in particular, have worked hard in a climate of sudden chaos and confusion to assist international students and faculty
1

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 3 of 20
detained at airports and stranded abroad after participating in conferences, giving talks, or engaging in research. 5. We have also helped students and faculty navigate concerns about the impact of the revocation of their visas on their studies and employment, including the risk of being placed in removal proceedings. 6. In addition, we have scrambled to assist numerous noncitizens not affiliated with universities who have similarly been adversely affected by the EO. 7. Proposed amici have first-hand knowledge of the irreparable harm that the EO inflicts on international students and researchers with nonimmigrant visas, which is one of the critical issues before the Court. 8. Many of proposed amici are also immigration scholars and clinicians with deep knowledge of immigration law and have collectively produced extensive scholarship about all aspects of immigration law, including the constitutional and statutory rights of nonimmigrants. They are therefore well-positioned to assess the likelihood of success on the merits, another important issue before the Court. 9. Proposed amici are vitally interested in protecting the rights of their students, colleagues, and clients, whose status in the United States is jeopardized by the EO.
2

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 4 of 20

For the foregoing reasons, proposed amici respectfully request permission to

file the proposed brief amici curiae in support of Plaintiffs-Appellees.

DATED: February 5, 2017

Respectfully submitted,
/s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

*All affiliations listed for identification purposes only. Nancy Abramowitz, American University Washington College of Law Kathryn Abrams, University of California, Berkeley School of Law John Acevedo, University of La Verne College of Law Cynthia Adams, Indiana University McKinney School of Law Deborah Ahrens, Seattle University School of Law Raquel Aldana, McGeorge School of Law Arléne Amarante, Univ. of Nevada, Las Vegas, William S. Boyd School of Law Farrin Anello, Seton Hall University School of Law Deborah Anker, Harvard Immigration and Refugee Clinical Program Susan Appleton, Washington University School of Law Sabrineh Ardalan, Harvard Immigration and Refugee Clinical Program

3

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 5 of 20
Kif Augustine-Adams, J. Reuben Clark Law School, Brigham Young University Sahar Aziz, Texas A&M University School of Law Sabrina Balgamwalla, University of North Dakota School of Law David Baluarte, Washington and Lee University School of Law Caitlin Barry, Villanova University Charles Widger School of Law Marsha Baum, University of New Mexico School of Law Jennifer Baum, St. Vincent de Paul Legal Program, St. John's Univ School of Law,
Child Advocacy Clinic Galya Ben-Arieh Ruffer, Northwestern University,
Center for Forced Migration Studies Emily Benfer, Loyola University Chicago School of Law Susan Bennett, American University Washington College of Law Lenni Benson, New York Law School Jacqueline Bhabha, Harvard University W. Warren H. Binford, Willamette University College of Law Kaci Bishop, University of North Carolina School of Law Blaine Bookey, UC Hastings Center for Gender & Refugee Studies Cynthia Bowman, Cornell Law School Shawn Marie Boyne, Indiana University Robert H. McKinney School of Law Susan Brooks, Drexel University Kline School of Law Melissa Brown, Pacific McGeorge School of Law
4

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 6 of 20
Margaret Burnham, Northeastern University School of Law Naomi Cahn, George Washington University Law School Charles Calleros, Arizona State University College of Law Kristina Campbell, Univ. of District of Columbia David A. Clarke School of Law Nancy Cantalupo, Barry University School of Law Lauren Carasik, Western New England University School of Law Elizabeth Carroll, USC Gould School of Law Benjamin Casper Sanchez, University of Minnesota Law School,
Center for New Americans Linus Chan, University of Minnesota Law School Kim D. Chanbonpin, The John Marshall Law School Marguerite Chapman, University of Tulsa College of Law (Professor Emerita) Matthew Charity, Western New England University School of Law Carol Chomsky, University of Minnesota Law School Eric Christiansen, Golden Gate University School of Law Janie Chuang, American University Washington College of Law Beth Cohen, Western New England University School of Law Donna Coker, University of Miami School of Law Ruth Colker, Ohio State University Moritz College of Law Holly Cooper, UC Davis School of Law Immigration Law Clinic
5

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 7 of 20
Avidan Cover, Case Western Reserve University School of Law Rachel Croskery-Roberts, University of California - Irvine School of Law Rose Cuison-Villazor, UC Davis School of Law Alina Das, New York University School of Law Immigrant Rights Clinic Julie Davies, University of the Pacific, McGeorge School of Law Angela Davis, American University Washington College of Law Amy Dillard, University of Baltimore School of Law Victoria Dodd, Suffolk University Law School Jennifer Drobac, Indiana University Robert H. McKinney School of Law Moira Duvernay, UC Hastings Center for Gender & Refugee Studies Maurice Dyson, Thomas Jefferson School of Law Ingrid Eagly, UCLA School of Law Pamela Edwards, CUNY School of Law Nancy Ehrenreich, University of Denver Sturm College of Law Floralynn Einesman, California Western School of Law Kathleen Engel-Rebitzer, Suffolk University Law School Kate Evans, University of Idaho College of Law Jessica Feinberg, Mercer Law School Zanita Fenton, University Miami School of Law Paul Finkelman, University of Pittsburgh School of Law
6

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 8 of 20
Angelina Fisher, NYU School of Law Barbara Flagg, Washington University Law Laurel Fletcher, Berkeley Law Taylor Flynn, Western New England School of Law Caroline Forell, University of Oregon Law Jacqueline Fox, University of South Carolina School of Law Eric Franklin, William S.Boyd School of Law, UNLV Ann Freedman, Rutgers Law School Niels Frenzen, University of Southern California Gould School of Law Maryellen Fullerton, Brooklyn Law School Paula Galowitz, New York University School of Law Susan Gary, University of Oregon School of Law Lauren Gilbert, St. Thomas University School of Law Jason Gillmer, Gonzaga School of Law Denise Gilman, University of Texas School of Law, Immigration Clinic Barbara Glesner Fines, University of Missouri Kansas City School of Law Phyllis Goldfarb, George Washington University Law School Ezra Goldschlager, University of La Verne College of Law Naomi Goodno, Pepperdine University School of Law Joanne Gottesman, Rutgers Law School
7

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 9 of 20
Tiffany Graham, University of South Dakota School of Law Ariela Gross, University of Southern California, Gould School of Law Aya Gruber, University of Colorado Law School Anju Gupta, Rutgers Law School Immigrant Rights Clinic Egon Guttman, American University, Washington College of Law Gillian Hadfield, University of Southern California, Gould School of Law Rebecca Hamilton, American University, Washington College of Law Gail Hammer, Gonzaga University School of Law, University Legal Assistance Anna Han, Santa Clara Law School Jean Han, American University, Washington College of Law Jacqueline Hand, University of Detroit Mercy Law School Lindsay Harris, University of D.C. - David A. Clarke School of Law Keith M. Harrison, Savannah Law School Danielle Hart, Southwestern Law School Bruce Hay, Harvard Law School Dina Haynes, New England Law|Boston Geoffrey Heeren, Valparaiso University Law School Jennifer Hendricks, University of Colorado Laura A. Hernandez, Baylor Law School Luz Herrera, Texas A&M University School of Law
8

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 10 of 20
Kathy Hessler, Lewis & Clark Law School Richard Hildreth, University of Oregon Law Bill Hing, Univ. of San Francisco, Immigration and Deportation Defense Clinic Cynthia Ho, Loyola University of Chicago School of Law Sharona Hoffman, Case Western Reserve University School of Law Brooks Holland, Gonzaga University School of Law Mary Holper, Boston College Immigration Clinic Kari Hong, Boston College Law School, Ninth Circuit Appellate Program C. Quince Hopkins, Florida Coastal School of Law Emily Houh, University of Cincinnati College of Law Alan Hyde, Rutgers Law School Lisa Ikemoto, University of California, Davis School of Law Erin Jacobsen, Vermont Law School Sam Jacobson, Willamette University College of Law Regina Jefferies, University of Minnesota Law School Jamila Jefferson-Jones, University of Missouri - Kansas City Dalie Jimenez, University of Connecticut School of Law Paula Johnson, Syracuse University College of Law José (Beto) Juárez, University of Denver Sturm College of Law Doron Kalir, Civil Litigation Clinic, Cleveland Marshall College of Law
9

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 11 of 20
Mary Kate Kearney, Widener Commonwealth Law School Christine Kellett, Dickinson Law/Penn State Kathryn Kelly, The Catholic University of America Laura Kessler, University of Utah, S.J. Quinney College of Law Elizabeth Keyes, University of Baltimore School of Law Kathleen Kim, Loyola Law School Catherine Kim, University of North Carolina School of Law Andrew Kim, Syracuse University College of Law Diane Klein, University of La Verne College of Law Eunice Lee, UC Hastings Center for Gender & Refugee Studies Jennifer Lee Koh, Western State College of Law Daniel M. Kowalski, Bender's Immigration Bulletin (LexisNexis) Annie Lai, UC Irvine School of Law Prerna Lal, East Bay Community Law Center, Berkeley Law Laurie Leader Chicago-Kent College of Law, IIT Terri LeClercq, School of Law, Univeristy of Texas Evelyn Lewis, UCD Law Joellen Lind, Valparaiso University Law School Jeffrey Lubbers, American University, Washington College of Law Beth Lyon, Cornell Law School
10

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 12 of 20
Elizabeth MacDowell, William S. Boyd School of Law, UNLV Luis Mancheno, Kathryn O. Greenberg Immigration Justice Clinic,
Benjamin N. Cardozo School of Law Randi Mandelbaum, Rutgers Law School Susan Mandiberg, Lewis & Clark Law School Genevieve Mann, Gonzaga University School of Law Lynn Marcus, Immigration Law Clinic, University of Arizona
James E. Rogers College of Law Jennifer Martin, St. Thomas University School of Law Elena Marty-Nelson, NSU College of Law Julie Marzouk, Chapman University, Fowler School of Law Dayna Matthew, University of Colorado School of Law Elizabeth McCormick, University of Tulsa College of Law Kris McDaniek-Miccio, University of Denver Sturm College of Law Janis McDonald, Professor of Law & Co-Director Cold Case Justice Initiative Amelia McGowan, Catholic Charities of Jackson, Mississippi Brian McGowan, Grambling State University Karla McKanders, University of Tennessee, College of Law Fiona McKenna, Golden Gate University School of Law Michelle McKinley, University of Oregon School of Law Mary Brigid McManamon, Delaware Law School
11

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 13 of 20
Judith McMorrow, Boston College Law School Stephen Meili, University of Minnesota Law School Chi Mgbako, Fordham University School of Law Binny Miller, American University, Washington College of Law Elliott Milstein, American University, Washington College of Law Sherizaan Minwalla, American University, Washington College of Law Behzad Mirhashem, UNH School of Law Jennifer Moore, University of New Mexico School of Law Nancy Morawetz, NYU School of Law Kathleen Morris, Golden Gate Law School Angela Morrison, Texas A&M University School of Law Hiroshi Motomura, UCLA School of Law Mary-Beth Moylan, University of the Pacific, McGeorge School of Law Professor Ann Murphy, Gonzaga University School of Law Yxta Maya, Murray Loyola Law School Karen Musalo, UC Hastings Center for Gender & Refugee Studies Natalie Nanasi, SMU Dedman School of Law Ranjana Natarajan, Univeristy of Texas School of Law, Civil Rights Clinic Jason Neidleman, University of La Verne Nise Nekheba, Florida A&M University College Of Law
12

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 14 of 20
Lori Nessel, Seton Hall University School of Law Xuan-Thao Nguyen, Indiana University McKinney School of Law Fionnuala Ni Aolain, University of Minnesota, Human Rights Center Blake Nordahl, McGeorge Law School Immigration Law Clinic Tracy Norton, Touro College Jacob F. Fuchsberg School of Law Kenneth Nunn, University of Florida College of Law Udoka Nwanna Southwestern Law School Mariela Olivares, Howard University School of Law Michael A. Olivas, University of Houston Law Center Laura Oren, University of Houston Law Center Maria Pabon, Loyola New Orleans College of Law Victoria Palacios, SMU Dedman Law School Sunita Patel, American University Washington College of Law Carole Petersen, William S. Richardson School of Law Huyen Pham, Texas A&M University School of Law Teresa Phelps, American University Washington College of Law Karen Pita Loor, Boston University Law School Nancy Polikoff, American University Washington College of Law Andrew Pollis, Case Western Reserve University School of Law Deborah Post, Touro Law Center
13

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 15 of 20
Ana Pottratz Acosta, Mitchell Hamline School of Law Cynthia Prado-Guyer, University of Southern California Srividhya Ragavan, Texas A&M University School of Law Lynne Rambo Texas A&M University School of Law Jaya Ramji-Nogales, Temple University Beasley School of Law Andrea Ramos Southwestern Law School Immigration Law Clinic Vernellia Randall, The University of Dayton School of Law Renee Redman, University of Connecticut School of LAw Nikki Reisch, NYU School of Law Paula R. Rhodes, University of Denver Sturm College of Law Ira Robbins, American University Washington College of Law Kalyani Robbins, FIU College of Law Jenny Roberts, American University, Washington College of Law Cassandra Burke Robertson, Case Western Reserve Univ. School of Law Eloisa Rodriguez-Dod, FIU College of Law Sarah Rogerson, Albany Law School Michael Rooke-Ley, Nova Southeastern University College of Law Leslie Rose, Golden Gate University School of Law Rand Rosenblatt, Rutgers University Law School Florence Rousman, Indiana U. Robert H. McKinney School of Law
14

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 16 of 20
Judith Royster, University of Tulsa College of Law Kevin Ruser, University of Nebraska College of Law Margaret Russell, Santa Clara University C. Mario Russell, Catholic Charities NY, St. John's Law School Emily Ryo, USC Gould School of Law Jendayi Saada, Unversity of La Verne College of Law Laura Sager, New York University School of Law Richard Sander, UCLA School of Law Margaret Satterthwaite, NYU School of Law Irene Scharf, University of Massachusetts School of Law Erica Schommer, St. Mary's University School of Law Sean Scott, Loyola Law School Kim Thuy Seelinger, Human Rights Center, University of California, Berkeley Rachel Settlage, Wayne State Law School Sudha Setty, Western New England University School of Law Ragini Shah, Suffolk University Law School, Immigration Clinic Rebecca Sharpless, University of Miami School of Law, Immigration Clinic Anette Sikka, University of Illinois Springfield Marjorie Silver, Touro Law Center Anita Sinha, American University Washington College of Law
15

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 17 of 20
Matiangai Sirleaf, University of Pittsburgh Law School Gwynne Skinner, Willamette University College of Law Catherine Smith, University of Denver, Sturm College of Law William Snape, American University, Washington college of law Gemma Solimene, Fordham University School of Law Mary Spector, SMU Dedman School of Law Jane Spinak, Columbia Law School Elissa Steglich, University of Texas School of Law, Immigration Clinic Nomi Stolzenberg, University of Southern California Law School Christopher Strawn, Univ. of Washington School of Law, Immigration Law Clinic Jayashri Srikantiah, Stanford Law School Immigrants’ Rights Clinic S.I. Strong, University of Missouri School of Law Ellen Suni, UMKC School of Law Maureen Sweeney, University of Maryland Carey School of Law Chantal Thomas, Cornell University Law School Claire Thomas, Safe Passage Project Immigration Clinic at New York Law School Michael Tigar, Washington College of Law Karen Tokarz, Washington University Civil Rights & Community Justice Clinic Mary Pat Treuthart, Gonzaga University School of Law Enid Trucios-Haynes, Brandeis School of Law, University of Louisville
16

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 18 of 20
Tracy Turner, Southwestern Law School Diane Uchimiya, University of La Verne College of Law,
Justice and Immigration Clinic Gloria Valencia-Weber, University of New Mexico School of Law Rachel Van Cleave, Golden Gate University School of Law Anthony Varona, American University Washington College of Law Lea B. Vaughn, University of Washington School of Law Kyle Velte, Texas Tech University School of Law Leti Volpp, Univeristy of California, Berkeley School of Law Julie Waterstone, Southwestern Law School Susan C. Wawrose, University of Dayton School of Law Jonathan Weinberg, Wayne State University Law School Marley Weiss, University of Maryland Carey School of Law Marley Weiss, University of Maryland Carey School of Law Deborah Weissman, University of North Carolina School of Law Anna Welch, University of Maine School of Law Verna Williams, University of Cincinnati College of Law Wendy Williams, Georgetown University Law Center Abby Wood, University of Southern California Gould School of Law Barbara Woodhouse, Emory Law School
17

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 19 of 20
Karen Woody, Indiana University, Kelley School of Business Marcia Zug, University of South Carolina School of Law
18

Case: 17-35105, 02/06/2017, ID: 10303575, DktEntry: 49-4, Page 20 of 20

CERTIFICATE OF SERVICE

I hereby certify that on February 5, 2017, I electronically filed the foregoing

with the Clerk of the court for the United States Court of Appeals for the Ninth

Circuit using the appellate CM/ECF system.

I certify that all participants in this case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

DATED: February 5, 2017

Respectfully submitted,

/s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu

19

 
 Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-1, Page 1 of 10

No. 17-35105

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT __________________________________________________

STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees, v.

DONALD J. TRUMP, President of the United States, et al.
Defendants-Appellants. __________________________________________________

On Appeal from the United States District Court
for the Western District of Washington, Seattle The Honorable James L. Robart
No. 2:17-cv-00141-JLR _________________________________________________

SERVICE EMPLOYEES INTERNATIONAL UNION’S MOTION FOR
LEAVE TO FILE BRIEF AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES
__________________________________________________

Steve W. Berman Andrew M. Volk
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Ave., Suite 3300 Seattle, WA 98101
Telephone: (206) 623-7292 steve@hbsslaw.com andrew@hbsslaw.com

Nicole G. Berner Deborah L. Smith
Trisha S. Pande SERVICE EMPLOYEES
INTERNATIONAL UNION 1800 Massachusetts Avenue, NW
Washington, DC 20036 Telephone: (202) 730-7383
nicole.berner@seiu.org debbie.smith@seiu.org
trisha.pande@seiu.org

Attorneys for Amicus Curiae Service Employees International Union

007000-18 934862 V1

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-1, Page 2 of 10
TABLE OF CONTENTS Page
I. INTRODUCTION ............................................................................. 1 II. ARGUMENT.....................................................................................1
A. This Court Has Broad Discretion To Allow The Participation Of Amici Curiae ................................................ 2
B. Service Employees International Union Has the Requisite Interest....................................................................3
C. SEIU Can Provide Helpful Information To The Court That Will Not Duplicate Arguments Presented By The Parties ....................................................... 3
D. The Amicus Brief is Timely .................................................... 4 III. CONCLUSION ................................................................................. 5
-i-

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-1, Page 3 of 10
TABLE OF AUTHORITIES Page(s)
Cases Miller-Wohl Co., Inc. v. Comm’r of Labor and Indus.,
Montana, 694 F.2d 203 (9th Cir. 1982).................................................................. 2 NOW, Inc. v. Scheidler, 223 F.3d 615 (7th Cir. 2000).................................................................. 2
Other Authorities 4 Am. Jur. 2d, Amicus Curiae § 6 (2004)................................................... 2 Fed. R. App. P. 29(b)(1) .............................................................................. 2 Fed. R. App. P. 29(e) ............................................................................... 4, 5
-ii-

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-1, Page 4 of 10
I. INTRODUCTION The Service Employees International Union (“SEIU”) respectfully moves for leave to file an amicus curiae brief in support of PlaintiffsAppellees. A copy of the proposed brief is attached is submitted herewith. The Defendants-Appellants initially gave blanket consent to the filing of all amicus briefs. However, at 10:34 p.m. PST (1:34 a.m. EST) on February 5, amici were informed that Defendants-Appellants altered their position from a uniform consent for the filing of all amicus briefs, to providing consent solely if the amicus briefs were filed by the deadline for the State of Washington’s brief of 11:59 p.m. PST (2:59 a.m. EST)—i.e., less than an hour-and-a-half after the SEIU received notice of Defendants’ backtracking. Notwithstanding the Department of Justice’s apparent objection, SEIU respectfully submits that its filing of the attached brief is timely, desirable, and worthy of this Court’s consideration.
II. ARGUMENT The goal of any amicus curiae is “to call the court’s attention to … facts or circumstances in a matter then before it that may otherwise
- 1 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-1, Page 5 of 10
escape its consideration.”1 The fundamental requirements of Rule 29 of the Federal Rules of Appellate Procedure are that an amicus curiae brief be “relevant” and “desirable.”2 The proposed brief here satisfies both requirements. A. This Court Has Broad Discretion To Allow The Participation Of
Amici Curiae Permitting a nonparty to submit a brief as amicus curiae is, “with immaterial exceptions, a matter of judicial grace.”3 Circuit courts, including this Court, have rarely disclosed the considerations weighed when deciding a motion for leave to file an amicus brief. But the Ninth Circuit has recognized that the classic role of an amicus is “assisting in a case of general public interest, supplementing the efforts of counsel, and drawing the court’s attention to law that escaped consideration.”4
1 4 Am. Jur. 2d, Amicus Curiae § 6 (2004). 2 Fed. R. App. P. 29(b)(1). 3 NOW, Inc. v. Scheidler, 223 F.3d 615, 616 (7th Cir. 2000). 4 Miller-Wohl Co., Inc. v. Comm’r of Labor and Indus., Montana, 694 F.2d 203, 204 (9th Cir. 1982).
- 2 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-1, Page 6 of 10
B. Service Employees International Union Has the Requisite Interest The Service Employees International Union is an international
labor organization representing approximately two million working men and women in the United States and Canada employed in the private and public sectors. In the State of Washington alone, SEIU’s localunion membership exceeds 126,000. Members include public school teachers, janitors, security officers, nurses, and long-term care workers who provide quality healthcare, education, and building services to Washington residents. Many of SEIU’s Washington-resident members are foreign-born U.S. citizens, lawful permanent residents, or immigrants authorized to work in the United States. And many of SEIU’s Washington-resident members have mixed-status families. C. SEIU Can Provide Helpful Information To The Court That Will
Not Duplicate Arguments Presented By The Parties The accompanying amicus brief from SEIU provides additional information showing why the State of Washington has standing to challenge President Donald J. Trump’s January 27, 2017 Executive Order (“Executive Order.”). The amicus brief contains factual information that will assist the Court in resolving the parties’
- 3 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-1, Page 7 of 10
competing claims on that issue, without duplicating the parties’ arguments. The brief documents that the impact of the Executive Order on the SEIU and Washington residents and others across the nation – including SEIU members – is profound. These immediate, real-word impacts highlight the States’ pressing interest in protecting their residents and their tax bases by providing real-life examples of the immediate and irreparable harm that will occur if the Executive Order is allowed to stand. D. The Amicus Brief is Timely
The filing of this motion with the accompanying brief is timely. Under the Federal Rules of Appellate Procedure, the brief of an amicus is due “no later than seven days after the principal brief of the party being supported is filed.” Fed. R. App. P. 29(e). In this case, the parties being supported by SEIU are the States of Washington and Minnesota, and the States of Washington and Minnesota filed their principal briefs on Sunday, February 5, 2017. The United States has not yet filed its response. Accordingly, the instant motion and brief are being filed well within the seven day time frame that would apply under the appellate
- 4 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-1, Page 8 of 10
rules. Alternatively, and again drawing on the appellate rules, this Court can exercise its discretion, as it deems necessary and appropriate, and specify a time within which the United States may “answer” the amicus brief from SEIU. See Fed. R. App. P. 29(e).
III. CONCLUSION The Court should therefore exercise its discretion to permit SEIU to file the attached amicus brief. Counsel of record for SEIU is familiar with the scope of the arguments presented by the parties and will not unduly repeat those arguments. Instead, the SEIU draws from its communications with residents from Washington and around the nation – including SEIU members and their families. These communications illustrate the profound, widespread, and irreparable harm the Executive Order has caused and would continue to cause if the District Court’s Temporary Restraining Order were undone.
- 5 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-1, Page 9 of 10

DATED: February 6, 2017

HAGENS BERMAN SOBOL SHAPIRO LLP
By /s/ Steve W. Berman Steve W. Berman
Andrew M. Volk 1918 Eighth Avenue, Suite 3300 Seattle, Washington 98101 Telephone: (206) 623-7292 steve@hbsslaw.com andrew@hbsslaw.com

Nicole G. Berner
Deborah L. Smith Trisha S. Pande
SERVICE EMPLOYEES INTERNATIONAL UNION
1800 Massachusetts Avenue, NW Washington, DC 20036
Telephone: (202) 730-7383 nicole.berner@seiu.org
debbie.smith@seiu.org trisha.pande@seiu.org

Attorneys for Amicus Curiae Service Employees International Union

- 6 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-1, Page 10 of 10
CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing 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 6, 2017. All participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system.
HAGENS BERMAN SOBOL SHAPIRO LLP By /s/ Steve W. Berman
Steve W. Berman 1918 Eighth Avenue, Suite 3300 Seattle, Washington 98101 Telephone: (206) 623-7292 steve@hbsslaw.com Attorney for Amicus Curiae Service Employees International Union
- 7 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 1 of 20

No. 17-35105

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT __________________________________________________

STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees, v.

DONALD J. TRUMP, President of the United States, et al.
Defendants-Appellants. __________________________________________________

On Appeal from the United States District Court
for the Western District of Washington, Seattle The Honorable James L. Robart
No. 2:17-cv-00141-JLR _________________________________________________

SERVICE EMPLOYEES INTERNATIONAL UNION’S BRIEF AS
AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES __________________________________________________

Steve W. Berman
Andrew M. Volk HAGENS BERMAN SOBOL
SHAPIRO LLP 1918 Eighth Ave., Suite 3300
Seattle, WA 98101 Telephone: (206) 623-7292
steve@hbsslaw.com andrew@hbsslaw.com

Nicole G. Berner
Deborah L. Smith Trisha S. Pande
SERVICE EMPLOYEES INTERNATIONAL UNION
1800 Massachusetts Avenue, NW
Washington, DC 20036 Telephone: (202) 730-7383
nicole.berner@seiu.org debbie.smith@seiu.org
trisha.pande@seiu.org

Attorneys for Amicus Curiae Service Employees International Union

007000-18 934868 V1

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 2 of 20

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29(a)(4)(A) of the Federal Rules of Appellate

Procedure, Service Employees International Union makes the following

disclosures:

(1) For non-governmental corporate parties please list all parent

corporations: None

(2) For non-governmental corporate parties please list all publicly

held companies that hold 10% of more of the party’s stock: None

Dated: February 6, 2017

Respectfully Submitted,

HAGENS BERMAN SOBOL SHAPIRO LLP
By /s/ Steve W. Berman Steve W. Berman
Andrew M. Volk 1918 Eighth Avenue, Suite 3300 Seattle, Washington 98101 Telephone: (206) 623-7292 steve@hbsslaw.com

Attorneys for Amicus Curiae Service Employees International Union

007000-18 934868 V1

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 3 of 20

TABLE OF CONTENTS

Page

I. INTRODUCTION ...........................................................................................1 II. STATEMENT OF INTEREST OF AMICUS CURIAE.................................3 III. ARGUMENT...................................................................................................3
1. Sara..............................................................................................5 2. Dr. Kamal Fadlalla......................................................................6 3. Dasin ...........................................................................................8 4. Nadia ...........................................................................................9 5. John ...........................................................................................11 6. Halima .......................................................................................12 IV. CONCLUSION...........................................................................................14

-i-

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 4 of 20
TABLE OF AUTHORITIES Page(s)
Statutes 8 U.S.C. § 1152(a)(1)(A) ...........................................................................................2
-ii-

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 5 of 20
I. INTRODUCTION The profoundly adverse and discriminatory effects of the Executive Order are already wreaking havoc on the State of Washington and its residents— including members of the Service Employees International Union (“SEIU”)1. Because the Executive Order bans individuals from seven predominately Muslim countries from entering the United States, and is plainly driven by animus against Muslims, the Executive Order violates the Constitution’s ban on discrimination based on national origin and religion. The Executive Order cannot satisfy even the deferential rational basis test, as it does nothing to further its purported goal of protecting the U.S. from terrorist attacks. Heavily-vetted children fleeing war-torn countries pose no more threat of terrorism to this country than did Jewish people fleeing Czarist Russia. The Executive Order also violates the Due Process Clause of the Constitution by denying lawful permanent 1 Amicus affirms that no counsel for any party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than Amicus or their counsel made a monetary contribution to its preparation or submission.
- 1 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 6 of 20
residents and visa-holders the ability to enter Washington without notice and the opportunity to be heard, and others of the statutory right to seek asylum. Finally, the Executive Order violates the Immigration and Nationality Act’s prohibition on discrimination in the issuance of visas based on nationality, place of birth, or place of residence.2 Consistent with our nation’s laws, the Executive Order cannot stand, and the District Court properly granted Plaintiffs-Appellees motion for a Temporary Restraining Order to maintain the status quo pending a full evaluation of the unprecedented and patently unconstitutional Executive Order.
The SEIU respectfully urges that the Court deny the government’s motion for a stay of the Temporary Restraining Order in order to prevent harm to the States, their businesses, and their residents. The SEIU writes to further document the immediate and irreparable harm Washington State residents—including SEIU members, their families, and their communities.
2 8 U.S.C. § 1152(a)(1)(A).
- 2 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 7 of 20
II. STATEMENT OF INTEREST OF AMICUS CURIAE The SEIU is a labor organization representing approximately two million men and women in the United States and Canada employed in the private and public sectors. Many SEIU members are foreign-born U.S. citizens, lawful permanent residents, or immigrants authorized to work in the United States. Many SEIU members have mixed-status families. Many SEIU members and their families are directly affected by the Executive Order barring entry into the United States based on national origin.
III. ARGUMENT The impact of the Executive Order on the SEIU and its members is profound and highlights the State’s pressing interest in protecting its residents and preserving its tax base. The SEIU has over 100,000 members in Washington State in five local chapters, including the Public School Employees of Washington (representing over 28,600 public school employees); SEIU Healthcare 1199NW (over 29,000 nurses and healthcare workers across the state); SEIU Local 775 (over 40,000 long-term care workers providing in-home and nursing home
- 3 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 8 of 20
care in Washington and Montana); SEIU Local 6 (over 4,000 janitors, security officers, stadium and airport workers); and SEIU Local 925 (17,000 education, governmental, and non-profit workers).
A large percentage of these workers are immigrants. For example, more than 40% of SEIU Local 6’s members are immigrants. The Executive Order will accordingly have an enormous impact on them. As an SEIU website states: “Among the members of SEIU Healthcare 1199NW are countless immigrants and refugees, green card holders and legal permanent residents, who care for our community’s patients and mental health clients every day. [President] Trump’s order means these caregivers face travel bans, could be unable to reunite with families, and will face more hate and discrimination in our community.”
SEIU members work in industries that touch Washington residents’ daily lives. They help educate the State’s children, care for the State’s elderly and infirm, keep the schools and buildings clean and secure, and—ironically enough—facilitate air travel in and out of the State. The impact on the State from losing these workers is self-
- 4 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 9 of 20
evident, and the Executive Order makes the State less secure and less prosperous as long as it stays in effect—and the State is obliged to protect the safety and prosperity of its residents. The risk and danger to SEIU members posed by the Executive Order, and the corresponding negative impacts on the State, are concrete and immediate. Many individuals—including SEIU members and those in their communities and families—have recounted their stories to SEIU staff. These individuals are fearful and do not want to reveal their identity.
1. Sara Sara is a 33-year-old registered nurse and member of SEIU 1199NW who lives in Seattle. She came to the U.S. from Somalia when she was 12 years old. Both Sara and her parents are U.S. citizens; however, almost all of her extended family lives in Somalia. Sara is adversely impacted by the Executive Order because her legitimate fear prevents her from travelling back to Somalia to visit her family. She has spent most of her life in the U.S. and considers this her home. She fears that if she leaves the U.S. she will not be able to get
- 5 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 10 of 20
back in. Sara is also worried that her relatives will never be able to come to the U.S. and visit her and her four children.
Sara’s father is currently in Somalia visiting her grandmother. While her diabetic father was in Somalia, he developed a bad foot infection. His treatment in Somalia went badly, and he needs to return to the U.S. for medical treatment. Sara fears that her father, even though a U.S. citizen, will get detained when trying to re-enter the U.S. He is a senior citizen in need of immediate medical attention and will face serious health risks if he is detained.
2. Dr. Kamal Fadlalla Dr. Kamal Fadlalla is a 33-year old second-year resident in internal medicine at Interfaith Medical Center in Brooklyn, New York. Dr. Fadlalla is a Muslim and citizen of Sudan who has been lawfully working in the United States for 20 months under the terms of his H-1B visa. In his work at Interfaith, Dr. Fadlalla serves a predominantly low-income patient base in the Brooklyn communities of Bedford– Stuyvesant and Crown Heights. Dr. Fadlalla is dedicated to his patients, many of whom have a myriad of health problems.
- 6 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 11 of 20
On January 13, 2017, a week before President Trump’s inauguration, Dr. Fadlalla traveled to Sudan to visit family. Two weeks later, co-workers advised him to return to the United States because of rumors that President Trump would soon be imposing a travel ban on citizens from Muslim-majority countries. Dr. Fadlalla immediately arranged for his return to the United States, but was one day too late. On January 28, while he was waiting to board a plane in Khartoum with his boarding pass and valid visa, the airline agents told him he could not board due to the ban.
Dr. Fadlalla stayed in Sudan while his friends, colleagues and union worked to bring him back. Dr. Fadlalla worried that his hospital and patients would suffer in his absence. “My colleagues are going to be affected. My hospital is going to be affected. And for sure, my patients are going to be affected.”
Dr. Fadlalla is one of the many doctors trained at foreign medical schools. Each year, around a quarter of the residents and fellows in advanced training programs around the U.S. attended medical school
- 7 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 12 of 20
outside the country. While some of those are U.S. citizens or permanent residents, about 15 to 20 percent of the total are not.
After the district court’s order in State of Washington v. Donald Trump, Dr. Fadlalla successfully boarded a plane and arrived in the United States on February 5, 2017. He was greeted at JFK airport by colleagues, fellow union members, and elected officials, all eager for his return.
3. Dasin Dasin was born in Iraq and lived there until 2012. He is Muslim. His father and uncle both worked for the U.S. Army in Iraq for about four years. Dasin helped his father and uncle while they were working for the U.S. Army. When the U.S. Army left Iraq it was very dangerous for Dasin and his family. ISIS bombed the front of Dasin’s home, injuring Dasin in the face and neck. Dasin and his family then went to Turkey as refugees. Dasin had trouble finding work in Turkey because he was a refugee and faced discrimination. Dasin came to the U.S. in 2013 and now lives Washington with his four siblings and his parents. He graduated high school in 2015. He
- 8 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 13 of 20
now works part-time as a dispatcher for a large company and part-time as a driver. Dasin is impacted by the Executive Order because he has many family members in Iraq that he can no longer see. Dasin’s family hoped to bring Dasin’s grandfather, grandmother, and uncle to the United States. Dasin fears that if his relatives are not able to come to the United States they will be killed in Iraq. Dasin has two close friends, also Iraqi refugees, who he met while living in Turkey. They waited several years to be processed for resettlement in the United States and scheduled flights for the United States this month. However, they had to cancel their flights after the Executive Order.
4. Nadia Nadia is a 21 year-old Muslim woman who was born in the United States and is a U.S. citizen. Her parents are both U.S. citizens and originally from Somalia. Her mother is a childcare worker and member of SEIU Local 925. Nadia is studying to become a social worker and working part-time as a caregiver for her grandmother. She lives at home with her two parents and three siblings in Washington. Her father is currently in Somalia visiting her extensive family there..
- 9 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 14 of 20
Nadia is adversely impacted by the Executive Order because she hopes to be married in the U.S. to a Yemeni citizen currently residing in Saudi Arabia. Nadia was introduced to her fiancé through her parents, who met the man while they were on a pilgrimage to Saudi Arabia. Nadia and her fiancé spoke by phone and video chat for several months before she decided to visit him in Saudi Arabia. During the month that she spent in Saudi Arabia with her fiancé, she became increasingly drawn to his kindness, thoughtfulness, and great personality, and the couple decided to get married. When Nadia returned to the U.S. in March 2016, she filed an immigration application for her fiancé, a K-1 “fiancé” visa. Her fiancé’s application was approved pending a final interview at the U.S. Embassy abroad.
Nadia is fearful for both herself and her fiancé. Nadia is worried she will have to move to Saudi Arabia to be with her fiancé, and leave her home in the U.S. because it is too “hard to live our lives separately.” Nadia has been unable to see her fiancé, whom she misses dearly, due to the expense of flying to Saudi Arabia. Nadia’s fiancé is really
- 10 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 15 of 20
frightened that he will not be able to see her again, and upset that he is unable to move to the U.S. and start a life with Nadia.
5. John John lives in Washington with his wife and three children. He came to the United States from Iran in 1978 as a student, was recognized as a religious refugee, and became a U.S. citizen in 1990. The Executive Order adversely affects John’s family and his business. John has several relatives living in Iran currently facing religious persecution because they are of the Baha’i faith. John’s parents fled Iran in 1982 after three of his uncles were killed by an Iranian firing squad. John is now worried that his relatives cannot visit him or his family because of the immigration ban. John also has relatives who are Iranian citizens but reside all over the world. He is worried that they cannot visit him in the United States. The Executive Order is also harming John’s business, which is a small health clinic in Seattle. The comprehensive integrative clinic uses both Western and Eastern medicine. The clinic treats about 20 patients from Canada who are Iranian citizens. John estimates that
- 11 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 16 of 20
those patients comprise about 20 percent of his business, and the Executive Order would ban those patients from entering Washington.
6. Halima Halima, a Muslim woman, lives in Seattle, Washington with her husband and children. She came to the United States from Somalia in 2001 as a legal resident, and became a U.S. citizen in 2008. Halima is a caregiver for disabled and elderly patients and has been a member of SEIU Local 775 since 2008. Although Halima and two of her children are U.S. citizens, her husband and her other four children are legal residents (green card holders). One of her children is in school; two of them attend community college; the other three children are working. The Executive Order greatly worries Halima. She worries that her children may be attacked because of the hateful environment fueled by the Executive Order—particularly her four daughters, who all wear a hajib. The husband of one of Halima’s friends flew into the Seattle airport on January 27, 2017 with an approved visa, but was returned back to Somalia. Her friend, a U.S. citizen, was waiting for her
- 12 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 17 of 20
husband and couldn’t even see him before he was turned around and sent back to Somalia—even though he was here legally. This incident has terrorized Halima’s entire family. As Halima said, “[i]f they can treat people with green cards and visas the way they treated these people, who knows if they will come after naturalized citizens next? No one is safe.”
The accounts of these individuals demonstrate that the Executive Order has an immediate and concrete impact on the well-being of Washington State citizens and others throughout the nation and is a matter of State concern. The Executive Order is separating families for no justifiable reason, causing many of Washington’s citizens—including SEIU members—harm and distress when they face the genuine risk that they will be permanently separated from their loved ones. The State has a singular interest in protecting its citizens from precisely this type of irreparable harm from any source, including the federal government.
- 13 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 18 of 20

IV. CONCLUSION The SEIU respectfully requests that the Court deny the

government’s motion for a stay of the Temporary Restraining Order.

DATED: February 6, 2017

HAGENS BERMAN SOBOL SHAPIRO LLP
By /s/ Steve W. Berman Steve W. Berman
Andrew M. Volk HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, Washington 98101 Telephone: (206) 623-7292 steve@hbsslaw.com

Nicole G. Berner Deborah L. Smith
Trisha S. Pande SERVICE EMPLOYEES
INTERNATIONAL UNION 1800 Massachusetts Avenue, NW
Washington, DC 20036 Telephone: (202) 730-7383
nicole.berner@seiu.org debbie.smith@seiu.org
trisha.pande@seiu.org

Attorneys for Amicus Curiae Service Employees International Union

- 14 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 19 of 20
CERTIFICATE OF COMPLIANCE This brief complies with the typeface and type style requirements of Fed. R. App. P. 32(a)(5)(a) and (a)(6) because it has been prepared in a proportionally spaced typeface, using Microsoft Word in Century 14point font. This brief complies with the type-volume limitations of Fed. R. App. P. 29(d) because it contains 2,407 words excluding the parts exempted by Fed. R. App. P. 32(a)(7)(B)(iii). (The maximum number of words is 2,600 for an amicus brief in connection with a motion, which has a word limit of 5,200 words under Fed. R. App. P. 27(d)(2)(A)). Date: February 6, 2017
HAGENS BERMAN SOBOL SHAPIRO LLP By /s/ Steve W. Berman
Steve W. Berman Andrew M. Volk 1918 Eighth Avenue, Suite 3300 Seattle, Washington 98101 Telephone: (206) 623-7292 steve@hbsslaw.com Attorney for Amicus Curiae Service Employees International Union
- 15 -

Case: 17-35105, 02/06/2017, ID: 10303775, DktEntry: 55-2, Page 20 of 20
CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing 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 6, 2017. All participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system.
HAGENS BERMAN SOBOL SHAPIRO LLP By /s/ Steve W. Berman
Steve W. Berman Andrew M. Volk 1918 Eighth Avenue, Suite 3300 Seattle, Washington 98101 Telephone: (206) 623-7292 steve@hbsslaw.com Attorney for Amicus Curiae Service Employees International Union
- 16 -

 
 Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-1, Page 1 of 4
No. 17-35105 ___________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, ET AL., PLAINTIFFS-APPELLEES, V. DONALD J. TRUMP, ET AL., DEFENDANTS-APPELLANTS.
MOTION FOR LEAVE TO APPEAR AMICI CURIAE The National Immigrant Justice Center (“NIJC”) and ASISTA ask leave pursuant to Federal Rule of Appellate Procedure 29 to appear as amici curiae in the above-captioned matter. The proposed filing of Amici is attached. In support of its motion, Amici state as follows: 1. This case is proceeding on an exceptionally expedited basis. The Court ordered the appellees to file a brief 24 hours after the filing of an emergency stay motion, and the Defendants to file a reply brief this afternoon. 2. This case presents a question of first impression in the Courts of Appeals. The subject matter is important due to the novel and significant legal issues presented, but also due to the substantial number of families and individuals impacted by the question.

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-1, Page 2 of 4
3. It is appropriate for an amicus to attempt to ascertain whether particular arguments are being raised by a party or another amicus before seeking leave to raise those arguments.
4. Having reviewed the party and amicus submissions, Amici believe this case presents important issues which are not adequately addressed by the briefing now before the Court. Specifically, Amici submits that the Executive Order being challenged below violates the statute and regulations as to several visa categories. Amici further submits that the Executive Order is not amenable to severability analysis, and that illegality in the order should result in it being enjoined both temporarily and permanently.
5. The proposed Amici are well-recognized organizations with an expertise in immigration and asylum matters which would be useful to the Court, as documented in the amicus brief itself.
6. Amicus contacted the parties regarding this motion. The Government did not respond to communications regarding this motion. Petitioner consents to the motion.
2

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-1, Page 3 of 4

Date: February 6, 2017

Respectfully submitted,
/s Charles Roth Charles Roth National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300 Chicago, IL 60614 (312) 660-1613

3

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-1, Page 4 of 4
PROOF OF SERVICE I hereby certify that I electronically filed the foregoing 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 6, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. /s Charles Roth Charles Roth National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300 Chicago, IL 60614 (312) 660-1613
4

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 1 of 25
No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, ET AL., PLAINTIFFS-APPELLEES, V.
DONALD J. TRUMP, ET AL., DEFENDANTS-APPELLANTS.
ON APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
United States District Judge James L. Robart Case No. 2:17-cv-00141-JLR
BRIEF OF AMICI CURIAE NATIONAL IMMIGRANT JUSTICE CENTER AND ASISTA
Counsel for Amici
Charles Roth National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300 Chicago, Illinois 60604 Tel: (312) 660-1613 Email: croth@heartlandalliance.org

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 2 of 25
CORPORATE DISCLOSURE STATEMENT

The National Immigrant Justice Center is a program of the Heartland Alliance for Human Needs and Human Rights, a 501(c)(3) not-for-profit corporation, with no parent corporation and no publicly traded stock.
ASISTA is a 501(c)(3) not-for-profit refugee protection organization, with no parent corporation and no publicly traded stock.

Date: February 6, 2017

s/ Charles Roth Charles Roth NATIONAL IMMIGRANT JUSTICE CENTER 208 South LaSalle Street, Suite 1300 Chicago, Illinois 60604 Tel: (312) 660-1613 Email: croth@heartlandalliance.org

i

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 3 of 25
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT..................................................... i TABLE OF CONTENTS ....................................................................................... ii TABLE OF AUTHORITIES ................................................................................ iii INTRODUCTION....................................................................................................1 STATEMENT OF INTEREST OF AMICI ..........................................................2 ARGUMENT ............................................................................................................4 I. The EO is Contrary to the Statute and the Regulations...................................4
A. The Authority Granted at 8 U.S.C. § 1182(f) Must Be Read to Be Consistent with the Rest of the INA. ...............................................5
B. The EO Conflicts with Statute and Regulations in Multiple Respects. ................................................................................................6 1. The EO is Contrary to Statute Governing Visas for Victims of Specified Criminal Offenses. .......................................................8 2. The EO is Contrary to Regulations and Statutes Governing Visas for Victims of Human Trafficking and Their Family Members. .9 3. The EO is Contrary to Law Relating to Spouses of U.S. Citizens Under the K-3 Visa. ...................................................................10 4. To the Extent that the EO Applies to Preclude Travel by Admitted Refugees and Asylees, It is Contrary to Regulation and International Treaty Obligations. ........................................12
II. The EO Lacks a Severability Clause, Nor Is It Apparent That the Drafter Would Wish to Partially Enforce the EO. .....................................................15
CERTIFICATE OF COMPLIANCE ..................................................................18 CERTIFICATE OF SERVICE ............................................................................19
ii

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 4 of 25
TABLE OF AUTHORITIES
Cases Board of Natural Resources v. Brown, 992 F.2d 937 (9th Cir. 1993).....................19 Bustamonte v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) .........................................13 Davis v. Mich. Dep’t of Treasury, 489 U.S. 803 (1989)............................................6 Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) .................................................3 EO 4 Gila River Indian Cmty. v. United States, 729 F.3d 1139 (9th Cir. 2013). ...............6 Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc) ......................3 In re Sesay, 25 I. & N. Dec. 431 (BIA 2011) ..........................................................12 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .......................................................17 Kerry v. Din, 135 S.Ct. 2128 (2015)........................................................................14 L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014) ......................................................4 Lopez-Birrueta v. Holder, 633 F.3d 1211 (9th Cir. 2011).........................................4 Matter of Reyes, 910 F.2d 611 (9th Cir. 1990) ................................................. 18, 19 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) ............18 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) .......................16 R.R. Ret. Bd. v. Alton R. Co., 295 U.S. 330 (1935) .................................................20 Rosario v. Holder, 627 F.3d 58 (2d Cir. 2010)..........................................................3 Sanchez v. Keisler, 505 F.3d 641 (7th Cir. 2007)......................................................4 Singh v. Holder, 649 F.3d 1161 (9th Cir. 2011) (en banc) ........................................3 Torres-Tristan v. Holder, 656 F.3d 653 (7th Cir. 2011)............................................4 United States v. Rutherford, 442 U.S. 544 (1979)...................................................20 Statutes 8 U.S.C. § 1101(a)(13)(C) .....................................................................................6, 7 8 U.S.C. § 1101(a)(15).............................................................................................17 8 U.S.C. § 1101(a)(15)(K)(ii) ..................................................................................12 8 U.S.C. § 1101(a)(15)(T)........................................................................................10
iii

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 5 of 25
8 U.S.C. § 1101(a)(15)(U) .........................................................................................9 8 U.S.C. § 1152(a)(1)(A) .......................................................................................5, 7 8 U.S.C. § 1182(f) ..................................................................................... 5, 6, 10, 11 8 U.S.C. § 1184(o)(4)...............................................................................................11 8 U.S.C. § 1184(o)(7)(A) .........................................................................................11 8 U.S.C. § 1184(o)(7)(C) .........................................................................................11 8 U.S.C. § 1184(p)(1).................................................................................................9 8 U.S.C. § 1184(p)(6).................................................................................................9 Other Authorities 9 Foreign Affairs Manual 402.6-5(E)(1) ...................................................................9 9 Foreign Affairs Manual 402.6-6(G)(b)...................................................................8 9 Foreign Affairs Manual 502.7-5(C)(7)(a).............................................................10 Convention Relating to the Status of Refugees, art. 28(1), July 28, 1951,
19 U.S.T. 6259, 189 U.N.T.S. 150 ................................................................13 Dkt. 14, Emergency Mot. to Stay ..............................................................................5 Donald F. McGahn II, Counsel to the President, Authoritative Guidance
on Executive Order Entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (Feb. 1, 2017). ...................................7 Email, Daniel Renaud, Associate Director of Field Operations (Jan. 28, 2017) ................................................................................................................7 Executive Order #13,769 .......................................................................... 1, 7, 14, 17 Memorandum, “Guidance Concerning Executive Order on Immigration,” Lori Scialabba, Acting Director, USCIS (Feb. 2, 2017) .................................7 USCIS, “K-3/K-4 Nonimmigrant Visas,” available at https://www.uscis.gov/family/family-us-citizens/k3-k4-visa/k-3k-4nonimmigrant-visas .......................................................................................10 Regulations (s)(1)(iv) .....................................................................................................................9 8 C.F.R. § 214.11(s)(1)(i) ..........................................................................................9 8 C.F.R. § 214.11(s)(2) ..............................................................................................9
iv

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 6 of 25
8 C.F.R. § 214.11(s)(4) ..............................................................................................9 8 C.F.R. § 214.14(h) ..................................................................................................8 8 C.F.R. § 223.1 .......................................................................................................13 8 C.F.R. § 223.3(a)(2) ..............................................................................................14 8 C.F.R. § 223.3(b) ..................................................................................................14 8 C.F.R. § 223.3(d)(2)(i) ..........................................................................................15
v

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 7 of 25
INTRODUCTION The case at bar involves a challenge from the State of Washington et al. to Executive Order #13,769 (EO) issued by President Trump, which purported to entirely cut off immigrant and nonimmigrant entries from seven countries. This is the federal government’s appeal from a temporary restraining order entered in District Court. The Court set a highly expedited briefing schedule for this matter.1 Amici write separately for two reasons. First, Amici write to explain additional ways in which the breadth of the Executive Order likely violates the Immigration and Nationality Act, apart from those respects noted below. Specifically, while the parties below focused on visas aimed at protecting American business (a consideration highly relevant to state standing), the EO appears to affect visas for victims of human trafficking and their families; victims of specified criminal offenses; visas pertaining to spouses of U.S. citizens; and travel by admitted refugees and asylees. Each of these visa categories are governed by statute and regulation, and the EO, together with the putative termination of visas promulgated under that authority, runs contrary to statute and regulation.
1 This brief was authored by counsel for Amici, without the involvement of counsel for any party in this matter. No party or counsel for such party contributed money that was intended to fund preparing or submitting this brief. No person other than the amici or their counsel contributed money that was intended to fund preparing or submitting this brief.
1

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 8 of 25
The EO’s language is not severable as to aspects of the EO which clearly violate statute and aspects which would be unlawful only if done for an improper or irrational reason. Thus, the Court could choose to uphold the TRO under challenge without reaching several of the other important issues presented by this case.
STATEMENT OF INTEREST OF AMICI Amici are public interest organizations with longstanding commitments to serving immigrants, victims of crime, asylees, and refugees. Amici have decades of experience and an interest in ensuring that the laws relating to immigrants properly applied. The National Immigrant Justice Center (NIJC) is a Chicago-based national non-profit organization that provides free legal representation to low-income immigrants, refugees and asylum seekers. With collaboration from more than 1,500 pro bono attorneys, NIJC represents hundreds of applicants for U visas, T visas, K-3 visas, asylees, and refugees at any given time. In addition to the cases that NIJC accepts for representation, it also screens and provides legal orientation to hundreds of potential asylum applicants every year. The Court has granted NIJC leave to appear amicus curiae in various matters. See, e.g., Diouf v. Napolitano, 634 F.3d 1081, 1087 (9th Cir. 2011); Singh v. Holder, 649 F.3d 1161 (9th Cir.
2

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 9 of 25
2011) (en banc); Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).
ASISTA Immigration Assistance (ASISTA) worked with Congress to create and expand routes to secure immigration status for survivors of domestic violence, sexual assault, and other crimes, which were incorporated in the 1994 Violence Against Women Act (VAWA) and its progeny. ASISTA serves as liaison for the field with Department of Homeland Security (DHS) personnel charged with implementing these laws, most notably Citizenship and Immigration Services (CIS), Immigration and Customs Enforcement (ICE), and DHS’s Office for Civil Rights and Civil Liberties. ASISTA also trains and provides technical support to local law enforcement officials, civil and criminal court judges, domestic violence and sexual assault advocates, and legal services, non-profit, pro bono, and private attorneys working with immigrant crime survivors. ASISTA has previously filed amicus briefs in the Second, Seventh, Eighth, and Ninth Circuits. See Rosario v. Holder, 627 F.3d 58 (2d Cir. 2010); Sanchez v. Keisler, 505 F.3d 641 (7th Cir. 2007); Torres-Tristan v. Holder, 656 F.3d 653 (7th Cir. 2011); L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014); Lopez-Birrueta v. Holder, 633 F.3d 1211 (9th Cir. 2011).
3

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 10 of 25
As organizations dedicated to ensuring that bona fide refugees are afforded the protection of asylum, Amici have an interest in ensuring that the right to seek asylum is afforded to all noncitizens, including those with prior removal orders.
ARGUMENT The EO is flatly contrary to the immigration statute and regulations in various respects, in ways neither discussed nor (to all appearances) contemplated by the drafter of the EO. Nor is the sweeping language of the EO severable. It follows that the EO should be enjoined in its entirety. I. The EO is Contrary to the Statute and the Regulations. Plaintiffs appropriately focused their arguments on those aspects of the EO which are legally problematic and would work substantial harm on the State of Washington. Amici write to explain additional ways in which the breadth of the Executive Order likely violates the Immigration and Nationality Act, in ways which would cause cognizable, albeit less economically significant, harm to the Plaintiff states. It has been noted in other submissions to this Court that the EO violates the anti-discrimination provision at 8 U.S.C. § 1152(a)(1)(A) as to immigrant visas. Amici agree. In addition, the EO would on its face preclude entry for noncitizens seeking to travel on visas related to human trafficking (T visas); to victims of specified criminal offenses (U visas); and to spouses of U.S. citizens (K-3 visas); as well as admitted refugees and asylees. Termination of a
4

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 11 of 25
visa or travel authorization in these contexts is governed by statute and regulation. The EO would terminate these visas without regard to that scheme, and in ways contrary to the scheme. The general grant of authority at 8 U.S.C. § 1182(f) must be read, if reasonably possible, in ways harmonious with the rest of the INA. It is amenable to such a reading, containing implied limitations on the scope of that authority. Since the EO is irreconcilable with multiple parts of the INA, it is unlawful.
A. The Authority Granted at 8 U.S.C. § 1182(f) Must Be Read to Be Consistent with the Rest of the INA.
It is black letter law that courts must read a statute if possible in a manner that gives meaning to all the text. Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989). That is, a Court construing a statute must attempt to “fit, if possible, all parts into a harmonious whole.” Gila River Indian Cmty. v. United States, 729 F.3d 1139, 1145 (9th Cir. 2013).
It is apparently the contention of the federal government that the broad authority at 8 U.S.C. § 1182(f) should be understood to trump all other provisions of the statute. (E.g., Dkt. 14, Emergency Mot. to Stay at 11-15.) Thus, the federal government initially contended that it could exercise this authority even as to returning permanent residents, notwithstanding statutory authority on point. Cf. 8 U.S.C. § 1101(a)(13)(C).
5

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 12 of 25
Such a contention is inconsistent with the requirement that the immigration statute be read as a harmonious whole. The INA is a complex, multi-faceted statute which accommodates a variety of rights and interests in the context of a global economy and globalized personal relationships. While § 1182(f) authority may be broad, it cannot be read so broadly as to bring it into conflict with other provisions of the INA. Section 1182(f) authority must be implicitly limited to not conflict with other portions of the INA, including the anti-discrimination provision of 8 U.S.C. § 1152(a)(1)(A), as well as the statutory provisions protecting visas issued to particularly vulnerable aliens.
B. The EO Conflicts with Statute and Regulations in Multiple Respects.
The meaning and breadth of the EO in question was left unexplained in the EO itself, but in the days since the EO was enacted, the federal government has limited it in several respects. First, the federal government backed away from the argument that the EO would apply to permanent residents of the United States. Permanent residents are not generally treated as seeking “entry” after a brief trip abroad. 8 U.S.C. § 1101(a)(13)(C). The federal government initially stated that it would grant “waivers” to returning residents; then the Counsel to the President published a memorandum instructing that the EO is inapplicable to returning permanent residents. Donald F. McGahn II, Counsel to the President,
6

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 13 of 25
Authoritative Guidance on Executive Order Entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (Feb. 1, 2017).
Likewise, the EO appeared on its face to include application with USCIS for individuals from the seven affected countries. See EO § 3(a) (describing “Suspension of Issuance of … Other Immigration Benefits to Nationals of Countries of Particular Concern,” as including “adjudicat[ion] of any visa, admission, or other benefit under the INA (adjudications)”); EO § 3(g) (“[n]otwithstanding a suspension” of adjudication, the Secretar[y] of … Homeland Security may, on a case-by-case basis, and when in the national interest, issue … other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.”). USCIS was initially instructed not to adjudicate cases for individuals from those countries. See Email, Daniel Renaud, Associate Director of Field Operations (Jan. 28, 2017) (“Effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya”). USCIS subsequently issued a clarification allowing asylum adjudication and other adjudications to proceed forward for such individuals. Memorandum, “Guidance Concerning Executive Order on Immigration,” Lori Scialabba, Acting Director, USCIS (Feb. 2, 2017).
In all other respects, the breadth of the EO remains unchanged.
7

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 14 of 25
1. The EO is Contrary to Statute Governing Visas for Victims of Specified Criminal Offenses.
Congress created a category of visas for noncitizens who are victims of specified crimes – including inter alia domestic violence, sexual assault, and stalking – who assist U.S. law enforcement in the prosecution of criminal cases. See 8 U.S.C. § 1101(a)(15)(U). The INA specifies a process for the grant of U visas, the length of U visa status, and extensions thereof. 8 U.S.C. §§ 1184(p)(1), (6). U visas are multiple-entry visas, permitting noncitizen visa holders to travel abroad. 9 Foreign Affairs Manual 402.6-6(G)(b) (“U visas must be issued for multiple entries”).
By regulation, the federal government may revoke a U visa only where the noncitizen notifies USCIS that she will not use the visa, or after notice of intent to revoke, tied to one of five specific situations. 8 C.F.R. § 214.14(h). Designation under § 1182(f) is not one of the specified bases for revocation of a U visa.
Thus, a U visa holder from one of the seven relevant countries residing within the United States would no longer be able to make brief trips abroad. The EO would effectuate a de facto termination of U visa status by precluding an individual from traveling abroad. Moreover, the State Department, under the authority of the challenged EO, has purported to provisionally terminate all immigrant and nonimmigrant visas for individuals from seven countries. This would apparently include U visa holders within the United States. The EO would
8

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 15 of 25
also appear to apply to U visa derivatives, notwithstanding statutory and regulatory provisions governing U visa derivate status.
2. The EO is Contrary to Regulations and Statutes Governing Visas for Victims of Human Trafficking and Their Family Members.
In order to target the problem of human trafficking, Congress created a visa for victims of severe forms of human trafficking, and their family members. 8 U.S.C. § 1101(a)(15)(T) (“T visa”). As with the U visa, Congress specified by statute the length of T visa, as well as termination of T visa status as to derivative beneficiaries. See 8 U.S.C. §§ 1184(o)(7)(A) (length of status); (o)(7)(C) (automatic extension); (o)(4) (continued classification of children).
Again, revocation of T visa status is authorized only for limited reasons such as violation of the requirements of the statute or unreasonable failure to cooperate in a law enforcement investigation. 8 C.F.R. §§ 214.11(s)(1)(i), (s)(1)(iv). Revocation is permitted only after notice, and appeal is permitted from the revocation decision. 8 C.F.R. §§ 214.11(s)(2), (s)(4). Designation of an entire nation under § 1182(f) is not one of the specified bases for revocation of a T visa.
Noncitizens seeking T status abroad are generally family members of the victim of severe human trafficking. 9 Foreign Affairs Manual 402.6-5(E)(1).
The EO would effectuate a de facto termination of T visa derivative status for any T visa child or parent seeking to join the individual found to have been a
9

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 16 of 25
victim of severe forms of human trafficking. Moreover, the State Department, under the authority of the challenged EO, has purported to provisionally terminate all immigrant and nonimmigrant visas for individuals from seven countries. This would apparently include T visas, including T visa derivatives, notwithstanding statutory and regulatory provisions governing T visa derivate status.
3. The EO is Contrary to Law Relating to Spouses of U.S. Citizens Under the K-3 Visa.
Worried at lengthy delays, Congress created a nonimmigrant visa category for spouses of U.S. citizens seeking to enter the United States to seek permanent resident status here. 8 U.S.C. § 1101(a)(15)(K)(ii). Spouses of U.S. citizens seeking K status may obtain K-3 nonimmigrant status. In re Sesay, 25 I. & N. Dec. 431, 433 n. 3 (BIA 2011) (citing 8 C.F.R. § 214.1(a)(1)(v), (a)(2)).
A K-3 visa is a multiple entry visa, meaning that it permits the visa holder to travel in and out of the United States multiple times. 9 Foreign Affairs Manual 502.7-5(C)(7)(a); see also USCIS, “K-3/K-4 Nonimmigrant Visas,” available at https://www.uscis.gov/family/family-us-citizens/k3-k4-visa/k-3k-4-nonimmigrantvisas (“Applicants presently in the United States in a K-3 or K-4 nonimmigrant classification may travel outside the United States and return using their K-3 or K4 nonimmigrant visa.”).
Under the EO, a K-3 visa holder from one of the seven relevant countries could remain in the United States, but would no longer be able to make brief trips
10

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 17 of 25
abroad. The EO itself would effectuate a de facto termination or limitation of K-3 visa status by precluding an individual from traveling abroad. Moreover, the State Department, under the authority of the challenged EO, has purported to provisionally terminate all immigrant and nonimmigrant visas for individuals from seven countries. This would apparently include K-3 visa holders, including K-3 visa holders within the United States.
It is established in this circuit that due process liberty interests are implicated by visa decisions affecting U.S. citizen spouses. See Bustamonte v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008) (“Freedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the Due Process Clause.”).2 Nor would this implicate questions of consular nonreviewability; this provision would affect a K-3 visa holder who had been issued a visa at the consulate and thereafter traveled abroad or wishes to do so.
It is highly unlikely that the EO could survive Due Process scrutiny. The EO applies a one-size-fits-all approach to thousands of families from seven countries, despite vast differences in individual cases. The EO does not specify “discrete factual predicates” or a fact providing “at least a facial connection” to a statutory ground of inadmissibility. The EO identifies no facts at all that pertain to 2 Circuit precedent was undisturbed in this regard by Kerry v. Din, 135 S.Ct. 2128 (2015), because five justices did not reach the question of “whether a citizen has a protected liberty interest in the visa application of her alien spouse.” Id. at 2139 (Kennedy, J., concurring).
11

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 18 of 25
visa holders who are the spouses of U.S. citizens. Cf. Bustamonte, 826 F.3d at 1062-63 (upholding denial of visa where consular official relied on specific information that applicant was involved in drug trafficking, giving a basis for inadmissibility under § 1182(a)(2)(C)).
Moreover, even if the EO otherwise made such a showing (and it does not), the EO itself and the various statements of President Trump and others connected to the administration concerning the EO demonstrate bad faith. These include then-candidate Donald Trump’s December 2015 call for “a total and complete shutdown of Muslims entering the United States,” President Trump’s January 27, 2017 interview with Christian Broadcasting Network stating that immigration and refugee policy had been “very, very unfair” to Christians and that he was “going to help them,” and former mayor of New York City Rudy Giuliani’s January 28, 2017 statement that he had been asked by then-candidate Donald Trump to “put a commission together” on the proposed “Muslim ban” to show Mr. Trump “the right way to do it legally.”
4. To the Extent that the EO Applies to Preclude Travel by Admitted Refugees and Asylees, It is Contrary to Regulation and International Treaty Obligations.
It appears uncontested that an individual who has been granted asylum status in the United States, or has been admitted in refugee status, will not have their status directly questioned by the EO. However, the ability for an asylee or refugee
12

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 19 of 25
to travel abroad—often necessary to visit family or arrange for their safety— appears to be impacted by the EO.
By regulation, asylees and refugees are allowed to seek “refugee travel documents.” 8 C.F.R. § 223.1. These documents fill the role of passports for refugees, and function to permit international travel.
The right to refugee travel documents is enjoined by international law. Treaty obligations undertaken by this country require the federal government to issue refugees and asylees with travel authorization. Convention Relating to the Status of Refugees, art. 28(1), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (“The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such documents. The Contracting States may issue such a travel document to any other refugee in their territory; they shall in particular give sympathetic consideration to the issue of such a travel document to refugees in their territory who are unable to obtain a travel document from the country of their lawful residence.”).
Federal statutes “ought never to be construed to violate the law of nations if any other possible construction remains.” Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 64 (1804). This principle is particularly appropriate as to
13

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 20 of 25
admitted refugees and asylees because, by enacting the Refugee Act of 1980, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees.” INS v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987). Asylum status offers not only protection for legitimate refugees, but also the ability to travel internationally, as well as the opportunity to be united with family.
The EO does not specifically address the circumstance of admitted refugees and asylees. It is unclear whether travel on a refugee travel document would constitute travel as an immigrant or nonimmigrant. Cf. 8 U.S.C. § 1101(a)(15) (providing that “immigrant” includes “every alien except an alien who is within one of the following classes,” refugees and asylees not listed). However, the EO on its face applies to all entries, both immigrant and nonimmigrant. EO § 3(c). While the Counsel to the President has “clarified” that the EO is not intended to apply to permanent residents, no such clarification has been issued as to lawfully admitted refugees and asylees.
By regulation, a refugee travel document is valid for one year from the date of issuance. 8 C.F.R. § 223.3(a)(2). It may be invalidated only for specified reasons, such as a materially false representation or concealment. 8 C.F.R. § 223.3(b). A returning refugee or asylee is mandated to be accorded the status
14

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 21 of 25
noted in the refugee travel document unless she is “no longer eligible for that status.” 8 C.F.R. § 223.3(d)(2)(i).
Under the EO, an admitted refugee or asylee from one of the seven countries residing within the United States would apparently no longer be able to make trips abroad, in violation of the regulations and in violation of international law. The EO does not mention the regulations or American treaty obligations. II. The EO Lacks a Severability Clause, Nor Is It Apparent That the
Drafter Would Wish to Partially Enforce the EO. Although there is substantial reason to doubt that severability analysis should apply to executive orders, this Court has held that the test for severability with respect to executive orders is the same as that for statutes. Matter of Reyes, 910 F.2d 611, 613 (9th Cir. 1990) (affirming judgment striking executive order in its entirety). See also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999) (assuming without deciding “that the severability standard for statutes also applies to Executive Orders”). Therefore, “[u]nless it is evident that the [Executive] would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as law.” Board of Natural Resources v. Brown, 992 F.2d 937, 948 (9th Cir. 1993). The EO lacks a severability clause. While that does not “raise a presumption against severability . . . it does suggest an intent to have all
15

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 22 of 25
components operate together or not at all.” Matter of Reyes, 910 F.2d at 613 (citations and quotation marks omitted). Section 3(c) of the order, which provides for the immediate suspension of entry for nearly all visa holders, is plainly central to the stated purpose of the EO from its inception—“a total and complete shutdown” of immigration from Muslim-majority nations. That history, coupled with the lack of a severability clause, makes it apparent the President would not have signed the EO if it did not contain Section 3(c). At a minimum, as demonstrated above the application of Section 3(c) to multiple classes of visa holders is unlawful. But severability analysis does not permit courts to rewrite statutes, much less would it permit courts to revise and modify an executive order in an effort to make it an assertion of presidential authority that complies with the law. See United States v. Rutherford, 442 U.S. 544, 555 (1979) (“Under our constitutional framework, federal courts do not sit as councils of revision, empowered to rewrite legislation in accord with their own conceptions of prudent public policy.”); R.R. Ret. Bd. v. Alton R. Co., 295 U.S. 330, 362 (1935) (“[W]e cannot rewrite a statute and give it an effect altogether different from that sought by the measure viewed as a whole.”). Further, there is no basis to conclude that the President would have signed a version of the order that excluded any of the classes of visa holders described above. Nor, for the reasons articulated by the State of Washington and other amici, would additional exclusions of visa classes from
16

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 23 of 25
Section 3(c) actually bring the EO into compliance with the law. The EO is not severable and must be enjoined in its entirety.
CONCLUSION For these reasons, and for the reasons stated in the various other briefs presented to the Court, Amici request that this Court deny the government’s motion to stay the temporary restraining order.
Respectfully submitted, s/ Charles Roth Charles Roth NATIONAL IMMIGRANT JUSTICE CENTER 208 South LaSalle Street, Suite 1300 Chicago, Illinois 60604 Tel: (312) 660-1613 Email: croth@heartlandalliance.org
17

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 24 of 25
CERTIFICATE OF COMPLIANCE I, Charles Roth, certify that:
This brief complies with the type-volume limitation of FED. R. APP. P. 32(a)(7)(B) because this brief contains 3822 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and is 20 pages or less;
This brief complies with the typeface requirements of FED. R. APP. P. 32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in Times New Roman, 14-point font.

Date: February 6, 2017

s/ Charles Roth Charles Roth NATIONAL IMMIGRANT JUSTICE CENTER 208 South LaSalle Street, Suite 1300 Chicago, Illinois 60604 Tel: (312) 660-1613 Email: croth@heartlandalliance.org

18

Case: 17-35105, 02/06/2017, ID: 10304057, DktEntry: 65-2, Page 25 of 25
CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing 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 6, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Date: February 6, 2017

s/ Charles Roth Charles Roth NATIONAL IMMIGRANT JUSTICE CENTER 208 South LaSalle Street, Suite 1300 Chicago, Illinois 60604 Tel: (312) 660-1613 Email: croth@heartlandalliance.org

19

 
 Case: 17-35105, 02/06/2017, ID: 10303796, DktEntry: 56, Page 1 of 2
February 6, 2017
United States Court of Appeals for the Ninth Circuit 1010 Fifth Avenue Seattle, WA 98104
Robert W. Ferguson, Attorney General, Washington State Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104
Lori Swanson Attorney General, Minnesota Office of the Attorney General 445 Minnesota Street, Suite 1100 St. Paul, MN 55101
Noel J. Francisco Acting Solicitor General Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington DC 20530
RE: State of Washington & State of Minnesota v. Trump, Case No. 17-35105 Pivotal Software, Inc.’s Joinder Letter in Lieu of Amicus Brief
To the Court and Counsel:
I write on behalf of Pivotal Software, Inc. pursuant to the Circuit Advisory Committee Note to Rule 29-1 to express Pivotal’s support for and joinder in the factual statements and arguments submitted to the Court in the February 5, 2017 Motion for Leave to File Brief of Technology Companies and Other Businesses as Amicus Curiae in Support of Appellees, and the Brief attached thereto (ECF No. 19).
Pivotal Software, Inc. is a leading technology company and its operations are affected by the Executive Order issued on January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” As set forth in the amicus brief, the Order represents a significant departure from the principles of fairness and predictability that have governed the immigration system of the United States for more than fifty years— and the Order inflicts significant harm on American business, innovation, and growth as a result. The Order makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world’s best employees. It disrupts ongoing business operations. And it threatens companies’ ability to attract talent, business, and investment to the United States.
Respectfully submitted,
s/ Andrew M. Cohen
Andrew M. Cohen SVP, General Counsel & Corporate Secretary
875 Howard Street, 5th Floor | San Francisco, CA 94103 | +1 (415) 777-4868 | pivotal.io

Case: 17-35105, 02/06/2017, ID: 10303796, DktEntry: 56, Page 2 of 2
9th Circuit Case Number(s) 17-35105

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

*********************************************************************************
CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing 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 (date)

.

2/6/2017

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Signature (use "s/" format) s/ Micah G. Block

*********************************************************************************
CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing 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 (date)

.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Signature (use "s/" format)

Case: 17-35105, 02/06/2017, ID: 10304032, DktEntry: 64, Page 1 of 7

February 6, 2017
BY ELECTRONIC DELIVERY
Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939
Re: Washington v. Trump, No. 17-35105

Mayer Brown LLP 1999 K Street, N.W. Washington, D.C. 20006-1101
Main Tel (202) 263-3000 Main Fax (202) 263-3300
www.mayerbrown.com
Andrew J. Pincus
Direct Tel (202) 263-3220 Direct Fax (202) 263- 5220
apincus@mayerbrown.com

Dear Ms. Dwyer,
The companies listed below join the proposed Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees (Dkt. No. 19-1), filed February 5, 2017 (starting with number 97, because our filing yesterday inadvertently listed one amicus twice):
97. Adobe Systems Incorporated
98. Affirm, Inc.
99. Ampush LLC
100. Brocade Communications Systems, Inc.
101. Bungie, Inc.
102. Casper Sleep Inc.
103. Cavium, Inc.
104. Chegg, Inc.
105. ClassPass Inc.

Case: 17-35105, 02/06/2017, ID: 10304032, DktEntry: 64, Page 2 of 7
106. Coursera 107. EquityZen Inc. 108. Evernote 109. Gusto 110. Handy Technologies, Inc. 111. HP Inc. 112. IAC/InterActiveCorp 113. Linden Lab 114. Managed By Q Inc. 115. MobileIron 116. New Relic, Inc. 117. Pandora Media, Inc. 118. Planet Labs Inc. 119. RPX Corporation 120. Shift Technologies, Inc. 121. Slack Technologies, Inc. 122. SpaceX 123. Tesla, Inc. 124. TripAdvisor, Inc. 125. Udacity, Inc. 126. Zendesk, Inc. 127. Zenefits
2

Case: 17-35105, 02/06/2017, ID: 10304032, DktEntry: 64, Page 3 of 7

Amici provide the corporate disclosures required by Fed. R. App. P. 26.1 and 29(c) in the attached Exhibit A. A copy of this letter will be served on all counsel of record.
Sincerely,

cc: counsel of record

/s/ Andrew J. Pincus

3

Case: 17-35105, 02/06/2017, ID: 10304032, DktEntry: 64, Page 4 of 7
CERTIFICATE OF SERVICE I certify that on this 6th day of February 2017, I served the foregoing letter regarding additional amici curiae via the Court’s ECF system upon all counsel.

Dated: February 6, 2017

/s/ Andrew J. Pincus Andrew J. Pincus MAYER BROWN LLP

Case: 17-35105, 02/06/2017, ID: 10304032, DktEntry: 64, Page 5 of 7
EXHIBIT A
CORPORATE DISCLOSURES FOR AMICI CURIAE
97. Adobe Systems Incorporated has no parent corporation and no publicly held corporation owns 10% or more of its stock.
98. Affirm, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
99. Ampush LLC has no parent corporation and no publicly held corporation owns 10% or more of its stock.
100. Brocade Communications Systems, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
101. Bungie, Inc. has no parent corporation and the following publicly held corporation owns 10% or more of its stock: Microsoft Corporation.
102. Casper Sleep Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
103. Cavium, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
104. Chegg, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
105. ClassPass Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
106. Coursera has no parent corporation and no publicly held corporation owns 10% or more of its stock.
107. EquityZen Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
108. Evernote Corporation has no parent corporation and no publicly held corporation owns 10% or more of its stock.
1a

Case: 17-35105, 02/06/2017, ID: 10304032, DktEntry: 64, Page 6 of 7
109. ZenPayroll, Inc., dba Gusto has no parent corporation and no publicly held corporation owns 10% or more of its stock.
110. Handy Technologies, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
111. HP Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
112. IAC/InterActiveCorp has no parent corporation and no publicly held corporation owns 10% or more of its stock.
113. Linden Research, Inc. d/b/a Linden Lab has no parent corporation and no publicly held corporation owns 10% or more of its stock.
114. Managed By Q Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
115. MobileIron, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
116. New Relic, Inc. has no parent corporation and the following publicly held corporation owns 10% or more of its stock: investment funds affiliated with T Rowe Price.
117. Pandora Media, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
118. Planet Labs Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
119. RPX Corporation has no parent corporation and no publicly held corporation owns 10% or more of its stock.
120. Shift Technologies, Inc. (“Shift”) has no parent corporation and the following publicly held corporation owns 10% or more of its stock: investment funds affiliated with Goldman Sachs Group Inc.
2a

Case: 17-35105, 02/06/2017, ID: 10304032, DktEntry: 64, Page 7 of 7
121. Slack Technologies, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
122. Space Exploration Technologies Corp. has no parent corporation and no publicly held corporation owns 10% or more of its stock
123. Tesla, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
124. TripAdvisor, Inc. has no parent corporation and the following publicly held corporation owns 10% or more of its stock: Liberty TripAdvisor Holdings, Inc.
125. Udacity, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
126. Zendesk, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
127. Zenefits has no parent corporation and no publicly held corporation owns 10% or more of its stock.
3a

Case: 17-35105, 02/06/2017, ID: 10304196, DktEntry: 75, Page 1 of 2
February 6, 2017 BY ELECTRONIC DELIVERY Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Re: Washingtonv. Trump,No.17-35105
Dear Ms. Dwyer, Groupon, Inc. hereby joins the proposed Brief of Technology
Companies and Other Businesses as Amici Curiae in Support of Appellees (Dkt. No. 19-1), filed February 5, 2017.
As required by Fed. R. App. P. 26.1 and 29(c), Groupon, Inc. states that it has no parent corporation and no publicly held corporation owns 10% or more of its stock.
A copy of this letter will be served on all counsel of record. Sincerely,
cc: counsel of record

Case: 17-35105, 02/06/2017, ID: 10304196, DktEntry: 75, Page 2 of 2
CERTIFICATE OF SERVICE I certify that on this 6th day of February 2017, I served the foregoing letter regarding additional amici curiae via the Court's ECF system upon all counsel.
Dated: February 6, 2017

Case: 17-35105, 02/07/2017, ID: 10304892, DktEntry: 95, Page 1 of 2
Postmates Inc. 425 Market Street, 8th Floor San Francisco, CA 94105
February 7, 2017 BY ELECTRONIC DELIVERY Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 RE: Washington v. Trump, Case No. 17-35105
Dear Ms. Dwyer: Postmates Inc. hereby joins the proposed Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees (Dkt. No. 19-1), filed February 5, 2017. As required by Fed. R. App. P. 26.1 and 29(c), Postmates Inc. states that it has no parent corporation and no publicly held corporation owns 10% or more of its stock. A copy of this letter will be served on all counsel of record. Respectfully submitted,
Robert H. Rieders , General Counsel & Corporate Secretary

Case: 17-35105, 02/07/2017, ID: 10304892, DktEntry: 95, Page 2 of 2
9th Circuit Case Number(s) 17-35105

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

*********************************************************************************
CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing 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 (date)

.

Feb 7, 2017

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Signature (use "s/" format) s/ Robert H. Rieders

*********************************************************************************
CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing 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 (date)

.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Signature (use "s/" format)

DocuSign Envelope ID: A4FA7C8EaBs-4eF:5C1-74B-3EC5-1BE0C5F,-40C271/06972/32C0561B7, ID: 10305081, DktEntry: 96, Page 1 of 2

405 Howard Street, Suite 550

info@fitbit.com

San Francisco, CA 94105

www.fitbit.com

February 7, 2017
BY ELECTRONIC DELIVERY
Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Re: Washington v. Trump, No. 17-35105
Dear Ms. Dwyer, Fitbit, Inc. hereby joins the proposed Brief of Technology Companies and Other Businesses
as Amici Curiae in Support of Appellees (Dkt. No. 19-1), filed February 5, 2017. As required by Fed. R. App. P. 26.1 and 29(c), Fitbit, Inc. states that it has no parent
corporation and no publicly held corporation owns 10% or more of its stock. A copy of this letter will be served on all counsel of record. Sincerely,

cc: counsel of record

Andy Missan Executive Vice President and General Counsel

Case: 17-35105, 02/07/2017, ID: 10305081, DktEntry: 96, Page 2 of 2

CERTIFICATE OF SERVICE
I certify that on this 7th day of February 2017, I served the foregoing letter regarding additional amici curiae via the Court's ECF system upon all counsel.

Dated: February 7, 2017

/_s__/__A_n_d__y__M_i_s__s_a_n_ Andy Missan

Case: 17-35105, 02/07/2017, ID: 10305087, DktEntry: 97, Page 1 of 2
February 7, 2017
BY ELECTRONIC DELIVERY Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Re: Washington v. Trump, No.17-35105 Dear Ms. Dwyer,
Molecule Software, Inc. hereby joins the proposed Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees (Dkt. No. 19-1), filed February 5, 2017.
As required by Fed. R. App. P. 26.1 and 29(c), Molecule Software, Inc. states that it has no parent corporation and no publicly held corporation owns 10% or more of its stock.
A copy of this letter will be served on all counsel of record. Sincerely,
_______________ Sameer Soleja
cc: counsel of record

Case: 17-35105, 02/07/2017, ID: 10305087, DktEntry: 97, Page 2 of 2

CERTIFICATE OF SERVICE
I certify that on this 7th day of February 2017, I served the foregoing letter regarding additional amici curiae via the Court's ECF system upon all counsel.

Dated: February 7, 2017

/_s__/__S_a_m__e_e_r__S_o__l_e_ja Sameer Soleja

Case: 17-35105, 02/07/2017, ID: 10305269, DktEntry: 99, Page 1 of 2
795 Folsom Street, 5'h Floor San Francisco, CA, 94107
mblvm@ q vantcast .com 1 (415) 777-1516
quantcast.com

BY ELECTRONIC DELIVERY

February 7, 2017

Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939

Re: Washington v. Trump, No. 17-35105

Dear Ms. Dwyer,

Quantcast Corp. hereby joins the proposed Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees (Dkt. No. 19-1), filed February 5, 2017.

As required by Fed. R. App. P. 26.1 and 29(c), Quantcast Corp . states that it has no parent
company and no publicly held corporation owns 10% or more of its stock.

A copy of this letter will be served on all counsel of record.

Sincerely,

cc: counsel of record

Mic Blum SVP Business & Legal Affairs

quantcast

Case: 17-35105, 02/07/2017, ID: 10305269, DktEntry: 99, Page 2 of 2

CERTIFICATE OF SERVICE
I certify that on this 7th day of February 2017, I served the foregoing letter regarding additional amici curiae via the Court’s ECF system upon all counsel.

Dated February 7, 2017

__/s/ Michael Blum________________

Case: 17-35105, 02/07/2017, ID: 10305403, DktEntry: 100-1, Page 1 of 1

CREDO"

101 Market Street, Suite 700, San Francisco, CA 94105 credomobile.com • credolongdlstance.com

(1 of 2)

February 7, 2017
BY ELECTRONIC DELIVERY Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Re: Washingtonv. Trump,No.17-35105 To Ms. Dwyer: CREDO Mobile, Inc. hereby joins the proposed Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees (Dkt. No. 19-1), filed February 5, 2017. CREDO Mobile, Inc. is a U.S.-based telecommunications company that donates a portion of its revenue to progressive non-profits and engages in social change activism. As required by Fed. R. App. P. 26.1 and 29(c), CREDO Mobile, Inc. states that Working Assets, Inc., is the parent company of CREDO Mobile, Inc. No publiclyheld corporation owns stock or any other interest in either CREDO Mobile, Inc. or Working Assets, Inc. A copy of this letter will be served on all counsel of record. Sincerely,
Legal Director cc: counsel of record
®Printed on chlorine-free, 100% post-consumer recycled paper.

Case: 17-35105, 02/07/2017, ID: 10305403, DktEntry: 100-2, Page 1 of 1
9th Circuit Case Number(s) 17-35105

(2 of 2)

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

*********************************************************************************
CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing 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 (date)

.

February 7, 2017

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Signature (use "s/" format) s/David A. Kramlick

*********************************************************************************
CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing 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 (date)

.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Signature (use "s/" format)

Case: 17-35105, 02/07/2017, ID: 10305428, DktEntry: 101, Page 1 of 2

Case: 17-35105, 02/07/2017, ID: 10305428, DktEntry: 101, Page 2 of 2

CERTIFICATE OF SERVICE
I certify that on this 7th day of February 2017, I served the foregoing letter regarding additional amici curiae via the Court’s ECF system upon all counsel.

Dated February 7, 2017

__/s/ Melanie Haratunian________

Case: 17-35105, 02/07/2017, ID: 10305526, DktEntry: 102, Page 1 of 2

FENWICK & WEST LLP
555 CALI FORNI A STREET, 12TH FLOOR SAN FRANCISCO, CA 94104
TEL 4 15. 875.2300 FAX 415 . 281.1350 WWW.F ENWI CK .COM

ANDREWP. BRIDGES

February 7, 20 17

EMAIL ABRIDGES@FENWICK.COM
Direct Dial (415)875-2389

BY ECF FILING
Ms. Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 941 19-3939
Re: Washington v. Trump, Case No. 17-35105: Joinder of SoundC loud, Inc., in motion or leave and brief ofAmici Curiae Technology Companies and Other Businesses Supporting Appellees
Dear Ms. Dwyer:
SoundCloud, Inc. by this letter joins both the motion of "Technology Companies and Other Businesses" for leave to file an amicus brief (Dkt. 19-1) and the proposed Brief of Technology Compan ies and Other Businesses as Amici Curiae in Support of Appellees (Dkt. 192), which those movants filed on February 5, 20 17.
SoundCloud expressly adopts and endorses the arguments in the proposed brief and the points in the underlying motion; the motion and the brief also reflect its interests as an amicus curiae. To the extent necessary, this letter incorporates by reference both the motion and brief.
Corporate Disc losure Statement: SoundC loud, Inc. states that its parent corporation, SoundCloud Limited, wholly owns it.
I attach a certificate of service showing that I am serving this letter on all counsel of record .
Respectfully submitted,
FENWICK & WEST LLP

APB: lm

Attorney for SoundCloud, Inc.

Case: 17-35105, 02/07/2017, ID: 10305526, DktEntry: 102, Page 2 of 2
CERTIFICATE OF SERVICE
r certify that on this 7th day of February 2017, I served this letter upon all counsel
of record by means of the Court's ECF system. Dated: February 7, 2017

Case: 17-35105, 02/07/2017, ID: 10305547, DktEntry: 104, Page 1 of 2

Case: 17-35105, 02/07/2017, ID: 10305547, DktEntry: 104, Page 2 of 2

Case: 17-35105, 02/07/2017, ID: 10306109, DktEntry: 117, Page 1 of 2

::: medidata

350 Hudson Street Floor 9 New York NY 10014 Un ited States mdsol.com

BY ELECTRONIC DELIVERY
February 7, 2017
Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939
Re: Washington v. Trump, No. 17-35105
Dear Ms. Dwyer,
Medidata Solutions, Inc. hereby joins the proposed Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees (Dkt. No. 19-1 ), filed February 5, 2017.
As required by Fed. R. App. P. 26.1 and 29(c), Medidata Solutions, Inc. states that it has no parent corporation and no publicly held corporation owns 10% or more of its stock.
A copy of this letter will be served on all counsel of record.
Very truly yours,
MEDIDATA SOLUTIONS, INC.

cc: Counsel of record

Michael I. Otner Executive Vice President and General Counsel

Case: 17-35105, 02/07/2017, ID: 10306109, DktEntry: 117, Page 2 of 2
CERTIFICATE OF SERVICE I hereby certify that on February 7, 2017, the foregoing was electronically filed with the Clerk of Court using the CM ECF system, which will send notification to all counsel of record in this matter who are registered with the Court s CM ECF system.
s Michael I. Otner

Case: 17-35105, 02/07/2017, ID: 10306139, DktEntry: 118, Page 1 of 5

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al. Plaintiffs-Appellees,
v.

No: 17-35105
D.C. No. 2:17-cv-00141-JLR Western District of Washington

DONALD J. TRUMP, President of the United States, et al, Defendant-Appellants

TECHNOLOGY START-UPS AMICI JOINDER IN PROPOSED AMICI CURIAE BRIEF
FILED BY THE TECHNOLOGY COMPANIES The technology and other start-up entities listed below (the “Start-Ups Amici”) respectfully join as supplemental Amici in the Amici Curiae Brief filed by the Technology Companies and Other Businesses at Docket 19-1 in support of Appellees:
• Alta Plana Corporation • Amitree Inc. • Bright Idea Energy Solutions Inc. • Cognitive Computing Consortium • iCouldBe.Org Inc.
1

Case: 17-35105, 02/07/2017, ID: 10306139, DktEntry: 118, Page 2 of 5
• Indico Inc. • JP Linguistics Inc. • Lending Robot Inc. • Loop AI Labs Inc. • The Kitchens Inc., DBA Forkable • The Social Edge Inc. • TwoToTango Inc. • Unitive Inc. • Vital AI LLC Start-up companies contribute substantially to this country’s economic prosperity and growth potential and for reasons similar to those already set forth by the Technology Companies in their Amici Brief, start-ups are especially affected by the immigration order at issue. Many start-up companies are founded by, and rely heavily on the hard work of immigrants. Orders of the type at issue here cause immediate harm to technology companies, their employees and their families, and the competitiveness of the United States in the global market for innovation. In many instances, the technological innovation driven by U.S. start-ups contributes not only to the national prosperity but also to the national security. Implementation of the immigration order at issue thus has the potential to harm the country’s security as well as its prosperity. Accordingly, the Start-Ups Amici join the
2

Case: 17-35105, 02/07/2017, ID: 10306139, DktEntry: 118, Page 3 of 5

Technology Companies Amici in their Brief filed in support of Appellees in the above captioned proceeding and respectfully urge this Court to uphold Judge Robart’s ruling.
Pursuant to 26.1(a) and 29(a)(4)(A), the Start-Ups Amici respectfully provide their corporate disclosure statement in the attached Exhibit 1.

February 7, 2017

Respectfully submitted,
By: /s/ Valeria Calafiore Healy Valeria Calafiore Healy, Esq. HEALY LLC 154 Grand Street New York, New York 10013 Telephone: (212) 810-0377 Facsimile: (212) 810-7036 On behalf of the Start-Ups Amici Curiae.

3

Case: 17-35105, 02/07/2017, ID: 10306139, DktEntry: 118, Page 4 of 5
EXHIBIT 1
CORPORATE DISCLOSURE OF TECHNOLOGY AND OTHER STARTUPS AMICI
1. Alta Plana Corporation has no parent corporation and no publicly held corporation owns 10% or more of its stock.
2. Amitree Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
3. Bright Idea Energy Solutions Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
4. Cognitive Computing Consortium has no parent corporation and no publicly held corporation owns 10% or more of its stock.
5. iCouldBe.Org, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
6. Indico Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
7. JP Linguistics Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
8. Lending Robot Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
9. Loop AI Labs Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
10. The Kitchens Inc, DBA Forkable, has no parent corporation and no publicly held corporation owns 10% or more of its stock.
11. The Social Edge Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
12. TwoToTango Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
13. Unitive Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
14. Vital AI LLC has no parent corporation and no publicly held corporation owns 10% or more of its stock.

Case: 17-35105, 02/07/2017, ID: 10306139, DktEntry: 118, Page 5 of 5
CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing 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 7, 2017. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

January 7, 2017

By: /s/ Valeria Calafiore Healy____ Valeria Calafiore Healy, Esq. HEALY LLC
On behalf of Start-Ups Amici.

Case: 17-35105, 02/07/2017, ID: 10306284, DktEntry: 119, Page 1 of 2

Kevin P. Martin +1 617 570 1186 kmartin@goodwinlaw.com

Goodwin Procter LLP 100 Northern Avenue Boston, MA 02210
goodwinlaw.com +1 617 570 1000

February 7, 2017

VIA CM/ECF Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Re: State of Washington, et al. v. Donald J. Trump, et al., No. 17-35105 Dear Ms. Dwyer: OneLogin, Inc. hereby joins the Motion and Proposed Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees (Dkt. Nos. 19-1, 19-2), filed on February 5, 2017. As required by Fed. R. App. P. 26.1 and 29(c), OneLogin, Inc. states that it has no parent corporation and that no publicly held corporation owns 10% or more of its stock. A copy of this letter will be served on all counsel of record. Sincerely,
s/ Kevin P. Martin Kevin P. Martin Attorney for OneLogin, Inc.
cc: All counsel of record

ACTIVE/89524878.1

Case: 17-35105, 02/07/2017, ID: 10306284, DktEntry: 119, Page 2 of 2
Molly Dwyer, Clerk of Court February 7, 2017 Page 2
Certificate of Service I hereby certify that I electronically filed the foregoing 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 7, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/ Kevin P. Martin
ACTIVE/89524878.1

Case: 17-35105, 02/07/2017, ID: 10306288, DktEntry: 120, Page 1 of 2

February 7, 2017

Aaron M. McKown
Direct Phone 305-424-9020 Direct Fax 786-220-0205 amckown@cozen.com

BY ELECTRONIC DELIVERY
Molly Dwyer, Clerk of the Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939

Re: Washington v. Trump, No. 17-35105
Dear Ms. Dwyer,
We represent GoDaddy, Inc. (“GoDaddy”). Pursuant to the Circuit Advisory Committee Note to Rule 29-1, GoDaddy hereby joins the proposed Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees (Dkt. No. 19-1), filed February 5, 2017.
As required by Fed. R. App. P. 26.1 and 29(c), GoDaddy states that it is a publicly traded company on the New York Stock Exchange (GDDY). GoDaddy states that it has no parent corporation. Kohlberg Gravis Roberts and & Co. L.P. indirectly owns more than 10% of the stock in GoDaddy, Inc. through its membership interests in Desert Newco, LLC.
A copy of this letter will be served on all counsel of record.
Sincerely,
COZEN O’CONNOR

cc: counsel of record

By: AARON M. McKOWN

2 S. Biscayne Boulevard, One Biscayne Tower, 30th Floor Miami, FL 33131 305.424.9020 800.215.2137 786-220-0205 Fax cozen.com

Case: 17-35105, 02/07/2017, ID: 10306288, DktEntry: 120, Page 2 of 2

CERTIFICATE OF SERVICE
I certify that on this 7th day of February 2017, I served the foregoing letter regarding additional amici curiae via the Court’s ECF system upon all counsel of record.

Dated: February 7, 2017

s/Aaron M. McKown

2

February 8, 2017
VIA ECF FILING
Ms. Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939
Re: Washington v. Trump, Case No. 17-35105: Joinder of DiCentral Corporation Dear Ms. Dwyer:
DiCentral Corporation by this letter joins Technology Companies and Other Businesses’ motion for leave to file an amicus brief [Dkt. 19-1] and the proposed Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees [Dkt. 19-2], both filed on February 5, 2017.
DiCentral Corporation expressly adopts and endorses the arguments in the proposed brief and the points in the underlying motion; the motion and the brief also reflect its interests as an amicus curiae. To the extent necessary, this letter incorporates by reference both the motion and brief.
Corporate Disclosure Statement: As required by FED. R. APP. P. 26.1 and 29(c) DiCentral Corporation states that it has no parent corporation and no publicly held corporation owns 10% or more of its stock.
I attach a certificate of service showing that I am serving this letter on all counsel of record.
Respectfully submitted,
Huan Le General Counsel
1199 NASA Parkway, Houston, Texas 77058 281.480.1121 dicentral.com

CERTIFICATE OF SERVICE
I certify that on this 8th day of February 2017, I served this letter upon all counsel of record by means of the Court’s ECF system. Dated: February 8, 2017
/s/Huan Le Huan Le

Case: 17-35105, 02/08/2017, ID: 10307838, DktEntry: 129, Page 1 of 2
650 Page Mill Road Palo Alto, CA 94304-1050
PHONE 650.493.9300 FAX 650.493.6811 www.wsgr.com
February 8, 2017
VIA CM/ECF Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939
Re: State of Washington, et al. v. Donald J. Trump, et al., No. 17-35105 Dear Ms. Dwyer:
MongoDB, Inc. hereby joins the Motion and Proposed Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees (Dkt. Nos. 19-1, 19-2), filed on February 5, 2017.
As required by FED. R. APP. P. 26.1 and 29, MongoDB, Inc. states that it has no parent corporation and that no publicly held corporation owns 10% or more of its stock.
A copy of this letter will be served on all counsel of record.
Sincerely, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ Dale Bish Dale Bish James C. Yoon Jason Storck Counsel for MongoDB, Inc.
cc: All counsel of record
AUSTIN BEIJING BOSTON BRUSSELS HONG KONG LOS ANGELES NEW YORK PALO ALTO
SAN DIEGO SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON, DC WILMINGTON, DE

Case: 17-35105, 02/08/2017, ID: 10307838, DktEntry: 129, Page 2 of 2
Molly Dwyer February 8, 2017 Page 2
CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing 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 8, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
/s/ Dale Bish

FENWICK &WEST LLP
S I LI CO N VA LLE Y CENTE R 801 CA LI FORN IA STREET M O U NTA I N V I EW, CA 94041 T EL 650.988.8 500 FAX 65 0.938. 520 0 W WW . FENWICK . CO M

VIRGINIA K. DEMARCHI

February 9, 2017

EMAIL VDEMARCHl@FENWICK.COM
Direct Dial (650) 335·7967

BY ECF FILING
Ms. Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939
Re: State of Washington, et al. v. Donald J. Trump, et al., No. 17-35105: Joinder of Redfin Corporation in motion for leave to file an amicus brief and the proposed brief of Amici Curiae Technology Companies and Other Businesses Supporting Appellees
Dear Ms. Dwyer:
Pursuant to Circuit Advisory Committee Note to Rule 29-1, Redfin Corporation hereby joins both the motion of "Technology Companies and Other Businesses" for leave to file an amicus brief (Dkt. 19-1) and the proposed Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees (Dkt. 19-2), which those movants filed on February 5, 2017.
Redfin Corporation expressly adopts and endorses the arguments in the proposed brief and the points in the underlying motion. The motion and the brief also reflect its interests as an amicus curiae.
Redfin Corporation states that it has no parent corporation and that no publicly held corporation owns 10% or more of its stock.
A copy of this letter will be served on all counsel of record.
Respectfully submitted,
FENWICK & WEST LLP

Virginia K. DeMarchi

CERTIFICATE OF SERVICE
I certify that on this 9th day of February 2017, I served this letter upon all counsel of record by means of the Court’s ECF system.

Dated: February 9, 2017

/s/ Virginia K. DeMarchi Virginia K. DeMarchi

WHOmentors.com, Inc. Mail - Amicus Curiae Motion & Brief Opposing Executive

13769, Jan 27, 2017_

2/9/17, 11:49 AM

i l¥H0 TORS.COM

Rau!rn10!

<rau

WHOMfi!NTORS.COM

-----·-----·-·-··-------·-··--
Amicus Curiae Motion & Brief Opposing Executive Order 13769, Jan 27, 2017

---······--·-·-·---------·----Rauhmel Fox, CEO, WHOmentors.com, Inc. <rauhmel@whomentors.com> To: rauhmel <Rauhmel@whomentors.com>
(page 1 of 2)

Wed, Feb 8, 2017at11:15 AM

February 8, 2017

BY ELECTRONIC DELIVERY

Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939

. Re: Washington v. Trump, No. 17-35105

Dear Ms. Dwyer: WHOmentors.com, Inc., an H-1 B "Cap-Exempt" Employer and 509(a)(2) Nonprofit Research Organization (as defined by Title 8 C.F.R. § 214.2(h)(l9)(iii)(C)), hereby joins the proposed Brief of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees-Defendants (Dkt. No. 19-1), filed February 5, 2017. As required by Fed. R. App. P. 26.1 and 29(c), WHOmentors.com, Inc. states that it has no parent corporation and no public or private traded stock.
A copy of this letter will be served on all counsel of record.
Sincerely,

RAUHMEL FOX Ra1,.Jhmel Fox, CEO

cc: counsel of record

https://mail.goog le .com/mail/u/0/?ui=2&i k=e4afe1bdda&view=pt&search=sent&th=15a1f2684c6ee661&siml=15a1f2684c6ee661

Page 1 of 2

WHOmentors.com, Inc. Mail - Amicus Curiae Motion & Brief Opposing Executive Order 1.3769, Jan 27, 2017

2/9/17, 11:49 AM

(page 2 of 2) CERTIFICATE OF SERVICE
I certify that on this9 th day of February 2017, I served the foregoing letter regarding additional amici curiae via the Court's ECF system upon all counsel. Dated February 9, 2017
Is RAUHMEL FOX CEO

WHOmentors.com, Inc. §509(a)(2) Scientific Research Corporation §501 (c)(3) Fiscal Sponsor of Nonexempt Projects Cap-Exempt H-18 Employer 8 CFR §214.2(h)(19)(iii)(C) Schedule an appointment: http://www.vcita.com/v/rauhmel.fox
"Rauhmel Fox" (pronounced RaOhmal Fox) Robinson, CEO Prior-Enlisted Alumnus, United States Air Force Academy Adviser solely to 1B U$D WORLDWIDE VENTURE CAPITAL FUND Reputable Individual 8 CFR §1292.1 (a)(3) Mayor, Tech Startup Area5M, California
E-mail: Rauhmel@WHOmentors.com Phone/SMS Text: 1-415-373-6767 SMS text WHOMENTORSDOTCOM to 50500 Add Contact Information to a Smartphone: http://411.WHOmentors.com

https ://mai I.goog Ie.com/ma il/u/0/?u i= 2 &i k= e4afe1 bd da&v iew= pt&searc h= sent&th =15a1f2 68 4c6 ee6 61 &sim I=15a1f2 6 84c6ee661

Page 2 of 2

FATHOM LAW

February 9, 201 7
VIA EMAIL
United States Court of Appeals for the Ninth Circuit 1010 Fifth Avenue Seattle, WA 98104
Robert W. Ferguson, Attorney General Washington State Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104
Lori Swanson Attorney General Minnesota Office of the Attorney General 445 Minnesota Street, Suite 1100 St. Paul, MN 5510 l
Noel J. Francisco Acting Solicitor General Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington DC 20530
Re: State of Washington & State of Minnesota v. Trump, Case No.17-35105 Skycatch, Inc.'s Joinder Letter in Lieu of Amicus Brief
To The Court and Counsel:
On behalf of Skycatch, Inc., ("Skycatch") and pursuant to Circuit Advisory Committee Note to Rule 29-1 , we submit this letter to express Skycatch' s endorsement of and joinder in the factual assertions and arguments submitted on February 5, 2017 by the Movants in their Motion for Leave to File Brief of Technology Companies and Other Business as Amicus Curiae in Support of Appellees and attached Brief (ECF No. 19).
Skycatch is a company headquartered in San Francisco, California that provides specialized hardware and software solutions to domestic and international clients in a variety of industries, including construction, mining, and energy. Skycatch employees are highly specialized workers

• • • fathom/aw.com

415 .231.5501 // info@fatho m l aw.com 111 Sutter St . Ste 1975, San Francisco , CA 94104

United States Court of Appeals for the Ninth Circuit February 9, 2017 Page 2
with unique skillsets who must engage in international travel as part of their essential job functions.
Some of Skycatch ' s workers, current and future , are or may be non-citizens who legally reside and work in the United States and who are or may be adversely impacted by the Executive Order issued on January 27, 2017, " Protecting the Nation from Foreign Terrorist Entry into the United States.," (the "Executive Order"). Specifically, the Executive Order places Skycatch in the untenable position of violating both the U.S. Constitution and a variety of non-discrimination statutes by examining the country of origin of applicants and considering whether a job applicant will be prohibited from international travel under the Executive Order in its hiring decisions. Additionally, Skycatch joins in the assertion that the effects of the Executive Order are unfair and represent a significant departure from the longstanding values embodied in the US immigration system.
Very truly yours,
FATHOM LAW, PC
P{f(JJJZ
Erin Leigh-Dake, Esq. Attorney for Skycatch, Inc.

_ _ _ _ _ _ _ _ __ _ __ __ _ __ _

NOTE: To secure your input, you should print the filled-in form to PDF (File> Print> PDF Printer/Creator).

********************************************************************************* CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system

I on (date) Feb 9, 2017

I. ·

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Signature (use "s/" format) Is/ Erin-Leigh Dake

********************************************************************************* CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing 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 (date)
Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Signature (use "s/" format)

 
 Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 1 of 13

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD J. TRUMP, President of the United States, et al., Defendants-Appellants.
On Motion for a Stay Pending Appeal of a Temporary Restraining Order Issued by the United States District Court
for the Western District of Washington, Case No. 2:17-cv-00141, Hon. James L. Robart
BRIEF OF AMICUS CURIAE THE AMERICAN CENTER FOR LAW AND JUSTICE IN SUPPORT OF DEFENDANTS-APPELLANTS’ MOTION FOR A STAY

ERIK ZIMMERMAN AMERICAN CENTER FOR LAW
AND JUSTICE 3001 Plymouth Road, Suite 203 Ann Arbor, Michigan 48105 Telephone: (734) 680-8007 Facsimile: (734) 680-8006 Email: ezimmerman@aclj.org
Counsel for Amicus Curiae

JAY ALAN SEKULOW
Counsel of Record AMERICAN CENTER FOR LAW
AND JUSTICE 201 Maryland Avenue, NE Washington, D.C. 20002 Telephone: (202) 546-8890 Facsimile: (202) 546-9309 Email: sekulow@aclj.org
Counsel for Amicus Curiae

Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 2 of 13
TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii CORPORATE DISCLOSURE STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 29(A)(4)(A)...........................1 CERTIFICATION PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 29(A)(4)(E)................................................................1 STATEMENT OF INTEREST OF AMICUS CURIAE.............................................1 BACKGROUND .......................................................................................................2 I. The District Court Failed to Support its Extraordinary Remedy With
Meaningful Legal or Factual Analysis.. ...............................................................3 II. The District Court’s Temporary Restraining Order Affronts the Constitution
and Congress.........................................................................................................5 CONCLUSION ..........................................................................................................8
i

Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 3 of 13
TABLE OF AUTHORITIES CASES
Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016) ......................................5 Fiallo v. Bell, 430 U.S. 787 (1977) ...........................................................................5 Harisiades v. Shaughnessy, 342 U.S. 580 (1952)......................................................5 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ...............................................7 Landon v. Plasencia, 459 U.S. 21 (1982)..................................................................6 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................3 Stormans, Inc. v. Selecky,
586 F.3d 1109 (9th Cir. 2009) ..............................................................................4 United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950)..............................................................................................6 University of Texas v. Camenisch, 451 U.S. 390, 395 (1981) ..........................................................................................4 Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ............................................................................................. 3-4 Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952)..............................................................................................6 Zivotofsky ex rel. Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015)..........................................................................................6 STATUTES
8 U.S.C.S. § 1101(a)(42)(A)......................................................................................6 8 U.S.C. § 1182(f) .....................................................................................................5
ii

Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 4 of 13
8 U.S.C. 1187(a)(12)..................................................................................................7 OTHER AUTHORITY
U.S. Const. Article II .................................................................................................6 Executive Order: Protecting the Nation from Foreign Terrorist Entry into the
United States (Jan. 27, 2017) ....................................................................... 1, 6-7 Federal Rule of Appellate Procedure 29(a)(4)(A) .....................................................1 Federal Rule of Appellate Procedure 29(a)(4)(E)......................................................1
iii

Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 5 of 13
CORPORATE DISCLOSURE STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 29(A)(4)(A) Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(A), the American Center for Law and Justice makes the following disclosures: 1) Nongovernmental corporate parties list all parent corporations: None 2) Nongovernmental corporate parties list all publicly held companies that
hold 10% or more of the party’s stock: None
CERTIFICATION PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 29(A)(4)(E) Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), the American Center for Law and Justice affirms that no counsel for a party authored this brief in whole or in part and that no person other than the amicus, its members, or its counsel has made any monetary contributions intended to fund the preparation or submission of this brief.
STATEMENT OF INTEREST OF AMICUS CURIAE Amicus Curiae the American Center for Law and Justice is an organization dedicated to the defense of constitutional liberties secured by law. Counsel for the ACLJ have presented oral argument, represented parties, and submitted amicus briefs before the United States Supreme Court and numerous state and federal courts around the country in cases concerning the First Amendment and immigration law, including FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007),
1

Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 6 of 13
McConnell v. FEC, 540 U.S. 93 (2003), and United States v. Texas, 136 S. Ct. 2271 (2016). The ACLJ has been active in advocacy and litigation concerning the need for protecting the Constitution, the First Amendment, the separation of powers, and the immigration laws in place that protect American Citizens from harm.
BACKGROUND On January 27, 2017, the President of the United States executed his Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States (Jan. 27, 2017) (Executive Order). In pertinent part, the Executive Order (1) suspends immigrant and nonimmigrant entry from seven countries of particular concern designated as such by the prior administration; (2) pauses the U.S. Refugee Admissions Program (USRAP) for 120 days to allow necessary improvements to the program to be identified and implemented; and (3) prioritizes claims of people seeking refugee status due to religious persecution from countries where their religion is a minority. Importantly, nothing in the Executive Order bans the entry of Muslims because they are Muslims or even identifies any particular religion or faith. On February 3, 2017, the United States District Court for the Western District of Washington entered a Temporary Restraining Order barring enforcement of substantive provisions of the President’s Executive Order.
2

Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 7 of 13
According to the District Court, its Temporary Restraining Order had nationwide application — even though only two States appear as plaintiffs.1 I. The District Court Failed to Support its Extraordinary Remedy With
Meaningful Legal or Factual Analysis. The District Court’s Temporary Restraining Order contains no meaningful legal analysis. The Court’s Order contains only a recitation of legal standards; but contains no application of any substantive law to a single fact. Nowhere in the District Court’s Order is there any citation to or analysis of a statute or an article of or amendment to the Constitution that the President’s Executive Order allegedly offends. This defect is of particular moment here because the type of relief Plaintiffs seek is well known to be “extraordinary.” See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (TRO is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief”). For such extraordinary relief to be, in fact, extraordinary, it must not to be lightly or routinely granted. A plaintiff must clearly show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary
1 The Court also entered the injunction at the behest of two States — parties that are not themselves even subject to the Executive Order and lack Article III standing or any right to challenge the denial of entry or visas to third-party aliens. In any event, Plaintiffs’ likelihood of success on the issue of standing is anything but clear. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992) (concerning standing; explaining that certain regulatory matters are “the function of Congress and the Chief Executive” and not the federal courts).
3

Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 8 of 13
relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) (citing Winter, 555 U.S. at 20). A clear showing as to each and every element of this standard is, admittedly, a heavy burden. But that is precisely the way it is meant to be, as a temporary restraining order provides extraordinary relief without the benefit of a full trial or merits hearing. See University of Texas v. Camenisch, 451 U.S. 390, 396 (1981) (“[W]here a federal district court has granted a preliminary injunction, the parties generally will have had the benefit neither of a full opportunity to present their cases nor of a final judicial decision based on the actual merits of the controversy.”). In the realm of national security decisions, like those made by the President here and reflected in the challenged Executive Order, judicial intervention without a full trial can be dangerous. At the very least, such an extraordinary order by a court required a convincing and extensive legal analysis, which the District Court failed to provide. Merely stating, without explanation or analysis, that the Plaintiffs had shown a high likelihood of success on the merits cannot be enough — especially when a court is purporting to bar nationwide enforcement of a President’s Executive Order expressly made in the interest of national security.
4

Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 9 of 13
II. The District Court’s Temporary Restraining Order Affronts the Constitution and Congress. It is undeniable that the admission of, or refusal to admit, any refugee or
alien is a sovereign act of the United States. “The Supreme Court has ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). The District Court’s Temporary Restraining Order contravened the considered judgment of Congress that the President should have the unreviewable authority to suspend the admission of any class of aliens. There can be no doubt that Congress expressly delegated to the President broad discretionary authority: 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,” the President has the authority to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” 8 U.S.C. § 1182(f).
The express delegation of powers by Congress is but part of the equation. The United States Constitution grants to the President inherent foreign affairs and national security powers. U.S. Const. Article II; Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952) (recognizing that immigration control is an integral part of
5

Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 10 of 13
Article II authorities “in regard to the conduct of foreign relations [and] the war
power”). Where, as here, a President’s executive action is based on this
convergence of authority, the President’s “authority is at its maximum, for it
includes all that he possesses in his own right plus all that Congress can delegate.”
Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84 (2015);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-36 (1952).
To be sure, “an alien seeking initial admission to the United States requests a
privilege and has no constitutional rights regarding his application, for the power to
admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459 U.S.
21, 32 (1982); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542
(1950) (“[A]n alien who seeks admission to this country may not do so under any
claim of right. Admission of aliens to the United States is a privilege granted by
the sovereign United States Government. Such privilege is granted to an alien only
upon such terms as the United States shall prescribe.”). 2 Moreover, the
2Again, the President’s Executive Order makes no reference to any particular faith or religion and can no more implicate the Establishment Clause than does 8 U.S.C.S. § 1101(a)(42)(A), the congressional statute expressly defining “refugee” to include persons fleeing actual or feared persecution on account of their religion. Neither the President’s nor the Congress’ recognition of religious persecution as a lawful ground for granting refugee status and eligibility for asylum constitutes forbidden governmental favor of one religion over another or entanglement. Properly understood, the Executive Order — providing that aliens seeking refugee status on account of religious persecution are to be given priority if their religion is a minority religion in their country — makes excellent sense. Around the globe, one whose religion is a minority is much more likely to be persecuted. The result Plaintiffs seek would have extremely negative and farreaching consequences for refugees of all religions. Regardless, this is a policy determination by the political branches concerning non-resident aliens, to whom the First Amendment has not been held to apply.
6

Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 11 of 13
Constitution “is not a suicide pact,” Kennedy v. Mendoza-Martinez, 372 U.S. 144,
160 (1963), and the first responsibility of the United States government is national
defense and security. The President’s Executive Order was based on precisely that
responsibility.
The directives contained in the President’s Executive Order3 are closely
tethered to discretionary powers vested in the Executive Branch by the
Constitution and Congress and clearly fall within the President’s well-established
constitutional and statutory authority. The Executive Order does not ban Muslim
immigrants or refugees because they are Muslims and makes no reference to any
3Cutting through the hyperbole and inflammatory rhetoric surrounding the Order, Amicus Curiae urges this Court to carefully consider what the President’s Executive Order actually does and what it does not do. Expressly relying on authority and procedures set forth in 8 U.S.C. 1187(a)(12), the Order suspends for 90 days the entry of people from “countries of particular concern” (currently Iran, Iraq, Syria, Sudan, Libya, Yemen and Somalia – all countries already designated as such during President Obama’s administration). Sec. 3(c). Among other reasons, this 90-day pause is “to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals.” Id. Certain diplomatic and governmental visa holders are exempted. The Order also requires a “determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days”; the U.S. Department of State to request such information from all foreign governments; and a recommendation of countries whose nationals should be prohibited entry due to a country’s failure to provide the information. Sec. 3.
Concerning refugee acceptance, the Executive Order suspends the USRAP for 120 days, during which the program will be reviewed “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.” Sec. 5(a). The Order also “prioritize[s] 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.” Sec. 5(b). The Order suspends the acceptance of Syrian refugees as “detrimental to the interests of the United States” until “sufficient changes” have been made to the refugee program. Sec. 5(c). The Order decreases the overall refugee cap to 50,000, Sec. 5(d), much closer to normal refugee limits before the prior administration dramatically increased the number this past year. It is abundantly clear that the President clearly has the discretionary authority to make this adjustment.
7

Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 12 of 13

specific religion. Instead, the Executive Order simply pauses the entry of

immigrants from certain unstable and terrorism-infested countries and refugees for

the clearly articulated purpose of allowing time for needed improvements to the

United States’ outdated immigration and refugee screening process. The countries

whose nationals are implicated in the Order were already designated as countries

of particular concern during the prior administration.

CONCLUSION

Wherefore, for these reasons and others, the Amicus Curiae respectfully

urges this Court to stay the District Court’s Temporary Restraining Order and

sustain the Defendants-Appellants’ Motion.

Dated: February 6, 2017. Respectfully submitted,

/s/ Erik Zimmerman ERIK ZIMMERMAN AMERICAN CENTER FOR LAW
AND JUSTICE 3001 Plymouth Road, Suite 203 Ann Arbor, Michigan 48105 Telephone: (734) 680-8007 Facsimile: (734) 680-8006 Email: ezimmerman@aclj.org
Counsel for Amicus Curiae

JAY ALAN SEKULOW
Counsel of Record AMERICAN CENTER FOR LAW
AND JUSTICE 201 Maryland Avenue, NE Washington, D.C. 20002 Telephone: (202) 546-8890 Facsimile: (202) 546-9309 Email: sekulow@aclj.org
Counsel for Amicus Curiae

8

Case: 17-35105, 02/06/2017, ID: 10303974, DktEntry: 62-2, Page 13 of 13

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion of the

American Center for Law and Justice for Leave to File its Amicus Curiae Brief and

the proposed Brief of Amicus Curiae were electronically filed with the Clerk of

Court for the United States Court of Appeals for the Ninth Circuit on February 6,

2017, using CM/ECF, which will send notification of such filing to counsel of

record.

Dated: February 6, 2017.

Respectfully submitted,

/s/ Erik Zimmerman ERIK ZIMMERMAN AMERICAN CENTER FOR LAW
AND JUSTICE 3001 Plymouth Road, Suite 203 Ann Arbor, Michigan 48105 Telephone: (734) 680-8007 Facsimile: (734) 680-8006 Email: ezimmerman@aclj.org
Counsel for Amicus Curiae

 
 Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-1, Page 1 of 8
No. 17-35105 ___________________________________________
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________________________________
STATE OF WASHINGTON, et al., Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.
_____________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
______________________________________________
MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE LAW PROFESSORS
IN SUPPORT OF NEITHER PARTY
Claire Loebs Davis Jessica N. Walder LANE POWELL PC 1420 Fifth Avenue, Suite 4200 Seattle, WA 98111 Telephone: 206.223.7000 Facsimile: 206.223.7107 Attorneys for Proposed Amici Curiae Law Professors

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-1, Page 2 of 8
Non-party law professors, Todd Aagaard, David E. Adelman, Robin Kundis Craig, Lincoln L. Davies, Noah Hall, F., Dave Owen, Zygmunt J. B. Plater, Alexander T. Skibine, Lisa Grow Sun, Joseph P. Tomain, and Amy J. Wildermuth, (“the Law Professors”) hereby move for leave to file an amicus curiae brief, and for the Court to consider the Law Professors’ attached brief on the issue of state standing in adjudicating Defendants-Appellants’ Emergency Motion for Stay (“Emergency Motion”). The Law Professors respectfully request that the Court consider this brief because the Law Professors are scholars on the issue of state standing and hope the Court may benefit from their analysis of this issue. The Law Professors maintain a neutral position on the underlying merits of the case, and are not filing this brief in support of either party. The Law Professors rather seek to offer guidance to the Court to help resolve the issue of state standing consistent with current law.
I. INTEREST OF THE LAW PROFESSORS The Law Professors are scholars who have spent considerable time studying the question of state standing. As such, the Law Professors have a strong interest in ensuring that the Court’s decision on standing is consistent with this body of law. The Law Professors are professors at law schools across the country who research, teach, and write on constitutional law, federal courts and administrative law. The Law Professors are all particularly interested in questions of state standing, and continue to research and study this area of the law.
1

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-1, Page 3 of 8
• Todd Aagaard is the Vice Dean of the Villanova University Charles Widger School of Law. His teaching and research focuses on administrative law, property law, energy law, and environmental law.
• David E. Adelman is the Harry Reasoner Regents Chair in Law at the University of Texas School of Law. He teaches and writes in the areas of environmental law, intellectual property law, administrative law, and climate change policy.
• Robin Kundis Craig is the William H. Leary Professor of Law at the S.J. Quinney College of Law at the University of Utah. She researches the law and policy of “all things water,” including water rights, water pollution, and ocean and coastal issues, as well as climate change adaptation and the intersection of constitutional and environmental law.
• Lincoln L. Davies is the Associate Dean for Academic Affairs, the Hugh B. Brown Professor of Law, and a Presidential Scholar at the University of Utah. His research focuses on administrative law, including standing issues, and on energy and environmental regulation.
• Noah Hall is a law professor at Wayne State University and Scholarship Director of the Great Lakes Environmental Law Center. His research focuses on federalism, state sovereignty, and interstate environmental disputes. 2

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-1, Page 4 of 8
• Dave Owen is a Professor of Law at University of California Hastings College of Law. He teaches courses in environmental, natural resources, water, and administrative law.
• Zygmunt J. B. Plater is a Professor of Law at Boston College Law School, teaching and researching in the areas of environmental, property, land use, and administrative agency law.
• Alexander T. Skibine is a Professor of Law at the S.J. Quinney College of Law at the University of Utah. Professor Skibine has published many articles in the area of federal Indian law and he is frequently invited to speak on federal Indian law issues at venues around the country. He teaches administrative law, constitutional law, torts, and federal Indian law.
• Lisa Grow Sun is an Associate Professor at the J. Reuben Clark Law School at Brigham Young University. She teaches constitutional law, torts, and disaster law, and her research focuses on disaster law.
• Joseph P. Tomain is Dean Emeritus and the Wilbert and Helen Ziegler Professor of Law at University of Cincinnati College of Law. A highly respected professor and scholar, his teaching and research interests focus in the areas of energy law, land use, regulatory policy, and contracts. 3

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-1, Page 5 of 8
• Amy J. Wildermuth is the Associate Vice President for Faculty, Chief
Sustainability Officer, and a Professor of Law at the University of Utah.
She teaches and writes on civil procedure, administrative law, and U.S.
Supreme Court practice.
II. ARGUMENT IN SUPPORT OF LEAVE TO FILE
Pursuant to Fed. R. App. P. 29(a), this Court may grant leave for a non-party
to file an amicus curiae brief. The District Court granted the Law Professors leave
to file an amicus brief on standing during the February 3, 2017 hearing. State of
Washington v. Trump, W.D. Wash. No. 2:17-cv-00141, Dkt. 51.
The Law Professors seek leave to file the accompanying memorandum to
offer their unique perspective on the underlying standing issue. Issues of standing are central to the disposition of this matter,1 and the Law Professors believe that their
analysis on this issue will provide the Court with valuable insight on this question.
For example, Professor Wildermuth was counsel of record for several states
appearing as amici curiae in Massachusetts v. United States Environmental
1 The District Court ordered further briefing on standing in advance of the oral argument on the Temporary Restraining Order, see State of Washington v. Trump, 2:17-cv-00141 Dkt. 10; both Appellees and Appellants spent considerable time discussing standing in their oral argument, see Motion, Ex. E (“Transcript of Hearing before Judge Robart”), pp. 17-21, 23-26, 34-36, 42, 47; the Temporary Restraining Order held that Appellees had standing to bring its suit, see Motion, Ex. C (“Temporary Restraining Order”) pp. 4-5; and the Appellants challenge standing in their Emergency Motion Under Circuit Rule 27-3 for Administrative Stay and Motion for Stay Pending Appeal, see Motion pp. 9-12.
4

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-1, Page 6 of 8
Protection Agency2 on the issue of state standing and has published law review articles on this question. See Amy J. Wildermuth, Why State Standing in Massachusetts v. EPA Matters, 27 J. LAND, RESOURCES, & ENVTL. L. 273 (2007), available at http://epubs.utah.edu/index.php/jlrel/article/view/53/46; Kathryn A. Watts & Amy J. Wildermuth, Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming, 102 NW. U. L. REV. 1029 (2008), 102 NW. U. L. REV. COLLOQUY 1 (2007), available at http://www.law.northwestern.edu/ lawreview/Colloquy/2007/17/LRColl2007n17Watts.pdf; Brief of the States of Arizona, Iowa, Maryland, Minnesota, and Wisconsin, as Amici Curiae in Support of Petitioners, Massachusetts v. United States Environmental Protection Agency, 549 U.S. 497 (2007) (No. 05-1120), 2006 WL 2563380.
The Federal Rules of Appellate Procedure provide that “[a]n amicus curiae that does not support either party must file its brief no later than 7 days after the appellant’s or petitioner’s principal brief is filed.” Fed. R. App. P. 29(a)(6). Because the Emergency Motion has been sent for consideration on an expedited basis, the Law Professors submit their amicus curiae brief on February 6, 2017, in time for consideration of the Emergency Motion and well before the standard seven-day deadline set by the Federal Rules.
2 Massachusetts v. EPA is one of the seminal cases on the question of state standing.
5

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-1, Page 7 of 8
III. CONCLUSION For the foregoing reasons, the Court should grant this motion and should consider the Law Professors’ brief regarding state standing.
RESPECTFULLY SUBMITTED this 6th day of February, 2017. LANE POWELL PC By: s/Claire Loebs Davis Claire Loebs Davis, WSBA No. 39812 Jessica N. Walder, WSBA No. 47676 1420 Fifth Avenue, Suite 4200 Seattle, WA 98111 Telephone: (206) 223-7000 Attorneys for Proposed Amici Curiae Law Professors
6

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-1, Page 8 of 8

CERTIFICATE OF SERVICE I hereby certify that on February 6, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

DATED: February 6, 2017

Respectfully submitted,
s/Claire Loebs Davis Claire Loebs Davis

7

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 1 of 18
No. 17-35105 ___________________________________________
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________________________________
STATE OF WASHINGTON, et al., Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.
_____________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
______________________________________________
BRIEF OF AMICI CURIAE LAW PROFESSORS
IN SUPPORT OF NEITHER PARTY
Claire Loebs Davis Jessica N. Walder LANE POWELL PC 1420 Fifth Avenue, Suite 4200 Seattle, WA 98111 Telephone: 206.223.7000 Facsimile: 206.223.7107 Attorneys for Proposed Amici Curiae Law Professors

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 2 of 18

TABLE OF CONTENTS

Page

I. INTERESTS OF AMICI CURIAE ...............................................................1

II. INTRODUCTION .........................................................................................1

III. ARGUMENT.................................................................................................2

A. Proprietary Interests ............................................................................3

B. Quasi-Sovereign Interests ...................................................................6

IV. CONCLUSION ...........................................................................................11

i

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 3 of 18
TABLE OF AUTHORITIES Page(s)
Cases Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592 (1982)................................................................................2, 3, 7, 9 Danvers Motor Co., Inc. v. Ford Motor Co.,
432 F.3d 286, 293 (3rd Cir. 2006) ......................................................................4 Georgia v. Tennessee Copper Co.,
206 U.S. 230 (1907)............................................................................................7 Grutter v. Gratz,
539 U.S. 306 (2003)..........................................................................................10 Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992)....................................................................................4, 6, 9 Maryland People’s Counsel v. FERC,
760 F.2d 318 (D.C. Cir. 1985) (Scalia, J.)..........................................................7 Massachusetts v. EPA,
549 U.S. 497 (2007)..................................................................................8, 9, 11 Massachusetts v. Mellon,
262 U.S. 447 (1923)......................................................................................7, 10 North Dakota v. Minnesota,
263 U.S. 365 (1923) ...........................................................................................7 Preminger v. Peake,
552 F.3d 757, 763 (9th Cir. 2008) ......................................................................5 United States v. Students Challenging Regulatory Agency
Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973)............................................................................5 United States v. Texas, 809 F.3d 134 (5th Cir. 2015) ..............................................................................4
ii

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 4 of 18
Statutes Administrative Procedure Act..................................................................................2 Other Authorities Kathryn A. Watts & Amy J. Wildermuth, Massachusetts v. EPA:
Breaking New Ground on Issues Other Than Global Warming, 102 NW. U. L. REV. 1029 (2008), 102 NW. U. L. REV. COLLOQUY 1 (2007)...............................................................................................................2 Amy J. Wildermuth, Why State Standing in Massachusetts v. EPA Matters, 27 J. LAND, RESOURCES, & ENVTL. L. 273 (2007)..............................................2 Bradford Mank, Should States Have Greater Standing Rights Than Ordinary Citizens?: EPA’s New Standing Test for States, 49 WM. & MARY L. REV. 1701, 1769–74 (2008).............................................................8 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE JURIS. 2D § 3531.11 (1984) .............................................................6 Henry Fountain, Science Will Suffer Under Trump’s Travel Ban, Researchers Say, N.Y. TIMES (Jan. 30, 2017) ..................................................10 U.S. Const. art. III ...........................................................................................passim
iii

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 5 of 18
I. INTERESTS OF AMICI CURIAE The non-party law professors are Todd Aagaard of Villanova University, David E. Adelman of the University of Texas, Robin Kundis Craig of the University of Utah, Lincoln L. Davies of the University of Utah, Noah Hall of Wayne State University, David Owen of the University of California Hastings, Zygmunt J. B. Plater of Boston College, Alexander T. Skibine of the University of Utah, Lisa Grow Sun of Brigham Young University, Joseph P. Tomain of University of Cincinnati, and Amy J. Wildermuth of the University of Utah (“the Law Professors”).1 The Law Professors research, teach, and write on federal courts, constitutional law, and administrative law. They are scholars who have spent considerable time studying state standing. As such, the Law Professors are interested in ensuring that the Court’s decision on standing is consistent with this evolving body of law. The Law Professors maintain a neutral position on the underlying merits of the case, and are therefore not filing this brief in support of either party.
II. INTRODUCTION The States of Washington and Minnesota (“States”) have brought a
1Amici affirm that no counsel for any party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than Amici or their counsel made a monetary contribution to its preparation or submission.
1

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 6 of 18

challenge to the Executive Order issued on January 27, 2017, asserting claims under the U.S. Constitution as well as several federal statutes, including the Administrative Procedure Act. The district court concluded that the State of Washington (“Washington”) has Article III standing to sue based on both proprietary and quasi-sovereign interests.
To date, there are few cases on state standing and, as a result, the Supreme Court has provided limited guidance in this area. Amici offer this brief to provide guidance on the appropriate analysis under existing law.2
Based on our analysis of the factual pleadings and supporting declarations filed by Washington, as clarified during oral argument, we believe the district court was correct in finding that the States have standing to bring suit.
III. ARGUMENT When analyzing state standing, the first task is to identify the interest being asserted by the state. In Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982), the Supreme Court articulated three categories of potential

2 This brief draws from two of the principal drafter’s articles: Amy J.

Wildermuth, Why State Standing in Massachusetts v. EPA Matters, 27 J. LAND,

RESOURCES, & ENVTL. L. 273 (2007), http://epubs.utah.edu/

index.php/jlrel/article/view/53/46, and Kathryn A. Watts & Amy J. Wildermuth,

Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global

Warming, 102 NW. U. L. REV. 1029 (2008), 102 NW. U. L. REV. COLLOQUY 1

(2007),

http://www.law.northwestern.edu/lawreview/Colloquy/2007/17/

LRColl2007n17Watts.pdf.

2

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 7 of 18
interests when a sovereign brings suit: (1) proprietary interests, (2) quasi-sovereign interests, and (3) sovereign interests.
Id. at 601–02. Each category requires a different analysis. It is therefore essential in a case involving state standing that the analysis correctly identify the interest(s) at stake. In this case, Washington has not claimed that a sovereign interest gives rise to its ability to bring this suit.3 Instead, it asserted both proprietary and quasisovereign interests as the basis for this lawsuit. We examine each in turn.
A. Proprietary Interests The most straightforward path for the State in this case to bring suit is to demonstrate (1) that a federal action has harmed a proprietary interest of the State and (2) that the State, on that basis, has satisfied the traditional test for standing. Here, the district court correctly found that Washington demonstrated standing based on harm to its proprietary interests. Proprietary interests are direct interests of a state, such as ownership of land or participation in a business venture. Id. These interests are the same kind that a private party would assert in litigation. Id. As a result, when a state asserts an injury
3 Sovereign interests are unique to a state, such as the “power to create and enforce a legal code, both civil and criminal.” Snapp, 458 U.S. at 601. Because the State has not asserted a sovereign interest, we will not examine it further.
3

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 8 of 18
to or interference with this kind of interest, the state should be treated just as a private party would when determining Article III standing. Id. at 611 (Brennan, J., concurring) (“At the very least, the prerogative of a State to bring suits in federal court should be commensurate with the ability of private organizations.”). Courts therefore require that sovereigns asserting a proprietary interest satisfy the wellknown requirements of Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992): In order to have Article III standing to bring suit in federal court, a state must show that (1) it has an actual and concrete injury, (2) the injury is traceable to the defendant’s conduct, and (3) a favorable decision will likely redress the injury. Id. at 560–61.
When any party—state or otherwise—claims monetary harm as its injury for standing purposes, there is no minimum amount of harm that must be shown. In fact, when monetary harm is alleged, the injury-in-fact “is often assumed without discussion.” Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 293 (3rd Cir. 2006). For example, in United States v. Texas, 809 F.3d 134 (5th Cir. 2015), the State of Texas brought suit against the federal government, challenging the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program, including the requirement that the State issue drivers licenses to undocumented aliens. The Fifth Circuit concluded that Texas had suffered a proprietary injury-in-fact because the State had to incur “a minimum of $130.89”
4

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 9 of 18
in administrative costs for each license. Id. at 155; see also Preminger v. Peake, 552 F.3d 757, 763 (9th Cir. 2008) (relying on United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973), which held that the Court has “allowed important interests to be vindicated by plaintiffs with no more at stake in the outcome of an action than a fraction of a vote, a $5 fine and costs, and a $1.50 poll tax.”)).
Here, Washington asserted, inter alia, that its institutions of higher education, which are arms of the State, have lost and will continue to lose money as a result of the Executive Order.4 As documented in its complaints and declarations, and clarified in argument before the district court, Washington has proprietary interests in its universities that have been harmed by the Executive Order. As a result of the travel ban, scholars and faculty affiliated with the university will have to cancel trips and events that require international travel. See ECF 17-25 (“Second Riedinger Decl.”) at ¶¶ 5-6; ECF 17-4 (“Second Chaudry Decl.”) at ¶ 3. These cancellations will cost the universities the money they paid for these trips, including potentially airfare, accommodations, and administrative costs incurred for booking travel. See Second Chaudry Decl. at ¶ 7 (detailing cancelled trip of a student impacted by the ban). In addition, because students and
4 Amici focus on the claims related to the State’s universities because they are strong examples of the State’s proprietary interests.
5 ECF cites refer to the documents on the district court docket. 5

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 10 of 18
scholars who were admitted but are now banned from travel will be unable to enroll, the universities will lose the money paid in processing the applications and visas for these individuals, as well as any tuition dollars that would have been collected. Second Riedinger Decl. at ¶ 10(b)-(d). In addition, for those performing specific research or teaching tasks, replacements will need to be found, which, at a minimum, requires additional administrative costs. See, e.g., ECF 9 (“First Riedinger Decl.”) at ¶ 8.
Because Washington demonstrated (1) that its institutions of higher education will suffer monetary damage, (2) that such damage is a result of the travel ban, and (3) that they would not lose or have lost that money if the travel ban did not exist, Washington has satisfied the traditional Lujan requirements for Article III standing to sue and therefore is a proper party to bring this suit.
B. Quasi-Sovereign Interests The district court also properly found that Washington has standing on the basis of its quasi-sovereign interests, i.e., in its role as parens patriae for its citizens. Although this is a more difficult path for standing in this case, there is clear support for the district court’s holding. Quasi-sovereign interests are difficult to describe. The Supreme Court has never precisely defined these interests, leading scholars to characterize them as “admittedly vague.” 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
6

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 11 of 18
PROCEDURE JURIS. 2D § 3531.11, at 31 (1984). When a sovereign brings suit based on quasi-sovereign interests, “the State must articulate an interest apart from the interests of particular private parties.” Snapp, 458 U.S. at 607. Snapp generally described this separate interest as the State’s interest “in the well-being of its populace,” id. at 602, and provided two examples of quasi-sovereign interests: (1) a sovereign’s interest in protecting the health and well-being—“both physical and economic”—of its citizens from injuries, such as transboundary pollution;6 and (2) a sovereign’s interest in seeing that its “residents are not excluded from the benefits that flow from participation in the federal system,” such as when railroads conspire to discriminatorily fix freight rates in a manner that harms a particular state’s shippers. Id. at 607–08 (citation omitted).
Even where a state properly asserts a quasi-sovereign interest, if the state is suing the federal government, one issue that arises is whether a state should be able to sue to protect its residents from the federal government because the federal government has a similar duty to protect those same residents. Previously, Massachusetts v. Mellon, 262 U.S. 447 (1923), was understood to have erected a bar to such suits: states could not sue the federal government based on their parens patriae interests unless Congress waived the restriction. See Maryland People’s
6 See, e.g., North Dakota v. Minnesota, 263 U.S. 365 (1923) (flooding) and Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) (air pollution in Georgia caused by discharge of noxious gases from the defendant’s plant in Tennessee).
7

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 12 of 18
Counsel v. FERC, 760 F.2d 318, 322 (D.C. Cir. 1985) (Scalia, J.). In Massachusetts v. EPA, 549 U.S. 497 (2007), however, the Court appeared to lift the bar to a state litigating against the federal government when a quasi-sovereign interest is at stake. In doing so, the Court explained:
there is a critical difference between allowing a State “to protect her citizens from the operation of federal statutes” (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do). Massachusetts does not here dispute that the Clean Air Act applies to its citizens; it rather seeks to assert its rights under the Act. Id. at 520 n.17. Although this passage seems to confuse the different interests a state might have, the Court has never offered further clarification on this point. As a result, it appears that after Massachusetts, a state can assert Article III standing based on a quasi-sovereign interest of ensuring that its citizens are provided the benefits of federal law, such as when the federal government acts or fails to act in a way that violates federal statutory (as reflected in an APA claim) or constitutional law. See, e.g., Bradford Mank, Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts v. EPA’s New Standing Test for States, 49 WM. & MARY L. REV. 1701, 1769–74 (2008). Accordingly, once a state asserts a quasi-sovereign interest, what further showing, if any, is required in order to establish standing? The Court’s most recent articulation of what is required is also found in Massachusetts. There, the Court
8

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 13 of 18
recited the Lujan factors—injury-in-fact, causation, and redressability—and went on to analyze each requirement. As the dissenting opinion pointed out, however, the Court’s analysis appeared to substantially “[r]elax[]Article III standing requirements.” Massachusetts, 549 U.S. at 536–37 (Roberts, C.J., dissenting). Instead of a more rigid, traditional analysis of the Lujan factors, the Court employed a “Lujan-lite” analysis, finding that Massachusetts had standing even though its injury—the loss of coastal lands—would occur many years in the future, and even though the relief sought by the parties was less than certain to substantially remedy that harm. In so holding, the Court acknowledged that its analysis was informed by the notion that states are entitled to “special solicitude” when they assert quasi-sovereign interests. Id. at 520.7
Because Massachusetts appears to have changed much and there has been little additional guidance from the Court, the path for a state to assert standing on the basis of a quasi-sovereign interest is less clear. In this case, Washington has argued that at least two of its relevant interests related to the state’s universities are quasi-sovereign.
First, Washington residents attending state universities have had their
7 It is important to note that Massachusetts v. EPA did limit its standing analysis to territorial injuries. See Ex. E at 34:22–36:9 (ECF 14). The Court in Massachusetts specifically noted, as Snapp did, the “direct and important economic consequences” as part of the injury. Massachusetts, 549 U.S. 521–22.
9

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 14 of 18
education impacted by the federal government’s actions. When the federal government restricted entry from the listed countries, it reduced the institutions’ ability to attract and retain students and faculty from certain countries, thus diminishing and devaluing the rich and diverse learning environment that is core to the mission of higher education. See Grutter v. Gratz, 539 U.S. 306, 330 (2003) (“student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society”); see also ECF 17-3 (“Boesenberg Decl.”) at ¶ 8.
Second, the ban inhibits the ability of Washington residents who are members of the university communities to do important, life-saving research. Many researchers must travel to present their work at conferences, which is critical to the progress of research. Second Riedinger Decl. at ¶¶ 5-6. Equally important is the ability to physically travel to sites where raw data or information is located that is the subject of their research, as well as to travel to labs around the globe to learn new techniques and processes. See, e.g., Henry Fountain, Science Will Suffer Under Trump’s Travel Ban, Researchers Say, N.Y. TIMES (Jan. 30, 2017), https://www.nytimes.com/2017/01/30/science/scientists-donald-trump-travelban.html?_r=0.
Because both of these grounds are quasi-sovereign interests, it appears proper for Washington to bring suit on these bases. If, as explained above, there is
10

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 15 of 18
no Mellon-bar to a state bringing this suit against the federal government in its role as parens patriae, then the district court’s finding that Washington also had standing on these interests is correct. In fact, Washington’s asserted quasisovereign interests in this case are stronger than those in Massachusetts. Massachusetts relied on injury to coastal lands many years in the future, a lengthy causal chain, and unclear redressability in terms of solving climate change because the regulation impacted only greenhouse gas emissions from new motor vehicles in the United States. Here, Washington’s asserted injuries—e.g., to a student’s learning environment and to a researcher’s ability to do her work—are clear, can be directly tied to the travel ban, and would be immediately remedied by lifting the ban.
IV. CONCLUSION Although amici offer no recommendation on the ultimate outcome of this case, based on the analysis above, we believe the district court correctly found that Washington has standing to bring this suit.
11

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 16 of 18

DATED: February 6, 2017

LANE POWELL PC

By s/Claire Loebs Davis Claire Loebs Davis, WSBA No. 39812 Jessica N. Walder, WSBA No. 47676 1420 5th Avenue, Suite 4200 Seattle, WA 98111 Telephone: 206.223.7000 Facsimile: 206.223.7107
Attorneys for Proposed Amicus Curiae Law Professors

12

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 17 of 18
CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Motion complies with the type-volume limitation of Fed. R. App. P. 29 because it contains 2596 words. This Motion complies with the typeface and the type style requirements of Fed. R. App. P. 27 because this brief has been prepared in a proportionally spaced typeface using Word 14-point Times New Roman typeface.
s/ Claire Loebs Davis Claire Loebs Davis
13

Case: 17-35105, 02/06/2017, ID: 10304086, DktEntry: 66-2, Page 18 of 18

CERTIFICATE OF SERVICE

I hereby certify that on February 6, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

DATED: February 6, 2017

Respectfully submitted, s/Claire Loebs Davis Claire Loebs Davis

14

 
 Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-1, Page 1 of 4

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________________________

)

STATE OF WASHINGTON, et al.,

)

)

Plaintiffs-Appellees, )

)

v.

) No. 17-35105

)

DONALD J. TRUMP,

)

President of the United States, et al.

)

)

Defendants-Appellants. )

________________________________________ )

MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

Amici Curiae U.S. Justice Foundation, Citizens United, Citizens United

Foundation, English First Foundation, English First, Public Advocate of the

United States, Gun Owners Foundation, Gun Owners of America, Conservative

Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy

Analysis Center hereby move for leave to file a brief amicus curiae in support of

the Defendants-Appellants’ Motion for Stay Pending Appeal. It is hereby stated

as follows:

1. All parties consent to the filing of this amicus brief.

2. As stated more fully in the attached brief, amici curiae have extensive

experience with respect to the issues presented by this case, and have an

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-1, Page 2 of 4

2 significant interest in the outcome of this case. Amici believe that this brief will

be of assistance to the Court in deciding the Motion for Stay Pending Appeal

WHEREFORE, we respectfully request that this Court grant leave to file

an amicus curiae brief in support of Defendants-Appellants’ Motion for Stay

Pending Appeal.

Respectfully submitted,

February 6, 2017

/s/ Herbert W. Titus Herbert W. Titus WILLIAM J. OLSON, P.C.
370 Maple Avenue West, Suite 4 Vienna, VA 22180-5615 (703) 356-5070 (703) 356-5085 (fax) wjo@mindspring.com Attorneys for Amici Curiae U.S. Justice Foundation, et al.

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-1, Page 3 of 4
3 CERTIFICATE OF COMPLIANCE WITH RULE 27(d)(2)(A) IT IS HEREBY CERTIFIED: 1. That the foregoing Motion for Leave to Brief as Amici Curiae complies with the type-volume limitation of Rule 27(d)(2)(A), Federal Rules of Appellate Procedure, because this motion contains 157 words, excluding the parts of the brief exempted by Rule 32(f). 2. This motion complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using WordPerfect version 18.0.0.200 in 14-point Times New Roman.
/s/ Herbert W. Titus Herbert W. Titus Attorney for Amici Curiae U.S. Justice Foundation, et al. Dated: February 6, 2017

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-1, Page 4 of 4
4 CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that service of the foregoing Motion for Leave to Brief as Amici Curiae, was made, this 6th day of February 2017, by the Court’s Case Management/ Electronic Case Files system upon the attorneys for the parties.
/s/ Herbert W. Titus Herbert W. Titus Attorney for Amici Curiae U.S. Justice Foundation, et al.

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 1 of 16

No. 17-35105
444444444444444444444444
In the United States Court of Appeals for the Ninth Circuit
________________

STATE OF WASHINGTON; STATE OF MINNESOTA, Plaintiffs-Appellees, v. DONALD J. TRUMP,
President of the United States, et al. Defendants-Appellants. ________________
On Appeal from the United States District Court for the Western District of Washington _______________
Brief Amicus Curiae of U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate
of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center in Support of Defendants-Appellants’
Motion for Stay Pending Appeal ________________

JOSEPH W. MILLER

HERBERT W. TITUS*

Ramona, CA 92065

WILLIAM J. OLSON

Attorney for Amicus Curiae USJF

JEREMIAH L. MORGAN

MICHAEL BOOS

ROBERT J. OLSON

Washington, D.C. 20003

WILLIAM J. OLSON, P.C.

Attorney for Amici Curiae CU & CUF

370 Maple Avenue W., Suite 4

Vienna, Virginia 22180-5615

*Attorney of Record

(703) 356-5070

February 6, 2017

Attorneys for Amici Curiae

444444444444444444444444

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 2 of 16
DISCLOSURE STATEMENT The amici curiae herein, U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center, through their undersigned counsel, submit this Disclosure Statement pursuant to Federal Rules of Appellate Procedure 26.1, 29(c). All of these amici curiae are non-stock, nonprofit corporations, none of which has any parent company, and no person or entity owns them or any part of them. The amici curiae are represented herein by Herbert W. Titus, who is counsel of record, William J. Olson, Jeremiah L. Morgan, and Robert J. Olson of William J. Olson, P.C., 370 Maple Avenue West, Suite 4, Vienna, Virginia 22180-5615. Amicus United States Justice Foundation also is represented herein by Joseph W. Miller, 932 D Street, Suite 2, Ramona, California 92065. Amici Citizens United and Citizens United Foundation are also represented herein by Michael Boos, 1006 Pennsylvania Avenue SE, Washington, D.C. 20003.
s/Herbert W. Titus Herbert W. Titus
i

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 3 of 16
TABLE OF CONTENTS Page
DISCLOSURE STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i INTEREST OF AMICI CURIAE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT
I. The District Court’s TRO Should be Stayed, as the President Had Full Authority to Issue His Executive Order of January 27, 2017. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. The President Has Near Plenary Authority Over Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Prior Presidents Have Exercised Broad Authority over Immigration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. The Temporary Restraining Order Reinstating the Prior Status Quo for Refugees Threatens the Nation’s Security. . . . . . . . . . . . . . . . . . . 7
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ii

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 4 of 16
INTEREST OF AMICI CURIAE1 Amici United States Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center are nonprofit organizations, exempt from federal income tax under either section 501(c)(3) or 501(c)(4) of the Internal Revenue Code (“IRC”). Each entity is dedicated, inter alia, to the correct construction, interpretation, and application of law. Their interest also includes protecting the our nation’s borders, enforcement of immigration laws, separation of powers, and related issues. Many of these amici have worked on these issues for many years, including the following during the last year: (i) a Legal Analysis of presidential candidate Trump’s proposals to limit immigration from certain countries (Feb. 12, 2016); (ii) an amicus brief to the U.S. Supreme Court in support of a 26-State challenge to presidential executive actions that were clearly outside statutory authority (Apr.
1 Amici requested and received the consents of the parties to the filing of this brief amicus curiae, pursuant to Rule 29(a), Federal Rules of Appellate Procedure. No party’s counsel authored the brief in whole or in part. No party or party’s counsel contributed money that was intended to fund preparing or submitting the brief. No person other than these amici curiae, their members or their counsel contributed money that was intended to fund preparing or submitting this brief.
1

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 5 of 16
4, 2016); (iii) Comments to the Department of State regarding the proposed number of refugees for 2017 (May 19, 2016); (iv) a Legal Policy Paper analyzing the constitutional authority for States to enter into an interstate compact regarding immigration (Sept. 2, 2016); and (v) Comments to the U.S. Citizenship & Immigration Service regarding amendments to the Registration for Classification as Refugee form (Nov. 17, 2016).
STATEMENT OF THE CASE On February 3, 2017, the U.S. District Court for the Western District of Washington issued a “nationwide” Temporary Restraining Order (“TRO”), prohibiting “enforcement” of five sections of President Trump’s Executive Order (“E.O.”) of January 27, 2016 — section 3(c), 5(a), 5(b), 5(c), and 5,(e). The district court’s Order explains the basis for its decision as follows: The court finds that the States have satisfied [the required] standards [for a TRO] and that the court should issue a TRO [including] the States are likely to succeed on the merits.... [District Court Order at 4.] There follow a few sentences as to the harm allegedly suffered by the states, but no analysis whatsoever as to whether the plaintiffs have demonstrated that they are “likely to succeed on the merits.” Remarkably, the district court’s TRO2 is wholly
2 Moreover, the district judge issued no separate opinion justifying his TRO.
2

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 6 of 16
devoid of any analysis of the constitutional or statutory authority of the President to issue his Executive Order.3 To correct that failure in legal analysis, Section I, infra, addresses the broad, even plenary authority of the President to restrict immigration from specific countries. Section II, infra, addresses the authority of the President to delimit refugee status when required by the national interest.
ARGUMENT I. The District Court’s TRO Should be Stayed, as the President Had Full
Authority to Issue His Executive Order of January 27, 2017. A. The President Has Near Plenary Authority Over Immigration. President Trump’s Executive Order repeatedly relied on 8 U.S.C. § 1182(f), which expressly authorizes the President to suspend or restrict the entry into the United States of “any aliens or of any class of aliens” that he determines would be “detrimental to the interests of the United States.” This statute has been understood to give a President virtually unlimited power to suspend or restrict immigration within its framework. That statute has no language suggesting that the statutory power granted to the President could not be applied generally to an
3 Contrast the conclusory approach taken by district Judge James L. Robart with the much more careful, textual, and analytical approach taken by district Judge Nathaniel M. Gorton in the District of Massachusetts in his ruling in Louhghalem, et al. v. Trump, Civil Action No. 17-10154-NMG (Feb 3., 2017) declining any injunctive relief in a similar challenge.
3

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 7 of 16
entire class based upon country of origin, as President Trump has done. Clearly, this is an area where Congress has agreed legislatively that the President should have wide berth to restrict foreign travel into the United States. Through more than 125 years of litigation and numerous Supreme Court decisions addressing the issue, the political branches, and especially the President, have been relatively unimpeded by the judiciary in their authority to make immigration decisions according to their political, social, and economic determinations.4 See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950). Moreover, there is a long line of cases holding that excluded aliens — those seeking to enter the United States — have no rights under the U.S. Constitution. See, e.g., Ekiu v. United States, 142 U.S. 651, 659 (1892); Fok Yung Yo v. United States, 185 U.S. 296, 302 (1902); United States ex rel. Turner v. Williams, 194 U.S. 279, 294 (1904); Keller v. United States, 213 U.S. 138, 143-144 (1909); Mahler v. Eby, 264 U.S. 32, 40 (1924); Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953).
B Prior Presidents Have Exercised Broad Authority over Immigration.
The district court ignored prior valid exercises of presidential authority to exclude foreign persons for a wide variety of reasons.
4 See Feere, Jon, “Plenary Power: Should Judges Control U.S. Immigration Policy?” http://cis.org/plenarypower/.
4

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 8 of 16
1. President Carter’s Executive Order 12172 (Nov. 26, 1979). After Iran took American citizens working in Iran hostage and seized our Embassy, President Carter issued Executive Order 12172, limiting entry by Iranian aliens into the United States. U.S. immigration officials required thousands of Iranian students to report to an immigration office, and students found to have visa violations were deported. In addition, on April 7, 1980, President Carter reportedly directed U.S. officials to invalidate all visas issued to Iranian citizens for future entry into the United States, and to reissue new visas only for compelling and proven humanitarian reasons, or where the U.S. national interest required it.5
2. President Reagan’s 1981 Exercise of 8 U.S.C. § 1182(f). In 1981, President Reagan authorized the interdiction of certain vessels containing undocumented aliens on the high seas. Proclamation No. 4865, 46 Fed. Reg. 48107 (published Oct. 1, 1981). At the same time, President Reagan issued Executive Order 12324, to interdict any “defined” vessel carrying such aliens. When challenged, a district court ruled that the President’s power by such methods to suspend the entry of illegal aliens had a “clear constitutional basis.” Haitian
5 See http://www.newsmax.com/Newsfront/jimmy-carter-barred-iranians/ 2015/12/09/id/705127/.
5

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 9 of 16
Refugee Center, Inc. v. Gracey, 600 F. Supp. 1396, 1398, 1400 (D.D.C. 1985), aff’d, 809 F.2d 794 (D.C. Cir. 1987).
3. President Reagan’s 1985 Exercise of 8 U.S.C. § 1182(f). President Reagan signed Presidential Proclamation 5377 on October 4, 1985, based upon the authority vested in him by 8 U.S.C. § 1182(f) — the same statute invoked by President Trump — to suspend entry into the United States of certain classes of Cuban nationals as nonimmigrants. Certain aliens asserted that such action exceeded the government’s authority and impinged on the members’ First Amendment rights to freedom of association, speech, and religion. The government’s action was sustained, and the suit dismissed. See Encuentro Del Canto Popular v. Christopher, 930 F. Supp. 1360 and 944 F. Supp. 805 (N.D. Cal. 1996).
4. President Obama’s 2011 Exercise of 8 U.S.C. § 1182(f) On August 4, 2011, President Obama issued Presidential Proclamation 8697, entitled Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Participate in Serious Human Rights and Humanitarian Law Violations and Other Abuses. Section 1 of that Proclamation — again, issued under the authority of 8 U.S.C. § 1182(f) — suspends the entry into the United States, as immigrants or nonimmigrants, by any aliens who have engaged in “widespread or systematic
6

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 10 of 16
violence against any civilian population” based in whole or in part on any number of factors (e.g, race, descent, sex, religion, political opinion), as well as any alien who participated (or attempted or conspired to participate) in war crimes, crimes against humanity, or other serious violations of human rights. II. The Temporary Restraining Order Reinstating the Prior Status Quo
For Refugees Threatens the Nation’s Security. In their Motion for a TRO to the district court, Plaintiff States contend that the balance of equities “tips sharply in favor of the State.” Motion for TRO at 23. But they take no account of the equities that favor Defendants. And they are many. The fundamental premise upon which the President’s E.O. is based is that the previous “issuance process” has not adequately “protect[ed] the American people from terrorist attacks by foreign nationals admitted to the United States.” E.O. at 1. However, the foremost reason for the E.O. is to suspend admissions of foreign nationals, with the view of forming and implementing a more effective exclusionary process. E.O. at Sections 1-3. More particularly, Section 4 of the E.O. pinpoints the major problem with the status quo, and the paramount need for a suspension while a new policy is in the making. First, the E.O. sets a goal: 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
7

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 11 of 16
seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. [E.O., Section 4.] Then this section of the E.O. articulates six separate requirements designed to prevent fraud in the application process. Id. at 4. Are there good and valid reasons for such detail to take such precautions by designing entirely new procedures to prevent fraud? In a report prepared by the U.S. Department of Homeland Security (“DHS”) during the Obama Administration, it was observed that: “The immigration system is a constant
target for exploitation by individuals who seek to enter the United States and who are otherwise ineligible for entry based on security grounds.” See U.S. Department of Homeland Security, “Lack of Identity Documents in the Refugee Process” at 1 (emphasis added). The DHS Report found:
ICE’s Refugee Program is particularly vulnerable to fraud due to loose evidentiary requirements, where at times, the testimony of an applicant alone is sufficient for approval. [Id. (emphasis added).] According to this Obama Administration DHS report, the problems with the current vetting system are legion: • the processing of refugees by DHS officers takes place in foreign refugee camps; • vetting typically takes place in areas where it is difficult to verify claims; • biometric tools such as DNA testing and fingerprinting are nonexistent; • lack of any identity (name and DOB) documents;
8

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 12 of 16
• unreliability of attestations such as former employers; and • counterfeit or altered documents (medical, political activity, judicial
papers). Amazingly, the DHS report concluded that, instead of undermining one’s claim for refugee status, this chronic lack of evidence has caused just the opposite response: The refugee and asylum laws purposefully contain loose evidentiary requirements based on the assumption that a true victim of persecution would not have the time or resources to obtain evidence of their persecution as they flee the country. This flexibility in the law, however, not only helps victims of persecution, it also allows others to exploit the system. [Id. (emphasis added).] Indeed, with information like this, it is not surprising that the DHS memo was an internal one, made public by members of Congress in response to DHS testimony assuring the House of Representatives as the department sought to “increase the number of refugees from dangerous countries.”6 The Washington Times reported that the DHS testimony was elicited during hearings concerning President Obama’s “‘decision to increase overall refugee resettlement – and specifically that of Syrian refugees – ignor[ing] warnings from his own national security officials.’” With respect to the DHS document, itself, ICE Director Sarah Saldana said: “I have never seen this document before.” Id.
6 Washington Times, “DHS admits refugee fraud ‘easy to commit,’” (Sept. 22, 2016).
9

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 13 of 16

That was then; this is now. President Trump’s E.O. ends with a Section 10

entitled “Transparency and Data Collection.” In the concluding section, the

President vows to be “more transparent with the American people, and to more

effectively implement policies and practices that serve the national interest.” To

that end, the executive order commands the Secretary of Homeland Security to

report publicly within 180 days, and every 180 days thereafter, vital information

concerning the threats of terrorism and violence against women from foreign

nationals on American soil. Apparently, by seeking this TRO, the Plaintiff States

prefer the status quo ante, irrespective of whether the terrorist threat is real.

Certainly, this is not a judicial question that is properly presented to a federal

judge to resolve. That is why the Congress has given virtually plenary authority

over immigration and the refugee program to the President of the United States.

CONCLUSION

For the foregoing reasons, the district court February 3, 2017 Temporary

Restraining Order should be stayed pending appeal.

Respectfully submitted,

JOSEPH W. MILLER UNITED STATES JUSTICE FOUNDATION 932 D Street, Ste. 3 Ramona, California 92065-2355

/s/ Herbert W. Titus *HERBERT W. TITUS WILLIAM J. OLSON JEREMIAH L. MORGAN ROBERT J. OLSON

10

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 14 of 16

Co-Counsel for Amicus Curiae U.S. Justice Foundation
MICHAEL BOOS CITIZENS UNITED 1006 Pennsylvania Avenue SE Washington, D.C. 20003 Co-Counsel for Amici Curiae Citizens United and Citizens United Foundation
February 6, 2017 *Attorney of record

Attorney for Amici Curiae WILLIAM J. OLSON, P.C. 370 Maple Avenue West, Suite 4 Vienna, Virginia 22180-5615 (703) 356-5070

11

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 15 of 16
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) IT IS HEREBY CERTIFIED: 1. That the foregoing Brief Amicus Curiae of U.S. Justice Foundation, et al. in Support of Defendants-Appellants’ Motion for Stay Pending Appeal complies with the limitation set forth by Fed. R. App. P. 29(a)(5) and Circuit Rule 27-1(d), because this brief contains 10 pages, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using WordPerfect version 18.0.0.200 in 14-point CG Times.
/s/ Herbert W. Titus __________________________ Herbert W. Titus Attorney for Amici Curiae Dated: February 6, 2017

Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-2, Page 16 of 16
CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that service of the foregoing Brief Amicus Curiae of U.S. Justice Foundation, et al., in Support of Defendants-Appellants’ Motion for Stay Pending Appeal was made, this 6th day of February 2017, by the Court’s Case Management/Electronic Case Files system upon the attorneys for the parties.
/s/ Herbert W. Titus _________________________ Herbert W. Titus Attorney for Amici Curiae

 
 Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-1, Page 1 of 11
No. 17-35105 UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees,
v. DONALD J. TRUMP, President of the United States, et al.,
Defendants-Appellants.
On Appeal from the United States District Court for the Western District of Washington No. 2:17-cv-00141 The Honorable James L. Robart
MOTION OF WASHINGTON STATE LABOR COUNCIL FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE
Jennifer L. Robbins Dmitri Iglitzin Kathleen Phair Barnard SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT LLP 18 West Mercer Street, Suite 400 Seattle, WA 98119-3971 Telephone: 206-257-6002 Fax: 206-257-6037 Attorneys for WSLC

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-1, Page 2 of 11
CORPORATE DISCLOSURE STATEMENT The Washington State Labor Council is a non-profit organization of 600 union locals and councils representing approximately 400,000 rank-and-file union members throughout the State of Washington. It has no parent corporation and there is no publicly held corporation that owns 10 percent or more of its stock, of which it has none.

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-1, Page 3 of 11
I. INTRODUCTION & RELIEF REQUESTED The Washington State Labor Council (“WSLC”) respectfully requests the Court grant it leave to file the 17-page amicus brief and supporting declarations attached hereto as Exhibit A in support of Plaintiffs’-Appellees’ (“State of Washington”) opposition to the emergency motion for a stay of the temporary restraining order (“TRO”) issued February 3, 2017, by the U.S. District Court for the Western District of Washington (Robart, J.). That TRO enjoins enforcement of certain unlawful and unconstitutional provisions of Executive Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017), which discriminatorily bans all refugees from entering the country for 120 days, bans all refugees from Syria indefinitely, and bans immigrants and non-immigrants from seven majority-Muslim countries from entering the U.S. for 90 days. The proposed amicus brief provides additional authority and evidence why the State of Washington is likely to prevail on the merits of its claim and how the Executive Order causes irreparable harm, including to members of labor unions living and working in Washington State.
II. IDENTITY AND INTEREST OF AMICUS CURIAE The WSLC is a state-wide labor council comprised of more than 600 local unions, and it represents more than 450,000 rank-and-file union members working in Washington State. Declaration of Jeff Johnson (“Johnson Dec.”), ¶ 2 (filed with the district court below; copy attached hereto in Exhibit A for the Court’s
1

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-1, Page 4 of 11
convenience). The WSLC is widely considered to be the “voice of labor” in Washington State. Id. WSLC has a strong interest in advocating for the liberty interests of Washington State workers. Id.
The WSLC provides many services to its affiliated unions. Johnson Dec., ¶
3. The Council has a focus on legislative advocacy, political action,
communication through its website “The Stand,” supporting affiliated unions’
organizing drives by rallying community leaders and elected officials, and
programs that provide affiliate and direct worker assistance like dislocated worker
assistance, increasing student awareness about apprenticeship programs within
community and technical colleges, Project Help, education and training for union members, and assistance for unions with contract and economic research. Id.
On January 30, 2017, the President of WSLC issued the following statement
regarding President Donald Trump’s Executive Order that bans all refugees from
entering the country for 120 days, bans all refugees from Syria indefinitely, and
bans immigrants and non-immigrants from seven majority-Muslim countries from
entering the U.S. for 90 days: President Trump’s Executive Order on Friday de facto banning Muslims from certain Middle Eastern countries from entering/reentering the country for 90 days went beyond the pale of common decency, human dignity, and further fans the flames of racism, xenophobia, and anti-Islamism that he thoughtlessly spewed during his campaign. Legal permanent residents, green card holders and vetted refugees from certain Muslim countries — only countries where the Trump Corporation has no business dealings — were
2

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-1, Page 5 of 11
detained at airports, refused entry, and in some cases, sent back to the country they had just arrived from. This reckless action further contributes to the rising attacks on Muslims and others in America. The Southern Poverty Law Center reports a dramatic rise in hate incidents over the past two years, now at 260,000 hate incidents a year. This hateful and shameful Executive Order was met by thousands protesting at airports across the country as well as an emergency stay against the Executive Order by a federal judge.
As union members and as a labor movement we stand with immigrants and refugees. We cannot and will not allow the president to pick us off one group at a time. Another leader did this in the 1930s and 1940s with horrific consequences.
America was built by immigrants and refugees and they will continue to play a part in the values upon which we define America.
Johnson Dec., ¶ 4.
Among WSLC’s affiliated unions, unions who have signed a Solidarity
Charter with the WSLC and other labor allies are unions whose members are
directly impacted by the Executive Order, because they are immigrants or non-
immigrant temporary workers from one of the seven banned countries whose
ability to travel into and out of the United States is prohibited outright or whose
inability to re-enter the United States after traveling will put their livelihoods in
jeopardy. Johnson Dec., ¶ 5. Members are also affected because the ability of
their families to travel into the United States is prohibited temporarily or
indefinitely, disrupting the members’family ties, personal freedoms and economic security. Id.
3

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-1, Page 6 of 11

Moreover, as a representative of working people, WSLC is keenly aware

that the United States has a lamentable history of wrongfully using the nation’s

immigration laws against labor, for political purposes. Perhaps most famously,

from February 1917 to November 1919, during the notorious “Palmer Raids,”

federal agents working at the direction of Attorney General A. Mitchell

Palmer deported more than 500 foreign citizens, including a number of prominent

leftist leaders, for reasons that are now generally understood to have been overtly

political, i.e., to eliminate (through deportation) the representatives and leaders of

movements intended to improve the lives and working conditions of blue-collar workers. See generally The Palmer Raids (Labor Research Association 1948)

(Robert W. Dunn, ed.).

III. ARGUMENT

WSLC seeks leave to file a 17-page amicus brief in opposition to President

Donald Trump et al.’s emergency Motion Under Circuit Rule 27-3 For Emergency

Stay Pending Appeal (“Emergency Motion”), because of the actual and potential

impact of the Executive Order on the members of unions in Washington State

across a wide range of industries, and the irreparable harm that will be suffered by

those workers if the Executive Order does not continue to be enjoined. The

foregoing facts establish the interest of the labor community in the outcome of this

proceeding. WSLC’s brief offers additional examples of irreparable harm to

4

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-1, Page 7 of 11
individuals working and residing in Washington, further establishing that the elements for continued temporary injunctive relief are met. See Exhibit A (Declarations of Jeff Johnson, David Parsons and Matt Haney). WSLC’s brief also offers information about the intent of Congress to eliminate prejudice and discrimination in national immigration policy which supports, but does not duplicate, the arguments made by the States of Washington and Minnesota in support of their request for a temporary restraining order and their opposition, in this Court, to the request for a stay of the restraining order.
All parties to this litigation have, via e-mail, consented to the filing of this amicus brief, although Defendants-Appellants stated an expectation that filing would occur by the deadline for the State of Washington’s Response Brief, e.g., before 1:00 a.m. February 6, 2017. Neither the Federal Rules of Appellate Procedure nor the Ninth Circuit Rules expressly authorize the filing of an amicus curiae brief in connection with a motion for a stay, even when the parties have consented, or provide for the length of such a brief. C.f., Fed. R. App. P. 29(a)(5) (except with the Court’s permission, an amicus brief may be no more than one-half the maximum length authorized for a party’s principal brief); Circuit Rule 271(1)(d) (except with the Court’s permission, a motion or response to a motion may not exceed 20 pages).
5

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-1, Page 8 of 11
This case involves a number of constitutional and statutory questions involving the protection of individuals and groups from invidious discrimination based on nationality, national origin and religion – discrimination which is purportedly but falsely justified on the grounds of national security interests. The case also arises procedurally from a request for, and grant of, a nation-wide TRO affecting the operations of numerous governmental agencies around the country and the irreparable harm that has been caused by the Executive Order and would again be caused if the Court were to grant Defendants’-Appellants’request for a stay pending appeal. For all of these reasons, a 20-page brief is justified, and WSLC thus respectfully requests that the Court grant WSLC leave to file the attached brief and declarations in support thereof.
IV. CONCLUSION For the foregoing reasons, the Court should grant WSLC leave to file the 17page amicus brief and declarations attached hereto as Exhibit A.
6

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-1, Page 9 of 11
RESPECTFULLY SUBMITTED this 6th day of February, 2017.
s/Jennifer L. Robbins Jennifer Robbins, WSBA No. 40861 s/Dmitri Iglitzin Dmitri Iglitzin, WSBA No. 17673 s/Kathleen Phair Barnard Kathleen Phair Barnard, WSBA No. 17896 SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT LLP 18 West Mercer Street, Suite 400 Seattle, WA 98119-3971 Telephone: 206-257-6002 Fax: 206-257-6037 robbins@workerlaw.com iglitzin@workerlaw.com barnard@workerlaw.com Attorneys for WSLC
7

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-1, Page 10 of 11
CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing 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 6, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. DATED this 6th day of February, 2017, in Seattle, Washington.
s/Kathleen Phair Barnard Kathleen Phair Barnard, WSBA #178967 Schwerin Campbell Barnard Iglitzin & Lavitt LLP 18 West Mercer Street, Ste. 400 Seattle, WA 98119-3971 Telephone: 206-257-6002 Fax: 206-257-6037 barnard@workerlaw.com
8

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-1, Page 11 of 11
Exhibit A

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 1 of 40
No. 17-35105
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants-Appellants.
On Appeal from the United States District Court for the Western District of Washington No. 2:17-cv-00141 The Honorable James L. Robart
AMICUS CURIAE BRIEF OF WASHINGTON STATE LABOR COUNCIL IN SUPPORT OF THE OPPOSITION OF WASHINGTON AND MINNESOTA TO EMERGENCY MOTION FOR STAY
PENDING APPEAL
Jennifer L. Robbins Dmitri Iglitzin Kathleen Phair Barnard SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 West Mercer Street, Suite 400 Seattle, WA 98119-3971 Telephone: 206-257-6002 Fax: 206-257-6037 Attorneys for WSLC

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 2 of 40
Corporate Disclosure Statement Washington State Labor Council is a non-profit organization with 600 affiliated union locals and councils representing approximately 450,000 rank-andfile union members throughout the State of Washington. It has no parent corporation and there is no publicly held corporation that owns 10 per cent or more of its stock, of which it has none.

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 3 of 40

TABLE OF CONTENTS

Page

I. INTRODUCTION

1

II.IDENTITY AND INTEREST OF AMICUS CURIAE

3

III. ARGUMENT

4

A. Absent continuing injunctive relief, residents of Washington will 5 suffer irreparable harm because their government, in clear contravention of the INA, has labelled some of them as being less valuable than others, and as having no rights.

B. Absent continuing injunctive relief, residents of Washington will 12 also suffer irreparable harm because their government has interfered with their liberties by limiting their movement, their ability to associate with their families, and to work.

IV. CONCLUSION

16

CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 4 of 40
TABLE OF AUTHORITIES Page(s)
Cases Ariz. Dream Act Coal. v. Brewer,
757 F.3d 1053 (9th Cir. 2014)........................................................ 12, 13, 14, 15 City of Los Angeles, Dep’t of Water & Power v. Manhart,
435 U.S. 702, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978) ..............................10, 11 Enyart v. Nat’l Conf. of Bar Examiners, Inc., cert.
denied, 132 S. Ct. 366, 181 L.Ed.2d 232 (2011) ..............................................12 Statutes 8 U.S.C. § 1152 ......................................................................................................6 Civil Liberties Act of 1988, Pub. L. No. 100-383, 102 Stat. 903 (1998)..................1 Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 241 (1964) ....................8, 10 Immigration Act of 1924, Pub.L. 67-5, 42 Stat. 5 (1924) ....................................6, 7 Immigration Act of 1965.........................................................................................5 Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163 .............................7 Immigration and Nationality Act Amendments of 1965, Pub.L. No.
89-236, 79 Stat. 911 (1965).......................................................................passim Voting Rights Act of 1965, Pub.L. No. 89-110, 79 Stat. 437 (1965) .......................8 Other Authorities 111 Cong.Rec. 24 (1965) ........................................................................................9 California Faculty Association at http://www.calfac.org/headline/cfa-
issues-statement-trump-immigration-ban ...........................................................4 Discrimination in Asylum Law: The Implications of Jean v. Nelson, 62
Ind. L.J. 127, 149 (1986)....................................................................................7 H.R. Res. 683, 112th...............................................................................................1

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 5 of 40
Hearings Before Subcomm. No. 1 of the House Comm. on the Judiciary, 88th Cong., 2d Sess. 723 (1964) ......................................................10
Hearings on S. 500 Before the Subcomm. on Immigration and Naturalization of the Senate Comm. on the Judiciary, 89th Cong. 119 (1965) 9 ......................................................................................................6
Hearings on S. 500 Before the Subcomm. on Imm. and Nat. of the Senate Comm. on the Judiciary, pt. 1, 89th Cong., 1st Sess. 11 (1965) ................................................................................................................9
Hearings on S. 500 Before the Subcomm. on Imm. and Nat. of the Senate Comm. on the Judiciary, pt. 1, 89th Cong., 1st Sess. 44-45 (1965). ...............................................................................................................8
Immigration: Hearings Before Subcomm. No. 1 of the Comm. on the Judiciary, House of Representatives, on H.R. 7700 and 55 Identical Bills, 88th Cong. 901-02 (1964), reprinted in 10A Oscar Trelles & James Bailey, Immigration and Nationality Acts: Legislative Histories and Related Documents, doc. 69A (1979) 390..................5
John F. Kennedy, A Nation of Immigrants 77 (1964) ..........................................2, 8
The President’s Comm’n on Imm. and Nat., Whom We Shall Welcome 263 (submitted Jan. 1, 1953) ..............................................................................7
The President’s Comm’n on Imm. and Nat., Whom We Shall Welcome 277 ..................................................................................................................... 7
Roger Daniels, Coming To America: A History of Immigration And Ethnicity In American Life 338 (1990) ...............................................................8
T. Aleinikoff & D. Martin, Immigration Process and Policy 55 (1985) ................10
Vernon M. Briggs, Jr., Immigration Policy and the American Labor Force 62 (1984) .................................................................................................9

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 6 of 40
I. INTRODUCTION For more than half a century the United States maintained discriminatory immigration laws excluding Chinese laborers and others of Chinese descent; in 2012, the United States House of Representatives passed a resolution acknowledging that “the United States was founded on the principle that all persons are created equal” and formally expressing the regret of the House of Representatives for the Chinese Exclusion Acts. H.R. Res. 683, 112th Cong. (2012). Acknowledging “the fundamental injustice of the evacuation, relocation, and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II,”in 1988, President Ronald Reagan signed the Civil Liberties Act of 1988 to offer a formal apology, and grant reparations in the amount of $20,000, to each living victim of the Japanese internment resulting from an Executive Order issued in 1942. Civil Liberties Act of 1988, Pub. L. No. 100383, 102 Stat. 903 (1998). The Act stated that the government “actions were carried out without adequate security reasons… and were motivated largely by racial prejudice, wartime hysteria, and a failure of political leadership.” Id. After decades of maintaining discriminatory national origin quotas that disfavored non-European immigrants, Congress enacted the Immigration and Nationality Act Amendments of 1965, Pub.L. No. 89-236, 79 Stat. 911 (1965)
1

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 7 of 40
(hereinafter, “INA”), which finally ended “strong overtures of an indefensible racial preference” in our immigration law. John F. Kennedy, A Nation of Immigrants 77 (1964).
Yet, once again if not restrained, discriminatory and destructive governmental action will later lead to sober thought, contrition and the need for apology. One week after assuming office, President Donald Trump signed an Executive Order fulfilling his campaign promise to enact a “Muslim ban”and to subject immigrant applicants to “extreme vetting.” The Executive Order bans all refugees from entering the country for 120 days, bans all refugees from Syria indefinitely, and bans immigrants and non-immigrants from seven majorityMuslim countries from entering the U.S. for 90 days: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. President Trump defends the Executive Order with rhetoric of national security. Even if future leaders of our government feel compelled to issue formal apologies or statements of regret for this unlawful and discriminatory act, no amount of contrition, or even reparations, will undo the harm to individuals, and most importantly to our democracy, caused by the Executive Order at issue here.
The Washington State Labor Council (“WSLC”) submits this brief in opposition to President Donald Trump, et. al.’s Emergency Motion Under Circuit Rule 27-3 For Administrative Stay And Motion For Stay Pending Appeal
2

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 8 of 40
(“Emergency Motion”) because the members of its affiliated unions would suffer
irreparable harm from revived enforcement of the Executive Order.
I. IDENTITY AND INTEREST OF AMICUS CURIAE
The WSLC is a state-wide labor council comprised of more than 600 local
unions and represents more than 450,000 rank-and-file union members working in
Washington State. It is widely considered to be the “voice of labor”in Washington
State. Declaration of Jeff Johnson (“Johnson Dec.”), ¶ 2.1 WSLC has a strong
interest in advocating for the liberty interests of Washington State workers. Id.
Because of the irreparable harm being done to union members in Washington
State, which is set forth in detail below, the WSLC and other labor leaders have
spoken out vehemently against President Trump’s Executive Order. Id., ¶ 4 and
Ex. A (statements from labor unions regarding the Executive Order).2
1 All of the declarations referenced herein were filed with the district court below, and copies are attached for the court’s convenience hereto. 2 See also Washington State Labor Council statement at http://www.thestand.org/2017/01/wslc-trump-orders-bring-shame-to-the-u-s/; Service Employees International Union statement at http://www.seiu.org/2017/01/seius-saenz-trumps-executive-actions-are-an-attackon-american-values-that-will-hurt-immigrant-muslim-and-refugee-families; American Federation of Teachers statement at: http://allin.rtp.aft.org/aft-opposestrump-executive-orders-information-and-resources; American Nurses Association statement at http://nursingworld.org/FunctionalMenuCategories/MediaResources/PressReleases /ANAPresidentResponds-ImmigrationEO.html; Teamsters Joint Council 16 at http://teamsters.nyc/2017/02/01/new-york-teamsters-support-immigrants-opposetrump-immigration-orders/; AFL-CIO’s
3

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 9 of 40
The WSLC submits this brief in opposition to the Emergency Motion and to
support the State of Washington’s efforts to ensure that the unconstitutional,
unlawful Executive Order does not again go into effect.3
II. ARGUMENT
The WSLC joins, but will not repeat here, the States’meritorious arguments,
made to this Court, that the Executive Order violates the United States Constitution
and federal statutes. It submits this brief to add its unique perspective and voice to
the chorus of voices seeking to point out to this Court the truly appalling
consequences this misguided and wrongfully-motivated Executive Order will have
if the Order enjoining it is stayed pending appeal. The WSLC also writes to
emphasize that careful review of the history of discriminatory immigration rules
demonstrates the significance of the irreparable harm that is being caused in
statement at http://www.thestand.org/2017/02/attacking-immigrants-refugeeshurts-us-all/; UniteHERE! statement at http://unitehere.org/pressreleases/statement-by-d-taylor-on-president-trumps-travel-ban/; United Farmworkers statement at http://www.ufw.org/_board.php?mode=view&b_code=news_press&b_no=19078& page=1&field=&key=&n=1221; SEIU California’s statement at http://www.seiuca.org/2014/11/21/seiu-california-statement-on-the-presidentsaction-on-immigration/; California Faculty Association at http://www.calfac.org/headline/cfa-issues-statement-trump-immigration-ban. 3 Pursuant to Circuit Rule 29(a) the WSLC states that no party’s counsel authored this brief in part or whole, no party or party’s counsel contributed money that was intended to fund preparing or submitting this brief, and no person other than amicus curiae, its members, or its counsel contributed money that was intended to fund preparing or submitting the brief.
4

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 10 of 40
particular by the fact that this Executive Order violates the INA— the statute
meant to end pernicious discrimination in immigration law.
A. Absent continuing injunctive relief, residents of Washington will suffer irreparable harm because their government, in clear contravention of the INA, has labelled some of them as being less valuable than others, and as having no rights.
“The negative policies the United States government establishes concerning
immigrants, non-immigrant visitors and refugees of certain national origins or
religions reflects the attitudes the government has of its own citizens of those same
national origins and religions – that they are less valued, less than equal. Such
policies cause harm to our unions’members that cannot be undone.” Johnson Dec.
¶ 6.
In discussing the Immigration Act of 1965, Secretary of State Dean Rusk
similarly observed that immigration rules have significant domestic, as well as
foreign, meaning:
[G]iven the fact that we are a country of many races and national origins, that those who built this country and developed it made decisions about opening our doors to the rest of the world; that anything which makes it appear that we, ourselves, are discriminating in principle about particular national origins, suggests that we think ... less well of our own citizens of those national origins, than of other citizens....4
4 Immigration: Hearings Before Subcomm. No. 1 of the Comm. on the Judiciary, House of Representatives, on H.R. 7700 and 55 Identical Bills, 88th Cong. 901-02 (1964), reprinted in 10A Oscar Trelles & James Bailey, Immigration and Nationality Acts: Legislative Histories and Related Documents, doc. 69A (1979) 390. See also id. at 410 (remarks of Attorney General Robert Kennedy) (noting
5

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 11 of 40
Attorney General Katzenbach accurately assessed the damage done by discriminatory immigration rules the 1965 Act was meant to abolish:
I do not know how any American could fail to be offended by a system which presumes that some people are inferior to others solely because of their birthplace.... The harm it does to the United States and to its citizens is incalculable.” Hearings on S. 500 Before the Subcomm. on Immigration and Naturalization of the Senate Comm. on the Judiciary, 89th Cong. 119 (1965) 9. Through this language in the INA, the Congress abolished discrimination long codified in statutory national origin quotas which disfavored non-European immigrants: Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence. 8 U.S.C. § 1152 (enacted by Pub.L. No. 89-236, 79 Stat. 911 (1965)).
The quotas were introduced into law in 1921, and extended by the Immigration Act of 1924, which required a study of the ethnic sources of America’s white population from the origins of settlement; and quotas were derived from the percentages of the U.S. population that were derived from any
that the bill “would remove from our law a discriminatory system of selecting immigrants that is a standing affront to millions of our citizens”).
6

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 12 of 40
particular nation. This had the effect of limiting immigration from Asia, and nonProtestant eastern and southern Europe. Pub.L. 67-5; 42 Stat. 5 (1921); Pub.L. 675; 42 Stat. 5 (1924). The Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163, retained modified quotas that again reflected the existing demographic mix of U.S. inhabitants and had no purpose other than to maintain the existing ethnic and religious composition of the national population. See Mary Jane Lapointe, Discrimination in Asylum Law: The Implications of Jean v. Nelson, 62 Ind. L.J. 127, 149 (1986). That discriminatory purpose became the focal point of intense debate which fueled the impetus for the 1965 Act.
President Harry Truman opposed the discriminatory quota system and when his veto of the 1952 act was overridden, he denounced the system as being contrary to American values because it “discriminates, deliberately and intentionally, against many of the peoples of the world.” The President's Veto Message, June 25, 1952, reprinted in The President’s Comm’n on Imm. and Nat., Whom We Shall Welcome 277. President Truman’s Commission on Immigration and National Origin had found that “the major disruptive influence in our immigration law is the racism and national discrimination caused by the national origins system,”and that the present system should be replaced with a “unified quota system, which would allocate visas without regard to national origin, race, creed, or color.” The
7

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 13 of 40
President’s Comm’n on Imm. and Nat., Whom We Shall Welcome 263 (submitted
Jan. 1, 1953).
In 1958, then Senator John Kennedy published a broadside against the
national origin quota system in which he criticized the system for having “strong overtures of an indefensible racial preference.” John F. Kennedy, A Nation of Immigrants 77 (1964). As President, he introduced legislation to end the quota
system and President Lyndon Johnson strongly advocated for the bill, after
President Kennedy’s deal. The INA was enacted in 1965 as one of three
complimentary bills passed early in Johnson's presidency, the others being the
Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 241 (1964), and the Voting Rights Act of 1965, Pub.L. No. 89-110, 79 Stat. 437 (1965).5 See Roger Daniels, Coming To America: A History of Immigration And Ethnicity In American Life 338
(1990) (observing that the Civil Rights Act, Voting Rights Act and Immigration
5 Senator Hiram Fong described the purpose of the Act as “seeking an immigration policy reflecting America’s ideal of the equality of all men without regard to race, color, creed or national origin”which he noted reflected the values of the Civil Rights Act:
Last year we enacted the historic Civil Rights Act of 1964, which was designed to wipe out the last vestiges of racial discrimination against our own citizens . . . . As we move to erase racial discrimination against our own citizens, we should also move to erase racial barriers against citizens of other lands in our immigration laws.
Hearings on S. 500 Before the Subcomm. on Imm. and Nat. of the Senate Comm. on the Judiciary, pt. 1, 89th Cong., 1st Sess. 44-45 (1965).
8

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 14 of 40
Act “represent a kind of high-water mark in a national consensus of egalitarianism”); Vernon M. Briggs, Jr., Immigration Policy and the American Labor Force 62 (1984) (“Just as overt racism could no longer be tolerated in the way citizens treated their fellow citizens, neither could it be sanctioned in the laws that governed the way in which noncitizens were considered for immigrant status.”).
In supporting passage of the INA, Senator Edward M. Kennedy argued that the national origins quota system was “contrary to our basic principles as a nation.” 111 Cong.Rec. 24, 225 (1965). Senator Joseph Clark insisted that “the national origins quotas and the Asian-Pacific triangle provisions are irrational, arrogantly intolerant, and immoral”and that it was unjust that “[a] brilliant Korean or Indian scientist is turned away, while the northern European is accepted almost without question.” Id. at 24, 501. Representative Paul Krebs stated that immigration rules based on national origin were “repugnant to our national traditions,”and that “we must learn to judge each individual by his own worth and by the value he can bring to our Nation.”Id. at 21, 778. Representative Dominick Daniels rejected the national origin quotas that “racism simply has no place in America in this day and age.” Id. at 21, 787. Other senators and officials condemned the national origins quota system as “un-American”and “totally alien to the spirit of the Constitution,” and praised the new bill for its recognition of individual rights. Hearings on S. 500
9

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 15 of 40
Before the Subcomm. on Imm. and Nat. of the Senate Comm. on the Judiciary, pt. 1, 89th Cong., 1st Sess. 11 (1965) (statement of Attorney General Katzenbach), 47 (statement of Secretary of State Dean Rusk), 127 (statement of Senator Hugh Scott), 165 (statement of Senator Paul Douglas) and 217 (statement of Senator Robert Kennedy); see also Hearings Before Subcomm. No. 1 of the House Comm. on the Judiciary, 88th Cong., 2d Sess. 723 (1964), where the Secretary-Treasurer of the AFL-CIO, James B. Carey, quotes the AFL-CIO Declaration in support of the bill).
The INA repealed a system that, in the words of President Johnson, “violated the basic principle of American democracy— the principle that values and rewards each man on the basis of his merit . . . .”T. Aleinikoff & D. Martin, Immigration Process and Policy 55 (1985). In that regard, like Title VII of the Civil Rights Act of 1964, the INA’s “focus on the individual is unambiguous. It precludes treatment of individuals as simply components of a racial, religious, sexual, or national class.” City of Los Angeles, Dep't of Water & Power v. Manhart, 435 U.S. 702, 708, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978). In enacting the INA, Congress intended to end discrimination based on national origin and religion and non-discrimination “requires … focus on fairness to individuals rather than fairness to classes. Practices that classify employees in terms of religion, race,
10

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 16 of 40
or sex tend to preserve traditional assumptions about groups rather than thoughtful scrutiny of individual.” Manhart, 435 U.S. at 709-10.
The Executive Order at issue here is blanket discrimination against classes of individuals based on their national origin and religion, classifications that are not consistent with American law, or even rational, and are at the same time over and under inclusive, as the States of Washington and Minnesota have pointed out. It denies Syrian refugees, immigrants and the resident family members of immigrants of the seven excluded nations evaluation on individual merit and instead imposes what our Constitution and laws protect against: invidious discrimination based on particular characteristics. The order works precisely as did the repealed quota system, by denying liberty to whole classes of people based on their national origin. The Executive Order thus directly contravenes the INA and the Nation’s values, which mandate that each individual is evaluated on his or her own merit. The WSLC joins in the following statement of former national security, foreign policy, and intelligence officials in the United States Government condemning the Executive Order as antithetical to American law and values:
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
11

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 17 of 40
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. ECF 29-2, ¶ 9 (Declaration of Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E. Mclaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, Susan E. Rice).
For all of the foregoing reasons, the States of Washington and Minnesota are likely to prevail on the merits, and the district court’s temporary restraining order should be left intact.
B. Absent continuing injunctive relief, residents of Washington will also suffer irreparable harm because their government has interfered with their liberties by limiting their movement, their ability to associate with their families, and to work.
In addition to dignitary harm, Washington residents have suffered tangible harm and will continue to suffer harm if the temporary restraining order enjoining enforcement of the Executive Order is stayed. Lost opportunities to engage in one’s chosen profession, to travel, and to be united or reunited with families and loved ones are all irreparable, because losses of this kind sustained by individuals affected by the Executive Order cannot be remedied by money damages. See, e.g., Enyart v. Nat’l Conf. of Bar Examiners, Inc., cert. denied, 132 S. Ct. 366, 181 L.Ed.2d 232 (2011); Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). In addition to the irreparable harm set forth in the pleadings filed by
12

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 18 of 40
the States of Washington and Minnesota, and other amici curiae, individuals who live and work in Washington are being subjected to the irreparable harm described herein.
Among WSLC’s affiliated unions, unions who have signed a Solidarity Charter with the WSLC and other labor allies are unions whose members are directly impacted by the Executive Order, because they are immigrants or nonimmigrant temporary workers from one of the seven banned countries whose ability to travel into and out of the United States is prohibited outright or whose inability to re-enter the United States after travelling will put their livelihoods in jeopardy. Johnson Dec., ¶ 6. Members are also affected because the ability of their families to travel into the United States is prohibited temporarily or indefinitely, disrupting the members’family ties, personal freedoms and economic security. Id. The members of unions affiliated or allied with WSLC affected by the Executive Order ban include hospitality workers, retail employees, health care industry workers, laborers, factory workers, and state, county and municipal employees among others. Id. These union members are exceptionally diverse, comprised of an array of races, nationalities, and religions. Id. The negative policies the United States government establishes concerning immigrants, nonimmigrant visitors and refugees of certain national origins or religions reflects the attitudes the government has of its own citizens of those same national origins and
13

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 19 of 40
religions –that they are less valued, less than equal. Id. Such policies cause harm to unions’members that cannot be undone. Id.
United Automobile, Aerospace and Agricultural Implement Workers of America, Local 4121 (“UAW 4121”) represents academic student employees (“ASEs”) at the University of Washington (“UW”). Declaration of David Parsons (“Parsons Dec.”), ¶ 1. Some ASEs are citizens or nationals of one of the seven countries listed in the Executive Order and are present in the U.S. with valid visas. Id., ¶ 3. Many have expressed serious concerns about the impact of the Executive Order on their work at and for UW. Id. In particular, since the Executive Order has been issued, impacted ASEs from the seven named countries believe they can and should not travel outside the U.S., and have been advised by UW to avoid any international travel. Id. This impacts in numerous ways these ASEs’ability to perform research and complete their courses of study. Id. If the restraining order is stayed, at least one ASE conducts research that requires overseas travel, and therefore may be significantly delayed or lose altogether the work completed pursuant to this project, which has been in process for years and directly impacts degree completion. Id. For some ASEs, any delay in completing research and course work could jeopardize funding and employment opportunities. Id. Additionally, if the restraining order is stayed ASEs will again be restricted from
14

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 20 of 40
visiting close family members or friends outside the U.S., which creates significant emotional hardships. Id.
UAW 4121 is aware of at least one ASE who is a citizen or national of one of the seven countries, and is outside the U.S. Id., ¶ 4. If he or she is unable to reenter the U.S. as a result of the Executive Order, his/her ability to conduct research for UW related to his/her course of study could be limited, and his/her graduate program training sequence could be disrupted. Id.
Service Employees International Union 6 Property Services Northwest (“SEIU 6”) has historically represented immigrants and refugees employed in the commercial janitorial industry, and its membership often reflects the different flows of immigrants and refugees coming into the U.S. workforce. Declaration of Matt Haney (“Haney Dec.”), ¶ 2. The current membership includes over 350 individuals originally from the seven affected countries in the Executive Order travel ban. Id., ¶ 3. The majority of these members originated from Somalia. Id. The members from these countries tend to save up their money in order to be able to afford to return to their countries of origin for a month or more. Id.
Since President Trump issued the Executive Order banning all refugees from entering the country for 120 days, banning all refugees from Syria indefinitely, and banning immigrants and non-immigrants from seven majority-Muslim countries from entering the U.S. for 90 days, SEIU 6 members who have made travel plans
15

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 21 of 40
to Somalia have been contacting union representatives at SEIU 6 expressing their fears that they may not be able to return to the U.S., to their families and to their jobs, if they travel now. Id., ¶ 4.
Additionally, a SEIU 6 member currently on leave in Somalia has contacted union representatives about fears of losing his job and in turn his health coverage, essential to controlling his chronic health condition, because he will not be able to return to the United States by April 15th as was arranged with his employer. Id., ¶ 5.
These individual tangible harms are irreparable, as they cannot be remedied by money damages. Re-implementation of the Executive Order would cause irreparable injury to individuals living and working in Washington. The requested stay should therefore be denied.
III. CONCLUSION The individual tangible and dignitary harm that is being suffered by residents whose national origin is from the countries subject to the Executive Order is irreparable, in violation of the INA, and the Constitution’s guarantees of equal protection and due process. The Executive Order is not rationally related to its stated goal of protecting national security and is, and must be, subject to judicial review, unless we are to abandon the rule of law. The harms that would be suffered if the ruling below enjoining enforcement of the unlawful and
16

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 22 of 40
unconstitutional Executive Order were to be stayed are severe, and the need for continuing injunctive relief is urgent. Because each of the elements for injunctive relief is met, this Court should deny the Emergency Motion.
RESPECTFULLY SUBMITTED this 6th day of February, 2017.
s/Jennifer L. Robbins Jennifer Robbins, WSBA No. 40861 s/Dmitri Iglitzin Dmitri Iglitzin, WSBA No. 17673 s/Kathleen Phair Barnard Kathleen Phair Barnard, WSBA #17896 SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 West Mercer Street, Suite 400 Seattle, WA 98119-3971 Telephone: 206-257-6002 Fax: 206-257-6037 robbins@workerlaw.com iglitzin@workerlaw.com barnard@workerlaw.com Attorneys for WSLC
17

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 23 of 40
CERTIFICATE OF COMPLIANCE
We certify that this brief complies with Rule 32-1 and is proportionally
spaced, has a type face of 14 points or more and contains 3,831 words.
Dated this 6th day of February, 2017.
s/Jennifer Robbins Jennifer Robbins, WSBA No. 40861 s/Dmitri Iglitzin Dmitri Iglitzin, WSBA No. 17673 s/Kathleen Phair Barnard Kathleen Phair Barnard, WSBA #17896 SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP

CCaassee: 127:1-375-c1v0-50,00124/10-6J/L2R017D, oIDcu: m10e3n0t441741F, iDlekdtE0n2t/r0y2: /6197-2,PPaaggee12o4f o1f140

1

THE HONORABLE JAMES L. ROBART

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

8 STATE OF WASHINGTON,

No. 2:17-cv-00141-JLR

9

10

v.

Plaintiff,

DECLARATION OF JEFF JOHNSON

11 DONALD TRUMP, in his official capacity as
12 President of the United States; U.S. DEPARTMENT OF SECURITY; JOHN F.
13 KELLY, in his official capacity as Secretary of
the Department of Homeland Security; TOM 14 SHANNON, in his official capacity as Acting
15 Secretary of State; and the UNITED STATES OF AMERICA,
16 Defendants.
17

18

19

I, Jeff Johnson, hereby declare as follows based on personal knowledge.

20

1. I am the president of the Washington State Labor Council (“WSLC”). I have held

21 the position since 2010. Since 1986, I have held other positions with the WSLC, including

22 special assistant to the president, lead lobbyist, research and organizing director, and shop
23 steward for the administrative staff unit. I also sit on the Governor’s Council of Economic
24 Advisors, the Workforce Training and Education Coordinating Board, the Washington State
25
26 Apprenticeship Council, the Board of Washington Community Action Network and Alliance for

Jobs and Clean Energy, and I serve as Co-Chair of the Washington State Blue Green Alliance.

DECLARATION OF JEFF JOHNSON - 1 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

CCaassee: 127:1-375-c1v0-50,00124/10-6J/L2R017D, oIDcu: m10e3n0t441741F, iDlekdtE0n2t/r0y2: /6197-2,PPaaggee22o5f o1f140

1

2. The WSLC is comprised of more than 600 local unions and represents more than

2 450,000 rank-and-file union members working in Washington State. It is widely considered to
3 be the “voice of labor”in Washington State. WSLC has a strong interest in advocating for the 4
liberty interests of Washington State workers. 5
3. The WSLC provides many services to its affiliated unions. The Council has a 6 7 focus on legislative advocacy, political action, communication through its website “The Stand,”
8 supporting affiliated unions’ organizing drives by rallying community leaders and elected

9 officials, and programs that provide affiliate and direct worker assistance like dislocated worker

10 assistance, increasing student awareness about apprenticeship programs within community and
11 technical colleges, Project Help, education and training for union members, and assistance for
12 unions with contract and economic research.
13 4. On January 30, 2017, I issued the following statement regarding President Donald
14
15 Trump’s Executive Order that bans all refugees from entering the country for 120 days, bans all

16 refugees from Syria indefinitely, and bans immigrants and non-immigrants from seven majority-

17 Muslim countries from entering the U.S. for 90 days:

18

President Trump’s Executive Order on Friday de facto banning Muslims from

19

certain Middle Eastern countries from entering/re-entering the country for 90 days

went beyond the pale of common decency, human dignity, and further fans the

20

flames of racism, xenophobia, and anti-Islamism that he thoughtlessly spewed

during his campaign. Legal permanent residents, green card holders and vetted

21

refugees from certain Muslim countries — only countries where the Trump

22

Corporation has no business dealings — were detained at airports, refused entry, and in some cases, sent back to the country they had just arrived from. This

23

reckless action further contributes to the rising attacks on Muslims and others in

America. The Southern Poverty Law Center reports a dramatic rise in hate

24

incidents over the past two years, now at 260,000 hate incidents a year. This

hateful and shameful Executive Order was met by thousands protesting at airports

25

across the country as well as an emergency stay against the Executive Order by a

26

federal judge.

DECLARATION OF JEFF JOHNSON - 2 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

CCaassee: 127:1-375-c1v0-50,00124/10-6J/L2R017D, oIDcu: m10e3n0t441741F, iDlekdtE0n2t/r0y2: /6197-2,PPaaggee32o6f o1f140

1

As union members and as a labor movement we stand with immigrants and

refugees. We cannot and will not allow the president to pick us off one group at a

2

time. Another leader did this in the 1930s and 1940s with horrific consequences.

3

America was built by immigrants and refugees and they will continue to play a

4

part in the values upon which we define America.

5

6. Among WSLC’s affiliated unions, unions who have signed a Solidarity Charter

6 with the WSLC and other labor allies are unions whose members are directly impacted by the
7 Executive Order, because they are immigrants or non-immigrant temporary workers from one of 8
the seven banned countries whose ability to travel into and out of the United States is prohibited 9
outright or whose inability to re-enter the United States after travelling will put their livelihoods 10
11 in jeopardy. Members are also affected because the ability of their families to travel into the
12 United States is prohibited temporarily or indefinitely, disrupting the members’family ties,

13 personal freedoms and economic security. The members of unions affiliated or allied with

14 WSLC affected by the ban include hospitality workers, retail employees, health care industry
15 workers, laborers, factory workers, and state, county and municipal employees among others.
16 These union members are exceptionally diverse, comprised of an array of races, nationalities,
17 and religions. The negative policies the United States government establishes concerning
18
19 immigrants, non-immigrant visitors and refugees of certain national origins or religions reflects
20 the attitudes the government has of its own citizens of those same national origins and religions –

21 that they are less valued, less than equal. Such policies cause harm to our unions’members that

22 cannot be undone.
23 //
24 //
25
26 //

//

DECLARATION OF JEFF JOHNSON - 3 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

CCaassee: 127:1-375-c1v0-50,00124/10-6J/L2R017D, oIDcu: m10e3n0t441741F, iDlekdtE0n2t/r0y2: /6197-2,PPaaggee42o7f o1f140

1

7. Recognizing the injustice of President Trump’s Executive Order, labor unions

2 have spoken out emphatically against it. Attached hereto as Exhibit A are true and accurate
3 copies of some statements by organized labor, published on their websites in response to the 4
Executive Order. 5

6

7

I declare under penalty of perjury under the laws of the United States of America that the

8 foregoing is true and correct.

9

Signed in _Olympia, WA__, Washington, this 2nd day of February, 2017.

10

11

12

13 Jeff Johnson
14

15

16

17

18

19

20

21

22

23

24

25

26

DECLARATION OF JEFF JOHNSON - 4 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

CCaassee: 127:1-375-c1v0-50,00124/10-6J/L2R017D, oIDcu: m10e3n0t441741F, iDlekdtE0n2t/r0y2: /6197-2,PPaaggee52o8f o1f140

1

DECLARATION OF SERVICE

2

I hereby declare under penalty of perjury under the laws of the state of Washington that

3 on this 2nd day of February, 2017, I caused the foregoing Declaration of Jeff Johnson to be filed
4 with the Court using the cm/ecf system, which will automatically provide notification of such
5 filing to:
6

7

Colleen M. Melody

8

Patricio A. Marquez

Marsha Chien

9

Office of the Attorney General

800 Fifth Avenue, Suite 2000

10

Seattle, WA 98104

11 Robert W. Ferguson

12

Anne E. Egeler

Noah G. Purcell

13

Office of the Attorney General

PO Box 40100

14

Olympia, WA 98504-0100

15 Jacob Campion

16

Attorney General of Minnesota

445 Minnesota Street, Suite 1100

17

St. Paul, MN 55101

18

Michelle R. Bennett

19

Arjun Garg

U.S. Department of Justice

20

Civil Division, Federal Programs Branch

20 Massachusetts Avenue NW

21

Washington, DC 20530

22

23

Signed in Seattle, Washington, this 2nd day of February, 2017.

24

25

Jennifer Woodward, Paralegal

26

DECLARATION OF SERVICE - 5 Case No. 2:17-cv-00141-JLR

LAW OFFICES OF SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP 18 WEST MERCER STREET SUITE 400 SEATTLE, WASHINGTON 98119-3971
(206) 285-2828

CCaassee: 127:1-375-c1v0-50,00124/10-6J/L2R017D, oIDcu: m10e3n0t441741F, iDlekdtE0n2t/r0y2: /6197-2,PPaaggee62o9f o1f140
Exhibit A

(/) CCaassee: 127:1-375-c1v0-50,00124/10-6J/L2R017D, oIDcu: m10e3n0t441741F, iDlekdtE0n2t/r0y2: /6197-2,PPaaggee73o0f o1f140
Contact: Maria Ponce, maria.ponce@seiu.org (mailto:maria.ponce@seiu.org), 202-394-2139
Issued January 27, 2017
SEIU’s Sáenz: Trump’s executive actions are an attack on American values that will hurt immigrant, Muslim and refugee families
WASHINGTON, D.C. – In response President Trump’s announcement of a series of executive actions on immigration and refugees, SEIU International Executive Vice President and iAmerica Action President Rocio Sáenz issued the following statement:
“Another day brings another executive action that attacks immigrants, refugees and their families and compromises American values. Earlier this week, President Trump followed through on his promise to create a mass deportation force, turned the vast majority of immigrants into deportation priorities, fasttracked their deportation, and made mandatory detention the default for all immigrants, including families and children ⩞eeing persecution. Trump’s executive actions today will continue to intensify the criminalization of immigrants.
“America should always be a nation that welcomes immigrant and refugee families and their contributions to our communities and economy. Restrictions on immigration from predominantly Muslim countries repudiate our own values and give license to others around the world to do the same or worse. Denying refuge to persons ⩞eeing persecution at a time when they are most in need of safety is morally wrong and un-American. It undermines our security because it harms the victims of persecution and violates our international obligations.
“SEIU members and our communities will keep standing up for immigrants, refugees and their families, despite these attacks. Tens of thousands rallied and marched in more than 70 cities throughout America on Jan. 14, and we will use our collective power in the days and months ahead to prevent deportations and protect immigrant families. We will build our movement so we can come back stronger in 2018 and 2020 to win common sense immigration reform that works for working families.”

CCaassee: 127:1-375-c1v0-50,00124/10-6J/L2R017D, oIDcu: m10e3n0t441741F, iDlekdtE0n2t/r0y2: /6197-2,PPaaggee83o1f o1f140

1800 Massachusetts Ave NW Washington, DC 20036

twitter (https://twitter.com/seiu)
facebook (https://www.facebook.com/seiu)

youtube (https://www.youtube.com/user/SEIU/videos)

Privacy (/privacy/) Contact (/about/#contact) ©Service Employees International Union
Paid for by SEIU COPE, www.seiu.org. Not authorized by any candidate or candidate's committee.

CCaassee: 127:1-375-c1v0-50,00124/10-6J/L2R017D, oIDcu: m10e3n0t441741F, iDlekdtE0n2t/r0y2: /6197-2,PPaaggee93o2f o1f140
Enter e­mail address

News Coverage Press Releases Events Calendar Interactive Event Map 50th Anniversary

Tweets by
@UFWupdates

United Farm ... @UFWupdates
The Hill: GOP suspends rules to push through EPA pick despite Dem boycott @... fb.me/Vq3BT2uB
2h

United Farm

Embed

View on Twitter

Home > News & Events> Press Releases
Trump refugee ban executive order is ‘appalling,’ UFW and UFW Foundation say
01/27/2017
Trump refugee ban executive order is ‘appalling,’ UFW and UFW Foundation say
UFW Foundation Executive Director and United Farm Workers National Vice President Diana Tellefson Torres issued the following statement from Los Angeles in response to President Trump’s executive orders issued today and aimed at those who seek refuge in the United States:
Any type of refugee ban for any period of time is appalling and in direct opposition to long‐held American values. Seeking refuge in the U.S is most often the last resort for those who face genuine risk of persecution and can’t return to their countries from which they ‫ﻐ‬led. This ban not only turns America's back on the world’s most oppressed people, it also undermines our nation’s founding principles. We are a nation of immigrants, a nation that has historically offered refuge to the oppressed. The UFW Foundation and UFW will continue standing ‫ﻐ‬irmly with immigrant and refugee families, and denounces today’s executive actions.

CCaassee: 21:71-73-5c1v0-050,10421/0-J6L/2R01D7,oIcDu:m1e0n3t047141F,ilDedktE02n/t0ry2:/1679-2P, aPgaege1033ofo1f 140
For immediate release January 29, 2017 Annemarie Strassel astrassel@unitehere.org
Statement by D. Taylor, President of UNITE HERE, on President Trump’s Travel Ban
<http://unitehere.org/wp-content/uploads/uniteherelogostacked.jpg>“With several executive orders this week, President Trump has brought shame upon the United States and its rich humanitarian legacy. He has put the lives of refugees, most of them children, fleeing for their very lives, in danger once again. His orders barring individuals holding green cards and visas has created a humanitarian crisis and thrown our nation’s airports into chaos. He has now established a religious test for our Nation, in spite of his denials of the truth once again, by ordering that a Christian refugee child is more important than a Muslim refugee child. This is not only obscene, but must certainly be against the Constitution of the United States which Mr. Trump only one week ago publicly vowed to defend.
“Mr. Trump has singled out Muslim-majority countries for this ban ostensibly because they have produced terrorists who have attacked the United States. Yet he exempts the Kingdom of Saudi Arabia from which came the greatest number of these terrorists, and some other countries, where he owns businesses, in an utter conflict of interest with security of the United States. Mr. Trump’s order betrays those who assisted our Nation in the war on terror sending them back to lands where their lives are certainly at risk.
“Trump’s orders are fundamentally inhumane and reckless. They are un-American and unconstitutional. These orders can only put our Nation, our citizens, and our allies at greater risk.
“Mr. Trump has also threatened to cut o虀 federal funding to “sanctuary” cities, where government o虀icials are defying the President’s anti-immigrant attacks to uphold the Constitution and preserve the peace. But we commend mayors in New York, Boston, Chicago, Los Angeles and beyond, who are declaring their cities sanctuary cities in defiance of Mr. Trump’s unconstitutional and immoral directives. We demand that leaders in other American cities where our members live and work do the same.
“As the Union of hospitality workers, including thousands of workers at airports across the US, we welcome travelers and refugees from across the globe. We are proud to serve you. For the sake of our families, the people we serve and the values our nation holds so dear, we will fight President Trump’s un-American attacks on travelers from Muslim countries and immigrants of any ethnicity, race or creed.
“In the coming days and months ahead, Maria Elena Durazo, UNITE HERE’s General Vice President of Immigration, Civil Rights and Diversity, will be leading our Union’s fight against this illegal and immoral policy.”

CCaassee: 21:71-73-5c1v0-050,10421/0-J6L/2R01D7,oIcDu:m1e0n3t047141F,ilDedktE02n/t0ry2:/1679-2P, aPgaege1134ofo1f 140
About UNITE HERE UNITE HERE is an organization that represents 270,000 working people across North America. Our members in the U.S. and Canada work in the hotel, gaming, food service, manufacturing, textile, distribution, laundry, transportation, and airport industries. Our membership is diverse. We are predominantly women and people of color, and we hail from all corners of the planet. Together, we are building a movement to empower immigrants and all workers across North America to achieve greater equality and opportunity.
<//www.linksalpha.com/social/mobile?link=http%3a%2f%2funitehere.org%2fpress-releases%2fstatement-by-d-taylor-on-president-trumps-travel-ban%2f>
Campaigns

partnerships/>

<http://www.wewantyoutostay.org>

<http://unitehere.org/who-we-are/lgbt-

Where We Are
UNITE HERE represents workers throughout the United States and Canada.
Find a Local by State/ Province Any
Find Local or City
UNITE HERE Headquarters 275 7th Avenue, 16th Floor New York, NY 10001-6708 Tel. 212-265-7000 UNITE HERE Canada OFL Building, 15 Gervais Dr. 3rd Floor Toronto, Ontario M3C 1Y8 Tel. 416-384-0983 Follow Us
Subscribe to Updates

CCaassee2: :1177--3c5v1-0051, 4012-/J0L6R/201D7o,cIuDm: 1e0n3t 04461-141,FDilekdtE0n2tr/y0:26/197-2,PPaaggee1335ooff1470

CCaassee2: :1177--3c5v1-0051, 4012-/J0L6R/201D7o,cIuDm: 1e0n3t 04461-141,FDilekdtE0n2tr/y0:26/197-2,PPaaggee1346ooff1470

CCaassee2: :1177--3c5v1-0051, 4012-/J0L6R/201D7o,cIuDm: 1e0n3t 04461-141,FDilekdtE0n2tr/y0:26/197-2,PPaaggee1357ooff1470

CCaassee2: :1177--3c5v1-0051, 4012-/J0L6R/201D7o,cIuDm: 1e0n3t 04461-141,FDilekdtE0n2tr/y0:26/197-2,PPaaggee1368ooff1470

CCaassee2: :1177--3c5v1-0051, 4012-/J0L6R/201D7o,cIuDm: 1e0n3t 04461-141,FDilekdtE0n2tr/y0:26/197-2,PPaaggee1379ooff1470

Case: 17-35105, 02/06/2017, ID: 10304141, DktEntry: 69-2, Page 40 of 40
CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing 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 6, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. DATED this 6th day of February, 2017, in Seattle, Washington.
s/Kathleen Phair Barnard Kathleen Phair Barnard, WSBA #178967 Schwerin Campbell Barnard Iglitzin & Lavitt LLP 18 West Mercer Street, Ste. 400 Seattle, WA 98119-3971 Telephone: 206-257-6002 Fax: 206-257-6037 barnard@workerlaw.com
8

 
 Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-1, Page 1 of 10

(1 of 153)

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al. Plaintiffs-Appellees,
v.
DONALD TRUMP, et al., Defendants-Appellants.
On Appeal from an Entry of a Temporary Restraining Order by the United States District Court for the Western District of Washington
Case No. 2:17-cv-141, Hon. James L. Robart

MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE OF MUSLIM ADVOCATES, AMERICAN MUSLIM HEALTH PROFESSIONALS, COUNCIL FOR THE ADVANCEMENT OF MUSLIM PROFESSIONALS, ISLAMIC MEDICAL ASSOCIATION OF NORTH AMERICA, MUPPIES, INC., NATIONAL ARAB AMERICAN MEDICAL ASSOCIATION, AND NETWORK OF ARAB-AMERICAN PROFESSIONALS IN SUPPORT OF APPELLEES IN FAVOR OF AFFIRMANCE

FARHANA KHERA AZIZ HUQ BRENDA ABDELALL MADIHHA AHUSSAIN JUNAID SULAHRY
Muslim Advocates P.O. Box 71080 Oakland, CA 94612 (415) 692-1484

ANTON A. WARE Bar No: 257848 Arnold & Porter Kaye Scholer Three Embarcadero Center 10th Floor San Francisco, CA 94111-4024 (415) 471-3100

Counsel for Amicus Curiae 1

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-1, Page 2 of 10

(2 of 153)

Motion For Leave to File Brief of Muslim Advocates as Amici Curiae in Support of Appellees
Pursuant to Rule 29 of the Federal Rules of Appellate Procedure and Circuit Rule 29-3, amici curiae, by and through undersigned counsel, respectfully move for leave to file a 24-page amicus curiae brief in support of Appellees’ Opposition to Appellants’ Emergency Motion for Stay Pending Appeal. Amici state as follows:
1. Muslim Advocates, a national legal advocacy and educational organization formed in 2005, works on the frontlines of civil rights to guarantee freedom and justice for Americans of all faiths. Muslim Advocates advances these objectives through litigation and other legal advocacy, policy engagement, and civic education, and by serving as a legal resource for the American Muslim community, promoting the full and meaningful participation of Muslims in American public life. The issues at stake in this case directly relate to Muslim Advocates’ work fighting institutional discrimination against the American Muslim community.
2. American Muslim Health Professionals (AMHP) works to improve the health of Americans. AMHP has three areas of focus: (1) health promotion and education; (2) professional development; and (3) state and national advocacy on public health issues. AMHP has been a
2

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-1, Page 3 of 10

(3 of 153)

leader in expanding healthcare coverage by hiring a team of state liaisons and working with interfaith communities through its “Connecting Americans to Coverage” campaign. Its leadership has been at the forefront of raising awareness about bullying, identity development, and other mental health issues impacting the most vulnerable segment of society – our children and youth. AMHP has also spearheaded many social just initiatives including “EnabledMuslim,” an online platform that provides spiritual and social support for individuals and families impacted by disability.
3. Council for the Advancement of Muslim Professionals (CAMP) is an association of mid- to senior-level Muslim professionals, which works to facilitate and inspire the development of Muslim Professionals across the United States. CAMP currently has a membership base of approximately 7,500 professionals and has a physical presence in Chicago, New Jersey, New York, Philadelphia and Washington D.C. Founded in 1994 in Chicago as a face-to-face networking organization, CAMP has grown to become a multi-city professional association, which empowers Muslim professionals to advance and excel, not only in their careers, but also in their broader community and philanthropic efforts.

3

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-1, Page 4 of 10

(4 of 153)

4. The Islamic Medical Association of North America, IMANA, was founded in 1967 as a nonprofit 501(c)(3) tax-exempt organization. IMANA represents the largest network of American Muslim physicians, dentists and allied healthcare professionals in North America. IMANA provides professional networking opportunities for healthcare practitioners; acts as a resource for medical ethics to educational institutions, medical professionals and medical students, residents and fellows; and provides continuing medical education (CME) for physicians and mentoring for medical students, residents and fellows for their schooling or medical career choices. IMANA has active medical relief programs and emergency relief efforts to respond to disasters, and helps build healthcare capacity and facilitate the transfer of medical knowledge around the world. The mission of IMANA is to provide humanitarian aid and medical relief worldwide and to be an advocate of compassionate, sustainable and quality healthcare policies. Its objectives are to connect and assist Muslim physicians, dentists and allied health professionals in North America with orientation, adjustment, finding appropriate training and job opportunities. IMANA wishes to continue to promote and facilitate medical education, research, publications and improve global healthcare

4

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-1, Page 5 of 10

(5 of 153)

delivery by encouraging American-Muslim diplomacy, through medical relief work and other charitable activities.
5. Muppies, Inc., also known as Muslim Urban Professionals (Muppies), is a nonprofit, charitable organization dedicated to empowering and advancing Muslim business professionals to be leaders in their careers and communities. Its mission is to create a global community of diverse individuals who will support, challenge, and inspire one another by providing a platform for networking, mentorship, and career development.
6. The National Arab American Medical Association (NAAMA) is the largest international organization of Arab American health care providers, trainees and medical students based in North America. Since its founding, twenty-seven chapters have been established in the United States and Canada. In 1990, the NAAMA Foundation was created to support international medical assistance projects, educational exchanges, scholarships, research grants, and emergency medical aid in areas of conflict. Members of the association include well-trained clinicians, high ranking university professors, leaders of several medical societies, and scientists involved in cutting edge research and innovation. In the United States, the foundation supports professional and educational activities aimed at Arab American health education and disease prevention in
5

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-1, Page 6 of 10

(6 of 153)

cooperation with community-based organizations. Members have also donated their time and money to help the relief efforts following Hurricanes Katrina and Rita. Internationally, the foundation sponsors projects, focusing on the Arab world. It has sponsored humanitarian projects in Iraq in the wake of the Iraq War. Currently, volunteers from the association conduct periodic missions to countries surrounding Syria to provide humanitarian medical care and establish eye care and dental clinics to benefit local populations and refugees.
7. Network of Arab-American Professionals (NAAP) is a professional organization grounded in the notion that all Arabs in America need to connect to advance the community. Through collective contribution to strengthen our individual and community standing, NAAP provides a channel for Arab-Americans to realize their passions and pursue their interests through community involvement. NAAP promotes professional networking and social interaction among Arab-American and Arab professionals in the US and abroad; educates both the Arab-American and non-Arab communities about Arab culture, identity, and concerns; advances the Arab-American community by empowering, protecting and promoting its political causes and interests in the US and abroad within all levels of society; supports the Arab student movement in the United
6

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-1, Page 7 of 10

(7 of 153)

States; and serves society through volunteerism and community service efforts
8. The amici are affected by the Executive Order issued on January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”).
9. The Executive Order is an unconstitutional infringement upon the rights of Muslims. It inflicts significant harm on the American Muslim community and American Muslim professionals. It threatens American Muslims’ ability to practice their professions in the United States; it threatens American Muslims who live, work, travel, and have families abroad; and it subjects Muslims to a damaging stigma.
10. The proposed amicus brief, attached to this motion, as Exhibit A, explains why the Court should review the Executive Order, how the order is unconstitutionally motivated by animus against the Muslim community, and the effects of the order and its associated animus on American Muslims.
11. Counsel for Appellees has consented to the filing of this amicus curiae brief. Counsel for Appellants, however, has not fully consented to the filing of this amicus curiae brief. Accordingly, out of an abundance of

7

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-1, Page 8 of 10

(8 of 153)

caution, amici file this motion to request the Court’s leave to file a 24-page brief.
13. Given the importance of the issues, movants respectfully request leave to file a 24-page brief.
Conclusion Amici respectfully request that the court grant their motion for leave to file a 24-page amicus curiae brief and accept for filing the amicus curiae brief attached as Exhibit A.

Date: February 6, 2017

Respectfully submitted,
/s/ Anton Ware
ANTON A. WARE Bar No: 257848 Arnold & Porter Kaye Scholer Three Embarcadero Center 10th Floor San Francisco, CA 94111 (415) 471-3100
Counsel for Amicus Curiae

8

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-1, Page 9 of 10

(9 of 153)

CERTIFICAT OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the
undersigned counsel certifies that this motion:
(i) complies with the typeface requirements of Rule 32(a)(5) and
the type style requirements of Rule 32(a)(6) because it has been prepared
using Microsoft Office Word 2007 and is set in Century Schoolbook font in
a size equivalent to 13.5 points or larger and,
(ii) complies with the length requirement of Rule 27(d)(2) because it
is 1,535 words.
Dated: February 6, 2017
/s/ Anton Ware ANTON WARE Bar No: 257848 Arnold & Porter Kaye Scholer Three Embarcadero Center 10th Floor San Francisco, CA 94111 (415) 471-3100

9

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-1, Page 10 of 10

(10 of 153)

CERTIFICATE OF SERVICE
I certify that on February 6, 2017 the foregoing motion was filed
using the Court’s CM/ECF system. All participants in the case are
registered CM/ECF users and will be served electronically via that system.
Dated: February 6, 2017
/s/ Anton Ware ANTON WARE
Bar No: 257848 Arnold & Porter Kaye Scholer Three Embarcadero Center 10th Floor San Francisco, CA 94111 (415) 471-3100
Counsel for Amicus Curiae

10

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 1 of 24

(11 of 153)

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al. Plaintiffs-Appellees,
v.
DONALD TRUMP, et al., Defendants-Appellants.
On Appeal from an Entry of a Temporary Restraining Order by the United States District Court for the Western District of Washington
Case No. 2:17-cv-141, Hon. James L. Robart
BRIEF OF MUSLIM ADVOCATES, AMERICAN MUSLIM HEALTH PROFESSIONALS, COUNCIL FOR THE ADVANCEMENT OF AMERICAN MUSLIM PROFESSIONALS, ISLAMIC
MEDICAL ASSOCIATION OF NORTH AMERICA, MUPPIES, INC., NATIONAL ARAB AMERICAN MEDICAL ASSOCIATION, NETWORK OF ARAB-AMERICAN PROFESSIONALS,
AS AMICI CURIAE, SUPPORTING APPELLEES

ANTON WARE Arnold & Porter Kaye Scholer LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111-4024 (415) 471-3100

Counsel for Amici Curiae

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 2 of 24

(12 of 153)

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rules of Appellate Procedure 26.1 & 29(c)(1) and Ninth Circuit Local Appellate Rule 26.1.1, amici curiae state the following:
(1) They have no parent corporations;
(2) There are no publicly held corporations that own 10% or more of their stock;
(3) They are not aware of any publicly held corporations not a party to this proceeding with a financial interest in its outcome.
CONSENT OF THE PARTIES
Counsel for the State of Washington and State of Minnesota parties have consented to the filing of this brief. Counsel for the United States has not fully consented.
/s/ Anton Ware ANTON WARE
Arnold & Porter Kaye Scholer LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111 (415) 471-3100
Counsel for Amici Curiae
Date: February 6, 2017

i

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 3 of 24

(13 of 153)

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ................................................................ i TABLE OF AUTHORITIES ......................................................................................... iii INTEREST OF THE AMICI CURIAE.......................................................................... v INTRODUCTION .......................................................................................................... 1 ARGUMENT .................................................................................................................. 2 I. The President’s Executive Orders on Immigration Are Subject to
Important Constitutional Limitations.................................................................. 2 A. The Executive Order Is Not Immune From Judicial Review ...................... 2 B. The Court Is Not Prohibited From Reviewing The Executive
Branch’s Motives ........................................................................................... 4 II. The Purpose and Effect of the Executive Order Is Animus Toward
Muslims.................................................................................................................. 7 A. The Executive Order Is Animated By Overt Animus Toward
Muslims.......................................................................................................... 7 B. The Executive Order Disproportionately Injures Muslims,
Including Longtime U.S. Residents .............................................................. 9 CONCLUSION............................................................................................................. 11

ii

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 4 of 24

(14 of 153)

TABLE OF AUTHORITIES
Cases
Arce v. Douglas, 793 F.3d 968 (9th Cir. 2015) .................................................................................... 6
Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016) .............................................................................. 4, 7
Chae Chan Ping v. United States, 130 U.S. 581 (1889) .................................................................................................. 4
Church of Lukumi Babalu v. Hialeah, 508 U.S. 520 (1993) .................................................................................................. 7
Fong Yue Ting v. United States, 149 U.S. 698 (1893) .............................................................................................. 4, 5
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) .................................................................................................... 7
INS v. Chadha, 462 U.S. 919 (1983) .................................................................................................. 2
INS v. Pangilinan, 486 U.S. 875 (1988) .................................................................................................. 7
Kerry v. Din, 135 S. Ct. 2128 (2015) ...................................................................................... 4, 7, 8
Korematsu v. United States, 323 U.S. 214 (1944) .................................................................................................. 5
Locke v. Davey, 540 U.S. 712 (2004) .................................................................................................. 7
McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005) .............................................................................................. 5, 6
Nguyen v. INS, 533 U.S. 53 (2001) .................................................................................................... 3
Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) .................................................................................................. 6
United States v. Windsor, 133 S. Ct. 2675 (2013) .............................................................................................. 6
Zadvydas v. Davis, 533 U.S. 678 (2001) .............................................................................................. 2, 3
iii

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 5 of 24

(15 of 153)

Other Authorities
Donald Trump on Orlando Shooting, FACTCHECK.ORG (June 14, 2016), http://www.factcheck.org/2016/06/donald-trump-on-orlandoshooting/.................................................................................................................... 9
Exec. Order No. 13,769, 82 FR 8977 (2017).............................................................. 1, 8 Fed. R. App. P. 29(c)(5) ................................................................................................. iv Kambiz Ghanea Bassiri, A History of Islam in America: From the New
World to the New World Order (Cambridge 2010) ............................................... 12

iv

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 6 of 24

(16 of 153)

INTEREST OF THE AMICI CURIAE1 This amici curiae brief is submitted on behalf of the amici described below in opposition to the Government’s Motion for Stay Pending Appeal. Amici are business, education, finance, healthcare, legal, science, technology, and other professional members of the American Muslim community directly harmed and stigmatized by the Executive Order. Muslim Advocates, a national legal advocacy and educational organization formed in 2005, works on the frontlines of civil rights to guarantee freedom and justice for Americans of all faiths. Muslim Advocates advances these objectives through litigation and other legal advocacy, policy engagement, and civic education. Muslim Advocates also serves as a legal resource for the American Muslim community, promoting the full and meaningful participation of Muslims in American public life. The issues at stake in this case directly relate to Muslim Advocates’ work fighting institutional discrimination against the American Muslim community. American Muslim Health Professionals (“AMHP”) works to improve the health of Americans. AMHP has three areas of focus: (1) health promotion and education; (2) professional development; and (3) state and national advocacy on public health issues. AMHP has been a leader in expanding healthcare coverage by
1 No counsel for a party authored this brief in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of the brief. No person other than amici curiae or its counsel made a monetary contribution to the preparation or submission of this brief. Fed. R. App. P. 29(c)(5).
v

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 7 of 24

(17 of 153)

hiring a team of state liaisons and working with interfaith communities through its “Connecting Americans to Coverage” campaign. Its leadership has been at the forefront of raising awareness about bullying, identity development, and other mental health issues impacting the most vulnerable segments of society – our children and youth. AMHP has also spearheaded many social just initiatives including “EnabledMuslim,” an online platform that provides spiritual and social support for individuals and families impacted by disability.
Council for the Advancement of Muslim Professionals (“CAMP”) is an association of mid- to senior-level Muslim professionals, which works to facilitate and inspire the development of Muslim Professionals across the United States. CAMP currently has a membership base of approximately 7,500 professionals and has a physical presence in Chicago, New Jersey, New York, Philadelphia, and Washington D.C. Founded in 1994 in Chicago as a face-to-face networking organization, CAMP has grown to become a multi-city professional association, which empowers Muslim professionals to advance and excel, not only in their careers, but also in their broader community and philanthropic efforts.
The Islamic Medical Association of North America (“IMANA”) was founded in 1967 and represents the largest network of American Muslim physicians, dentists, and allied healthcare professionals in North America. IMANA provides professional networking opportunities for healthcare practitioners; acts as a medical ethics resource for educational institutions, medical professionals and medical students, residents and fellows; and provides continuing medical education. IMANA has
vi

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 8 of 24

(18 of 153)

active medical relief programs and emergency relief efforts to respond to disasters and facilitates the transfer of medical knowledge around the world. The mission of IMANA is to provide humanitarian aid and medical relief worldwide and to be an advocate of compassionate, sustainable and quality healthcare policies. Its objectives are to connect and assist Muslim physicians, dentists and allied health professionals in North America with orientation, adjustment, finding appropriate training and job opportunities. IMANA wishes to continue to promote and facilitate medical education, research, publications and improve global healthcare delivery by encouraging American-Muslim diplomacy, through medical relief work and other charitable activities.
Muppies, Inc., also known as Muslim Urban Professionals (“Muppies”), is a nonprofit, charitable organization dedicated to empowering and advancing Muslim business professionals to be leaders in their careers and communities. Its mission is to create a global community of diverse individuals who will support, challenge, and inspire one another by providing a platform for networking, mentorship, and career development. Muppies members are leaders in the fields of finance, consulting, technology, venture capital, healthcare, entrepreneurship and social enterprise. As a condition of acceptance to the organization, members must demonstrate dedication to the development and advancement of themselves and their communities, in addition to outstanding professional achievement. Muppies members contribute to the fabric of the U.S. economy in diverse ways, such as

vii

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 9 of 24

(19 of 153)

driving innovation, creating new opportunities for employment, and promoting excellence through diversity and inclusion.
The National Arab American Medical Association (“NAAMA”) is the largest international organization of Arab American health care providers, trainees and medical students based in North America. Since its founding, twenty-seven chapters have been established in the United States and Canada. In 1990, NAAMA was created to support international medical assistance projects, educational exchanges, scholarships, research grants, and emergency medical aid in areas of conflict. Members of the association include well-trained clinicians, high ranking university professors, leaders of several medical societies, and scientists involved in cutting edge research and innovation. In the United States, the foundation supports professional and educational activities aimed at Arab American health education and disease prevention in cooperation with community-based organizations. Members have also donated their time and money to help the relief efforts following Hurricanes Katrina and Rita. Internationally, the foundation sponsors projects, focusing on the Arab world. It has sponsored humanitarian projects in Iraq in the wake of the Iraq War. Currently, volunteers from the association conduct periodic missions to countries surrounding Syria to provide humanitarian medical care and establish eye care and dental clinics to benefit local populations and refugees.
Network of Arab-American Professionals (“NAAP”) is a professional organization grounded in the notion that all Arabs in America need to connect to
viii

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 10 of 24

(20 of 153)

advance the community. Through collective contribution to strengthen our individual and community standing, NAAP provides a channel for Arab-Americans to realize their passions and pursue their interests through community involvement. NAAP promotes professional networking and social interaction among Arab-American and Arab professionals in the United States and abroad; educates both the Arab-American and non-Arab communities about Arab culture, identity, and concerns; advances the Arab-American community by empowering, protecting and promoting its political causes and interests in the United States and abroad within all levels of society; supports the Arab student movement in the United States; and serves society through volunteerism and community service efforts.

ix

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 11 of 24

(21 of 153)

INTRODUCTION The Government’s Motion for Stay Pending Appeal (“Motion”) should be denied because the District Court did not abuse its discretion in issuing a temporary restraining order (“TRO”) against the implementation of two provisions of President Donald J. Trump’s executive order of January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”). The Executive Order is unconstitutional on a number of grounds including because its evident purpose and effect is animus toward Muslims. The Government would have this Court ignore the ample evidence of this unconstitutional purpose in deference to what the Government characterizes as an “unreviewable authority of the President to suspend the admission of any class of aliens.” Mot. at 2 (emphasis added). To do so, however, would be an abdication of the judicial branch’s unique role in protecting suspect classes from unlawful and discriminatory treatment at the hands of the executive branch. Amici are business, education, finance, healthcare, legal, science, technology, and other professional members of the American Muslim community directly harmed and stigmatized by the Executive Order. Amici urge this Court to deny the Government’s Motion for extraordinary interlocutory relief. Given the propriety of judicial review in this case, and the irremediable harms to American citizens, residents, and visa holders from the Executive Order, amici respectfully submit that the TRO should remain in place and continue to protect amici’s members pending resolution of the States’ motion for a preliminary injunction.

1

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 12 of 24

(22 of 153)

ARGUMENT

I.

THE PRESIDENT’S EXECUTIVE ORDERS ON IMMIGRATION ARE SUBJECT TO

IMPORTANT CONSTITUTIONAL LIMITATIONS

A. The Executive Order Is Not Immune From Judicial Review

In support of its Motion, the Government repeatedly invokes a supposed

“plenary power” of the Government’s political branches with respect to excluding

particular groups from entering the United States. See, e.g., Mot. at 12 (citing

Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016)). This attempt to

shield the Executive Order from any meaningful judicial review fails for several

reasons.

First, the Supreme Court’s recent cases have clarified that the political

branches’ power over immigration matters is not immune from judicial review. See

Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (holding that so-called “‘plenary power’

to create immigration law . . . is subject to important constitutional limitations” in

the treatment of aliens). In particular, the political branches must use “a

constitutionally permissible means of implementing” the relevant policy. INS v.

Chadha, 462 U.S. 919, 941–942 (1983) (invalidating enforcement action against

alien plaintiff on the basis of a structural constitutional limit on governmental

power akin to the Establishment Clause).

The operation of constitutional constraints on the executive and legislative

branches’ power with respect to regulating immigration is embedded in a number of

important recent cases. These cases involve both U.S. citizens and aliens. At stake

are both individual antidiscrimination claims and structural constitutional limits on

2

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 13 of 24

(23 of 153)

the government’s power. Across diverse contexts, courts have carefully scrutinized constitutional claims, accounting for both their form and context.
For example, in Zadvydas v. Davis, the Supreme Court ruled in favor of an alien who had already been found removable, citing Procedural Due Process concerns. 533 U.S. 678, 693 (2001). In Nguyen v. INS, 533 U.S. 53, 58 (2001), the Court adjudicated a noncitizen’s Equal Protection challenges to gender classifications in the statutory frameworks regulating claims of derivative citizenship. The Nguyen Court carefully scrutinized the “important governmental interest[s]” furthered by the gender classification. Id. at 64.
Second, as it is commonly applied today, the plenary power doctrine addresses the standard of judicial review of an individual consular officer’s discretionary denial of a visa to a specific non-resident alien. See, e.g., Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (applying consular nonreviewability doctrine to discretionary denial of a visa). Practical concerns of administrability may support insulating the large volume of such discretionary, fact-specific consular-level visa decisions from time-consuming judicial review. Such concerns, though, have no application in the context of the States’ challenge to the Executive Order. Rather than making a case-specific determination regarding the appropriateness of allowing a specific individual to enter the United States, the Executive Order bars entire populations and severely impacts longtime residents of the United States who have already been deemed appropriate to reside in the country. Moreover, as discussed in Part I.B below, even were it applicable, the

3

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 14 of 24

(24 of 153)

consular non-reviewability doctrine is not absolute. See Kerry v. Din, 135 S. Ct. 2128 (2015).
Third, to the extent the plenary power doctrine historically was given a broader scope of application, it is important to recall the ignominious context in which the doctrine originated. In Fong Yue Ting v. United States, 149 U.S. 698 (1893), and Chae Chan Ping v. United States, 130 U.S. 581 (1889), the Supreme Court upheld the overtly racist Chinese Exclusion Acts.2 The same sort of animus later led the federal government to intern Japanese-American citizens and aliens on the West Coast, a decision the federal courts did not overturn. See Korematsu v. United States, 323 U.S. 214, 216 (1944) (upholding wartime internment of Japanese-Americans). The Government’s invocation of the doctrine in support of the President’s “Muslim ban” will no doubt be remembered as synonymous with these infamous historical precedents.
B. The Court Is Not Prohibited From Reviewing The Executive Branch’s Motives
The Government contends that any inquiry into “motive” would create “substantial separation of powers problems.” Mot. at 17 (citing United States v. O’Brien, 391 U.S. 367 (1968)). This broad assertion of immunity from motive-based judicial review is erroneous and would have startling and disruptive consequences if accepted.
Contrary to the Government’s position, in reviewing the Executive Order, the Court is duty-bound to consider not only the language of the Order but also its
2 For example, in Fong Yue Ting, the Court upheld a requirement that evidence of residency for aliens of Chinese origin be supported by “one credible white witness.” 149 U.S. at 729-30.
4

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 15 of 24

(25 of 153)

“historical context” and the “specific sequence of events leading to [its pronouncement].” McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 866 (2005). As demonstrated in Part II.A, such a review can support only one conclusion — that the Executive Order is motivated by animus toward Muslims and the Islamic faith.
The courts’ duty to examine the context in which the Executive Order was conceived and implemented flows from the nature of the constitutional and statutory violations that the States have alleged.
With respect to the Establishment Clause, the District Court must consider both “historical context” and the “specific sequence of events leading to” issuance of the Executive Order to determine whether it was intended, at least in part, to disfavor one faith over others. McCreary County, Ky., 545 U.S. at 866; Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (holding that courts have a “duty . . . to distinguish a sham secular purpose from a sincere one”).
With respect to Equal Protection, the District Court must address the States’ credible allegations and evidence that the Executive Order was intended to discriminate against Muslims. See Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015). Equal Protection challenges to federal action require judicial consideration of both the “avowed purpose and practical effect of the law” to test its constitutionality. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (emphasis added).
Yet another example is the Free Exercise Clause, which is closely related to the Establishment Clause argument raised by plaintiff states. The Free Exercise
5

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 16 of 24

(26 of 153)

Clause requires a determination of whether “animus toward religion” motivated a state action. Locke v. Davey, 540 U.S. 712, 725 (2004). Doing so means that judges must look closely at a measure’s “history” and “operation.” Id. They also look closely at public statements made by the enacting body. Church of Lukumi Babalu v. Hialeah, 508 U.S. 520, 541 (1993) (examining “minutes and taped excerpts” of city council meeting that produced challenged ordinance, and finding “significant hostility” toward a religious minority).
Nor does a different rule apply in the immigration context. In previous antidiscrimination challenges to executive immigration-related action by noncitizens, the Court has looked to “the historical record” to determine whether “the actions at issue … were motivated by any racial animus.” INS v. Pangilinan, 486 U.S. 875, 886 (1988). Moreover, the Court has exercised especially searching review of executive action when an action appeared not to rest on relevant policy expertise. See e.g., Hampton v. Mow Sun Wong, 426 U.S. 88, 103 (1976).
Finally, even if the plenary power doctrine were properly invoked here (it is not), Justice Kennedy’s controlling opinion in Kerry v. Din, 135 S. Ct. 2128 (2015)3 directs that courts should “look behind” the government’s stated reasons for an immigration decision if the plaintiff “plausibly alleged with sufficient particularity” “an affirmative showing of bad faith.” Din, 135 S. Ct. at 2131. Here, the States have alleged that the Executive Order reflects implementation of a bad faith effort to target Muslims. ECF 18 ¶¶ 42–61. As demonstrated below, those allegations are more than plausible in light of the publicly available evidence.
3 See Cardenas, 826 F.3d at 1171–72 (holding that Justice Kennedy’s concurrence in Kerry v. Din “represents the holding of the Court”).
6

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 17 of 24

(27 of 153)

II. THE PURPOSE AND EFFECT OF THE EXECUTIVE ORDER IS ANIMUS TOWARD MUSLIMS A. The Executive Order Is Animated By Overt Animus Toward Muslims Among the stated purposes of the Executive Order is “to protect Americans
. . . [by] ensur[ing] that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” Executive Order Section 1. Statements by the President and his advisors leave no doubt that the unstated premise of the Executive Order is the false proposition that Muslims, by virtue of their religious faith, are more likely than non-Muslims to “bear hostile attitudes toward [the United States] and its founding principles.” This unfounded and irrational animus toward all Muslims has permeated the conception, promulgation, and implementation of the Executive Order, as demonstrated by the below chronology of public pronouncements by the President and his advisors.
On November 18, 2015, Mr. Trump claimed that he believed that the United States will have “absolutely no choice” but to close down mosques and pledged that, if he won the presidency, “[Syrian refugees are] going out.” Ware Decl. Ex. A.
On December 7, 2015, following the terror attack in San Bernardino, California, then-candidate Mr. Trump called for a “complete shutdown of Muslims entering the United States.” Ware Decl. Ex. B. Mr. Trump justified this call by claiming, without evidence, that “large segments of the Muslim population” favor Sharia (Islamic law) over U.S. law and violence against Americans. Ware Decl. Ex. C.

7

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 18 of 24

(28 of 153)

On December 8, 2015, Mr. Trump defended his proposed “Muslim ban,” and falsely accused Muslims of failing to report the San Bernardino plot:4 “The Muslim community is not reporting what’s going on. They should be reporting that their next-door neighbor is making pipe bombs and they’ve got them all over the place. The mother’s in the apartment, other people, his friend was buying him rifles. Nobody was reporting that.” Ware Decl. Ex. D.
On January 14, 2016, during a Republican Candidate Debate in North Charleston, South Carolina, Mr. Trump answered “No” when asked whether he had heard anything that made him want to rethink his position on banning Muslims from entering the country. Ware Decl. Ex. E.
On March 9, 2016, Mr. Trump told CNN’s Anderson Cooper that “Islam hates us.” Ware Decl. Ex. F. Asked whether he made a distinction between Islam and radical Islam, Mr. Trump asserted that, “It’s very hard to separate, because you don’t know who is who.” Ware Decl. Ex. F.
On June 13, 2016, in a speech responding to the terror attack in Orlando, Florida, Mr. Trump pledged to suspend immigration from areas of the world where there is a proven history of terrorism against the United States, Europe, or our allies. Ware Decl. Ex. G. According to public statements by Mr. Trump’s advisor, Rudolph Giuliani, on the day the Executive Order was signed, this new formulation reflected an instruction by Mr. Trump to his advisors to find a way to implement
4 Donald Trump on Orlando Shooting, FACTCHECK.ORG (June 14, 2016), http://www.factcheck.org/2016/06/donald-trump-on-orlando-shooting/ (“There is no evidence for Trump’s claim that “many people,” including neighbors of the San Bernardino shooters, saw “bombs all over the floor” of the apartment, but did not report it to authorities because of concerns about racial profiling.”).
8

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 19 of 24

(29 of 153)

the “Muslim ban” “legally.” Ware Decl. Ex. H. During the same June 13, 2016 speech, Mr. Trump accused Muslims of “trying to take over our children and convince them how wonderful ISIS is and how wonderful Islam is.” Ware Decl. Ex. G.
On August 10th, 2016, Mr. Trump’s National Security Adviser Michael Flynn called Islam “a cancer” during remarks at an ACT for America event in Dallas, Texas. Ware Decl. Ex. I. Mr. Flynn made similar remarks again during the same month at a speech to the Ahavath Torah Congregation in Stoughton, Massachusetts, saying, “This is Islamism, it is a vicious cancer inside the body of 1.7 billion people on this planet and it has to be excised.” Ware Decl. Ex. J.
At a campaign rally in Canton, Ohio, on September 14, 2016, Mr. Trump, while discussing Syrian refugees, claimed that, “We don’t know where these people come from. We don’t know if they have love or hate in their heart, and there’s no way to tell.” Ware Decl. Ex. K.
On January 27, 2017, Mr. Trump said that Christian refugees would be given priority in the refugee program. Ware Decl. Ex. L. On February 3, 2017, Mr. Trump posted on Twitter “We must keep ‘evil’ out of our country.” Ware Decl. Ex. M.
B. The Executive Order Disproportionately Injures Muslims, Including Longtime U.S. Residents
In the First Amended Complaint, the States have identified a number of concrete harms that residents of the States have suffered and are suffering as a result of the Executive Order. First Amended Complaint, State of Washington v. Trump et al., No. 2:17-cv-00141 (JLR) (W.D. Wash. Feb. 1, 2017), ECF No. 18. As
9

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 20 of 24

(30 of 153)

American Muslim professionals, Amici have suffered and are suffering these injuries to a disproportionate degree.5 Moreover, Amici are suffering an additional injury as a result of the stigma that has attached to Muslims, unfairly and irrationally, as a result of the Executive Order and the public pronouncements of the President and his advisors in connection therewith.
Contrary to the misperception spread by the “Muslim ban,” the presence of Muslims in America is not a threat to American security. Muslims have been a part of America since its founding, when 10–15% of slaves forcibly brought to America were Muslim. Muslims have expended their blood, sweat, and tears building and defending the United States. In fact, today, more than 5,000 Muslims serve in the U.S. military, and many have given their lives in recent wars in defense of US interests. They also provide necessary healthcare, educate our nation’s children, create jobs, and contribute innovation that is an essential driver of our nation’s economic growth. Today, Muslims represent 1% of the US population. See generally Kambiz Ghanea Bassiri, A History of Islam in America: From the New World to the New World Order (Cambridge 2010).
The intentional and false stigmatization of Muslims as potential terrorists — even if supposedly limited to Muslims from the 7 majority-Muslim countries expressly included in the Executive Order — will, if not restrained, continue to irreparably harm Amici.

5 At the appropriate time, Amici intend to seek leave of the District Court to submit supporting evidence.
10

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 21 of 24

(31 of 153)

CONCLUSION For the foregoing reasons, Amici respectfully request that the Court deny the Government’s Motion.

11

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 22 of 24

(32 of 153)

Date: February 6, 2017

Respectfully submitted,
/s/ Anton Ware
ANTON WARE Arnold & Porter Kaye Scholer LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111 (415) 471-3100
OF COUNSEL
FARHANA KHERA AZIZ HUQ BRENDA ABDELALL MADIHHA AHUSSAIN JUNAID SULAHRY Muslim Advocates
P.O. Box 71080 Oakland, CA 94612 (415) 692-1484
DANIEL A. CANTOR BETHAN R. JONES
Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942 5000
ANDREW D. BERGMAN Arnold & Porter Kaye Scholer LLP 700 Louisiana Street Suite 1600 Houston, TX 77002 (713) 576 2430
CLARA WANG* Arnold & Porter Kaye Scholer LLP 250 West 55th Street New York, New York 10019 (212) 836 6546 *Admission pending in New York Counsel for Amici Curiae
12

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 23 of 24

(33 of 153)

CERTIFICATION UNDER FEDERAL & LOCAL APPELLATE RULES
I certify that the text of this brief, as electronically filed, is identical to the
paper copies submitted to the Clerk of the Court.
I further certify that this brief complies with the type-volume limitation of
Fed. R. App. P. 28.1(e)(2) or 32(a)(7)(B). Excluding the portions of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii), this brief contains 4,552 words. This
brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the
type style requirements of Fed. R. App. P. 32(a)(6). It has been prepared in a
proportionally spaced typeface using the Century font in 12 point.
I also certify that the electronically filed PDF version of this brief has been
analyzed by the web-based virus scan service Virus Total and that no viruses were
detected.
/s/ Anton Ware ANTON WARE
Arnold & Porter Kaye Scholer LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111 (415) 471-3100

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-2, Page 24 of 24

(34 of 153)

CERTIFICATE OF SERVICE
I certify that on February 6, 2017 the foregoing brief was filed using the
Court’s CM/ECF system. All participants in the case are registered CM/ECF users
and will be served electronically via that system.
/s/ Anton Ware ANTON WARE
Arnold & Porter Kaye Scholer LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111 (415) 471-3100
Counsel for Amici Curiae

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 1 of 119

(35 of 153)

NO. 17-35105

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON and STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al.,
Defendants-Appellants

DECLARATION OF ANTON A. WARE IN SUPPORT OF BRIEF OF MUSLIM ADVOCATES, AMERICAN MUSLIM HEALTH PROFESSIONALS, COUNCIL FOR THE ADVANCEMENT OF MUSLIM PROFESSIONALS, ISLAMIC MEDICAL ASSOCIATION OF NORTH AMERICA, MUPPIES, INC., NATIONAL ARAB AMERICAN MEDICAL ASSOCIATION, NETWORK OF ARAB-AMERICAN PROFESSIONALS, AS AMICI CURIAE, SUPPORTING APPELLEES

I, Anton A. Ware, hereby declare as follows: 1. I am over the age of eighteen and competent to testify. 2. I am a partner at Arnold & Porter Kaye Scholer LLP. I make this declaration as a representative of Muslim Advocates in support of the brief of Muslim Advocates, American Muslim Health Professionals, Council for the Advancement of Muslim Professionals, Islamic Medical Association of North America, Muppies, Inc., National Arab American Medical Association, and Network of Arab-American Professionals, as amici curiae, supporting Appellees. 3. Attached hereto as Ware Declaration Exhibit A is a true and correct copy of a printout of a news article published from Politico dated November 18, 2015, titled “Trump: ‘Absolutely no choice’ but to close mosques.”

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 2 of 119

(36 of 153)

4. Attached hereto as Ware Declaration Exhibit B is a true and correct copy of a printout of a press release published by the presidential campaign website of Donald J. Trump dated December 7, 2015, titled “Donald Trump Statement on Preventing Muslim Immigration.” 5. Attached hereto as Ware Declaration Exhibit C is a true and correct copy of a printout of a news article from the Bridge Initiative at Georgetown University dated December 7, 2015, titled “Trump Calls for Ban on Muslims, Cites Deeply Flawed Poll.” 6. Attached hereto as Ware Declaration Exhibit D is a true and correct copy of a printout of a news article from Politico dated December 8, 2015, titled “Trump not bothered by comparisons to Hitler.” 7. Attached hereto as Ware Declaration Exhibit E is a true and correct copy of a printout of the transcript of the March 10, 2016 Republican Candidates Debate in Miami, Florida published by the American Presidency Project. 8. Attached hereto as Ware Declaration Exhibit F is a true and correct copy of a printout of the transcript of an interview by Anderson Cooper with Donald J. Trump that aired on March 9, 2016 on Anderson Cooper 360 Degrees and published by CNN. 9. Attached hereto as Ware Declaration Exhibit G is a true and correct copy of a printout of a news article from Politico dated June 13, 2016, titled “Transcript: Donald Trump’s national security speech,” containing the transcript of then-candidate Mr. Trump’s June 13 speech on national security and terrorism in the wake of the Orlando massacre. 10. Attached hereto as Ware Declaration Exhibit H is a true and correct copy of a printout of a news article from Slate dated January 29, 2017, titled “Rudy Giuliani Admits Trump Asked How to Implement a Muslim Ban Legally.”

2

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 3 of 119

(37 of 153)

11. Attached hereto as Ware Declaration Exhibit I is a true and correct copy of a printout of a news article from ABC News dated November 18, 2016, titled “Donald Trump National Security Adviser Mike Flynn Has Called Islam ‘a Cancer.’” 12. Attached hereto as Ware Declaration Exhibit J is a true and correct copy of a printout of a news article from CNN dated November 22, 2016, titled “Michael Flynn in August: Islamism a ‘vicious cancer’ in body of all Muslims that ‘has to be excised.’” 13. Attached hereto as Ware Declaration Exhibit K is a true and correct copy of a printout of a news article from the Washington Post dated September 15, 2016, titled “Donald Trump just completely undercut his Muslim ban alternative.” 14. Attached hereto as Ware Declaration Exhibit L is a true and correct copy of a printout of a Twitter post posted by Mr. Trump on his personal Twitter account at 7:03 AM on January 29, 2017. 15. Attached hereto as Ware Declaration Exhibit M is a true and correct copy of a printout of a Twitter post posted by Mr. Trump on his personal Twitter account at 3:08 PM on February 3, 2017.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 6th day of February 2017.
______/s/_________________ ANTON A. WARE

3

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 4 of 119

(38 of 153)

4. Attached hereto as Ware Declaration Exhibit B is a true and correct copy of a printout of a press release published by the presidential campaign website of Donald J. Trump dated December 7, 2015, titled “Donald Trump Statement on Preventing Muslim Immigration.” 5. Attached hereto as Ware Declaration Exhibit C is a true and correct copy of a printout of a news article from the Bridge Initiative at Georgetown University dated December 7, 2015, titled “Trump Calls for Ban on Muslims, Cites Deeply Flawed Poll.” 6. Attached hereto as Ware Declaration Exhibit D is a true and correct copy of a printout of a news article from Politico dated December 8, 2015, titled “Trump not bothered by comparisons to Hitler.” 7. Attached hereto as Ware Declaration Exhibit E is a true and correct copy of a printout of the transcript of the March 10, 2016 Republican Candidates Debate in Miami, Florida published by the American Presidency Project. 8. Attached hereto as Ware Declaration Exhibit F is a true and correct copy of a printout of the transcript of an interview by Anderson Cooper with Donald J. Trump that aired on March 9, 2016 on Anderson Cooper 360 Degrees and published by CNN. 9. Attached hereto as Ware Declaration Exhibit G is a true and correct copy of a printout of a news article from Politico dated June 13, 2016, titled “Transcript: Donald Trump’s national security speech,” containing the transcript of then-candidate Mr. Trump’s June 13 speech on national security and terrorism in the wake of the Orlando massacre. 10. Attached hereto as Ware Declaration Exhibit H is a true and correct copy of a printout of a news article from Slate dated January 29, 2017, titled “Rudy Giuliani Admits Trump Asked How to Implement a Muslim Ban Legally.”

2

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 5 of 119

(39 of 153)

11. Attached hereto as Ware Declaration Exhibit I is a true and correct copy of a printout of a news article from ABC News dated November 18, 2016, titled “Donald Trump National Security Adviser Mike Flynn Has Called Islam ‘a Cancer.’” 12. Attached hereto as Ware Declaration Exhibit J is a true and correct copy of a printout of a news article from CNN dated November 22, 2016, titled “Michael Flynn in August: Islamism a ‘vicious cancer’ in body of all Muslims that ‘has to be excised.’” 13. Attached hereto as Ware Declaration Exhibit K is a true and correct copy of a printout of a news article from the Washington Post dated September 15, 2016, titled “Donald Trump just completely undercut his Muslim ban alternative.” 14. Attached hereto as Ware Declaration Exhibit L is a true and correct copy of a printout of a Twitter post posted by Mr. Trump on his personal Twitter account at 7:03 AM on January 29, 2017. 15. Attached hereto as Ware Declaration Exhibit M is a true and correct copy of a printout of a Twitter post posted by Mr. Trump on his personal Twitter account at 3:08 PM on February 3, 2017.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 6th day of February 2017.
______/s/_________________ ANTON A. WARE

3

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 6 of 119

(40 of 153)

Ware Declaration Exhibit A

2/6/2017

Case: 17-35105, 02T/r0u6m/p2: '0Ab1s7olu,teIlDy n:o1ch0o3ic0e'4bu3t 6to0cl,osDe mktoEsqnuetsry­ :PO8L2IT-I3CO, Page 7 of 119

(41 of 153)



Trump remarked that things are "happening a lot faster than anybody understands."
Trump: 'Absolutely no choice' but to close mosques
By NICK GASS | 11/18/15 06:45 AM EST
The United States will have "absolutely no choice" but to close down some mosques where "some bad things are happening," Donald Trump said in a recent interview, explaining his rationale for doing so.
"Nobody wants to say this and nobody wants to shut down religious institutions or anything, but you know, you understand it. A lot of people understand it. We’re going to have no choice," the Republican presidential said in an interview from Trump Tower on Fox News' "Hannity" on Tuesday night.

http://www.politico.com/story/2015/11/trump­close­mosques­216008

1/3

2/6/2017

Case: 17-35105, 02T/r0u6m/p2: '0Ab1s7olu,teIlDy n:o1ch0o3ic0e'4bu3t 6to0cl,osDe mktoEsqnuetsry­ :PO8L2IT-I3CO, Page 8 of 119

(42 of 153)

Those remarks go further than Trump did on Monday, when he said he would "strongly consider" closing mosques as part of a response to last Friday's terrorist attacks in Paris that killed more than 130 and injured hundreds more.
Asked to explain his shifting position by Sean Hannity, Trump remarked that things are "happening a lot faster than anybody understands."
"There’s absolutely no choice. Some really bad things are happening and they're happening fast," he said, taking a dig at President Barack Obama's response to the attacks. "Certainly a lot faster than our president understands because he doesn't understand anything. He doesn't get it. Refuses to even call it by its correct name," which Trump termed "radical Islam."
In terms of the refugee situation, Trump said he had "a feeling that a lot of bad things will happen out of this."
2016
Bobby Jindal drops out of White House race
By ALEX ISENSTADT
"But yet we take everybody. We don't know where they come from, we don't know what their crime record is. It could be wonderful. It could be a disaster," he speculated, again pledging that if he wins the presidency, "they're going out."
"We can't take a chance. You know, if you take thousands of people, and again I hear it's going to be many more than what you're talking about right now. But if you take thousands of people, Sean, all you need is a couple. You know, you don't need 25, you don't need 100," he said. "Look at the damage done in Paris with just a few people."
Trump repeatedly reiterated his desire to "blast the hell out of" ISIL targets and "bomb the hell out of" the terrorist group's oil resources.
"Now they're just starting to do that, but they're two years late," Trump said. "Interestingly after Paris, all of a sudden they start bombing sites that they knew about for a year and a half. But they started bombing them after the tragic events of Paris. So, so many things are wrong. We need leadership in the world now. You know, it's really a worldwide leadership, but boy, do we need leadership in our country."

http://www.politico.com/story/2015/11/trump­close­mosques­216008

2/3

2/6/2017

Case: 17-35105, 02T/r0u6m/p2: '0Ab1s7olu,teIlDy n:o1ch0o3ic0e'4bu3t 6to0cl,osDe mktoEsqnuetsry­ :PO8L2IT-I3CO, Page 9 of 119

(43 of 153)

http://www.politico.com/story/2015/11/trump­close­mosques­216008

3/3

(44 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 10 of 119
Ware Declaration Exhibit B

2/6/2017

Case: 17-3D5o1na0ld5J,. T0ru2m/0p S6t/a2te0m1en7t o,nIPDre:ve1n0tin3g0M4us3li6m0Im, mDigkrtaEtionn t| rDyo:na8ld2J-T3ru,mPpafogr Pere1si1denot f 119

(45 of 153)

INSTAGRAM

FACEBOOK

TWITTER

NEWS

GET INVOLVED

GALLERY

ABOUT US

SHOP

CONTRIBUTE

­ DECEMBER 07, 2015 ­
DONALD J. TRUMP STATEMENT ON PREVENTING MUSLIM IMMIGRATION
(New York, NY) December 7th, 2015, -- Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing "25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad" and 51% of those polled, "agreed that Muslims in America should have the choice of being governed according to Shariah." Shariah authorizes such atrocities as murder against non-believers who won't convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

CATEGORIES
VIEW ALL STATEMENTS ANNOUNCEMENTS ENDORSEMENTS ADS
ARCHIVE

Mr. Trump stated, "Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again." - Donald J. Trump

NOVEMBER 2016 OCTOBER 2016 SEPTEMBER 2016 AUGUST 2016 JULY 2016

JUNE 2016

Next Release: Donald J. Trump Announces State Directors in Massachusetts and Mississippi
Previous Release: Donald J. Trump Announces Statewide Leadership Team in Oklahoma

MAY 2016 APRIL 2016 MARCH 2016

FEBRUARY 2016

JANUARY 2016

DECEMBER 2015

NOVEMBER 2015

OCTOBER 2015

SEPTEMBER 2015

AUGUST 2015

JULY 2015

JUNE 2015

MAY 2015

APRIL 2015

MARCH 2015

https://www.donaldjtrump.com/press­releases/donald­j.­trump­statement­on­preventing­muslim­immigration

1/2

2/6/2017

Case: 17-3D5o1na0ld5J,. T0ru2m/0p S6t/a2te0m1en7t o,nIPDre:ve1n0tin3g0M4us3li6m0Im, mDigkrtaEtionn t| rDyo:na8ld2J-T3ru,mPpafogr Pere1si2denot f 119

(46 of 153)

Paid for by Donald J. Trump for President, Inc.
Contact The Campaign ­ Privacy Policy ­ Tel: 646­736­1779 *By entering your mobile number you are agreeing to receive periodic text messages from Donald J. Trump for President, Inc.
Message and data rates may apply. Text "STOP" to opt­out. T&C/Privacy Policy: sms­terms/88022

https://www.donaldjtrump.com/press­releases/donald­j.­trump­statement­on­preventing­muslim­immigration

2/2

(47 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 13 of 119
Ware Declaration Exhibit C

(48 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 14 of 119

(http://bridge.georgetown.edu)

TRACKING ISLPAOMMLOIETPDIHCIASO((BHHIATTTTINPP::>////BBRRIIDDGGEE..GGEEOORRGGEETTOOW WNN..EEDDUU//M POELDITIAIC/)S/) SOCIETY (HTTP://BRIDGE.GEORGETOWN.EDU/SOCIETY/) WORLD (HTTP://BRIDGE.GEORGETOWN.EDU/WORLD/)
CYBERSPACE (HTTP://BRIDGE.GEORGETOWN.EDU/CYBERSPACE/)

SEARCH

Trump Calls for Ban on Muslims, Cites Deeply Flawed Poll
Posted on December 7, 2015 at 6:48 am. Written by Bridge Initiative Team (http://bridge.georgetown.edu/author/admin/)

(49 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 15 of 119 UPDATE (DECEMBER 7, 2015) In a press release today, GOP frontrunner Donald Trump (http://bridge.georgetown.edu/islamophobia-and-the-2016-elections/#DonaldTrump) called for a “total and complete shutdown of Muslims (https://www.yahoo.com/politics/donald-trump-calls-fortotal-and-complete-214105912.html) entering the United States until our country’s representatives can figure out what is going on.”
His statement also cites a deeply flawed poll conducted by the Center for Security Policy (CSP), a group with a history of fear mongering about Islam and Muslims.
In June, when the poll was released and circulated widely on networks like Fox News, we debunked its findings, writing:
This survey (http://www.centerforsecuritypolicy.org/2015/06/23/nationwide-poll-of-us-muslimsshows-thousands-support-shariah-jihad/) should not be taken seriously. It comes from an organization with a history of producing dubious claims and “studies” about the threat of shariah, and was administered using an unreliable methodology. Its proponents seize upon its shoddy findings, exaggerating and misrepresenting them to American audiences, and falsely claim that the survey data represents the views of Muslims nationwide.
Donald Trump is only the latest proponent of CSP’s dubious claims. In an interview with MSNBC, Saba Ahmed recounted how GOP presidential candidate Ben Carson told her that Frank Gaffney, CSP’s director, advised him on issues related to Islam. Numerous other GOP candidates, like Ted Cruz (http://bridge.georgetown.edu/islamophobia-and-the-2016-elections/#TedCruz) and George Pataki (http://bridge.georgetown.edu/islamophobia-and-the-2016-elections/#GeorgePataki), have attended (http://bridge.georgetown.edu/presidential-candidates-set-to-appear-at-event-hosted-byanti-muslim-conspiracy-theorist/) and spoken at CSP’s national summits.
Trump’s comment about banning Muslims is only the latest in a series of troubling remarks about Muslims made by Trump and other GOP presidential candidates. These comments are documented in our “Islamophobia and the 2016 Elections (http://bridge.georgetown.edu/islamophobia-and-the2016-elections/)” resource.
Original article (Published June 26, 2015)
On June 24, 2015, the Center for Security Policy (CSP), a Washington, D.C. think tank run by former Reagan official Frank Gaffney released a survey (http://www.centerforsecuritypolicy.org/2015/06/23/nationwide-poll-of-us-muslims-shows-

(50 of 153) thousands-supCpaosret-:s1h7a-r3ia5h1-j0ih5a, d0/2) /o0f66/20001M7,uIsDli:m1s03liv0i4n3g6in0,thDektUEnnittreyd: 8S2ta-3te, sP. aItgseta1k6eaowf 1a1y,9captured in a headline on the CSP website, is this: “Poll of US Muslims Reveals Ominous Levels of Support For Islamic Supremacists’ Doctrine of Shariah, Jihad.”
The poll gained quick traction online and in the media. On the evening of its release, Fox News host Bill O’Reilly (https://www.youtube.com/watch?v=_bnhi03bWIA) also lent credence to its findings and cast doubt upon American Muslims’ loyalty to their country.
Among the poll’s findings are:
“A majority (51%) agreed that ‘Muslims in America should have the choice of being governed according to shariah.’”
“Nearly a quarter of the Muslims polled believed that, ‘It is legitimate to use violence to punish those who give offense to Islam by, for example, portraying the prophet Mohammed.’”
“Nearly one-fifth of Muslim respondents said that the use of violence in the United States is justified in order to make shariah the law of the land in this country.”
But this survey (http://www.centerforsecuritypolicy.org/2015/06/23/nationwide-poll-of-us-muslimsshows-thousands-support-shariah-jihad/) should not be taken seriously. It comes from an organization with a history of producing dubious claims and “studies” about the threat of shariah, and was administered using an unreliable methodology. Its proponents seize upon its shoddy findings, exaggerating and misrepresenting them to American audiences, and falsely claim that the survey data represents the views of Muslims nationwide.
Here are the details.
CSP’S HISTORY OF BASELESS FEARMONGERING In recent years, many groups have raised questions about the objectivity and intentions of Frank Gaffney. His tendency to posit conspiracies about Barack Obama and the Muslim Brotherhood is well documented, and has earned him sharp critique across the political spectrum. The Center for American Progress labels (https://www.americanprogress.org/wpcontent/uploads/issues/2011/08/pdf/islamophobia_chapter2.pdf) him a “misinformation expert,” while the Conservative Political Action Committee banned (http://talkingpointsmemo.com/muckraker/cpac-banned-frank-gaffney-over-baseless-anti-muslimcharges) him from their 2011 conference for peddling false accusations about GOP connections to Muslim extremists. It was his organization, CSP, that was behind the unfounded rumor (http://www.thedailybeast.com/articles/2012/07/23/bachmann-gaffney-and-the-gop-s-anti-muslimculture-of-conspiracy.html) that Hillary Clinton’s chief of staff, Huma Abedin, was linked to the Muslim Brotherhood, and once floated the false idea (http://thinkprogress.org/politics/2011/04/28/161792/frank-gaffney-david-petraeus-sharia/) that General David Petraeus had “submitted” to shariah.

(51 of 153) Since the earlyC2as0e0:01s7, -C3S5P10h5a,s0g2e/0n6e/r2a0te1d7,dIoDz:e1n0s3o0f4o3c6c0a,sDiokntEalnptrayp: e8r2s-,3b,loPgasg,ean1d7 roefp1o1r9ts that fixate on shariah or other allegedly nefarious topics related to Islam. Often, they are loosely sourced (http://thelede.blogs.nytimes.com/2012/07/16/egyptians-who-jeered-clinton-cite-americanconservatives-to-argue-u-s-secretly-supports-islamists/?_r=0) or entirely unsubstantiated (http://thinkprogress.org/security/2010/02/25/83953/missile-defense-logo-conspiracy/), relying instead on a furtive web of connections or, in one case, a 24-year-old document written by a lone (http://www.alternet.org/story/150444/welcome_to_the_shari%27ah_conspiracy_theory_industry) Muslim activist that has since been roundly discredited.
FALSE STATISTICS AND FALSE CLAIMS Both Gaffney and O’Reilly claim that the poll’s findings are representative of nationwide Muslim public opinion. But this assertion is untrue.
CSP’s survey was a non-probability based, opt-in online survey, administered by the conservative group, the Polling Company/Woman Trend, a small Washington-based agency that has collaborated with CSP on other occasions to produce surveys about Islam and Muslims. (We learned this after reaching out to the Polling Company to get more details about their methodology, which wasn’t released to the public when Gaffney began promoting the survey’s findings.)
According to the body that sets ethical standards for polling, the American Association for Public Opinion Research (http://www.aapor.org/AAPORKentico/Communications/PressReleases/Understanding-a-credibility-interval%E2%80%9D-and-how-it-d.aspx) (AAPOR), opt-in surveys cannot be considered representative of the intended population, in this case Muslims. The AAPOR says that in these cases (http://www.aapor.org/AAPORKentico/Education-Resources/ForResearchers/Poll-Survey-FAQ/Why-Sampling-Works.aspx), “the pollster has no idea who is responding to the question” and that these kind (http://www.aapor.org/AAPORKentico/Communications/Press-Releases/Understanding-a-credibilityinterval%E2%80%9D-and-how-it-d.aspx) of “polls do not have such a ‘grounded statistical tie’ to the population.”
So when O’Reilly and guest Zuhdi Jasser pointed to this survey and made claims about what “25% of three million, which is hundreds of thousands of Muslims” believe, it’s not only a misleading statement—it’s outright false.
This survey does not represent the views of American Muslims. It only represents the views of the 600 Muslims that it polled.
LOADED QUESTIONS AND ANSWERS

(52 of 153) Another problCemaswe:it1h7t-h3is51p0o5ll,is02th/0e6w/2a0y1t7h,aItDq:u1e0s3ti0o4n3s6a0n,dDakntEswnteryrs: 8a2re-3p,hPraagseed1. 8Ooftfe1n1, 9they are not neutral but are imbued with assumptions, and replicate, in an interrogative form, statements that Gaffney and CSP have declared as fact for years. In one question, respondents are asked: “Do you believe the Muslim Brotherhood in America accurately represents your views?” Packed into this question is the assertion that the Brotherhood indeed exists in the United States — something that Gaffney has long propagated. Those who answer “yes” confirm his suspicions, while those who answer “no” acknowledge nonetheless that the group is present here. They’re put into a lose-lose situation.
In several questions that are asked about shariah, the content of what shariah actually is remains unexamined. Even when Gaffney’s survey appears to be more nuanced by asking Muslims how they would “characterize shariah,” it only offers options about how broadly sharia—whatever it is—should be applied. Answers ranging from “guide to the personal practice of Islam” to Gaffney’s (https://www.youtube.com/watch?v=AqV8syZPPT4) preferred option (“the Muslim God Allah’s law that Muslims must follow and impose worldwide via jihad”) still don’t allow Muslims to express about what they believe about shariah.
Respondents’ likely answered questions on shariah based on their understanding of the concept, but those views were not measured in the survey, nor communicated to the Fox News audience. Instead viewers are left to believe that Muslim Americans support shariah as Gaffney and O’Reilly have portrayed it for years: a “brutally repressive” law hostile to non-Muslims (https://www.youtube.com/watch?v=jNsqjN4vpgk). At the end of the day, Gaffney and O’Reilly make it look like Muslims support things they actually don’t.
SELECTIVE READING AND EXAGGERATIONS Sixty-percent of respondents agreed that “shariah as interpreted by Islamic authorities is compatible with the U.S. Constitution, including freedom of speech and other rights,” and 51% chose this definition of jihad: “Muslims’ peaceful, personal struggle to be more religious.” These rare but helpful nuances are not even alluded to in the promotion and coverage of the survey’s findings in conservative outlets like Fox News.
O’Reilly also makes exaggerations that the already-flawed data doesn’t support. “Fifty-one percent [of Muslims] say sharia law should be the reigning law,” he said. But that language is nowhere in the survey data he’s likely referencing, which says that “a majority (51%) agreed that ‘Muslims in America should have the choice of being governed according to shariah.’”
Despite its unreliability, the survey and its findings have spread quickly, with generalizations (http://www.americanthinker.com/blog/2015/06/poll_shows_high_levels_of_support_for_shariah_law_and_vio about American Muslims ricocheting (http://www.frontpagemag.com/2015/dgreenfield/1-in-5-usmuslims-support-violence-to-enforce-islamic-law/) across the Internet and social media

(53 of 153) (https://twitter.Ccoamse/P: r1o7g-3sT5o1d0a5y,/s0t2a/t0u6s//260131778, 2ID0:61603350447366508,2D4k),tEanndtryb:le8e2d-3in, gPaingtoe m19oroef 1m1a9instream outlets. Unfortunately, the general public is not equipped with the tools or knowledge to dissect such claims and is left to accept them at face value. This is especially so when they’re touted by a trusted personality, like Bill O’Reilly, and confirm pre-existing beliefs about Muslims.
Though the public may not see it, the problems with this poll are numerous: CSP has a history of fabricating fear about Islam and Muslims; the survey’s questions and answers are loaded with bias; and its creators and proponents falsely claim that its findings represent the views of all American Muslims.
The American public shouldn’t trust this poll.
SHARE THIS:
 (http://bridge.georgetown.edu/new­poll­on­american­muslims­is­grounded­in­bias­riddled­with­flaws/?
share=facebook&nb=1)
 (http://bridge.georgetown.edu/new­poll­on­american­muslims­is­grounded­in­bias­riddled­with­flaws/?
share=twitter&nb=1)
 (http://bridge.georgetown.edu/new­poll­on­american­muslims­is­grounded­in­bias­riddled­with­flaws/?
share=email&nb=1)
 (http://bridge.georgetown.edu/new­poll­on­american­muslims­is­grounded­in­bias­riddled­with­flaws/#print)
TAGS: AMERICAN MUSLIMS (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/AMERICAN­ MUSLIMS/), BEN CARSON (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/BEN­CARSON/), BILL O'REILLY (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/BILL­OREILLY/), CENTER FOR SECURITY POLICY (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/CENTER­FOR­SECURITY­POLICY/), DONALD TRUMP (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/DONALD­TRUMP/), FRANK GAFFNEY (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/FRANK­GAFFNEY/), GEORGE PATAKI (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/GEORGE­PATAKI/), JIHAD (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/JIHAD/), MUSLIMS (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/MUSLIMS/), POLL (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/POLL/), SHARIA (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/SHARIA/), TED CRUZ (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/TED­CRUZ/), THE POLLING COMPANY (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/THE­POLLING­COMPANY/), ZUHDI JASSER (HTTP://BRIDGE.GEORGETOWN.EDU/TAG/ZUHDI­JASSER/)
THE BRIDGE INITITATIVE
HOME (HTTP://BRIDGE.GEORGETOWN.EDU/) ABOUT (HTTP://BRIDGE.GEORGETOWN.EDU/ABOUT/) TEAM (HTTP://BRIDGE.GEORGETOWN.EDU/TEAM/) WHAT IS ISLAMOPHOBIA? (HTTP://BRIDGE.GEORGETOWN.EDU/WHAT-IS-ISLAMOPHOBIA/) INFOGRAPHICS (HTTP://BRIDGE.GEORGETOWN.EDU/INFOGRAPHICS/)

(54 of 153) SUPER SUCRaVseE:Y1(H7-T3T5P1:/0/B5,R0ID2G/0E6.G/2E0O1R7G, EIDTO: 1W0N3.0E4D3U6/T0H, DE-kStUEPnEtrRy-:S8U2R-V3E, YP-aTWgeO2-D0EoCfA1D1E9S-OF-
AMERICANS-VIEWS-ON-ISLAM-MUSLIMS/) HATE CRIMES (HTTP://BRIDGE.GEORGETOWN.EDU/KNOWMORE-ABOUT-ATTACKS-ON-MUSLIMSSINCE-THE-CHAPELHILLSHOOTINGS/) 2016 ELECTIONS (HTTP://BRIDGE.GEORGETOWN.EDU/ISLAMOPHOBIA-AND-THE-2016-ELECTIONS/)
BRIDGE NEWSLETTER SIGN UP
Email Address*
First Name
Last Name
SUBSCRIBE
RECENT POSTS > Factsheet: President Donald Trump (http://bridge.georgetown.edu/factsheet­president­donald­
trump/)
> Factsheet: Steve Bannon (http://bridge.georgetown.edu/factsheet­steve­bannon/) > Factsheet: Lt. Gen. Michael Flynn (http://bridge.georgetown.edu/factsheet­lt­gen­michael­flynn/) > Factsheet: Faith Leaders for America (http://bridge.georgetown.edu/factsheet­faith­leaders­for­
america/)
> Factsheet: Kris Kobach (http://bridge.georgetown.edu/factsheet­kris­kobach/) FOLLOW US ON TWITTER

Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 21 of 119
TheBridgeInitiative @bridgeinit
"Is it easier to get a job if you're Adam or Mohamed?" Via @bbc #Islamophobia bbc.co.uk/news/uk­englan…

(55 of 153)

Is it easier to get a job if you're Adam o… "Adam Henton" was offered three times … bbc.co.uk
4h
TheBridgeInitiative @bridgeinit A "greatest hits" of Steve Bannon's Islamophobic comments in recent years. #SteveBannnon
bit.ly/2lcaFaE

Al­Waleed Bin Talal Center for Muslim­Chr(ishttitapns:U//nwdwewrs.tgaenodrignegto(hwtntp.es:d//ua/c) mcu.georgetown.edu/)
Edmund A. Walsh School of Foreign Service (https://sfs.georgetown.edu/) Georgetown University (https://www.georgetown.edu/) 3700 O Street, NW ICC 260 Washington, DC 20057 bridge@georgetown.edu (mailto:bridge@georgetown.edu)
PROTECTING PLURALISM. ENDING ISLAMOPHOBIA

(56 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 22 of 119
Ware Declaration Exhibit D

2/6/2017

Case: 17-35105, 02/06T/r2um0p1n7ot,bIoDthe:re1d0by3c0om43pa6ris0o,nsDtokHtEitlenr t­rPyO:L8IT2IC-O3, Page 23 of 119

(57 of 153)



Donald Trump has come under fire for calling for temporarily banning all Muslims from entering the U.S.
Trump not bothered by comparisons to Hitler
The billionaire businessman refuses to back off his proposal to temporarily ban all Muslims from entering the U.S.
By NICK GASS | 12/08/15 07:51 AM EST
Donald Trump went on a series of rhetorical rants on Tuesday morning, saying he does not mind comparisons to Adolf Hitler and tussling with morning show anchors about his proposal to temporarily ban all Muslims from entering the United States, calling his approach more akin to what Hitler's American contemporary did during World War II.
“You’re increasingly being compared to Hitler. Doesn’t that give you any pause at all?” ABC News' George Stephanopoulos asked the Republican poll leader on "Good Morning

http://www.politico.com/trump­muslims­shutdown­hitler­comparison

1/6

2/6/2017

Case: 17-35105, 02/06T/r2um0p1n7ot,bIoDthe:re1d0by3c0om43pa6ris0o,nsDtokHtEitlenr t­rPyO:L8IT2IC-O3, Page 24 of 119

(58 of 153)

America," displaying an image of the Philadelphia Daily News' punning Tuesday front-page headline "The New Furor."
In response, Trump said no, invoking what he termed President Franklin D. Roosevelt's "solution for Germans, Italians, Japanese many years ago" during World War II. “This was a president that was highly respected by all," Trump said, remarking upon the Democratic president's actions during the war. "If you look at what he was doing, it was far worse."
Pressed whether he would then advocate the establishment of internment camps for Muslims, for example, Trump forcefully denied that notion. “No, I’m not. No, I’m not. No, I’m not," he said, remarking that European cities like Paris and London no longer look like they once did.
"I hope it will go quickly. I hope we can figure it out," Trump said. "We will have many, many more World Trade Centers as sure as you're sitting there, our country will never be the same."
Ryan repudiates Trump over Muslim ban
By JAKE SHERMAN
Trump, no stranger to dropping rhetorical bombs since he announced his presidential run in June, still managed to stun with his proposal emailed late Monday with the simple title: "Donald J. Trump Statement on Preventing Muslim Immigration."
In it, Trump used research from the Center for Security Policy, which has been called an extremist group, to back his claim that an alarming number of Muslims want to unleash violence in the United States. "Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension," Trump said in his statement, which many in the media believed might have been a hoax when it landed. "Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life."
The proposal came less than a week after a married Muslim couple killed 14 people and wounded 21 in a shooting attack that is apparently the most deadly terrorist act on U.S. soil since 9/11. Trump's statement, which he promoted at a Pearl Harbor Day rally in South Carolina on Monday night, played into Americans' fears stoked by the attack and also gave

http://www.politico.com/trump­muslims­shutdown­hitler­comparison

2/6

2/6/2017

Case: 17-35105, 02/06T/r2um0p1n7ot,bIoDthe:re1d0by3c0om43pa6ris0o,nsDtokHtEitlenr t­rPyO:L8IT2IC-O3, Page 25 of 119

(59 of 153)

Trump a chance to draw attention back to him after a poll released earlier in the day showed Ted Cruz zooming past him in Iowa.
Many of his rivals quickly condemned the comments, with Jeb Bush calling Trump "unhinged," Chris Christie calling it “a ridiculous view,” and Marco Rubio saying, "His habit of making offensive and outlandish statements will not bring Americans together."
But the outcry only further threw attention Trump's way, and the billionaire businessman did not let up on Tuesday morning.
He continued trying to justify his proposal in interviews on CNN's "New Day" and MSNBC's "Morning Joe," the latter of which suspended its interview with Trump only minutes into the segment after co-host Joe Scarborough complained that the candidate was not allowing him to ask any questions. The show returned with a full panel of questions, and the entire segment ran more than a half-hour.
J.K. Rowling: Trump is worse than Voldemort
By NICK GASS

During his questioning on MSNBC, Trump was grilled on what the customs process would look like for a Muslim non-citizen attempting to enter the U.S.
“That would be probably — they would say, are you Muslim?" Trump told contributor Willie Geist.
“And if they said yes, they would not be allowed in the country," Geist volunteered. “That’s correct," Trump responded.
In the same interview, Trump also claimed that the Muslim community is not doing enough to self-report suspicious activity in light of last Wednesday's attack in California. Asked by co-host Mika Brzezinski whether he would want to engage the Muslim community, the Manhattan mogul said he would not, "but the Muslim community has to help us, Mika. They’re not helping us."
"The Muslim community is not reporting what’s going on. They should be reporting that their next-door neighbor is making pipe bombs and they’ve got them all over the place. The mother’s in the apartment, other people, his friend was buying him rifles. Nobody was reporting that," he said of the San Bernardino case. "The Muslim community has to help us, because without the Muslim community, we would have to get very tough and much

http://www.politico.com/trump­muslims­shutdown­hitler­comparison

3/6

2/6/2017

Case: 17-35105, 02/06T/r2um0p1n7ot,bIoDthe:re1d0by3c0om43pa6ris0o,nsDtokHtEitlenr t­rPyO:L8IT2IC-O3, Page 26 of 119

(60 of 153)

tougher, and I don’t want to do that. But the Muslim community is not a one-way street. The Muslim community knew that this guy, what he was doing, and his wife, his very heavily radicalized wife, they knew what they were doing was wrong. Nobody called the police. Nobody said this is what happened.”
At the start of the interview on ABC, Trump forcefully defended his statement, citing "tremendous support" and the "thousands and thousands of people you saw last night" at his rally in South Carolina. "We were on a ship. There were thousands of people there, there were thousands of people outside that couldn’t get in. And frankly, it was a standing ovation that wouldn’t stop," he remarked.
"I mean, people went and interviewed the people that were at my speech last night, and they just want to see something happening. We had the World Trade Center, we had the pre-World Trade Center," he said, referring to both the Sept. 11, 2001, attacks that destroyed the twin towers as well as the Feb. 26, 1993, bombing.
"You know, remember, a lot of people forget now — they tried to blow it up twice. We had so many other incidents, and we had now the last incident in California. Now it turns out that $28,000 was deposited in this punk’s savings account probably given by some people that we are fighting," he speculated, following reports Monday that more than $28,000 had been deposited into the account of San Bernardino co-attacker Syed Rizwan Farook. "Something has to be done," he added.
Joe Scarborough cuts off Trump: 'You can’t just talk'
By NICK GASS
Trump, who on MSNBC declared himself to be more specific than any other candidate in the race, had a parting message for Muslims: “We love you, we want to work with you, we want you to turn in the bad ones, we want you to practice vigilance, we know that if you know a lot, in many cases, we want you to turn in the bad ones. We all want to get along. We want to get back to a normal, peaceful life."
On how he would get it done, Trump, offered no specifics other than to again lambaste President Barack Obama's Sunday night speech on defeating ISIL and to repeat his Monday statement.
“What I’m doing is I’m calling very simply for a shutdown of Muslims entering the United States — and here’s a key — until our country’s representatives can figure out what is going on. They don’t know. Our president, I watched him make a fool of himself the other night

http://www.politico.com/trump­muslims­shutdown­hitler­comparison

4/6

2/6/2017

Case: 17-35105, 02/06T/r2um0p1n7ot,bIoDthe:re1d0by3c0om43pa6ris0o,nsDtokHtEitlenr t­rPyO:L8IT2IC-O3, Page 27 of 119

(61 of 153)

with a speech that nobody still knows — I tweeted out, is that all there is? He didn’t say anything. He doesn’t know what’s going on. And we have people in this country that want to blow up our country. You know it, and so do I," he said on "Good Morning America."
"The polls have come out, and various polls that I’ve quoted, with 25 percent of those polls agreed the violence against the Americans in the United States is justified. And they’re looking at the jihad. They want a global jihad. George, we can't take it sitting back. You will have many more World Trade Centers. It will only get worse," Trump warned. "You look at Paris, you know, and I’m not talking about the horrible carnage that took place. Paris is no longer the same city."
American Muslim citizens would be able to come back to the U.S., Trump said, adding, "but we have to figure things out."
Many legal scholars came out against the proposal, saying such a religious test would violate the U.S. Constitution. And the spectrum of blowback stretched wide and far. Former Vice President Dick Cheney said on Hugh Hewitt's radio show, "Well I think this whole notion that somehow we need to say no more Muslims and just ban a whole religion goes against everything we stand for and believe in. I mean religious freedom’s been a very important part of our, our history.”
Huma Abedin, the vice chairwoman of Hillary Clinton's campaign, sent an email to supporters saying, "I’m a proud Muslim — but you don’t have to share my faith” to know “my disgust."
After Obama aides spoke out on Monday evening, White House communications director Jen Psaki said at a POLITICO Playbook breakfast on Tuesday morning that Trump is not the only Republican making irresponsible comments, but she said the real estate mogul's statement are especially dangerous.
"So the reason it’s dangerous ... is that this is kind of sending a message that the American people, that our values are different from what they once were. Sending the message that we want to be in competition or we want to be, you know, thwarting the Muslim community instead of working with the Muslim community as a partner," Psaki said.
On the Republican side, Sen. Lindsey Graham re-upped his criticism, speaking on both CNN and MSNBC on Tuesday morning to call out his presidential rival. “He is a wrecking ball for the Republican Party. He is a xenophobic, race-baiting, religious bigot, and I think that’s who they’re supporting. Time will tell how long this goes."

http://www.politico.com/trump­muslims­shutdown­hitler­comparison

5/6

2/6/2017

Case: 17-35105, 02/06T/r2um0p1n7ot,bIoDthe:re1d0by3c0om43pa6ris0o,nsDtokHtEitlenr t­rPyO:L8IT2IC-O3, Page 28 of 119

(62 of 153)

The heads of state Republican parties in the early voting states of Iowa, New Hampshire and South Carolina also expressed public disapproval of Trump's proposal. "There are some issues that transcend politics. While my position [as party chairwoman] is certainly political, I am an American first," said New Hampshire GOP Chairwoman Jennifer Horn, who has been a Trump critic, according to WMUR. "There should never be a day in the United States of America when people are excluded based solely on their race or religion. It is un-Republican. It is unconstitutional. And it is un-American."
In response, Trump told Stephanopoulos, "Well, first of all, George, she’s a Bush person. And she wants to see Bush, and Bush has crashed like nobody else has ever seen anyone crash before."
The United Nations' refugee settlement agency said Tuesday that campaign rhetoric from the United States is doing real harm.
"What the candidate you are speaking of was speaking of was an entire population, but this also impacts the refugee program," Melissa Fleming, a spokeswoman for the United Nations High Commission on Refugees, told reporters in Geneva, according to Reuters. "Because our refugee program is religion-blind. Our resettlement program selects the people who are the most in need."

http://www.politico.com/trump­muslims­shutdown­hitler­comparison

6/6

(63 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 29 of 119
Ware Declaration Exhibit E

2/6/2017

Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth3C0aroolifna119

(64 of 153)

Republican Candidates Debate in North Charleston, South Carolina January 14, 2016

Like 13K Tweet

PARTICIPANTS: Former Governor Jeb Bush (FL); Ben Carson; Governor Chris Christie (NJ); Senator Ted Cruz (TX); Governor John Kasich (OH); Senator Marco Rubio (FL); Donald Trump;

Location:

Document Archive
• Public Papers of the Presidents • State of the Union Addresses & Messages • Inaugural Addresses • Farewell Addresses • Weekly Addresses • Fireside Chats • News Conferences • Executive Orders • Proclamations • Signing Statements • Press Briefings • Statements of Administration Policy • Economic Report of the President • Debates • Convention Speeches • Party Platforms • 2016 Election Documents • 2012 Election Documents • 2008 Election Documents • 2004 Election Documents • 1960 Election Documents • 2017 Transition • 2009 Transition • 2001 Transition
Data Archive
Data Index
Media Archive
Audio/Video Index
Elections
Election Index Florida 2000
Links
Presidential Libraries

View Public Papers by Month and Year

Month

Year

INCLUDE documents from the Office of the Press Secretary
INCLUDE election campaign documents
View PPPUS
Search the Entire Document Archive
Enter keyword:

MODERATORS: Maria Bartiromo (Fox Business Network); and Neil Cavuto (Fox Business Network)
CAVUTO: It is 9:00 p.m. here at the North Charleston Coliseum and Performing Arts Center in South Carolina. Welcome to the sixth Republican presidential of the 2016 campaign, here on the Fox Business Network. I'm Neil Cavuto, alongside my friend and co­moderator Maria Bartiromo.
BARTIROMO: Tonight we are working with Facebook to ask the candidates the questions voters want answered. And according to Facebook, the U.S. election has dominated the global conversation, with 131 million people talking about the 2016 race. That makes it the number one issue talked about on Facebook last year worldwide.

United States South Carolina
Font Size:
Share
The American Presidency Project

CAVUTO: Now, the seven candidates on the stage tonight were selected based on their standing in six national polls, as well as polls in the early­voting states of Iowa and New Hampshire, those standings determining the position on the stage of the candidates tonight. And here they are.

Businessman Donald Trump. [applause]

Texas senator Ted Cruz. [applause]

Florida senator Marco Rubio. [applause] Neurosurgeon Ben Carson. [applause]

Promote Your Page Too

New Jersey governor Chris Christie. [applause]

Former Florida governor Jeb Bush.

And Ohio governor John Kasich. [applause]

BARTIROMO: Tonight's rules are simple: up to 90 seconds for each answer, one minute for each follow­up response. And if a candidate goes over the allotted time, you'll hear this. [bell rings] So let's get started. Candidates, jobs and growth — two of the biggest issues facing the country right now. In his State of the Union address earlier this week, the president said, quote, "we have the strongest, most durable economy in the world."

And according to our Facebook research, jobs is one of the biggest issues resonating across the country, including here in South Carolina. The president is touting 14 million new jobs and an unemployment rate cut in half.

The president said that anyone who claims America's economy is in decline is peddling fiction. Senator Cruz, what do you see that he doesn't?

CRUZ: Well, Maria, thank you for that question, and let me say thank you to the state of South Carolina for welcoming us.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

1/31

(65 of 153)

2/6/2017

Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth3C1aroolifna119

AND OR NOT
Limit by Year
From: 1789 To : 2017 Limit results per page
30

Let me start — I want to get to the substance of the question on jobs, but I want to start with something. Today, many of us picked up our newspapers, and we were horrified to see the sight of 10 American sailors on their knees, with their hands on their heads.
In that State of the Union, President Obama didn't so much as mention the 10 sailors that had been captured by Iran. President Obama's preparing to send $100 billion or more to the Ayatollah Khamenei. And I'll tell you, it was heartbreaking.

INCLUDE documents from the Office of the Press

But the good news is the next commander­in­chief is standing on this stage. [applause] And I give you my word, if I am

Secretary

elected president, no service man or service woman will be forced to be on their knees, and any nation that captures our

INCLUDE election campaign documents

fighting men will feel the full force and fury of the United States of America. [applause]

Search

Now, on to your substantive question. The president tried to paint a rosy picture of jobs. And you know, he's right. If you're a Washington lobbyist, if you make your money in and around Washington, things are doing great. The millionaires

Instructions

and billionaires are doing great under Obama. But we have the lowest percentage of Americans working today of any year

You can search the Public since 1977. Median wages have stagnated. And the Obama­Clinton economy has left behind the working men and women of

Papers in two ways:

this country.

1. Search by Keyword and Year You can search by keyword and choose the range of years within your search by filling out the boxes under Search the Public Papers.

The reason all of us are here is we believe we should be fighting for the working men and women of this country, and not Washington, D.C.
BARTIROMO: Thank you, sir. [applause]
CAVUTO: Governor Kasich, we are not even two weeks into this stock trading year, but [inaudible] investors already lost

2. View by Month and/or Year Select the month and/or year you would like information about and press View Public Papers. Then choose a Public Paper and the page will load for you.

$1.6 trillion in market value. That makes it the worst start to a new year ever. Many worry that things will get even worse, and that banks and financial stocks are particularly vulnerable.
Now, if this escalates, like it did back when Barack Obama first assumed the presidency, what actions would you take if this same thing happens all over again just as, in this example, you are taking over the presidency?
KASICH: Look, it takes three things basically to grow jobs. And I've done it when I was in Washington when we had a

Search Engine provided by the Harry S. Truman Library. Our thanks to Jim Borwick and Dr. Rafee Che Kassim at Project Whistlestop for critical assistance in the implementation of the search function, and to Scott Roley at the Truman Library for facilitating this collaboration.

balanced budget; had four years of balanced budgets; paid down a half­trillion of debt. And our economy was growing like crazy. It's the same thing that I did in Ohio. It's a simple formula: common sense regulations, which is why I think we should freeze all federal regulations for one year, except for health and safety. It requires tax cuts, because that sends a message to the job creators that things are headed the right way. And if you tax cuts — if you cut taxes for corporations, and you cut taxes for individuals, you're going to make things move, particularly the corporate tax, which is the highest, of course, in the — in the world.
But in addition to that, we have to have fiscal discipline. We have to show that we can march to a balanced budget. And

when you do that, when you're in a position of managing regulations; when you reduce taxes; and when you have fiscal

discipline, you see the job creators begin to get very comfortable with the fact that they can invest.

Right now, you don't have the — you have taxes that are too high. You have regulations — I mean, come on, they're affecting everybody here, particularly our small businesses. They are — they're in a position where they're smothering people. And I mean, are you kidding me? We're nowhere close to a balanced budget or fiscal discipline.

Those three things put together are going to give confidence to job creators and you will begin to see wages rise. You will begin to see jobs created in a robust economy. And how do I know it? Because I've done it. I did it as the chairman of the Budget Committee, working with Senator Domenici. And I've done it in the state of Ohio as the chief executive.

Our wages are growing faster than the national average. We're running surpluses. And we can take that message and that formula to Washington to lift every single American to a better life. [applause]

BARTIROMO: We know that recent global events have many people worried — Iran detaining American sailors, forcing them to apologize; North Korea and its nuclear ambitions; an aggressive China; and a Middle East that continues to deteriorate, not to mention ISIS is getting stronger.

Governor Christie, sometimes it seems the world is on fire. Where and when should a president use military action to restore order?

CHRISTIE: Well, Maria, I'm glad to have heard from you in the summary of that question about what's going on in the world. Because Tuesday night, I watched story time with Barack Obama. And I've got to tell you, it sounded like everything in the world was going amazing, you know? [applause]

The fact is, there's a number of things that the next president is going to have to do to clean up this mess. The first thing is we have to strengthen our alliances around the world. And the best way to do that is to start talking to our allies again and

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

2/31

2/6/2017

Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth3C2aroolifna119
having them be able to count on our word.

(66 of 153)

Lots of people will say lots of different things about me in this campaign and others, but the one thing they've never said about me is that I'm misunderstood. And so when we talk to our allies and we give them our word, in a Christie administration, they know we're going to keep it.

Next, we have to talk to our adversaries, and we have to make sure they understand the limits of our patience. And this president, given what Ted said right at the beginning, he's absolutely right. It's a — it's absolutely disgraceful that Secretary Kerry and others said in their response to what's going on in Iran that this was a good thing; it showed how the relationship was getting better.

The president doesn't understand — and by the way, neither does Secretary Clinton — and here's my warning to everybody out in the audience tonight. If you're worried about the world being on fire, you're worried about how we're going to use our military, you're worried about strengthening our military and you're worried most of all about keeping your homes and your families safe and secure, you cannot give Hillary Clinton a third term of Barack Obama's leadership.

I will not do that. If I'm the nominee, she won't get within 10 miles of the White House. [applause]

BARTIROMO: Just to be clear Governor, where and when would you use military action?

CHRISTIE: MIlitary action, Maria, would be used when it was absolutely necessary to protect American lives and protect American interests around the world. We are not the world's policeman, but we need to stand up and be ready.

And the problem, Maria, is that the military is not ready, either. We need to rebuild our military, and this president has let it diminish to a point where tinpot dictators like the mullahs in Iran are taking our Navy ships. It is disgraceful, and in a Christie administration, they would know much, much better than to do that. [applause]

CAVUTO: Governor Bush, the president just told the nation two nights ago that America is back and that the idea that our enemies are getting stronger or that this country is getting weaker, well, it's just rhetoric and hot air. Now other Democrats go even further, sir, saying Republicans even suggesting such comments actually embolden our enemies. I guess they would include you. What do you say?

BUSH: Well first of all, the idea that somehow we're better off today than the day that Barack Obama was inaugurated president of the United States is totally an alternative universe. The simple fact is that the world has been torn asunder.

Think about it. With grandiose language, the president talks about red lines and nothing to follow it up; talks about ISIS being the JV team, they form a caliphate the size of Indiana with 35 (thousand) to 40,000 battle­tested terrorists. He's missing the whole point, that America's leadership in the world is required for peace and stability.

In the crowd today is Major General James Livingston, who's the co­chairman of my campaign here in South Carolina, a Medal of Honor recipient. [applause]

I've learned from him that what we need to achieve is peace through strength, which means we need to rebuild the military. In this administration, every weapon system has been gutted, in this administration, the force levels are going down to a level where we can't even project force. Our friends no longer think we have their back and our enemies no longer fear us, and we're in a much difficult — we're in a much different position than we should be.

And for the life of me, I have no understanding why the president thinks that everything is going well. Terrorism is on the run, China, Russia is advancing their agenda at warp speed, and we pull back.

As president of the United States, I will be a commander in chief that will have the back of the military. We will rebuild the military to make sure that it is a solid force, not to be the world's policeman, but to make sure that in a peaceful world, people know that the United States is there to take care of our own national interests and take care of our allies. [applause]

CAVUTO: So I take it from that you do not agree with the president.

BUSH: No. And worse — worse yet, to be honest with you, Hillary Clinton would be a national security disaster.

Think about it. She wants to continue down the path of Iran, Benghazi, the Russian reset, Dodd­Frank, all the things that have — that have gone wrong in this country, she would be a national security mess. And that is wrong.

And you know what? Here's the problem. If she gets elected, she's under investigation with the FBI right now. If she gets elected, her first 100 days, instead of setting an agenda, she might be going back and forth between the White House and the courthouse. We need to stop that. [laughter and applause]

CAVUTO: Senator Rubio, the president says that ISIS doesn't threaten our national existence like a Germany or a Japan back in World War II, that the terror group is nothing more than twisted souls plotting attacks in their garages.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

3/31

2/6/2017

(67 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth3C3aroolifna119
But House Homeland Security Committee recently said that over 1,000 ongoing investigations of homegrown extremism in 50 states. So how do you define the threat? Germany then or dangerous nut cases now?

RUBIO: Yeah, I would go, first of all, one step further in this description of Hillary Clinton. She wouldn't just be a disaster, Hillary Clinton is disqualified from being commander in chief of the United States. [applause]

Someone who cannot handle intelligence information appropriately cannot be commander in chief and someone who lies to the families of those four victims in Benghazi can never be president of the United States. Ever. [applause]

On the issue of Barack Obama, Barack Obama does not believe that America is a great global power. Barack Obama believes that America is a arrogant global power that needs to be cut down to size. And that's how you get a foreign policy where we cut deals with our enemies like Iran and we betray our allies like Israel and we gut our military and we go around the world like he has done on 10 separate occasions and apologized for America.

He doesn't understand the threat in ISIS. He consistently underestimates it but I do not. There is a war against ISIS, not just against ISIS but against radical jihadists terrorists, and it is a war that they win or we win.

When I'm president of the United States, we are going to win this war on ISIS. The most powerful intelligence agency in the world is going to tell us where we are, the most powerful military in the world is going to destroy them. And if we capture any of them alive, they are getting a one­way ticket to Guantanamo Bay, Cuba, and we are going to find out everything they know. [applause]

CAVUTO: Thank you, Senator.

BARTIROMO: Dr. Carson, the president says he does not want to treat ISIS as a foreign army, but ISIS is neither a country nor a government. How do you attack a network that does not respect national borders?

CARSON: Well, I'm very happy to get a question this early on. I was going to ask you to wake me up when that time came. [laughter]

You know, I find it really quite fascinating some of the president's proclamations. The fact of the matter is he doesn't realize that we now live in the 21st century, and that war is very different than it used to be before. Not armies massively marching on each other and air forces, but now we have dirty bombs and we have cyber attacks and we have people who will be attacking our electrical grid. And, you know, we have a whole variety of things that they can do and they can do these things simultaneously. And we have enemies who are obtaining nuclear weapons that they can explode in our exoatmosphere and destroy our electric grid.

I mean, just think about a scenario like that. They explode the bomb, we have an electromagnetic pulse. They hit us with a cyberattack simultaneously and dirty bombs. Can you imagine the chaos that would ensue at that point? He needs to recognize that those kinds of things are in fact an existential threat to us.

But here's the real key. We have the world's best military, even though he's done everything he can to diminish it. And the fact of the matter is if we give them a mission and we don't tie their hands behind their back, they can get it accomplished. [applause]

CAVUTO: Mr. Trump, at the State of the Union, the president pointed to a guest who was a Syrian refugee you might recall whose wife and daughter and other family members were killed in an air attack. Now he fled that country seeking asylum here, ultimately ended up in Detroit where he's now trying to start a new life.

The president says that that doctor is the real face of these refugees and not the one that you and some of your colleagues on this stage are painting; that you prefer the face of fear and terror and that you would refuse to let in anyone into this country seeking legitimate asylum. How do you answer that?

TRUMP: It's not fear and terror, it's reality. You just have to look today at Indonesia, bombings all over. [applause]

You look at California, you look, frankly, at Paris where there's a — the strictest no­gun policy of any city anywhere in the world, and you see what happens: 130 people dead with many to follow. They're very, very badly wounded. They will — some will follow. And you look around, and you see what's happening, and this is not the case when he introduced the doctor — very nice, everything perfect but that is not representative of what you have in that line of migration.

That could be the great Trojan Horse. It could be people that are going to do great, great destruction. When I look at the migration, I looked at the line, I said it actually on your show recently, where are the women? It looked like very few women. Very few children. Strong, powerful men, young and people are looking at that and they're saying what's going on?

You look at the kind of damage that two people that two people that got married, they were radicalized — they got married, they killed 15 people in actually 15 — going to be probably 16 but you look at that and you take a look — a good strong look

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

4/31

2/6/2017

(68 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth3C4aroolifna119
and that's what we have. We are nineteen trillion dollars — our country's a mess and we can't let all these people come into our country and break our borders. We can't do it. [applause]

BARTIROMO: Senator Cruz, the New York Times is reporting that you failed to properly disclose a million dollars in loans from Goldman Sachs and CitiBank. During your senate race, your campaign said, "it was inadvertent." A million dollars is inadvertent?

CRUZ: Well Maria, thank you for passing on that hit piece in the front page of the New York Times. You know the nice thing about the mainstream media, they don't hide their views. The New York Times a few weeks back had a columnist who wrote a column saying, "Anybody But Cruz." Had that actually — that same columnist wrote a column comparing me to an evil demonic spirit from the move, "It Follows" that jumps apparently from body to body possessing people.

So you know the New York Times and I don't have exactly have the warmest of relationships. Now in terms of their really stunning hit piece, what they mentioned is when I was running for senate — unlike Hillary Clinton, I don't have masses of money in the bank, hundreds of millions of dollars. When I was running for senate just about every lobbyist, just about all of the establishment opposed me in the senate race in Texas and my opponent in that race was worth over 200 million dollars. He put a 25 million dollar check up from his own pocket to fund that campaign and my wife Heidi and I, we ended up investing everything we owned.

We took a loan against our assets to invest it in that campaign to defend ourselves against those attacks. And the entire New York times attack — is that I disclosed that loan on one filing with the United States Senate, that was a public filing. But it was not on a second filing with FDIC and yes, I made a paperwork error disclosing it on one piece of paper instead of the other. But if that's the best the New York Times has got, they better go back to the well.

BARTIROMO: Thank you.

[commercial break]

CAVUTO: All right. Welcome back to the Republican presidential , right here in North Charleston, South Carolina. Let's get right back to the questions. And I'll start with you, Senator Cruz.

Now you are, of course, a strict constitutionalist — no one would doubt that. And as you know, the U.S. Constitution says only natural­born citizens are eligible for the office of president of the United States. Stop me if you've heard this before. Now, you were born...[laughter]... you were born in Canada to an American mother. So you were and are considered an American citizen. But that fellow next to you, Donald Trump — and others — have said that being born in Canada means you are not natural­born, and that has raised questions about your eligibility.

Do you want to try to close this topic once and for all tonight?

CRUZ: Well, Neil, I'm glad we're focusing on the important topics of the evening. [laughter and applause]

You know, back in September, my friend Donald said that he had had his lawyers look at this from every which way, and there was no issue there. There was nothing to this birther issue. [laughter]

Now, since September, the Constitution hasn't changed. [laughter]

But the poll numbers have. [applause]

And I recognize — I recognize that Donald is dismayed that his poll numbers are falling in Iowa. But the facts and the law here are really quite clear. Under longstanding U.S. law, the child of a U.S. citizen born abroad is a natural­born citizen.

If a soldier has a child abroad, that child is a natural­born citizen. That's why John McCain, even though he was born in Panama, was eligible to run for president.

If an American missionary has a child abroad, that child is a natural­born citizen. That's why George Romney, Mitt's dad, was eligible to run for president, even though he was born in Mexico.

At the end of the day, the legal issue is quite straightforward, but I would note that the birther theories that Donald has been relying on — some of the more extreme ones insist that you must not only be born on U.S. soil, but have two parents born on U.S. soil.

Under that theory, not only would I be disqualified, Marco Rubio would be disqualified, Bobby Jindal would be disqualified and, interestingly enough, Donald J. Trump would be disqualified. [applause]

UNKNOWN: Not me.

CRUZ: Because — because Donald's mother was born in Scotland. She was naturalized. Now, Donald...

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

5/31

2/6/2017

Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth3C5aroolifna119
TRUMP: But I was born here.

(69 of 153)

CRUZ: ... on the issue — on the issue of citizenship, Donald...

TRUMP: [inaudible]. Big difference.

CRUZ: ... on the issue of citizenship, Donald, I'm not going to use your mother's birth against you.

TRUMP: OK, good. Because it wouldn't work.

CRUZ: You're an American, as is everybody else on this stage, and I would suggest we focus on who's best prepared to be commander­ in­chief, because that's the most important question facing the country. [applause]

CAVUTO: Mr. Trump...[crosstalk]...that you raised it because of his rising poll numbers.

TRUMP: ... first of all, let me just tell you something — and you know, because you just saw the numbers yourself — NBC Wall Street Journal just came out with a poll — headline: Trump way up, Cruz going down. I mean, so don't — so you can't — you can't...[booing]...they don't like the Wall Street Journal. They don't like NBC, but I like the poll. [laughter]

And frankly, it just came out, and in Iowa now, as you know, Ted, in the last three polls, I'm beating you. So — you know, you shouldn't misrepresent how well you're doing with the polls. [applause]

You don't have to say that. In fact, I was all for you until you started doing that, because that's a misrepresentation, number one.

Number two, this isn't me saying it. I don't care. I think I'm going to win fair and square [inaudible] to win this way. Thank you.

Lawrence Tribe and [inaudible] from Harvard — of Harvard, said that there is a serious question as to whether or not Ted can do this. OK? There are other attorneys that feel, and very, very fine constitutional attorneys, that feel that because he was not born on the land, he cannot run for office.

Here's the problem. We're running. We're running. He does great. I win. I choose him as my vice presidential candidate, and the Democrats sue because we can't take him along for the ride. I don't like that. OK? [laughter]

The fact is — and if for some reason he beats the rest of the field, he beats the rest of the field [inaudible]. See, they don't like that. They don't like that. [audience booing]

No, they don't like he beats the rest of the field, because they want me. [laughter]

But — if for some reason, Neil, he beats the rest of the field, I already know the Democrats are going to be bringing a suit. You have a big lawsuit over your head while you're running. And if you become the nominee, who the hell knows if you can even serve in office? So you should go out, get a declaratory judgment, let the courts decide. And you shouldn't have mentioned the polls because I would have been much...[crosstalk]

CAVUTO: Why are you saying this now — right now? Why are you raising this issue now?

TRUMP: Because now he's going a little bit better. No, I didn't care [inaudible]. It's true. No, it's true. Hey look, he never had a chance. Now, he's doing better. He's got probably a four or five percent chance. [laughter]

[crosstalk]

CRUZ: Neil... [crosstalk]

TRUMP: The fact is, there is a big overhang. There's a big question mark on your head. And you can't do that to the party. You really can't. You can't do that to the party. You have to have certainty. Even if it was a one percent chance, and it's far greater than one percent because [inaudible].

I mean, you have great constitutional lawyers that say you can't run. If there was a — and you know I'm not bringing a suit. I promise. But the Democrats are going to bring a lawsuit, and you have to have certainty. You can't have a question. I can agree with you or not, but you can't have a question over your head.

CAVUTO: Senator, do you want to respond?

CRUZ: Well, listen, I've spent my entire life defending the Constitution before the U.S. Supreme Court. And I'll tell you, I'm not going to be taking legal advice from Donald Trump.

TRUMP: You don't have to. Take it from Lawrence Tribe. [applause] [crosstalk]

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

6/31

2/6/2017

Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth3C6aroolifna119
Take it from your professors...[crosstalk]

(70 of 153)

CRUZ: The chances of any litigation proceeding and succeeding on this are zero. And Mr. Trump is very focused...

TRUMP: He's wrong. He's wrong.

CRUZ: ... on Larry Tribe. Let me tell you who Larry Tribe is. He's a left­wing judicial activist, Harvard Law professor who was Al Gore's lawyer in Bush versus Gore. He's a major Hillary Clinton supporter. And there's a reason why Hillary's supporters are echoing Donald's attacks on me, because Hillary...

TRUMP: He is not the only one.

CRUZ: ... wants to face Donald Trump in the general election.

TRUMP: There are many lawyers.

CRUZ: And I'll tell you what, Donald, you — you very kindly just a moment ago offered me the V.P. slot. [laughter]

I'll tell you what. If this all works out, I'm happy to consider naming you as V.P. So if you happen to be right, you could get the top job at the end of the day.

TRUMP: No — no...[laughter]... I think if it doesn't... [applause] I like that. I like it. I'd consider it. But I think I'll go back to building buildings if it doesn't work out.

CRUZ: Actually, I'd love to get you to build a wall.

[crosstalk]

TRUMP: I have a feeling it's going to work out, actually.

[crosstalk]

RUBIO: Let me [inaudible]. I was invoked in that question, so let me just say — in that answer — let me say, the real question here, I hate to interrupt this episode of Court TV. [laughter]

But the real — but I think we have to get back to what this election has to be about. OK? Listen, we — this is the greatest country in the history of mankind. But in 2008, we elected a president that didn't want to fix America. He wants to change America. We elected a president that doesn't believe in the Constitution. He undermines it. We elected a president that is weakening America on the global stage. We elected a president that doesn't believe in the free enterprise system.

This election has to be about reversing all of that damage. That's why I'm running for office because when I become president of the United States, on my first day in office we are going to repeal every single one of his unconstitutional executive orders. When I'm president of the United States we are getting rid of Obamacare and we are rebuilding our military. And when I'm president, we're not just going to have a president that gives a State of the Union and says America is the greatest country in the world. When I'm president, we're going to have a president that acts like it.

BARTIROMO: Thank you, senator.

Mr. Trump, South Carolina Governor Nikki Haley in her response to the State of the Union address... [applause]...appeared to choose sides within the party, saying Republicans should resist, quote, "the siren call of the angriest voices". She confirmed, she was referring to you among others. Was she out of line? And, how would a President Trump unite the party?

TRUMP: Okay. First of all, Nikki this afternoon said I'm a friend of hers. Actually a close friend. And wherever you are sitting Nikki, I'm a friend. We're friends. That's good. [laughter] But she did say there was anger. And I could say, oh, I'm not angry. I'm very angry because our country is being run horribly and I will gladly accept the mantle of anger. Our military is a disaster. [applause]

Our healthcare is a horror show. Obamacare, we're going to repeal it and replace it. We have no borders. Our vets are being treated horribly. Illegal immigration is beyond belief. Our country is being run by incompetent people. And yes, I am angry. [applause] And I won't be angry when we fix it, but until we fix it, I'm very, very angry. And I say that to Nikki. So when Nikki said that, I wasn't offended. She said the truth.

One of your colleagues interviewed me. And said, well, she said you were angry and I said to myself, huh, she's right. I'm not fighting that. I didn't find it offensive at all. I'm angry because our country is a mess. [applause]

BARTIROMO: But what are you going to do about it?

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

7/31

2/6/2017

(71 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth3C7aroolifna119
CAVUTO: Marco Rubio. I'm sorry, it's the time constraints. You and Governor Christie have been exchanging some fairly nasty words of late, and I will allow the governor to respond as well.
The governor went so far to say, you won't be able to slime your way to the White House. He's referring to a series of ads done by a PAC, speaking on your behalf, that say quote,"One high tax, Common Core, liberal, energy­loving, Obamacare, Medicaid­expanding president is enough. You think you went too far on that and do you want to apologize to the governor?
RUBIO: You know, as I said already twice in this , we have a very serious problem in this country. [applause] We have a president of the United States that is undermining this country's security and expanding the role of...
CAVUTO: That is not my question.
RUBIO: Well, I am going to answer your question, Neil. He is — this president is undermining the constitutional basis of this government. This president is undermining our military. He is undermining our standing in the world. I like Chris Christie, but we can not afford to have a president of the United States that supports Common Core. [applause]
We can not afford to have a president of the United States that supports gun control. This president, this president is more interested in funding — less interested in funding the military, than he is in funding planned — he's more interested in funding Planned Parenthood than he is in funding the military.
Chris Christie wrote a check to Planned Parenthood. All I'm saying is our next president has to be someone that undoes the damage Barack Obama has done to this country. It can not be someone that agrees with his agenda.
Because the damage he has done to America is extraordinary. Let me tell you, if we don't get this election right, there may be no turning back for America. We're on the verge of being the first generation of Americans that leave our children worse off than ourselves.
So I just truly, with all my heart belief, I like everybody on the stage. No one is a socialist. No one here is under FBI investigation. So we have a good group of people.
CAVUTO: Is he a liberal?
RUBIO: Our next president...
CAVUTO: Is he a liberal?
RUBIO: Unfortunately, Governor Christie has endorsed many of the ideas that Barack Obama supports, whether it is Common Core or gun control or the appointment of Sonia Sotomayor or the donation he made to Planned Parenthood. Our next president, and our Republican nominee can not be someone who supports those positions.
CAVUTO: Governor? [applause]
CHRISTIE: I stood on the stage and watched Marco in rather indignantly, look at Governor Bush and say, someone told you that because we're running for the same office, that criticizing me will get you to that office.
It appears that the same someone who has been whispering in old Marco's ear too. [laughter]
So the indignation that you carry on, some of the stuff, you have to also own then. So let's set the facts straight. First of all, I didn't support Sonia Sotomayor. Secondly, I never wrote a check to Planned Parenthood.
Third, if you look at my record as governor of New Jersey, I have vetoed a 50­caliber rifle ban. I have vetoed a reduction this clip size. I vetoed a statewide I.D. system for gun owners and I pardoned, six out­of­state folks who came through our state and were arrested for owning a gun legally in another state so they never have to face charges.
And on Common Core, Common Core has been eliminated in New Jersey. So listen, this is the difference between being a governor and a senator. See when you're a senator, what you get to do is just talk and talk and talk. And you talk so much that nobody can ever keep up with what you're saying is accurate or not.
When you're a governor, you're held accountable for everything you do. And the people of New Jersey, I've seen it. [applause]
CHRISTIE: And the last piece is this. I like Marco too, and two years ago, he called me a conservative reformer that New Jersey needed. That was before he was running against me. Now that he is, he's changed his tune.
I'm never going to change my tune. I like Marco Rubio. He's a good guy, a smart guy, and he would be a heck of a lot better president than Hillary Rodham Clinton would ever be. [applause]

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

8/31

2/6/2017

Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth3C8aroolifna119
BUSH: Neil, my name was mentioned here. Neil, my name was mentioned as well.

(72 of 153)

Here's the deal, Chris is totally right. He's been a good governor, and he's a heck of a lot better than his predecessor that would have bankrupted New Jersey.

Everybody on this stage is better than Hillary Clinton. And I think the focus ought to be on making sure that we leave this nomination process, as wild and woolly as it's going to be — this is not being bad.

These attack ads are going to be part of life. Everybody just needs to get used to it. Everybody's record's going to be scrutinized, and at the end of the day we need to unite behind the winner so we can defeat Hillary Clinton, because she is a disaster. [applause]

Our country rise up again, but we need to have a compelling conservative agenda that we present to the American people in a way that doesn't disparage people, that unites us around our common purpose.

And so everybody needs to discount some of the things you're going to hear in these ads, and discount the — the back­and­ forth here, because every person here is better than Hillary Clinton.

CARSON: Neil, I was mentioned too.

CAVUTO: You were?

CARSON: Yeah, he said everybody. [laughter]

And — and I just want to take this opportunity to say, you know, in the 2012 election, you know, we — and when I say we, Republicans — tore themselves apart.

You know, we have to stop this because, you know, if we manage to damage ourselves, and we lose the next election, and a progressive gets in there and they get two or three Supreme Court picks, this nation is over as we know it. And we got to look at the big picture here.

BARTIROMO: Governor Kasich...[applause]... Governor Kasich, Hillary Clinton is getting some serious competition from Senator Bernie Sanders. He's now at 41 percent in the latest CBS/New York Times poll. Vice President Biden sang his praises, saying Bernie is speaking to a yearning that is deep and real, and he has credibility on it.

So what does it say about our country that a candidate who is a self­avowed socialist and who doesn't think a 90 percent tax rate is too high could be the Democratic nominee?

KASICH: Well, if that's the case, we're going to win every state, if Bernie Sanders is the nominee. That's not even an issue. But look...[applause]...and I know Bernie, and I can promise you he's not going to be president of the United States. So here's this — the situation, I think, Maria.

And this is what we have to — I — I've got to tell you, when wages don't rise — and they haven't for a lot of families for a number of years — it's very, very difficult for them.

Part of the reason why it hasn't risen because sometimes we're not giving people the skills they need. Sometimes it's because the Federal Reserve kept interest rates so low that the wealthy were able to invest in — in strong assets like the stock market when everybody else was left behind.

People are upset about it. I'll tell you what else they're upset about: you're 50 or 51 years old, and some kid walks in and tells you you're out of work, and you don't know where to go and where to turn. Do we have answer for that? We do. There are ways to retrain the 50 and 51­year­olds, because they've got great value.

I'll tell you what else people are concerned about. Their kids come out of college, they have high debt and they can't get a good job. We got to do a lot about the high cost of high — higher education, but we've got to make sure we're training people for jobs that exist, that are good jobs that can pay. [applause]

Let me tell you that, in this country — in this country, people are concerned about their economic future. They're very concerned about it. And they wonder whether somebody is getting something to — keeping them from getting it.

That's not the America that I've ever known. My father used to say, "Johnny, we never — we don't hate the rich. We just want to be the rich." And we just got to make sure that every American has the tools, in K­through­12 and in vocational education, in higher education.

And we got to fight like crazy so people can think the American dream still exists, because it does, with rising wages, with full employment and with everybody in America — and I mean everybody in America — having an opportunity to realize the American dream of having a better life than their mother and their father.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

9/31

2/6/2017

(73 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth3C9aroolifna119
I'm president — look, I've done it once. I've done it once in Washington, with great jobs and lower taxes. The economy was really booming.
And now in Ohio, with the same formula, wages higher than the — than the national average. A growth of 385,000 jobs.
[bell rings]
It's not that hard. Just know where you want to go, stick to your guts. Get it done, because our — our children and grandchildren are counting on us to get it done. And, folks, we will. You count on it.
BARTIROMO: Dr. Carson, one of the other candidates on this stage has brought Bill Clinton's past indiscretions. Is that a legitimate topic in this election? And what do you think of the notion that Hillary Clinton is an enabler of sexual misconduct?
CARSON: Well, there's not question that we should be able to look at past president whether they're married to somebody who's running for president or not in terms of their past behavior and what it means. But you know, here's the real issue, is this America anymore? Do we still have standards? Do we still have values and principles?
You know, you look at what's going on, you see all the divisiveness and the hatred that goes on in our society. You know, we have a war on virtual everything — race wars, gender wars, income wars, religious wars, age wars. Every war you can imaging, we have people at each other's throat and our strength is actually in our unity.
You know, you go to the internet, you start reading an article and you go to the comments section — you cannot go five comments down before people are calling each all manner of names. Where did that spirit come from in America? It did not come from our Judeo­Christian roots, I can tell you that. And wherever it came from we need to start once again recognizing that there is such a thing as right and wrong. And let's not let the secular progressives drive that out of us.
The majority of people in American actually have values and principles and they believe in the very things that made America great. They've been beaten into submission. It's time for us to stand up for what we believe in. [applause]
CAVUTO: Well, we are not done. Coming up, one of the top things people are talking about on Facebook, guns. And you can join us live us on this stage in the conversation during this commercial break right from home. You can go to Facebook.com/[inaudible]. We will be streaming live and talking about how we think the is going so far.
We're back in a moment in Charleston, South Carolina.
[commercial break]
BARTIROMO: Welcome back to the Republican presidential debates, right here in North Charleston. Let's get right back to the questions.
Governor Bush, gun rights, one of the top issues seen on Facebook with close to 3 million people talking about it in the past month. Right here in Charleston, Dylann Roof, who has been accused of killing nine people in a nearby church, reportedly had not passed his background check when he got his gun. What is the harm in tightening standards for not only who buys guns, but those who sell them?
BUSH: First of all, I'd like to recognize Governor Haley for her incredible leadership in the aftermath of the — [applause] — the Emanuel AME church killings. And I also want to recognize the people in that church that showed the grace of God and the grace of forgiveness and the mercy that they showed. [applause] I don't know if any of us could have done what they did, one after another, within 48 hours of that tragedy taking place. Look, here's the deal, in this particular case, the FBI made a mistake. The law itself requires a background check, but that didn't fulfill their part of the bargain within the time that they were supposed to do.
We don't need to add new rules, we need to make sure the FBI does its job. Because that person should not have gotten a gun, should not — would not have passed a background check. The first impulse of Barack Obama and Hillary Clinton is to take rights away from law­ abiding citizens.
That's what they do, whether it's the San Bernardino attack or if it's these tragedies that take place, I think we need to focus on what the bigger issue is. It isn't law­abiding gun owners.
Look, I have an A plus rating in the NRA and we also have a reduction in gun violence because in Florida, if you commit a crime with a gun, you're going away. You're going away for a long, long while.
And that's what we should focus on is the violence in our communities. Target the efforts for people that are committing crimes with guns, and if you do that, and get it right, you're going to be much better off than creating a political argument where there's a big divide.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

10/31

2/6/2017

(74 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth4C0aroolifna119
The other issue is mental health. That's a serious issue that we could work on. Republicans and Democrats alike believe this. [applause] The president's first impulse is do this by executive order, power he doesn't have. Why not go to Congress and in a bipartisan way, begin to deal with the process of mental health issues so that people that are spiraling out of control because of mental health challenges don't have access to guns. [applause]
BARTIROMO: Thank you, sir.
Mr. Trump, are there any circumstances that you think we should be limiting gun sales of any kind in America?
TRUMP: No. I am a 2nd amendment person. If we had guns in California on the other side where the bullets went in the different direction, you wouldn't have 14 or 15 people dead right now.
If even in Paris, if they had guns on the other side, going in the opposite direction, you wouldn't have 130 people plus dead. So the answer is no and what Jeb said is absolutely correct.
We have a huge mental health problem in this country. We're closing hospitals, we're closing wards, we're closing so many because the states want to save money. We have to get back into looking at what's causing it. The guns don't pull the trigger. It's the people that pull the trigger and we have to find out what is going on. [applause]
We have to protect our 2nd amendment and you cannot do this and certainly what Barack Obama was doing with the executive order. He doesn't want to get people together, the old­fashioned way, where you get Congress. You get the Congress, you get the Senate, you get together, you do legislation. He just writes out an executive order. Not supposed to happen that way. [applause]
BARTIROMO: Thank you sir.
TRUMP: You get the Congress. You get the Senate. You get together. You do legislation. He just writes out an order, executive order. It's not supposed to happen that way. [applause]
BARTIROMO: Thank you, sir. [applause]
CAVUTO: Senator Rubio, you said that President Obama wants to take people's guns away. Yet under his presidency, gun sales have more than doubled. That doesn't sound like a White House unfriendly to gun owners.
RUBIO: That sounds like people are afraid the president's going to take their guns away. [applause]
Look, the Second Amendment is not an option. It is not a suggestion. It is a constitutional right of every American to be able to protect themselves and their families. I am convinced that if this president could confiscate every gun in America, he would. I am convinced that this president, if he could get rid of the Second Amendment, he would. I am convinced because I see how he works with his attorney general, not to defend the Second Amendment, but to figure out ways to undermine it.
I have seen him appoint people to our courts not to defend the Second Amendment, but to figure out ways to undermine it.
Here's my second problem. None of these instances that the president points to as the reason why he's doing these things would have been preventive. You know why? Because criminals don't buy their guns from a gun show. They don't buy their guns from a collector. And they don't buy their guns from a gun store. They get — they steal them. They get them on the black market.
And let me tell you, ISIS and terrorists do not get their guns from a gun show. These...[laughter and applause]... his answer — you name it. If there's an act of violence in America, his immediate answer before he even knows the facts is gun control. Here's a fact. We are in a war against ISIS. They are trying to attack us here in America. They attacked us in Philadelphia last week. They attacked us in San Bernardino two weeks ago. And the last line standing between them and our families might be us and a gun.
When I'm president of the United States, we are defending the Second Amendment, not undermining it the way Barack Obama does. [applause]
CAVUTO: But what fact can you point to, Senator — what fact can you point to that the president would take away everyone's gun? You don't think that's [inaudible]?
RUBIO: About every two weeks, he holds a press conference talking about how he can't wait to restrict people's access to guns. He has never defended...[crosstalk]...I'll give you a fact. Well, let me tell you this. Do you remember when he ran for president of the United States, and he was a candidate, and he went and said, "These Americans with traditional values, they are bitter people, and they cling to their guns and to their religion." That tells you right away where he was headed on all of this.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

11/31

2/6/2017

Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth4C1aroolifna119
This president every chance he has ever gotten has tried to undermine the Second Amendment. [applause]

(75 of 153)

He doesn't meet — here's the difference. When he meets with the attorney general in the White House, it's not "how can we protect the Second Amendment rights of Americans." It's "give me options on how I can make it harder for law­abiding people to buy guns." That will never happen when I am president of the United States. [applause]

CAVUTO: Governor Christie, you, too, have criticized the president's recent executive action on gun control, saying it's unconstitutional, another step to bypass Congress. But hasn't your own position on guns evolved, sir? The New Jersey Star­Ledger reports that you signed several laws to regulate the possession of firearms, and that you argued back in August 2013, and I quote, "These common sense measures will strengthen New Jersey's already tough gun laws."

So isn't that kind of what the president wants to do now?

CHRISTIE: No, absolutely not. The president wants to do things without working with his Congress, without working with the legislature, and without getting the consent of the American people. And the fact is that that's not a democracy. That's a dictatorship. And we need to very, very concerned about that.

See, here's the thing. I don't think the founders put the Second Amendment as number two by accident. I don't think they dropped all the amendments into a hat and picked them out of a hat. I think they made the Second Amendment the second amendment because they thought it was just that important.

The fact is in New Jersey, what we have done is to make it easier now to get a conceal and carry permit. We have made it easier to do that, not harder. And the way we've done it properly through regulatory action, not by signing unconstitutional executive orders. This guy is a petulant child. That's what he is. I mean, you know...[applause]... the fact is, Neil, let's think about — let's think about — and I want to maybe — I hope the president is watching tonight, because here's what I'd like to tell him.

Mr. President, we're not against you. We're against your policies. When you became president, you had a Democratic Congress and a filibuster­proof Democratic Senate. You had only 21 Republican governors in this country. And now after seven years of your policies, we have the biggest majority we've had since the 1920s in the House; a Republican majority in the Senate; and 31 out of 50 Republican governors.

The American people have rejected your agenda and now you're trying to go around it. That's not right. It's not constitutional. And we are going to kick your rear end out of the White House come this fall. [applause]

BARTIROMO: So what is the answer, Senator Cruz, to stop mass shootings and violent crime, up in 30 cities across the country?

CRUZ: The answer is simple. Your prosecute criminals. You target the bad guys. You know, a minute ago, Neil asked: What has President Obama do — done to illustrate that he wants to go after guns?

Well, he appointed Eric Holder as attorney general. Eric Holder said he viewed his mission as brainwashing the American people against guns. He appointed Sonia Sotomayor to the Supreme Court, someone who has been a radical against the Second Amendment right to keep and bear arms.

He launched Fast and Furious, illegally selling guns to Mexican drug lords that were then used to shoot law enforcement officials. And I'll tell you what Hillary Clinton has said: Hillary Clinton says she agrees with the dissenters — the Supreme Court dissenters in the Heller case.

There were four dissenters, and they said that they believe the Second Amendment protects no individual right to keep and bear arms whatsoever, which means, if their view prevailed and the next president's going to get one, two, three, maybe four Supreme Court justices, the court will rule that not a single person in this room has any right under the Second Amendment and the government could confiscate your guns.

And I'll note that California senator — Democratic Senator Dianne Feinstein said, if she could say to Mr. America and Mrs. America, "give me your guns, I'm rounding them up," she would.

And let me make a final point on this. Listen, in any Republican primary, everyone is going to say they support the Second Amendment. Unless you are clinically insane...[laughter]...that's what you say in a primary. But the voters are savvier than that. They recognize that people's actions don't always match their words. I've got a proven record fighting to defend the Second Amendment.

There's a reason Gun Owners of America has endorsed me in this race. There's a reason the NRA gave me their Carter Knight Freedom Fund award...[bell rings]...and there's a reason, when Barack Obama and Chuck Schumer came after our right to keep and bear arms, that I led the opposition, along with millions of Americans — we defeated that gun control legislation.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

12/31

2/6/2017

Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth4C2aroolifna119
And I would note the other individuals on this stage were nowhere to be found in that fight.

(76 of 153)

BARTIROMO: Senator...[applause]... let me follow up and switch gears. Senator Cruz, you suggested Mr. Trump, quote, "embodies New York values." Could you explain what you mean by that?

CRUZ: You know, I think most people know exactly what New York values are. [laughter]

BARTIROMO: I am from New York. I don't.

CRUZ: What — what — you're from New York? So you might not. [laughter]

But I promise you, in the state of South Carolina, they do. [applause]

And listen, there are many, many wonderful, wonderful working men and women in the state of New York. But everyone understands that the values in New York City are socially liberal or pro­abortion or pro­ gay­marriage, focus around money and the media.

And — and I would note indeed, the reason I said that is I was asked — my friend Donald has taken to it as advance playing Bruce Springsteen's "Born in the USA", and I was asked what I thought of that.

And I said, "well, if he wanted to play a song, maybe he could play, 'New York, New York'?" And — and — you know, the concept of New York values is not that complicated to figure out.

Not too many years ago, Donald did a long interview with Tim Russert. And in that interview, he explained his views on a whole host of issues that were very, very different from the views he's describing now.

And his explanation — he said, "look, I'm from New York, that's what we believe in New York. Those aren't Iowa values, but this is what we believe in New York." And so that was his explanation.

And — and I guess I can — can frame it another way. Not a lot of conservatives come out of Manhattan. I'm just saying. [laughter]

BARTIROMO: Are you sure about that?

CAVUTO: Maria...

TRUMP: So conservatives actually do come out of Manhattan, including William F. Buckley and others, just so you understand. [applause]

And just so — if I could, because he insulted a lot of people. I've had more calls on that statement that Ted made — New York is a great place. It's got great people, it's got loving people, wonderful people.

When the World Trade Center came down, I saw something that no place on Earth could have handled more beautifully, more humanely than New York. You had two one hundred...[applause] ...you had two 110­story buildings come crashing down. I saw them come down. Thousands of people killed, and the cleanup started the next day, and it was the most horrific cleanup, probably in the history of doing this, and in construction. I was down there, and I've never seen anything like it.

And the people in New York fought and fought and fought, and we saw more death, and even the smell of death — nobody understood it. And it was with us for months, the smell, the air.

And we rebuilt downtown Manhattan, and everybody in the world watched and everybody in the world loved New York and loved New Yorkers. And I have to tell you, that was a very insulting statement that Ted made. [applause]

CAVUTO: Governor bush, for the third time in as many months, the Iranians have provoked us, detaining us, as we've been discussing, with these 10 Navy sailors Tehran had said strayed into their waters. The sailors were released, but only after shown on video apologizing for the incident. This occurring only weeks after Iran fired multiple rockets within 1,500 yards of a U.S. aircraft carrier and then continued to test medium range missiles.

Now you've claimed that such actions indicate Tehran has little to fear from a President Obama. I wonder, sir, what would change if they continued doing this sort of thing under a President Jeb Bush?

BUSH: Well, first of all, under President Jeb Bush, we would restore the strength of the military. Last week, Secretary Carter announced that the Navy's going to be cut again. It's now half the size of what it was prior to Operation Desert Storm.

The deployments are too high for the military personnel. We don't have procurement being done for refreshing the equipment. The B­52 is still operational as the long range bomber; it was inaugurated in the age of Harry Truman. The

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

13/31

2/6/2017

(77 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth4C3aroolifna119
planes are older than the pilots. We're gutting our military, and so the Iranians and the Chinese and the Russians and many other countries look at the United States not as serious as we once were.
We have to eliminate the sequester, rebuild our military in a way that makes it clear that we're back in the game.
Secondly, as it relates to Iran, we need to confront their ambitions across the board. We should reimpose sanctions, they've already violated sanctions after this agreement was signed by testing medium­range missiles.
Thirdly, we need to move our embassy from Tel Aviv to Jerusalem to send a serious signal that we're back in the game with Israel...[applause]...and sign an agreement that makes sure that the world knows that they will have technological superiority.
We need to get back in the game as it relates to our Arab nations. The rest of the world is moving away from us towards other alliances because we are weak. This president and John Kerry and Hillary Clinton all have made it harder for the next president to act, but he must act to confront the ambitions of Iran. We can get back in the game to restore order and security for our own country. [applause]
CAVUTO: Thank you, Governor. Governor Kasich, while everyone has been focusing on Iran's provocations, I'm wondering what you make of what Saudi Arabia has been doing and its recent moves in the region, including its execution of a well­known Shi'ite cleric and its move to dramatically increase oil production, some say in an effort to drive down oil prices and force a lot of U.S. oil producers out of business.
Sure enough, oil prices have tumbled. One brokerage house is predicting a third or more of American oil producers and those heavily invested in fracking will go bankrupt, and soon Saudi Arabia and OPEC will be back in the driver's seat. U.S. energy player Harold Hamrie similarly told me with friends like these, who needs enemies? Do you agree?
KASICH: Well, let me — let me first of all talk a little bit about my experience. I served on the Defense Committee for 18 years, and by the way, one of the members of that committee was Senator Strom Thurmond from South Carolina. Let em also tell you...[applause]...that after the 9/11 attacks, Secretary Rumsfeld invited me to the Pentagon with a meeting of the former secretaries of Defense. And in that meeting, I suggested we had a problem with technology, and that I wanted to take people from Silicon Valley into the Pentagon to solve our most significant problems. So I not only had the opportunity to go through the Cold War struggles in Central America, and even after 9/11 to be involved.
With Saudi Arabia and oil production, first of all, it's so critical for us to be energy independent, and we're getting there because of fracking and we ought to explore because, see, energy independence gives us leverage and flexibility, and secondly, if you want to bring jobs back to the United States of America in industry, low prices make the difference.
We're seeing it in my state and we'll see it in this country. And that's why we must make sure we continue to frack.
In terms of Saudi Arabia, look, my biggest problem with them is they're funding radical clerics through their madrasses. That is a bad deal and an evil situation, and presidents have looked the other way. And I was going to tell you, whether I'm president or not, we better make it clear to the Saudis that we're going to support you, we're in relation with you just like we were in the first Gulf War, but you've got to knock off the funding and teaching of radical clerics who are the very people who try to destroy us and will turn around and destroy them. [applause]
So look, in foreign policy — in foreign policy, it's strength, but you've got to be cool. You've got to have a clear vision of where you want to go. And I'm going to tell you, that it — I'm going to suggest to you here tonight, that you can't do on the job training.
I've seen so much of it – a Soviet Union, the coming down of a wall, the issues that we saw around the world in Central America, the potential spread of communism, and 9/11 and Gulf War. You see what the Saudi's — deliver them a strong message but at the end of the day we have to keep our cool because most of the time they're going right with us. And they must be part of our coalition to destroy ISIS and I believe we can get that done.
Thank you.
CAVUTO: Thank you John.
BARTIROMO: There's much more ahead including the fight against ISIS. More from Charleston, South Carolina when we come right back.
[commercial break]
BARTIROMO: We welcome back to the Republican Presidential , right back to the questions.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

14/31

2/6/2017

(78 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth4C4aroolifna119
Candidates, the man who made fighting ISIS the cornerstone of his campaign, South Carolina Senator, Lindsey Graham is out the race but he joins us tonight in the audience. [applause]
He says, "the air­strike now in their 16th month have been ineffective." Dr. Carson ...
CARSON: Wait a minute, who in their 16th month?
BARTIROMO: The air­strikes.
CARSON: OK.
BARTIROMO: Now in their 16th month are ineffective. Dr. Carson, do you think Senator Graham is right in wanting to send 20,000 troops — ground troops to Iraq and Syria to take out ISIS?
CARSON: Well, there's no question that ISIS is a very serious problem, and I don't believe that this administration recognizes how serious it is.
I think we need to do a lot more than we're doing. Recognize that the caliphate is what gives them the legitimacy to go out on a jihadist mission, so we need to take that away from them.
The way to take that away from them is to talk to our military officials and ask them, "what do you need in order to accomplish this goal?"
Our decision is, then, do we give them what we need. I say, yes, not only do we give them what they need, but we don't tie their hands behind their backs so that they can go ahead and get the job done.
In addition to that...[applause]...in addition to that, we go ahead and we take the oil from them, their source of revenue. You know, some of these — these engagement rules that the administration has — "we're not going to bomb a tanker that's coming out of there because there might be a person in it" — give me a break.
Just tell them that, you put people in there, we're going to bomb them. So don't put people in there if you don't want them bombed. You know, that's so simple. [applause]
And then we need to shut down — we need to shut down their mechanisms of funding and attack their command­and­ control centers. Why should we let their people be sitting there smoking their cigars, sitting in their comfortable chairs in Raqqa?
We know to go ahead and shut off the supply routes, and send in our special ops at 2:00 a.m. and attack them everywhere they go. They should be running all the time, then they won't have time to plan attacks against us. [applause]
BARTIROMO: Thank you, sir. Senator Graham has also said that the U.S. will find Arab support for its coalition if it removes Syrian President Bashar al­Assad. And I quote, "The now king of Saudi Arabia told us, 'you can have our army, you just got to deal with Assad.'
"The emir of Qatar said, 'I'll pay for the operation, but they are not going to fight ISIS and let Damascus fall into the hands of the Iranians. Assad has to go.'"
Governor Christie, how important is it to remove Assad from power and how would you do it?
CHRISTIE: Maria, you look at what this president and his secretary of state, Secretary of State Clinton, has done to get us in this spot. You think about it — this is the president who said, along with his secretary of state — drew a red line in Syria, said, if Assad uses chemical weapons against his people, that we're going to attack.
He used chemical weapons, he's killed, now, over a quarter of a million of his own people, and this president has done nothing. In fact, he's done worse than nothing.
This president — and, by the way, Secretary Clinton, who called Assad a reformer — she called Assad a reformer. Now, the fact is, what this president has done is invited Russia to play an even bigger role, bring in Vladimir Putin to negotiate getting those chemical weapons back from Assad, yet what do we have today?
We have the Russians and the Iranians working together, not to fight ISIS, but to prop up Assad. The fact of the matter is we're not going to have peace — we are not going to have peace in Syria. We're not going to be able to rebuild it unless we put a no­fly zone there, make it safe for those folks so we don't have to be talking about Syrian refugees anymore.
The Syrians should stay in Syria. They shouldn't be going to Europe. And here's the last piece...[applause]...you're not going to have peace in Syria with Assad in charge. You're simply not. And so Senator Graham is right about this.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

15/31

2/6/2017

(79 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth4C5aroolifna119
And if we want to try to rebuild the coalition, as Governor Kasich was saying before, then what we better do is to get to the Arab countries that believe that ISIS is a threat, not only to them, but to us and to world peace, and bring them together.
And believe me, Assad is not worth it. And if you're going to leave this to Hillary Clinton, the person who gave us this foreign policy, the architect of it, and you're going to give her another four years, that's why I'm speaking out as strongly as I am about that.
Hillary Clinton cannot be president. It will lead to even greater war in this world. And remember this, after Hillary Clinton and Barack Obama have had nearly 8 years, we have fewer democracies in the world than we had when they started.
That makes the world less peaceful, less safe. In my administration, we will help to make sure we bring people together in the Middle East, and we will fight ISIS and defeat them.
BARTIROMO: Thank you, sir. [applause]
Mr. Trump — Mr. Trump, your comments about banning Muslims from entering the country created a firestorm. According to Facebook, it was the most­talked­about moment online of your entire campaign, with more than 10 million people talking about the issue.
Is there anything you've heard that makes you want to rethink this position?
TRUMP: No. [laughter] No. [applause]
Look, we have to stop with political correctness. We have to get down to creating a country that's not going to have the kind of problems that we've had with people flying planes into the World Trade Centers, with the — with the shootings in California, with all the problems all over the world.
I just left Indonesia — bomb, bomb, bomb, bomb.
We have to find out what's going on. I said temporarily. I didn't say permanently. I said temporarily. And I have many great Muslim friends. And some of them, I will say, not all, have called me and said, "Donald, thank you very much; you're exposing an unbelievable problem and we have to get to the bottom of it."
And unlike President Obama, where he refuses even to use the term of what's going on, he can't use the term for whatever reason. And if you can't use the term, you're never going to solve the problem. My Muslim friends, some, said, "thank you very much; we'll get to the bottom of it."
But we have a serious problem. And we can't be the stupid country any more. We're laughed at all over the world. [applause]
BUSH: Donald, Donald — can I — I hope you reconsider this, because this policy is a policy that makes it impossible to build the coalition necessary to take out ISIS. The Kurds are our strongest allies. They're Muslim. You're not going to even allow them to come to our country?
The other Arab countries have a role to play in this. We cannot be the world's policeman. We can't do this unilaterally. We have to do this in unison with the Arab world. And sending that signal makes it impossible for us to be serious about taking out ISIS and restoring democracy in Syria. [applause]
So I hope you'll reconsider. I hope you'll reconsider. The better way of dealing with this — the better way of dealing with this is recognizing that there are people in, you know, the — Islamic terrorists inside, embedded in refugee populations.
What we ought to do is tighten up our efforts to deal with the entry visa program so that a citizen from Europe, it's harder if they've been traveling to Syria or traveling to these other places where there is Islamic terrorism, make it harder — make the screening take place.
We don't have to have refugees come to our country, but all Muslims, seriously? What kind of signal does that send to the rest of the world that the United States is a serious player in creating peace and security?
CAVUTO: But you said — you said that he made those comments and they represented him being unhinged after he made them.
BUSH: Yeah, they are unhinged.
CAVUTO: Well — well, after he made them...[applause]...his poll numbers went up eight points in South Carolina. Now — now, wait...
TRUMP: Eleven points, to be exact.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

16/31

2/6/2017

(80 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth4C6aroolifna119
CAVUTO: Are you — are you saying — are you saying that all those people who agree with Mr. Trump are unhinged?
BUSH: No, not at all, absolutely not. I can see why people are angry and scared, because this president has created a condition where our national security has weakened dramatically. I totally get that. But we're running for the presidency of the United States here. This isn't — this isn't, you know, a different kind of job. You have to lead. You cannot make rash statements and expect the rest of the world to respond as though, well, it's just politics.
Every time we send signals like this, we send a signal of weakness, not strength. And so it was [inaudible] his statement, which is why I'm asking him to consider changing his views. [applause]
TRUMP: I want security for this country. OK? [applause]
I want security. I'm tired of seeing what's going on, between the border where the people flow over; people come in; they live; they shoot. I want security for this country. We have a serious problem with, as you know, with radical Islam. We have a tremendous problem. It's not only a problem here. It's a problem all over the world.
I want to find out why those two young people — those two horrible young people in California when they shot the 14 people, killed them — people they knew, people that held the wedding reception for them. I want to find out — many people saw pipe bombs and all sorts of things all over their apartment. Why weren't they vigilant? Why didn't they call? Why didn't they call the police?
And by the way, the police are the most mistreated people in this country. I will tell you that. [applause]
The most mistreated people. In fact, we need to — wait a minute — we need vigilance. We have to find out — many people knew about what was going on. Why didn't they turn those two people in so that you wouldn't have had all the death?
There's something going on and it's bad. And I'm saying we have to get to the bottom of it. That's all I'm saying. We need security.
BARTIROMO: We — we want to hear from all of you on this. According to Pew Research, the U.S. admits more than 100,000 Muslim immigrants every single year on a permanent lifetime basis. I want to ask the rest of you to comment on this. Do you agree that we should pause Muslim immigration until we get a better handle on our homeland security situation, as Mr. Trump has said?
Beginning with you, Governor Kasich.
KASICH: I — I've been for pausing on admitting the Syrian refugees. And the reasons why I've done is I don't believe we have a good process of being able to vet them. But you know, we don't want to put everybody in the same category.
And I'll go back to something that had been mentioned just a few minutes ago. If we're going to have a coalition, we're going to have to have a coalition not just of people in the western part of the world, our European allies, but we need the Saudis, we need the Egyptians, we need the Jordanians, we need the Gulf states. We need Jordan.
We need all of them to be part of exactly what the first George Bush put together in the first Gulf War.
[bell rings]
It was a coalition made up of Arabs and Americans and westerners and we're going to need it again. And if we try to put everybody in the same — call everybody the same thing, we can't do it. And that's just not acceptable.
But I think a pause on Syrian refugees has been exactly right for all the governors that have called for it, and also, of course, for me as the governor of Ohio.
BARTIROMO: Thank you, sir, we want to hear from the rest of you,
Governor Christie, your take.
CHRISTIE: Now Maria, listen. I said right from the beginning that we should take no Syrian refugees of any kind. And the reason I said that is because the FBI director told the American people, told Congress, that he could not guarantee he could vet them and it would be safe. That's the end of the conversation.
I can tell you, after spending seven years as a former federal prosecutor, right after 9/11, dealing with this issue. Here's the way you need to deal with it. You can't just ban all Muslims. You have to ban radical Islamic jihadists. You have to ban the people who are trying to hurt us.
The only way to figure that out is to go back to getting the intelligence community the funding and the tools that it needs to be able to keep America safe.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

17/31

2/6/2017

Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth4C7aroolifna119
[bell rings]

(81 of 153)

And this summer, we didn't do that. We took it away from the NSA, it was a bad decision by the president. Bad by those in the Senate who voted for it and if I'm president, we'll make our intelligence community strong, and won't have to keep everybody out, we're just going to keep the bad folk out and make sure they don't harm us.

BARTIROMO: Senator Rubio, where do you stand?

RUBIO: Well, first of all, let's understand why we are even having this and why Donald tapped in to some of that anger that's out there about this whole issue. Because this president has consistently underestimated the threat of ISIS.

If you listen to the State of the Union the other night, he described them as a bunch of guys with long beards on the back of a pickup truck. They are much more than that. This is a group of people that enslaves women and sells them, sells them as brides.

This is a group of people that burns people in cages, that is conducting genocide against Christians and Yazidis and others in the region. This is not some small scale group.

They are radicalizing people in the United States, they are conducting attacks around the world. So you know what needs to happen, it's a very simple equation, and it's going to happen when I'm president. If we do not know who you are, and we do not know why you are coming when I am president, you are not getting into the United States of America. [applause]

BARTIROMO: Senator Cruz, where do you stand? Senator Cruz?

CRUZ: You know I understand why Donald made the comments he did and I understand why Americans are feeling frustrated and scared and angry when we have a president who refuses to acknowledge the threat we face and even worse, who acts as an apologist for radical Islamic terrorism.

I think what we need is a commander in chief who is focused like a laser on keeping this country safe and on defeating radical Islamic terrorism. What should we do? First, we should pass the Expatriate Terrorist Act, legislation I've introduced that says if an American goes and joins ISIS and wages jihad against America, that you forfeit your citizenship and you can not come in on a passport. [applause]

And secondly, we should pass the legislation that I've introduced...[bell rings]...that suspends all refugees from nations that ISIS or Al Qaida controls significant territory. Just last week, we see saw two Iraqi refugees vetted using the same process the president says will work, that were arrested for being alleged ISIS terrorists.

If I'm elected president, we will not let in refugees from countries controlled by ISIS or Al Qaida. When it comes to ISIS, we will not weaken them, we will not degrade them, we will utterly and completely destroy ISIS [applause].

BARTIROMO: Dr. Carson, where do you stand? Do you agree with Mr. Trump?

CARSON: Well, first of all, recognize it is a substantial problem. But like all of our problems, there isn't a single one that can't be solved with common sense if you remove the ego and the politics. And clearly, what we need to do is get a group of experts together, including people from other countries, some of our friends from Israel, who have had experience screening these people and come up with new guidelines for immigration, and for visas, for people who are coming into this country.

That is the thing that obviously makes sense, we can do that. And as far as the Syrians are concerned, Al­Hasakah province, perfect place. They have infrastructure. All we need to do is protect them, they will be in their own country.

And that is what they told me when I was in Jordan in November. Let's listen to them and let's not listen to our politicians.

BARTIROMO: So, to be clear, the both of you do not agree with Mr. Trump?

BUSH: So, are we going to ban Muslims from India, from Indonesia, from countries that are strong allies — that we need to build better relationships with? Of course not. What we need to do is destroy ISIS.

I laid out a plan at the Citadel to do just that and it starts with creating a "No Fly Zone" and "Safe Zones" to make sure refugees are there. We need to lead a force, a Sunni led force inside of Syria. We need to embed with — with the Iraqi military. We need to arm the Kurds the directly. We need to re­establish the relationships with the Sunnis.

We need the lawyers off the back of the war fighters. That's how you solve the problem. You don't solve it by big talk where you're banning all Muslims and making it harder for us to build the kind of coalition for us to be successful.

BARTIROMO: Thank you governor.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

18/31

2/6/2017

(82 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth4C8aroolifna119
CAVUTO: Mr. Trump, sometimes maybe in the heat of the campaign, you say things and you have to dial them back. Last week, the New York Times editorial board quoted as saying that you would oppose, "up to 45 percent tariff on Chinese goods."
TRUMP: That's wrong. They were wrong. It's the New York Times, they are always wrong.
CAVUTO: Well...
TRUMP: They were wrong.
CAVUTO: You never said because they provided that...
TRUMP: No, I said, " I would use — " they were asking me what to do about North Korea. China, they don't like to tell us but they have total control — just about, of North Korea. They can solve the problem of North Korea if they wanted to but they taunt us.
They say, " well, we don't really have control." Without China, North Korea doesn't even eat. China is ripping us on trade. They're devaluing their currency and they're killing our companies. Thousands of thousands — you look at the number of companies and the number in terms of manufacturing of plans that we've lost — 50,000 because of China.
[crosstalk]
CAVUTO: So they've never said to put a tariff on their...
TRUMP: We've lost anywhere between four and seven million jobs because of China. What I said then was, "we have very unfair trade with China. We're going to have a trade deficit of 505 billion dollars this year with China." A lot of that is because they devalue their currency.
What I said to the New York Times, is that, "we have great power, economic power over China and if we wanted to use that and the amount — where the 45 percent comes in, that would be the amount they saw their devaluations that we should get." That we should get.
What I'm saying is this, I'm saying that we do it but if they don't start treating us fairly and stop devaluing and let their currency rise so that our companies can compete and we don't lose all of these millions of jobs that we're losing, I would certainly start taxing goods that come in from China. Who the hell has to lose 505 billion dollars a year?
CAVUTO: I'm sorry, you lost me.
TRUMP: It's not that complicated actually.
CAVUTO: Then I apologize. Then I want to understand, if you don't want a 45 percent tariff, say that wasn't the figure, would you be open — are you open to slapping a higher tariff on Chinese goods of any sort to go back at them?
TRUMP: OK, just so you understand — I know so much about trading about with China. Carl Icahn today as you know endorsed. Many businessmen want to endorse me.
CAVUTO: I know...
TRUMP: Carl said, "no, no — " but he's somebody — these are the kind of people that we should use to negotiate and not the China people that we have who are political hacks who don't know what they're doing and we have problems like this. If these are the kinds of people — we should use our best and our finest.
Now, on that tariff — here's what I'm saying, China — they send their goods and we don't tax it — they do whatever they want to do. They do whatever what they do, OK. When we do business with China, they tax us. You don't know it, they tax us.
I have many friends that deal with China. They can't — when they order the product and when they finally get the product it is taxed. If you looking at what happened with Boeing and if you look at what happened with so many companies that deal — so we don't have an equal playing field. I'm saying, absolutely, we don't have to continue to lose 505 billion dollars as a trade deficit for the privilege of dealing with China.
I'm a free trader. I believe in it but we have to be smart and we have to use smart people to negotiate. I have the largest bank in the world as a tenant of mine. I sell tens' of millions of [inaudible].
I love China. I love the Chinese people but they laugh themselves, they can't believe how stupid the American leadership is.
CAVUTO: So you're open to a tariff?

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

19/31

2/6/2017

(83 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth4C9aroolifna119
TRUMP: I'm totally open to a tariff. If they don't treat us fairly, hey, their whole trade is tariffed. You can't deal in China without tariffs. They do it to us, we don't it. It's not fair trade.

KASICH: Neil, Neil — can I say one thing about this. I'm a free trader. I support NAFTA. I believe in the PTT because it's important those countries in Asia are interfacing against China. And we do need China — Donald's right about North Korea.

I mean the fact is, is that they need to put the pressure on and frankly we need to intercepts ships coming out of North Korea so they don't proliferate all these dangerous materials. But what he's touching — talking about, I think has got merit. And I'll allow putting that tariff or whatever he's saying here...

TRUMP: I'm happy to have him tonight...[laughter]

KASICH: For too long — no, for too long, what happens is somebody dumps their product in our country and take our people's jobs, and then we go to an international court and it takes them like a year or two to figure out whether they were cheating us. And guess what? The worker's out of a job.

So when they — be found against that country that's selling products in here lower than the cost of what it takes to produce them, then what do we tell the worker? Oh, well, you know, it just didn't work out for you.

I think we should be for free trade but I think fair trade. And when countries violate trade agreements or dump product in this country, we need — we need to stand up against those countries that do that without making them into an enemy.

And I want to just suggest to you. How do I know this? Because so many people in my family worked in steel mills, and they didn't work with a white collar, they worked in a blue collar. And the fact is those jobs are critical, they're hard working members of the middle class and they need to be paid attention to because they're Americans and they carry the load. So let's demand open trade but fair trade in this country. That's what I think we need to do. [applause]

CAVUTO: All right.

RUBIO: But on this point, if I may add something on this point. We are all frustrated with what China is doing. I think we need to be very careful with tariffs, and here's why.

China doesn't pay the tariff, the buyer pays the tariff. If you send a tie or a shirt made in China into the United States and an American goes to buy it at the store and there's a tariff on it, it gets passed on in the price to price to the consumer.

So I think the better approach, the best thing we can do to protect ourselves against China economically is to make our economy stronger, which means reversing course from all the damage Barack Obama is doing to this economy.

It begins with tax reform. Let's not have the most expensive business tax rate in the world. Let's allow companies to immediately expense. [applause]

It continues with regulatory reform. Regulations in this country are out of control, especially the Employment Prevention Agency, the EPA, and all of the rules they continue to impose on our economy and hurting us.

How about Obamacare, a certified job killer? It needs to be repealed and replaced. And we need to bring our debt under control, make our economy stronger. That is the way to deal with China at the end of the day.

TRUMP: Neil, the problem...

BARTIROMO: We're getting...

TRUMP: ... with what Marco is saying is that it takes too long, they're sucking us dry and it takes too long. It would just — you absolutely have to get involved with China, they are taking so much of what we have in terms of jobs in terms of money. We just can't do it any longer.

CAVUTO: He is right. If you put a tariff on a good, it's Americans who pay.

BUSH: Absolutely.

TRUMP: You looking at me?

BUSH: Yeah.

BARTIROMO: Prices go higher for...

TRUMP: Can I tell you what? It will never happen because they'll let their currency go up. They're never going to let it happen.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

20/31

2/6/2017

(84 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth5C0aroolifna119
Japan, the same thing. They are devaluing — it's so impossible for — you look at Caterpillar Tractor and what's happening with Caterpillar and Kamatsu. Kamatsu is a tractor company in Japan. Friends of mine are ordering Kamatsu tractors now because they've de­valued the yen to such an extent that you can't buy a Caterpillar tractor. And we're letting them get away with it and we can't let them get away with it.
And that's why we have to use Carl and we have to use our great businesspeople and not political hacks to negotiate with these guys. [applause]
BUSH: Here's — apart from the — apart from the higher prices on consumers and people are living paycheck to paycheck, apart from that, there will be retaliation.
BARTIROMO: Yeah.
BUSH: So they soybean sales from Iowa, entire soybean production goes — the equivalent of it goes to China. Or how about Boeing right here within a mile? Do you think that the Chinese, if they had a 45 percent tariff imposed on all their imports wouldn't retaliate and start buying Airbus? Of course, they would. This would be devastating for the economy. We need someone with a steady hand being president of the United States.
BARTIROMO: Real quick, Senator — go ahead, Senator Cruz. [applause]
And then we have to get to tax reform.
TRUMP: And we don't need a weak person being president of the United State, OK? Because that's what we'd get if it were Jeb — I tell you what, we don't need that.
AUDIENCE: Boo.
TRUMP: We don't need that. That's essentially what we have now, and we don't need that. And that's why we're in the trouble that we're in now. And by the way, Jeb you mentioned Boeing, take a look. They order planes, they make Boeing build their plant in China. They don't want them made here. They want those planes made in China.
BUSH: They're a mile away from here.
TRUMP: That's not the way the game is supposed to be played.
BARTIROMO: Thank you, Governor Bush. Thank you, Mr. Trump. Very briefly.
BUSH: My name was mentioned. My name was mentioned here. The simple fact is that the plane that's being build here is being sold to China. You can — if you — you flew in with your 767, didn't you? Right there, right next to the plant.
TRUMP: No, the new planes. I'm not talking about now, I'm talking about in the future they're building massive plants in China because China does not want Boeing building their planes here, they want them built in China, because China happens to be smart the way they do it, not the way we do it.
BARTIROMO: Thank you, Mr. Trump.
BUSH: When you head back to airport tonight, go check and see what the...
BARTIROMO: Thank you, Mr. Trmup. Thank you, Governor.
TRUMP: I'll check for you.
BUSH: Check it out. [laughter]
BARTIROMO: Senator briefly.
CRUZ: Thanks for coming back to me, Maria. Both Donald and Jeb have good points, and there is a middle ground. Donald is right that China is running over President Obama like he is a child, President Obama is not protecting American workers and we are getting hammered.
You know, I sat down with the senior leadership of John Deere. They discussed how — how hard it is to sell tractors in China, because all the regulatory barriers. They're protectionist.
But Jeb is also right that, if we just impose a tariff, they'll put reciprocal tariffs, which will hurt Iowa farmers and South Carolina producers and 20 percent of the American jobs that depend on exports.
So the way you do it is you pass a tax plan like the tax plan I've introduced: a simple flat tax, 10 percent for individuals, and a 16 percent business flat tax, you abolish the IRS...[applause]...and here's the critical point, Maria — the business flat tax

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

21/31

2/6/2017

(85 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth5C1aroolifna119
enables us to abolish the corporate income tax, the death tax, the Obamacare taxes, the payroll taxes, and they're border­ adjustable, so every export pays no taxes whatsoever.
It's tax­free — a huge advantage for our farmers and ranchers and manufacturers — and every import pays the 16 percent business flat tax. It's like a tariff, but here's the difference: if we impose a tariff, China responds.
The business flat tax, they already impose their taxes on us, so there's no reciprocal...[bell rings]...tariffs that come against us. It puts us on a level, even playing field, which brings jobs here at home...
UNKNOWN: Maria...
CRUZ: ... and as president, I'm going to fight for the working men and women.
[crosstalk]
BARTIROMO: We've got to get to tax reform, gentlemen. We've got to get to tax reform, and we've got to get to the...
UNKNOWN: Yeah, but I want to talk about taxes.
BARTIROMO: ... we've got to get to the national debt as well. Coming up next, the growing national debt, the war on crime, tax reform. More from North Charleston, South Carolina, when we come right back.
[commercial break]
BARTIROMO: Welcome back to the Republican presidential here in North Charleston. Right back to the questions. [applause]
Governor Christie, we have spoken much about cutting spending, given the $19 trillion debt. But according to one report, America needs $3.6 trillion in infrastructure spending by 2020.
Here in South Carolina, 11 percent of bridges are considered structurally deficient, costing drivers a billion dollars a year in auto repairs. What is your plan to fix the ailing roads and bridges without breaking the bank?
CHRISTIE: Well, I'm glad you asked that, Maria. Here's — here's our plan. We've all been talking about tax reforms tonight, and paying for infrastructure is caught right up in tax reform.
If you reform the corporate tax system in this country, which, as was mentioned before, is the highest rate in the world — and we double tax, as you know.
And what that's led to over $2 trillion of American companies' monies that are being kept offshore, because they don't want to pay the second tax. And who can blame them? They pay tax once overseas. They don't want to pay 35 percent tax on the way back.
So beside reforming that tax code, bringing it down to 25 percent and eliminating those special­interest loopholes that the lobbyists and the lawyers and the accountants have given — bring that rate down to 25 percent, but also, a one­time repatriation of that money.
Bring the money — the $2 trillion — back to the United States. We'll tax it, that one time, at 8.75 percent, because 35 percent of zero is zero, but 8.75 percent of $2 trillion is a lot of money. And I would then dedicate that money to rebuilding infrastructure here in this country.
It would not necessitate us raising any taxes. It would bring the money back into the United States to help build jobs by American companies and get our economy moving again, and growing as a higher rate, and it would rebuild those roads and bridges and tunnels that you were talking about. And — and — and the last piece of this, Maria, is this. You know, the fact is that this president has penalized corporations in America. He's penalized — and doesn't understand. In fact, what that hurts is hurt hardworking taxpayers.
You've seen middle­class wages go backwards $3,700 during the Obama administration. That's wrong for hardworking taxpayers in this country. We'd rebuild infrastructure that would also create jobs in this country, and we'd work with the states to do it the right way, to do it more efficiently and more effectively.
And remember this — I'm credible on this for this reason: Americans for Tax Reform says that I've vetoed more tax increases than any governor in American history. We don't need to raise taxes to get this done.
We need to make the government run smarter and better, and reform this corporate tax system, bring that money back to the United States to build jobs and rebuild our infrastructure, and we need to use it also to protect our grid from terrorists.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

22/31

2/6/2017

Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth5C2aroolifna119
All of those things are important, and all those things would happen in a Christie administration.

(86 of 153)

BARTIROMO: Thank you, sir. Dr. Carson...[applause]...it is true U.S. companies have $2 trillion in cash sitting overseas right now. That could be used for investment and jobs in America.

Also, several companies right now are pursuing mergers to move their corporate headquarters abroad, and take advantage of much lower taxes. What will you do to stop the flow of companies building cash away from America, and those leaving America altogether?

CARSON: Well, I would suggest a fair tax system, and that's what we have proposed. A flat tax for everybody — no exemptions, no deductions, no shelters, because some people have a better capability of taking advantage of those than others.

You know, and then the other thing we have to do is stop spending so much money. You know, I — my — my mother taught me this. You know, she only had a third­grade education, but — you know, she knew how to stretch a dollar.

I mean, she would drive a car until it wouldn't make a sound, and then gather up all her coins and buy a new car. In fact, if my mother were secretary of treasury, we would not be in a deficit situation. But...[laughter]... you know, the — the — the fact of the matter is — you know, if we fix the taxation system, make it absolutely fair, and get rid of the incredible regulations — because every regulation is a tax, it's a — on goods and services. And it's the most regressive tax there is.

You know, when you go into the store and buy a box of laundry detergent, and the price has up — you know, 50 cents because of regulations, a poor person notices that. A rich person does not. Middle class may notice it when they get to the cash register.

And everything is costing more money, and we are killing our — our — our people like this. And Bernie Sanders and Hillary Clinton will say it's those evil rich people.

It's not the evil rich people. It's the evil government that is — that is putting all these regulations on us so that we can't survive. [applause]

BARTIROMO: Thank you, sir.

Senator Rubio...

TRUMP: Maria — Maria, what you were talking about just now is called corporate inversion. It's one of the biggest problems our country has. Right now, corporations, by the thousands, are thinking of leaving our country with the jobs — leave them behind.

They're leaving because of taxes, but they are also leaving because they can't get their money back and everybody agrees, Democrats and Republicans, that is should come back in. But they can't get along. They can't even make a deal.

Here is the case, they both agree, they can't make a deal. We have to do something. Corporate inversion is one of the biggest problems we have. So many companies are going to leave our country.

BARTIROMO: Which is why we raised it.

Senator Rubio?

Thank you, Mr. Trump.

TRUMP: Thank you.

BARTIROMO: One of the biggest fiscal challenges is our entitlement programs, particularly Social Security and Medicare. What policies will you put forward to make sure these programs are more financially secure?

RUBIO: Well, first let me address the tax issue because it's related to the entitlement issue and I want to thank you for holding a substantive debates where we can have debates about these key issues on taxes. [applause]

Here is the one thing I'm not going to do. I'm not going to have something that Ted described in his tax plan. It's called the value added tax. And it's a tax you find in many companies in Europe.

Where basically, businesses now will have to pay a tax, both on the money they make, but they also have to pay taxes on the money that they pay their employees.

And that's why they have it in Europe, because it is a way to blindfolded the people, that's what Ronald Reagan said. Ronald Regan opposed the value tax because he said it was a way to blindfold the people, so the true cost of government was not there there for them.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

23/31

2/6/2017

(87 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth5C3aroolifna119
Now, you can support one now that's very low. But what is to prevent a future liberal president or a liberal Congress from coming back and not just raising the income tax, but also raising that VAT tax, and that vat tax is really bad for seniors. Because seniors, if they are retired, are no longer earning an income from a job. And therefore, they don't get the income tax break, but their prices are going to be higher, because the vat tax is embedded in both the prices that business that are charging and in the wages they pay their employees.
When I am president of the United States, I'm going to side with Ronald Regan on this and not Nancy Pelosi and we are not having a vat tax. [applause]
BARTIROMO: Thank you senator.
CRUZ: Maria, I assume that I can respond to that.
BARTIROMO: Senator Cruz, yes. You were meant to. Yes, of course.
CRUZ: Well, Marco has been floating this attack for a few weeks now, but the problem is, the business flat tax in my proposal is not a vat. A vat is imposed as a sales tax when you buy a good.
This is a business flat tax. It is imposed on business and a critical piece that Marco seems to be missing is that this 16 percent business flat tax enables us to eliminate the corporate income tax. It goes away. It enables us to eliminate the death tax.
If you're a farmer, if you're a rancher, if you are small business owner, the death tax is gone. We eliminate the payroll tax, we eliminate the Obamacare taxes. And listen, there is a real difference between Marco's tax plan and mine.
Mine gives every American a simple, flat tax of 10 percent. Marco's top tax rate is 35 percent. My tax plan enables you to fill out your taxes on a postcard so we can abolish the IRS. Marco leaves the IRS code in with all of the complexity. We need to break the Washington cartel, and the only way to do it is to end all the subsidies and all...[bell rings]...the mandates and have a simple flat tax. The final observation, invoked Ronald Reagan. I would note that Art Laffer, Ronald Reagan's chief economic adviser, has written publicly, that my simple flat tax is the best tax plan of any of the individuals on this stage cause it produces economic growth, it raises wages and it helps everyone from the very poorest to the very richest.
BARTIROMO: Thank you senator. [applause]
RUBIO: But that's not an accurate description of the plan. Because, first of all, you may rename the IRS but you are not going to abolishes the IRS, because there has to be some agency that's going to collect your vat tax. Someone's going to be collecting this tax.
In fact, Ronald Reagan's treasury, when Ronald Reagan's treasury looked at the vat tax, you know what they found? That they were going to have to hire 20,000 new IRS agencies to collect it.
The second point, it does not eliminate the corporate tax or the payroll tax. Businesses will now have to pay 16 percent on the money they make. They will also have to pay 16 percent on the money they pay their employees.
So there are people watching tonight in business. If you are now hit on a 60 percent tax on both your income and on the wages you pay your employees, where are you going to get that money from? You're going to get it by paying your employees less and charging your customers more, that is a tax, the difference is, you don't see it on the bill.
And that's why Ronald Reagan said that it was a blindfold. You blindfold the American people so that they cannot see the true cost of government. Now 16 percent is what the rate Ted wants it at. But what happens if, God forbid, the next Barack Obama takes over, and the next Nancy Pelosi, and the next Harry Reid...[bell rings]...and they decide, we're going to raise it to 30 percent, plus we're going to raise the income tax to 30 percent. Now, you've got Europe.
[crosstalk]
BARTIROMO: Thank you senator. I have to get to a question for Mr. Trump.
CRUZ: Maria...
BARTIROMO: Yes.
CRUZ: Maria, I'd just like to say...[crosstalk]
CHRISTIE: Maria, I'd like to interrupt this on the floor of the Senate to actually answer the question you asked, which was on entitlements. Do you remember that, everybody? This was a question on entitlements.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

24/31

2/6/2017

(88 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth5C4aroolifna119
And the reason — and the reason...[crosstalk]...no, you already had your chance, Marco, and you blew it. Here's the thing. [crosstalk] The fact is, the reason why...
RUBIO: If you'll answer the [inaudible] core question.
CHRISTIE: ... the fact is — the fact is the reason why that no one wants to answer entitlements up here is because it's hard. It's a hard problem. And I'm the only one up on this stage who back in April put forward a detailed entitlement reform plan that will save over $1 trillion, save Social Security, save Medicare, and avoid this — avoid what Hillary Rodham Clinton will do to you.
Because what she will do is come in and she will raise Social Security taxes. Bernie Sanders has already said it. And she is just one or two more poll drops down from even moving further left than she's moved already to get to the left of Bernie on this.
We have seniors out there who are scared to death because this Congress — this one that we have right now, just stole $150 billion from the Social Security retirement fund to give it to the Social Security disability fund. A Republican Congress did that.
And the fact is it was wrong. And they consorted with Barack Obama to steal from Social Security. We need to reform Social Security. Mine is the only plan that saves over $1 trillion and that's why I'm answering your question.
BARTIROMO: Thank you, Governor. Thank you, Governor. [applause]
CARSON: Can I just add one very quick thing? And I just want to say, you know, last week we released our tax plan. And multiple reputable journals, including The Wall Street Journal, said ours is the best. Just want to get that out there, just saying.
BARTIROMO: Thank you, Dr. Carson.
Coming up, how would the candidates protect America, and another terror attack, if we were to see it. But first, you can join us live on stage during the commercial break right from home. Go to facebook.com/foxbusiness. We'll be streaming live and answering your questions during this break next.
More from South Carolina coming up. Stay with us.
[commercial break]
BARTIROMO: Mr. Trump, your net worth is in the multi­billions of dollars and have an ongoing thriving hotel and real estate business. Are you planning on putting your assets in a blind trust should you become president? With such vast wealth, how difficult will it be for you to disentangle yourself from your business and your money and prioritize America's interest first?
TRUMP: Well, it's an interesting question because I'm very proud of my company. As you too know, I know I built a very great company. But if I become president, I couldn't care less about my company. It's peanuts.
I want to use that same up here, whatever it may be to make America rich again and to make America great again. I have Ivanka, and Eric and Don sitting there. Run the company kids, have a good time. I'm going to do it for America.
So I would — I would be willing to do that.
BARTIROMO: So you'll put your assets in a blind trust?
TRUMP: I would put it in a blind trust. Well, I don't know if it's a blind trust if Ivanka, Don and Eric run it. If that's a blind trust, I don't know. But I would probably have my children run it with my executives and I wouldn't ever be involved because I wouldn't care about anything but our country, anything.
BARTIROMO: Thank you sir.
TRUMP: Thank you.
CAVUTO: Governor Christie, going back to your U.S. Attorney days, you had been praised by both parties as certainly a tough law and order guy. So I wonder what you make of recent statistics that showed violent crimes that have been spiking sometimes by double digit ratings in 30 cities across the country. Milwaukee Police Chief Ed Flynn said, "most local law enforcement officials feel abandoned by Washington." Former NYC Police Chief Ray Kelly, says that, "police are being less proactive because they're being overly scrutinized and second guessed and they're afraid of being sued or thrown in jail."
What would you do as president to address this?

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

25/31

2/6/2017

(89 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth5C5aroolifna119
CHRISTIE: Well, first off, let's face it, the FBI director James Comey was a friend of mine who I worked with as U.S. Attorney of New Jersey. He was the U.S. Attorney in Manhattan. He said, "there's a chill wind blowing through law enforcement in this country." Here's why, the president of the United States and both his attorney's general, they give the benefit of the doubt to the criminal, not to the police officers.
That's the truth of the matter and you see it every time with this president. Every time he's got a chance, going all the way back to — remember that Great Beer Summit he had after he messed up that time. This is a guy who just believes that law enforcement are the bad guys.
Now, I for seven years was the U.S. Attorney of New Jersey. I worked hard with not only federal agents but with police officers and here's the problem, sanctuary cities is part of the problem in this country. That's where crime is happening in these cities where they don't enforce the immigration laws. And this president turns his back — this president doesn't enforce the marijuana laws in this country because he doesn't agree with them.
And he allows states to go ahead and do whatever they want on a substance that's illegal. This president allows lawlessness throughout this country. Here's what I would do Neil, I would appoint an Attorney General and I would have one very brief conversation with that Attorney General. I'd say, "General, enforce the law against everyone justly, fairly, and aggressively. Make our streets safe again. Make our police officers proud of what they do but more important than that, let them know how proud we are of them."
We do that, this country would be safe and secure again not only from criminals but from the terrorist who threaten us as well. I'm the only person on this stage who's done that and we will get it done as President of the United States.
CAVUTO: Thank you governor.
Governor Kasich, as someone has to deal with controversial police shootings in your own state, what do you make of Chicago's move recently to sort of retrain police? Maybe make them not so quick to use their guns?
KASICH: Well, I created a task force well over a year ago and the purpose was to bring law enforcement, community people, clergy and the person that I named as one of the co­chair was a lady by the name of Nina Turner, a former State Senator, a liberal Democrat. She actually ran against one of my friends and our head of public safety.
And they say down as a group trying to make sure that we can begin to heal some of these problems that we see between community and police.
And they came back with 23 recommendations. One of them is a statewide use of deadly force. And it is now being put into place everyplace across the state of Ohio. Secondly, a policy on recruiting and hiring, and then more resources for — for training.
But let me also tell you, one of the issues has got to be the integration of both community and police. Community has to understand that that police officer wants to get home at night, and not — not to lose their life. Their family is waiting for them.
At the same time, law enforcement understands there are people in the community who not only think that the system doesn't work for them, but works against them.
See, in Ohio, we've had some controversial decisions. But the leaders have come forward to realize that protest is fine, but violence is wrong. And it has been a remarkable situation in our state. And as president of the United States, it's all about communication, folks. It's all about getting people to listen to one another's problems.
And when you do that, you will be amazed at how much progress you can make, and how much healing we can have. Because, folks, at the end of the day, the country needs healed. I've heard a lot of hot rhetoric here tonight, but I've got to tell you, as somebody that actually passed a budget; that paid down a half­a­trillion dollars of our national debt, you can't do it alone. You've got to bring people together. You've got to give people hope.
And together, we can solve these problems that hurt us and heal America. And that is what's so critical for our neighborhoods, our families, our children, and our grandchildren. [applause]
CAVUTO: Thank you, Governor.
BARTIROMO: Senator Rubio? [applause]
Under current law, the U.S. is on track to issue more new permanent immigrants on green cards over the next five years than the entire population of South Carolina. The CBO says your 2013 immigration bill would have increased green cardholders by another 10 million over 10 years.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

26/31

2/6/2017

(90 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth5C6aroolifna119
Why are you so interested in opening up borders to foreigners when American workers have a hard enough time finding work?

RUBIO: Well, first of all, this is an issue that's been debated now for 30 years. And for 30 years, the issue of immigration has been about someone who's in this country, maybe they're here illegally, but they're looking for a job. This issue is not about that anymore.

First and foremost, this issue has to be now more than anything else about keeping America safe. And here's why. There is a radical jihadist group that is manipulating our immigration system. And not just green cards. They're looking — they're recruiting people that enter this country as doctors and engineers and even fiances. They understand the vulnerabilities we have on the southern border.

They're looking — they're looking to manipulate our — the visa waiver countries to get people into the United States. So our number one priority must now become ensuring that ISIS cannot get killers into the United States. So whether it's green cards or any other form of entry into America, when I'm president if we do not know who you are or why you are coming, you are not going to get into the United States of America.

BARTIROMO: So your thinking has changed?

RUBIO: The issue is a dramatically different issue than it was 24 months ago. Twenty­four months ago, 36 months ago, you did not have a group of radical crazies named ISIS who were burning people in cages and recruiting people to enter our country legally. They have a sophisticated understanding of our legal immigration system and we now have an obligation to ensure that they are not able to use that system against us.

The entire system of legal immigration must now be reexamined for security first and foremost, with an eye on ISIS. Because they're recruiting people to enter this country as engineers, posing as doctors, posing as refugees. We know this for a fact. They've contacted the trafficking networks in the Western Hemisphere to get people in through the southern border. And they got a killer in San Bernardino in posing as a fiance.

This issue now has to be about stopping ISIS entering the United States, and when I'm president we will.

BARTIROMO: Thank you, Senator. [applause]

CRUZ: But Maria, radical Islamic terrorism was not invented 24 months ago; 24 months ago, we had Al Qaida. We had Boko Haram. We had Hamas. We had Hezbollah. We had Iran putting operatives in South America and Central America. It's the reason why I stood with Jeff Sessions and Steve King and led the fight to stop the Gang of Eight amnesty bill, because it was clear then, like it's clear now, that border security is national security. [applause]

BARTIROMO: Thank you, Senator.

CRUZ: It is also the case that that Rubio­Schumer amnesty bill, one of the things it did is it expanded Barack Obama's power to let in Syrian refugees. It enabled him — the president to certify them en masse without mandating meaningful background checks.

I think that's a mistake. That's why I've been leading the fight to stop it. And I would note the Senate just a few weeks ago voted to suspend refugees from Middle Eastern countries. I voted yes to suspend that. Marco voted on the other side. So you don't get to say we need to secure the borders, and at the same time try to give Barack Obama more authority to allow Middle Eastern refugees coming in, when the head of the FBI tells us they cannot vet them to determine if they are ISIS terrorists.

RUBIO: Maria, let me clear something up here. This is an interesting point when you talk about immigration. Ted Cruz, you used to say you supported doubling the number of green cards, now you say that you're against it. You used to support a 500 percent increase in the number of guest workers, now you say that you're against it. You used to support legalizing people that were here illegally, now you say you're against it. You used to say that you were in favor of birthright citizenship, now you say that you are against it.

And by the way, it's not just on immigration, you used to support TPA, now you say you're against it. I saw you on the Senate floor flip your vote on crop insurance because they told you it would help you in Iowa, and last week, we all saw you flip your vote on ethanol in Iowa for the same reason. [applause]

That is not consistent conservatism, that is political calculation. When I am president, I will work consistently every single day to keep this country safe, not call Edward Snowden, as you did, a great public servant. Edward Snowden is a traitor. And if I am president and we get our hands on him, he is standing trial for treason. [applause]

And one more point, one more point. Every single time that there has been a Defense bill in the Senate, three people team up to vote against it. Bernie Sanders, Rand Paul and Ted Cruz. In fact, the only budget you have ever voted for, Ted, in

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

27/31

2/6/2017

Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth5C7aroolifna119
your entire time in the Senate is a budget from Rand Paul that brags about how it cuts defense.

(91 of 153)

Here's the bottom line, and I'll close with this. If I'm president of the United States and Congress tries to cut the military, I will veto that in a millisecond. [applause]

BUSH: There's — look, there's —

CAVUTO: Gentlemen, gentlemen —

CRUZ: I'm going to get a response to that, Neil. There's no way he launches 11 attack —

CAVUTO: Very quick, very quick.

CRUZ: I'm going to — he had no fewer than 11 attacks there. I appreciate your dumping your [inaudible] research folder on the stage.

RUBIO: No, it's your record.

CRUZ: But I will say —

CAVUTO: Do you think they like each other?

CRUZ: — at least half of the things Marco said are flat­out false. They're absolutely false.

AUDIENCE: Boo.

CRUZ: So let's start — let's start with immigration. Let's start with immigration and have a little bit of clarity. Marco stood with Chuck Schumer and Barack Obama on amnesty. I stood with Jeff Sessions and Steve King. Marco stood today, standing on this stage Marco supports legalization and citizenship for 12 million illegals. I opposed and oppose legalization and citizenship.

And by the way, the attack he keeps throwing out on the military budget, Marco knows full well I voted for his amendment to increase military spending to $697 billion. What he said, and he said it in the last, it's simply not true. And as president, I will rebuild the military and keep this country safe.

CAVUTO: All right, gentlemen, we've got to stop. I know you are very passionate about that. [applause]

Governor Bush, fears have gripped this country obviously, and you touched on it earlier since the San Bernardino attacks. Since our last , the national conversation has changed, according to Facebook data as well.

Now this first graphic shows the issues that were most talked about right before those attacks and now after: the issues of Islam, homeland security and ISIS now loom very large. The FBI says Islamic radicals are using social media to communicate and that it needs better access to communication. Now the CEO of Apple, Governor, Tim Cook said unless served with a warrant private communication is private, period. Do you agree, or would you try to convince him otherwise?

BUSH: I would try to convince him otherwise, but this last back and forth between two senators — back bench senators, you know, explains why we have the mess in Washington, D.C. We need a president that will fix our immigration laws and stick with it, not bend with the wind.

The simple fact is one of the ways, Maria, to solve the problem you described is narrow the number of people coming by family petitioning to what every other country has so that we have the best and the brightest that come to our country. We need to control the border, we need to do all of this in a comprehensive way, not just going back and forth and talking about stuff —

CAVUTO: Would you answer this question?

BUSH: Oh, I'll talk about that, too. But you haven't asked me a question in a while, Neil, so I thought I'd get that off my chest if you don't mind. [laughter]

CAVUTO: Fair enough. So Tim Cook — so Tim Cook says he's going to keep it private.

BUSH: I got that. And the problem today is there's no confidence in Washington, D.C. There needs to be more than one meeting, there needs to complete dialogue with the large technology companies. They understand that there's a national security risk. We ought to give them a little bit of a liability release so that they share data amongst themselves and share data with the federal government, they're not fearful of a lawsuit.

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

28/31

2/6/2017

(92 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth5C8aroolifna119
We need to make sure that we keep the country safe. This is the first priority. The cybersecurity challenges that we face, this administration failed us completely, completely. Not just the hacking of OPM, but that is — that is just shameful. 23 million files in the hands of the Chinese? So it's not just the government — the private sector companies, it's also our own government that needs to raise the level of our game.

We should put the NSA in charge of the civilian side of this as well. That expertise needs to spread all across the government and there needs to be much more cooperation with our private sector.

CAVUTO: But if Tim cook is telling you no, Mr. President.

BUSH: You've got to keep asking. You've got to keep asking because this is a hugely important issue. If you can encrypt messages, ISIS can, over these platforms, and we have no ability to have a cooperative relationship —

CAVUTO: Do you ask or do you order?

BUSH: Well, if the law would change, yeah. But I think there has to be recognition that if we — if we are too punitive, then you'll go to other — other technology companies outside the United States. And what we want to do is to control this.

We also want to dominate this from a commercial side. So there's a lot of balanced interests. But the president leads in this regard. That's what we need. We need leadership, someone who has a backbone and sticks with things, rather than just talks about them as though anything matters when you're talking about amendments that don't even actually are part of a bill that ever passed.

CAVUTO: Governor, thank you. [applause]

BARTIROMO: When we come right back, closing statements. Stay with us.

[commercial break]

BARTIROMO: Welcome back.

Candidates, it is time for your closing statements. You get 60 seconds each.

Governor John Kasich, we begin with you.

KASICH: You know, in our country, there are a lot of people who feel as though they just don't have the power. You know, they feel like if they don't have a lobbyist, if they're not wealthy, that somehow they don't get to play.

But all of my career, you know, having been raised in — by a mailman father whose father was a coal miner, who died of black lung and was losing his eyesight; or a mother whose mother could barely speak English. You see, all of my career, I've fought about giving voice to the people that I grew up with and voice to the people that elected me.

Whether it's welfare reform and getting something back for the hard­earned taxpayers; whether it's engaging in Pentagon reform and taking on the big contractors that were charging thousands of dollars for hammers and screw drivers and ripping us off; or whether it's taking on the special interests in the nursing home industry in Ohio, so that mom and dad can have the ability to stay in their own home, rather than being forced into a nursing home.

Look, that's who I stand up for. That's who's in my mind...[bell rings]...And if you really want to believe that you can get your voice back, I will tell you, as I have all my career, I will continue to fight for you, because you're the ones that built this country, and will carry it into the future. Thank you. [applause]

CAVUTO: Governor Bush?

BUSH: Who can you count on to keep us safer, stronger and freer? Results count, and as governor, I pushed Florida up to the top in terms of jobs, income and small business growth.

Detailed plans count, and I believe that the plan I've laid out to destroy ISIS before the tragedies of San Bernardino and Paris are the right ones.

Credibility counts. There'll be people here that will talk about what they're going to do. I've done it. I ask for your support to build, together, a safer and stronger America. [applause]

BARTIROMO: Governor Chris Christie?

CHRISTIE: Maria, Neil, thank you for a great tonight.

When I think about the folks who are out there at home tonight watching, and I think about what they had to watch this week — the spectacle they had to watch on the floor of the House of Representatives, with the president of the United

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

29/31

2/6/2017

Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth5C9aroolifna119
States, who talked a fantasy land about the way they're feeling.

(93 of 153)

They know that this country is not respected around the world anymore. They know that this country is pushing the middle class, the hardworking taxpayers, backwards, and they saw a president who doesn't understand their pain, and doesn't have any plan for getting away from it.

I love this country. It's the most exceptional country the world has ever known. We need someone to fight for the people. We need a fighter for this country again.

I've lived my whole life fighting — fighting for things that I believe in, fighting for justice and to protect people from crime and terrorism, fighting to stand up for folks who have not had enough and need an opportunity to get more, and to stand up and fight against the special interests.

But here's the best way that we're going to make America much more exceptional: it is to make sure we put someone on that stage in September who will fight Hillary Clinton and make sure she never, ever gets in the White House again.

I am the man who can bring us together to do that, and I ask for your vote. [applause]

CAVUTO: Dr. Ben Carson?

CARSON: You know, in recent travels around this country, I've encountered so many Americans who are discouraged and angry as they watch our freedom, our security and the American dream slipping away under an unresponsive government that is populated by bureaucrats and special interest groups.

We're not going to solve this problem with traditional politics. The only way we're going to solve this problem is with we, the people. And I ask you to join me in truth and honesty and integrity. Bencarson.com — we will heal, inspire and revive America for our children. [applause]

BARTIROMO: Senator Marco Rubio?

RUBIO: You know, 200 years ago, America was founded on this powerful principle that our rights don't come from government. Our rights come from God.

That's why we embraced free enterprise, and it made us the most prosperous people in the history of the world. That's why we embraced individual liberty, and we became the freest people ever, and the result was the American miracle.

But now as I travel the country, people say what I feel. This country is changing. It feels different. We feel like we're being left behind and left out.

And the reason is simple: because in 2008, we elected as president someone who wasn't interested in fixing America. We elected someone as president who wants to change America, who wants to make it more like the rest of the world.

And so he undermines the Constitution, and he undermines free enterprise by expanding government, and he betrays our allies and cuts deals with our enemies and guts our military. And that's why 2016 is a turning point in our history. If we elect Hillary Clinton, the next four years will be worse than the last eight, and our children will be the first Americans ever to inherit a diminished country.

But if we elect the right person — if you elect me — we will turn this country around, we will reclaim the American dream and this nation will be stronger and greater than it has ever been. [applause]

CAVUTO: Senator Ted Cruz?

CRUZ: "13 Hours" — tomorrow morning, a new movie will debut about the incredible bravery of the men fighting for their lives in Benghazi and the politicians that abandoned them. I want to speak to all our fighting men and women.

I want to speak to all the moms and dads whose sons and daughters are fighting for this country, and the incredible sense of betrayal when you have a commander­in­chief who will not even speak the name of our enemy, radical Islamic terrorism, when you have a commander­in­ chief who sends $150 billion to the Ayatollah Khamenei, who's responsible for murdering hundreds of our servicemen and women.

I want to speak to all of those maddened by political correctness, where Hillary Clinton apologizes for saying all lives matter. This will end. It will end on January 2017.

And if I am elected president, to every soldier and sailor and airman and marine, and to every police officer and firefighter and first responder who risk their lives to keep us safe, I will have your back. [applause]

BARTIROMO: Mr. Donald Trump?

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

30/31

2/6/2017

(94 of 153) Case: 17P-r3es5id1en0ti5al,C0an2di/d0at6es/2D0eb1at7es,: IRDep:ub1li0ca3n0C4an3di6da0te,sDDekbtaEtenintNryor:th8C2h-a3rle,sPtona, Sgoeuth6C0aroolifna119
TRUMP: I stood yesterday with 75 construction workers. They're tough, they're strong, they're great people. Half of them had tears pouring down their face. They were watching the humiliation of our young ten sailors, sitting on the floor with their knees in a begging position, their hands up.
And Iranian wise guys having guns to their heads. It was a terrible sight. A terrible sight. And the only reason we got them back is because we owed them with a stupid deal, $150 billion. If I'm president, there won't be stupid deals anymore.
We will make America great again. We will win on everything we do. Thank you. [applause]
BARTIROMO: Candidates, thank you.
CAVUTO: Gentlemen, thank you all. All of you. That wraps up our debate. We went a little bit over here. But we wanted to make sure everyone was able to say their due. He's upset. All right. Thank you for joining us. Much more to come in the Spin Room ahead.

NOTE: The criteria for appearing in the main debate is explained as, "Candidates must either: 1) Place in the top six nationally, based on an average of the five most recent national polls recognized by FOX News; OR 2) Place in the top five in Iowa, based on an average of the five most recent Iowa state polls recognized by FOX News; OR 3) Place in the top five in New Hampshire, based on an average of the five most recent New Hampshire state polls recognized by FOX News."

Citation: Presidential Candidates Debates: "Republican Candidates Debate in North Charleston, South Carolina," January 14, 2016. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=111395.

Home

Contact

© 1999­2017 ­ Gerhard Peters and John T. Woolley ­ The American Presidency Project

http://www.presidency.ucsb.edu/ws/index.php?pid=111395

31/31

(95 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 61 of 119
Ware Declaration Exhibit F

2/6/2017 Home

Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 62 of 119

(96 of 153)

Live TV

Transcript Providers

Return to Transcripts main page
ANDERSON COOPER 360 DEGREES
Exclusive Interview with Donald Trump. Aired 8­9p ET
Aired March 9, 2016 ­ 20:00 ET THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(COMMERCIAL BREAK)

ERIN BURNETT, CNN HOST, OUTFRONT: Thanks so much for watching live from Miami. We will be back here tomorrow night. AC 360 starts now.

[20:00:24] ANDERSON COOPER, CNN HOST: And good evening from Miami­ Dade College. We are now just an hour away from tonight's Univision Democratic debate seen right here on CNN. Bernie Sanders and Hillary Clinton are going to take the stage shortly. She, of course, coming off a win in Mississippi, which was expected. What wasn't expected was his win in Michigan. There is no overstatement to call it a shocker especially considering he was down by about 20 points in the polls going in. So what happens on the debate stage behind me tonight has taken on a completely new level of importance in a race that's gone to a new level.

First though, the Republicans who are going to be taking part in tomorrow's CNN debate at a nearby University of Miami. I sat down today with Donald Trump the front­ runner. And as you might imagine, he made headlines. He said that he expects a softer tone tomorrow night at the debate. However, he is still calling his leading rival lying Ted. We will bring you the interview in depth right after Sara Murray sets the Republican stage.

(BEGIN VIDEOTAPE)

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: I was watching the news in one of the rooms, and every single advertisement was about me. And it was during my tournament. I'm turning my tournament. I go from tournament to horrible land. Every ­­ the most vicious.

SARA MURRAY, CNN POLITICS REPORTER (voice­over): In the face of an onslaught of attacks, Donald Trump is triumphing, notching three more victims Tuesday night and nudging the party to rally behind him.

TRUMP: The bottom line is we have something going that's so good. We should grab each other and we should unify the party and nobody is going to beat us, OK.

MURRAY: The billionaire businessman celebrating with a surreal election night event, responding to a drum beat of criticism about his failed ventures with an evening designed to showcase Trump branded products.

TRUMP: And we have Trump steaks. And by the way, if you want to take one, we'll charge you about what, 50 bucks a steak, Donald. MURRAY: According to news reports, Sharper Image no longer sells

Trump steaks.

TRUMP: You'll love Trump steaks.

MURRAY: And Busch brothers provides steaks to Trump hotels and golf clubs. So it's unclear where the slab of meat Trump touted came from.

Now that the fight for the nomination is looking more like a two­man race, Ted Cruz isn't letting up.

http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

1/17

(97 of 153)

2/6/2017

Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 63 of 119

Home

Live TV

SEN. TED CRUZ (R), PRESIDENTIAL CANDIDATE: I don't have any steaks to sell you. I don't have any wine. I don't have any cleaning products.

MURRAY: The Texas senator emerging with a victory in Idaho Tuesday and today getting another boost with an endorsement from former presidential hopeful Carly Fiorina.

CRUZ: Carly's being with us today is just one more manifestation of what we have been seeing playing out over the last several weeks, which is Republicans uniting, coming together behind our campaign.

MURRAY: But for Marco Rubio, a brutal night. Another winless evening and even steeper odds as he pins all his hopes on Florida.

SEN. MARCO RUBIO (R), PRESIDENTIAL CANDIDATE: You believed in me once. I am asking you to believe again. We can win this election, and we will. I need your help next Tuesday because we are not just going to win the Florida primary. We are going to win Florida in November.

MURRAY: Today John Kasich is still holding on. Outperforming Rubio last night and fighting for victory in his home state of Ohio next Tuesday.

GOV. JOHN KASICH (R), PRESIDENTIAL CANDIDATE: And with those states that have not yet selected a delegate, basically, the three, Donald Trump, Ted Cruz and I, are dead even going into the last half of this whole match. So don't be thinking it's over yet.

(END VIDEOTAPE)

COOPER: Sara Murray joins us from the University of Miami which is the site of tomorrow night's CNN Republican debate.

What can we expect from the GOP candidates at that debate?

MURRAY: Well, Anderson, there is no doubt that Ted Cruz wants to turn this into a two­man race with Donald Trump. But as Donald Trump said to you, he want a kinder, softer, gentler debate and I think that is because he wants to come off as more presidential than perhaps he and others did in the last debate stage where they were comparing hand size among other things.

And I think for Marco Rubio and for John Kasich, the stakes could not be higher. These two candidates need to prove to voters that casting a ballot for them is not a waste. Both of their states coming up March 15th. And it is pretty much do or die for both candidates, Anderson.

COOPER: Yes. Sara Murray, thanks very much.

And the debate is one of the things I talked to Donald Trump about today.

Coming up right now, the wide­ranging conversation with Trump. How he sizes up his competition. His thoughts heading into tomorrow night and next week's winner take all Florida primary. I pressed him on specifics on his promise to reverse what he sees as this country's weaken position in the world as well as his evolving positions so it says on fighting terrorism that some military and legal analysts say could amount to war crimes. We spoke earlier today at his Mar­a­Lago club in Palm Beach.

(BEGIN VIDEOTAPE)

COOPER: Huge night last night. Do you have any idea that you were going to win as big as you did?

[20:05:02] TRUMP: Well, I felt good. I mean, Mississippi, I was in three or four times and it was like a love fest. And so, I felt very good about it. Michigan has been great. It has been great for me for a long time. I have so many friends there. I had no idea it would be that big.

COOPER: Do you think it's the message on trade in particular in Michigan that was effective? Sanders winning as well there. You have a very similar message.

TRUMP: I think they want strength. I think they want military. I think they want to take care of vets. I think they hate Obamacare. But I would say ultimately it's about jobs and the economy. And you know, Michigan has been stripped. You look at those empty factories all over the place. And nobody hits that's message better than me. I'm going to take care of it. I'm going to stop it. I'm going to stop the craziness that is going on. If you look at what's happening, how ­­ even today, I mean, we're just

shippingHcoommpeany after company after company is leaving this country and leaving jobs behind. And I'm going to get it stopped. http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

Live TV 2/17

(98 of 153)

2/6/2017 shipping

company

aftCer acosmepa:ny1a7ft-er3c5om1p0an5y,is0le2av/i0ng6t/h2is0co1un7tr,yIaDnd:lCe1aNv0Nin3.gc0ojom4bs3­bT6erh0ainn,ds.cDAripnktdstEI'mngtoriyng: t8o g2e-t 3it ,stoPppaedg. e

64

of

119

Home

Live TV

COOPER: Two new polls out today. Quinnipiac, also a CNN one both showing essentially the same thing. You are way ahead here in Florida. Almost I think 2­1 against Rubio. And even in Ohio leading Kasich with six points and seven points in each poll. If you win Florida and Ohio, is it over?

TRUMP: I think so. I think if I win those two, I think it's over. I thought Kasich said after Michigan he was going to drop out, to be honest with you. He was saying that he will win Michigan, he will win it easily. And he ­­

COOPER: He is now saying Ohio. If he doesn't win Ohio ­­ TRUMP: And I was saying Ohio. But no, he said Michigan. He was

said, you know, it's his neighbor. And he said he is going to win Michigan, and he was pretty confident of Michigan. And I thought he said he was going to drop out if he lost Michigan. I guess he's not going to do that. So I think we are going to do very well in Ohio. I know Ohio very well. I have many, many friends.

COOPER: You think you'll win there?

TRUMP: Well, even Paul O'Neill of the Yankees endorsed me. He is from Ohio. Great guy. And he endorsed me last night at the press conference. I think I'll win Ohio, yes. And I think ­ I mean, we just have better policies. The country is sick and tired of what they are seeing. The country is sick and tired of these politicians that's talk and to all talk, no action. And they are all tired of it, Anderson.

COOPER: So if Kasich drops ­ if you win Ohio, Kasich drops out and out you win Florida and Rubio is gone and it's just you and Cruz, if you don't get all of the delegates needed to win by the convention ­­

TRUMP: Well, I think if I win Ohio and if I win Florida, pretty much, you're going to be pretty much assured of doing that.

COOPER: You think you'll get all the delegates?

TRUMP: I think so, yes. I really think so. I don't see the convention going that route. I see probably getting the delegates. You know, it is like the fighters. That's the ultimate way of doing it. You knock them out. If you knock them out, nothing can happen.

COOPER: You want to go for knockout?

TRUMP: I would rather go for a knockout.

COOPER: If you get to the convention, though, and you don't have the delegates, is any kind of a deal acceptable to you other than you getting the nomination?

TRUMP: Well, then you have to fight it out. But, you know, it is really unfair. Let's say you get there and are a few short but you have 1200, let's say, and somebody else had 500 or 600. Because I'm way ahead and in all fairness to Ted, he is the only one who beats me, but he doesn't say I beat him two or three times for every time he wins one. And we won the important ones. We won the big ones and we won last night. I mean, last night was a romp.

So, look. Ted, the problem with Ted is he walks in with the viable, hauls up the viable. You know, I call him lying Ted.

COOPER: I have heard that.

TRUMP: Puts down the bible and then he lies. I have never seen a man lie this much. But even ­­.

COOPER: You think for a guy who says he is very religious, you are surprise?

TRUMP: No, Ted. I call him lying Ted. He is lying Ted. And you know, that's his name. And I think frankly that name has stuck because the evangelicals are on my side. They don't like liars. Evangelicals do not like liars.

COOPER: So if it goes to convention, you don't have ­­ you are a couple short or couple hundred short, for you, that doesn't matter. It's got to be you as the nominee? No other deal is acceptable?

Home http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

Live TV 3/17

(99 of 153)

2/6/2017 Home

Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 65 of 119 Live TV

TRUMP: I think this. If you go to the convention and because of some artificial number that they said, if you go to the convention and you are leading by a lot of

delegates, I think you should get the nomination. And that will be me. I'll have far more delegates. Now, whether I get to that artificial number, I don't know, but I think I

will.

COOPER: You've had a lot of money thrown against you in just these last couple of weeks.

TRUMP: This never been anything like it.

COOPER: This whole never Trump movement, is it dead do you think?

TRUMP: Well, I think it's mortally wounded. I do think it is mortally wounded. Marco had a very rough night. He had no delegates. He got nothing. And that was a very, very bad night. And, you know, when people have hit me, if you watch, and it's been the story of my life, (INAUDIBLE), but everybody that's hit me has gone down. They all came at me. Perry came at me. I can go through Lindsey Graham came at me. Bush came at me. Every one of them came at me. And every one of them that's come at me has gone down. And wouldn't it be nice to have that happen with our country where we can very simply win again?

COOPER: So what do you think was Rubio's demise?

TRUMP: I think he tried to be Don Rickles, frankly. He wanted to be Don Rickles and he's not Don Rickles. And it took me by surprise. I mean, I'm standing at one of the debates and all of a sudden, he got nasty. He was very nasty.

[20:10:05] COOPER: Did he get under your skin?

TRUMP: No, he didn't. Nobody gets under my skin. I mean, you have to handle it. But he was really rude. And, in fact, for a while, I wasn't even sure if what I was seeing was right. Then he had a horrible debate with Chris Christie where he folded. I mean, he totally choked. And you know the expression. Once a choker, always a choker.

COOPER: Do you think going after you, you know, with jokes, with humor, with insults, that took him off his message?

TRUMP: I think so. He wasn't only joking. I mean, he was insulting and, you know, made up insults, a nasty insults. COOPER: And it weakened him do you think in a long term?

TRUMP: It turned out to. I didn't know it would. I mean, I think I hit him very hard. I probably hit him much harder. But maybe for me it's more natural. It wasn't natural for him. And took him off his game. Amazing, I've never seen anything like it. And he went from being, you know, from doing pretty good to now he is at the bottom of the pack.

COOPER: I want to ask you about Cruz in a minute. But just in a big picture, have you given much thought to how you want to define the GOP? I mean, you will be not only the nominee, you will be standard bearer for the Republican Party. How do you want to redefine the GOP?

TRUMP: OK. Well, I think the biggest story in all of politics, all over the world right now ­­ I've been on the cover of "Time" magazine four times in the last short number of months ­ I mean, because of what's happening. There's a movement. And it's millions and millions of people that are disgusted with the incompetence of our politicians and our leaders, if you want to call them that. I don't even call them that. I hate to use it.

COOPER: Republicans and Democrats?

TRUMP: Republicans and Democrats. And I'll get to the Republicans in a second because they are blown a great opportunity. So you have primaries. And millions of people more are going to the primaries and voting. And in all fairness, it's because of me. I'm not going to joke. It's not because of Ted Cruz who nobody cares about. Millions of people are going to the polls. More people than did four years ago and did ever. By the way, ever. You report on it. Millions of people, it's the biggest story. And people come up to me, Mr. Trump, when I'm signing autographs or shaking hands. Mr. Trump, 50 years old, 60 years old, I've never voted before, but I'm so proud to be voting.

COOPER: So you want a more populist GOP?

Home

Live TV

TRUMP: No, no, I'll tell you what. I'm a conservative person. I don't think the labels matter. You know they say he is not ­­ Jeb Bush used to say he is not a conservative,

http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

4/17

(100 of 153)

2/6/2017

Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 66 of 119

TRUMP: No, no, I'll tell you what. I'm a conservative person. I don't think the labels matter. You know they say he is not ­­ Jeb Bush used to say he is not a conservative,

OK. He is not a conservative. I say, what difference does it make? I mean, who cares? I have very conservative views. But one view that probably isn't considered

conservative, but is it smart trade. I want smart trade.

COOPER: Your position is actually similar to Bernie Sanders in some way.

(END VIDEOTAPE)

COOPER: His response to that and to critics who say he's destroying the GOP brand and perhaps even the party itself.

Plus, he talks about his victory speech which as you saw in Sara Murray's report, turned into sort of infomercial for all things Trump. Some of which are not actually products still sold by Trump. That and more as we count down to the Democratic debate at the top of the hour and after hour the debate analysis later tonight.

(COMMERCIAL BREAK)

[20:16:56] COOPER: As we count down to the Univision Democratic debate which you can watch right here on CNN tonight and tomorrow's CNN Republican debate, not far from here.

More with my conversation with the front­runner of the Republican Party, Donald Trump. In part two, his trade plan and his answers to critics who say it will boost prices of the things that Americans buy. Also his answers, the comparison I grove between him and Bernie Sanders.

(BEGIN VIDEOTAPE)

COOPER: Your position is actually similar to Bernie Sanders in some way. I mean, you are both ­­

TRUMP: Except I can do something about it. The difference between Sanders and I, I watched him recently. And he is right about one thing. The world is ripping us off on trade. It has been a horrible thing. It has been horrible, horrible experiment. I have been against it for years. You know, if you look back, I have been against it your friend Wolf Blitzer actually did a tape of his interviews with me from like 15, 17 years ago. And I was saying the same thing, a little bit different nations like Japan who is really ripping us off.

COOPER: But your position is pretty un­Republican. I mean, Larry Kudlow who, you know, is positive about your corporate tax policy, he's critical of you on trade. He says that essentially it's going to be raising prices for people on consumer goods, on electronics, on cars and other items. And it's essentially a tax on people who can't afford it.

TRUMP: No, I have heard Larry. And let me tell you what's going to happen from a practical standpoint, from a negotiating standpoint. The world is ripping us off because of manipulation, monetary manipulation, devaluations, OK. They are great. The greatest player of them all is China. Nobody has ever played the valuation game with their currency better. It's currency devaluation, than China. China is a grand master. Japan is doing very well. But some of these countries are just absolute masters at it. When we start getting tough, and they think that we're serious, and I'm totally serious. I would put a tax on it in two seconds.

COOPER: You talk about a 45 percent tax ­­

TRUMP: I've talked about different taxes. I have also said ­ I didn't say I was going to put. I said use it as a negotiating tool, and I would if we couldn't make the right deal.

COOPER: But that would raise prices for consumer goods. TRUMP: China just devalued their currency recently more than they

have at any time in more than two decades. This was like shocking. And the only reason they did it is because we're weak and have no leadership. It makes it impossible for our companies to compete with Chinese companies and China generally, OK. It makes it absolutely impossible. The threat of me doing this, for instance, the threat of doing it against Japan or China, tell Japan, by the way, when your cars come in you are going to have to pay a 35 percent tax. I sued 35 percent. I only used 45 if somebody is really egregious and, of course, now you have many people that are really egregious.

COOPEHR:oSmoeyou are seeing this as a negotiation tactic? http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

Live TV 5/17

2/6/2017

(101 of 153) Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 67 of 119

TRUMP: Absolutely. And you know what is going to happen? When they see that we are not playing games, that we are really do because I would do it in a heartbeat. I would love to do it. When they see that we are not playing games, they are going to stop playing with their currencies and they are going to stop taking our jobs to the extent that they are taking them right now.

COOPER: You do worry a lot of people, obviously, in the Republican establishment, though. You know this better than anybody and I know you don't like the NBC/"Wall Street Journal" poll. Anew one just came out today and saying the majority of the American voters, six in ten, saying you are harming the GOP's image. Two­ thirds have a negative impression of you. How do you go about bringing the GOP back together?

[20:20:06] TRUMP: Look, first of all, millions of people now are voting more as we just said, more than they were four year ago, eight years ago, 16 years ago. Millions and millions of people. They would never see anything like it. I was in South Carolina and a woman came up who was at the polling. She said, you know, Mr. Trump, I've done this for 24 years. I've never seen anything like it.

COOPER: There's a lot of higher voter turnouts. So you are saying that's bringing new people in and ­­

TRUMP: But many more people are coming in. You know where they're coming from? They are Democrats and they are independents and they are people that never voted before. And don't kid yourself. The people that never voted before, that's a huge part of it. They are coming in in tremendous numbers.

So many people have told me that, Anderson. They said I have never voted before. I mean, these are people that are 60 years old. I'm not talking about somebody that's 18. They never voted before and they are coming in. And I have had hundreds of people telling me that just walking down the line shaking hands.

COOPER: So when Lindsey Graham said choosing between you and Cruz would be like choosing between being shot or poisoned. He is now saying that he will go for Cruz.

TRUMP: Yes, that is OK. Look. Let me explain. I was very hard on him. He was very nasty. They were all nasty. And when they are bad you have to do something about it. Lindsey Graham started at seven percent. I got into the race and he attacked me. And Lindsey Graham went home at zero, at zero. Lindsey Graham in South Carolina where he is a senator was at one when I was at 40 and I won South Carolina. Just so you understand. And I watch this guy who ran for president and he left in disgrace. He was a fool. He left in disgrace, OK, in disgrace. He made a fool out of himself. I don't think he could be elected again in South Carolina because he ran so badly. OK, no way.

Then I see him on television like nothing happened talking about Donald Trump. Donald Trump is this. Donald Trump is that. I destroyed him in the sense of we were competing. We were combatants. Then I hear him talking about the war. I have been doing this for ten years. You know why we have been doing it for ten years? Because, of guys like him. He wants to attack Syria and ISIS at the same time, OK? Now for what reason? I want to knock out ISIS. You do one at a time.

COOPER: So how does the GOP differ under Donald Trump than under President Bush, than under ­­?

TRUMP: It would be smarter. It would save money. It would have balanced budgets. It would have many more products made in the United States. It would have smart trade, not free trade. I'm a free trader. The problem with free trade, and it's a very big problem. We need smart leadership. To have free trade successfully, you have to have a really smart group of people at the top and person. We don't have that. We have people that are grossly incompetent.

We are dealing against China. I've made a lot of money dealing against China. I have buildings. I own the bank of America building. A big chunk of it in San Francisco. I owned 1290 Avenue of America. I got it by competing against China. I didn't get it because of China. I competed against them. I won and I have these assets, these great assets.

You know, I have told you before, I have the biggest bank in the world is a tenant of mine in Manhattan. I sell condos to the Chinese. I get along great with the Chinese. I have no problem with the Chinese. I wish we could do it. In fact, I respect China. They gotten away with murder. The single greatest theft in the history of the world what China has done for the United States. We have rebuilt China with what they have taken out of our country.

I want to ask you about Ted Cruz. Ted Cruz says flexibility is Washington code word for he is getting ready to stick it to the voters. What does flexibility mean to you?

(END VIDEOTAPE)

Home

Live TV

COOPER: Well, as you might expect, he had a lot to say about Senator Cruz, his tough rival in the polls of right, at the right. More of our conversation with Trump just

http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

6/17

2/6/2017 ahead.

(102 of 153) Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 68 of 119

Plus what to watch for in tonight's Democratic debate right here which starts at the top of the hour. Hillary Clinton and Bernie Sanders facing off in the wake of his own unexpected win in Michigan that is just days from Florida's important primary.

(COMMERCIAL BREAK)

[20:27:55] COOPER: We're a little more than a half hour away from the Democratic presidential debate here in Miami. Univision is hosting it. CNN is bringing it to you live. You can watch it right here on CNN at the top of the hours.

Tomorrow, though, Republicans will be debating that the University of Miami. That's also on CNN. Florida's primary is on Tuesday. And tonight Donald Trump is riding a new wave of momentum after winning big in Michigan and Mississippi last night. He also won the Hawaii caucuses. When I sat down with him earlier today, we talked about his rival Ted Cruz who also had a big win last night in Idaho and today, got a ringing endorsement from their former mutual opponent Carly Fiorina.

(BEGIN VIDEOTAPE)

COOPER: I want to ask you about Ted Cruz. You talked about the importance, you know, you and I talked about the importance of being flexible.

TRUMP: He's totally inflexible.

COOPER: Cruz says flexibility is Washington code word for he is getting ready to stick it to the voters. What is flexibility to you? On what can you work?

TRUMP: It's negotiation.

COOPER: So you can work with Democrats?

TRUMP: Hey, I wrote "the art of the deal." OK.

COOPER: How important is unlocking gridlock in Washington?

TRUMP: Very important. We have total gridlock. Nobody can do anything. We have corporate ­­ you take a look at corporate inversions which, by the way, the senators, they don't even know what it is. We have companies leaving our country. They are leaving for two reasons. Because the taxes are too high and I cut taxes very substantially and Larry Kudlow, by the way, loves my tax plan.

Taxes are too high and because they can't get their money back. They have money. You know, Anderson, they have money outside of this country. Billions and billions `of dollars, big corporations like Pfizer. That is leaving now moving to Ireland. So they have money out there.

Every Democrat agrees we should let it come back. Every Republican agrees we should ­­ they all agree that we should let it come back. Who wouldn't? In other words, let the money come into the United States. They have agreed for four years they can't make a deal. You know why? There's no leader. I could sit these guys down in a room and within 20 minutes we would have a deal. COOPER: So Donald Trump as president reaches out to Democrats and

Republicans?

TRUMP: Well, that's the way it was set up, Anderson.

COOPER: Because there are some conservatives who say look, it's more important to stand on principle than it is compromise.

TRUMP: I watched Ted Cruz make a fool of himself. I watched Ted Cruz filibuster.

[20:30:00] For how long did he do it? For two days or something?
Home I also watched 99 senators sitting back and laughing at him and saying, "Hey, when do we get back to work?"
http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

Live TV 7/17

2/6/2017

(103 of 153) Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 69 of 119

Now, they don't get along and everything so getting back to work doesn't help either. His filibuster did nothing. What did they do? He wasted a day and half while he sat there and told stories about Alice in Wonderland.

COOPER: What do you want to make deals with Democrats on? Where do you see room for a compromise?

TRUMP: OK. Well first of all, I'd start with corporate inversion, because I can that one on about two seconds. The money has to come back in them. They have $2.5 trillion, probably $5 trillion. But the government says $2.5 trillion that companies want to bring into the country. Right. They can't bring it in.

Some countries ­­some companies are leaving to get their money. Not just the taxes. They are leaving because they can't bring their money back in. I could solve that problem in 10 minutes. OK. But there are many things. We have to make a better health care deal. We have to work on education. We have horrible education. We're number 30 in the world in education and yet number one per pupil in cost.

COOPER: So those are all things you can make compromises on with Democrats to get something done?

TRUMP: Of course you can. Of course you can. You can't be inflexible. Look, if somebody wants to sell this house and they want a billion dollars. I want a billion dollars. You have to negotiate a little bit. OK.

COOPER: So the other knock that, you know, because some conservatives make, certainly to make on President Obama. They say he is sort of an imperial president. Its one of the things Cruz is saying about you. Even these are the pledge that you are having people make at rallies. He says that you're­­ they're treating your supporters like subjects to a king. The implication being as president you would be ...

TRUMP: It's just words. Look, its just words. Ted, it's just words with Ted. Ted is a guy who's somebody he's a very inflexible guy who never ­­ he'll never make a deal. You talk about gridlock now. If Ted Cruz became president you wouldn't have anything done and Washington would be a total piece of stone. You wouldn't make any ­­ just I understand you know, he talks about he's a constitutionalist. OK, the constitution was set up with senators and congressmen and you are supposed to work and make deals.

COOPER: Do you see the constitution ...

TRUMP: And two parties. And it could be more than two parties but two parties.

COOPER: Do you see the constitution as a living breathing document that ­­ or do you see that something set in stone from long ago? Those are sort of ...

TRUMP: I see the constitution as set in stone. I see it as one of the great documents of all time. I also see it as something that says you're going to sit down and make deals. I mean look, if Ted wants something, health care and he won't negotiate, the other side is not going to negotiate either. There is going to be a little bit of movement. And that's wrong.

COOPER: And that's key to you to end gridlock in transition?

TRUMP: Yeah, but I'm going to make a better deal on the other side.

COOPER: All right.

TRUMP: I'm going to make a better deal.

COOPER: On foreign policy. Is there ­­ and maybe you've been running a campaign. Have you started thinking about a ­­ sort of a Trump doctrine when for using foreign power overseas. What criteria do you look that?

TRUMP: First of all, there can be no doctrine because everything is different. Every situation is different. And I didn't want to go into Iraq and I'll say it 100 times. I didn't want to go , you know, there is way you were on Howard Stern's show years. You know, before it ever happened. And if he asked me that question and he's a friend

of mine.HHoem's ea good guy actually, much different than you see on radio. Believe me.

Live TV

COOPER: It's a great interview.

http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

8/17

2/6/2017

(104 of 153) Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 70 of 119

TRUMP: H is a great guy. But Howard asked me and I said, "Well, I don't know." That's was the first time it was ever asked. But don't forget I'm an entrepreneur. They don't ask me about me simply going into Iraq at that time? And this was long before we went in. And you could see that I was very hesitant. That's was like I wish I go in. Look ...
COOPER: What criteria would you use for sending troops somewhere?
TRUMP: Let me just tell you. Going into Iraq, my opinion, was one of the worst mistakes in the history of this country. It was one of the worst decisions ever made in the history of this country. It started everything that's happening today in the Middle East is because of that one decision to go into Iraq, OK? It was a horrible decision, including the migration. Everything that, you know, it's a mess.
Now if Saddam Hussein was there, would we be better off? Absolutely. You know, hey, this was not a nice man. This wasn't great guy, but Saddam Hussein did one thing. He killed terrorists. He was a professional killer of terrorists.
Now you want to be a terrorist? You go to Iraq. That's called the Harvard of terrorism. Look, whether it's Gaddafi, so terrible decision, Hillary Clinton. Whether it's Saddam Hussein, we were a lot better off before.
COOPER: Do you think your ...
TRUMP: And besides that. Iraq did not knock down the world trade center. Just in case you had any questions.
COOPER: Do you think Islam is at war with the west?
TRUIMP: I think Islam hates us. There is something ­­ there is something there that is a tremendous hatred there. There's a tremendous hatred. We have to get to the bottom of it. There's an unbelievable hatred of us.
COOPER: In Islam itself?
TRUMP: You're going to have to figure that out. OK. You'll get another Pulitzer, right? But you'll have to figure that out. But there's a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can't allow people coming into this country who have this hatred of the United States.
COOPER: I guess the question is ...
TRUMP: And of people that are not Muslim.
[20:35:01] COOPER: I guess the question is, is there a war between the west and radical Islam or between the west and Islam itself?
TRUMP: Well, it's radical but it's very hard to define. It's very hard to separate because you don't know who is who.
Look, these two young people that got married, she supposedly radicalized him. Who knows what happened?
COOPER: The San Bernardino killer?
TRUMP: The bottom line is they killed 14 people. They gave them baby showers. I mean, they were friends of theirs and they walked in and they killed them. There's unbelievable hatred.
You look at Paris, 138 people killed. Many, many people are going to die in the hospital. Mortally wounded, horribly wounded, horribly wounded. And they walk into a room and boom, boom, boom. There's a sickness going on that's unbelievable. And honestly, you have to get to the bottom of it.

COOPEHR:oYmoeu talked about going after the families of terrorists. You now reversed that essentially ... TRUMP: I didn't reverse anything. http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

Live TV 9/17

2/6/2017

(105 of 153) Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 71 of 119

COOPER: You would still want to go after the families of terrorists?

TRUMP: No, no, no. I didn't reverse anything.

(END VIDEO CLIP)

COOPER: Donald Trump had a lot more to say about what tactics he would try to use against terrorists. How far he's actually willing to go and what he thinks about waterboarding. What we talked about today, some were calling his ­­ and we also talked about what some were calling, it's a real victory speech last night.

Let's go ask our political panel what they are expecting to see at the Univision Democratic Debate which starts at the top of the hour now just a minutes away. We're going to bring it you live, starting at 9:00 p.m. Eastern.

Stick around.

(COMMERCIAL BREAK)

COOPER: Looking in the two podiums here in Miami tonight. We're less than 20 minutes from now and Hillary Clinton and Bernie Sanders will be facing off in Democratic debate. CNN's bringing the Univision Debate to you live.

Now earlier today, I interviewed Republican frontrunner Donald Trump fresh off his big wins yesterday and his pretty surreal victory speech which was we've said, he used to showcase something Trump products which aren't actually products that are available.

[20:40:10] Steaks, some are calling it a QVC moment filled by Mitt Romney's recent remarks. I asked Trump about that. You'll hear his response in a moment. But, first let's pick up the interview where we left off before the break. Where does Trump stand now on his comments about going after the families of terrorists?

(BEGIN VIDEO CLIP)

You would still want to go after the families of terrorists?

TRUMP: No, no, I didn't reverse anything. I clarified very simply we have laws. We have to obey the laws. Now there must have to be one what

COOPER: During the candidate of church would be against the law.

TRUMP: I didn't say kill. We have to go after them. The family knows would have terrorists in that

COOPER: What does that mean? Kidnapping them?

TRUMP: You have a terrorist you have we going to do something and it's the only way you going to stop it. You know, I tell the story of General Pershing and take a look at General Pershing in 1990 in the Philippines, how he stopped terrorism. OK. You'll take a look at it. It's too long a story to tell on the tape. It will take the whole thing but it's one of the very interesting and very powerful stories.

Look, we're going to have to be a lot tougher. We are playing with a different set of rules. ISIS chops off people heads. ISIS drowns people in steel cages and pulls up the cage an hour later. Everyone is gone, 40, 50, 60 people at a time.

COOPER: Were you said the other day we have to play the game, you said we got to play the game the way they play the game.

TRUMP: We have to play the game at a much tougher level that were plan.

COOPEHR:oWmheat does that mean though? TRUMP: We have to expand those laws. http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

Live TV 10/17

2/6/2017

Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 72 of 119

COOPER: Does that mean cutting off heads?

(106 of 153)

TRUMP: No, it doesn't mean that but we have to expand the laws luck.

COOPER: What is explains the laws?

TRUMP: Anderson, lets me explain something we are playing at this level and they don't care. They have no rules. And we have these rules that are very onerous. I mean our military is got brought in because ...

COOPER: Geneva Conventions on war. There's ways ­­ there's rules in a battle.

TRUMP: I know that, but, you know what, it's funny. It's very interesting what's happens with the Geneva Convention. Everybody believes in the Geneva Convention until they start losing and then they say oh, let's take out the bomb. OK. When they start losing. We have to play with a tougher set of rules. We have laws. We don't allow water boarding.

Think of this ISIS is ­­ these are smart people. These are people that know the internet better than we do and we're the ones that's, you know, came up with it. ISIS is sitting around. They just chopped off 20 heads of Christians and others. They just drowned 40 people. And they are sitting around watching us arguing about water boarding.

COOPER: When you say increase the laws and do more than water boarding, what is that specifically?

TRUMP: I'll work it with the generals. I'll work wit the generals. COOPER: I talked to General Michael Hayden.

TRUMP: For sure he says it's terrible that we talk that way. And, you know, what that's why he's been fighting this war for many years. OK.

COOPER: He is the Four­Star General Former CIA. Fomer Head of the CIA., he says sharing foreign policy ideas are frightening.

TRUMP: Oh, yeah I know well, his, he frightens me because we've been fighting ISIS for many years and this shouldn't have taken ­­ this should have been over with quickly. So that's the problem we have these people that are frightened because I'm protecting chaos.

COOPER: But do you think the problem with fighting ISIS is that we're not using the same tactics that they are?

TRUMP: We're not fighting it strongly enough. We have to end it and get become to rebuilding our country. Our infrastructure is falling apart. Our country is falling apart. Our country is falling apart. Our bridges are falling down.

You know, 60 percent of our bridges are in dangerous condition? And we're spending trillions, trillions of dollars in the Middle East. We have to fight it viciously and swiftly and we have to knock out ISIS. Now I didn't want to go into Iraq. But the problem now is the way Obama got us out was a disaster.

And if you remember, when we got out ­­ and I said it on your show two or three years ago. I said take the oil. Did I say take the oil?

COOPER: Yeah, you did.

TRUMP: OK.

COOPER: So when you say so are you still in support of water boarding and more?

TRUMP: I'm in total support of water boarding. It going to be within the law but I have to expand the law because a lot of people think it's not within the law now because of this administration. So they are allow to chop off heads and we aren't allowed to water board. Somehow we're at a big disadvantage. I will tell you that right

now. Home

Live TV

COOPER: On a ­­ yeah.

http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

11/17

2/6/2017

(107 of 153) Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 73 of 119

TRUMP: And, again I was going to give you the analogy. So they are sitting around having dinner. They believe it or not, even though they chop off heads and even

though do they drown people, and they are talking. Can you imagine the conversation when they are talking about how weak and soft and pathetic we are and they go out

and chop off people's heads? OK. They can't believe it. They can believe it.

COOPER: I asked about ...

TRUMP: The fact is, just in a nutshell, we have to be much tougher. If we're going to beat ISIS, we have to be much tougher than we are. When you have General Hayden saying, "Oh, that's so terrible the way Trump is talking," that's why we're losing.

COOPER: I got to ask you. I watched the press conference you gave last night. The victory speech. Obviously huge night for you. Just a couple factual things. The steaks you showed, those aren't Trump steaks, right?

TRUMP: Oh, no they are Trump. No I buy them. I'm not going to kill the cow.

COOPER: No but they aren't sold those are because ...

TRUMP: No, no, we sell excuse me.

COOPER: For showing this thing was to fight back in Flint and Mitt Romney said about ...

TRUMP: No, no just I understand Trump steaks.

[20:45:00] We sell the steaks through my clubs. I have many clubs and hotels. So we sell this cow ...

COOPER: But they aren't sold at sharper image. They are not

TRUMP: Oh no, they are sold differently.

COOPER: That business is gone.

TRUMP: No, no it's the same thing. It's an offshoot of it. I mean it's the same thing. We have, we do a tremendous steak business.

COOPER: Because those steaks weren't bought locally from a meat supplier?

TRUMP: No, no. We buy a lot of steaks from different places. I don't want to but if I'm in California, I don't want to buy my steaks in New York.

COOPER: So those steaks you sell ...

TRUMP: ...we sale the steaks, and largely, to our hotels and our clubs and things like that. You know, it's a small business..

COOPER: And the magazine, you showed up, that's not the Trump magazine that Mitt Romney was talking out?

TRUMP: I've had many magazines. Every time I open a business, I'll sometimes open a magazine for a period of a year and get the business started and then close it.

COOPER: If people were pointing out today saying, "Oh, look, the items you were showing last night, in order to push back against Mitt Romney, you know, the implication was those are Trump steaks available nationwide somewhere they're not." TRUMP: ...where they are available nation wide. You can buy them at different places that I own. I own many, many places.

COOPEHR:oYmoeu can buy them if you eat in your restaurant here somewhere? TRUMP: Yeah. COOPER: You can't go on the internet and buy them. http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

Live TV 12/17

2/6/2017

Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 74 of 119

COOPER: You can't go on the internet and buy them.

(108 of 153)

TRUMP: The magazine, that magazine has been with me for a long time and you've morphed it in.

COOPER: But that's not the Trump magazine that Romney was talking about.

TRUMP: ...many magazines when I start a business, and I keep it open for a year or two until the business gets going.

And after the building, if business gets going, you close it up. It's like a lost leader, because frankly, you don't make any money with these magazines.

COOPER: Finally, the debate tomorrow night, do you expect that the tone, the tenor to be different than the last?

Last one was tough and then you had people on both sides come after you?

TRUMP: It's such an interesting question. I think it's going to be much different. I must tell you, last time, I was leading.

And by the way, I don't know how you feel about it, but every single poll said that I won the last debate, every ­­ Drudge said it, Time Magazine said it. You know, they do those online poll. With hundreds of thousands of people calling in, but, I was in the '60s and '70s percentile.

Now, when I went into that, I said, this is going to be an interesting evening. I will tell you. It's going to be a tough evening.

Many people said, "Oh, boy, I wouldn't want to be you tonight." That was going to be a tough evening. I mean, they were like wounded. They were really wounded.

I think this is going to be much different. Now, I may be wrong, but I am now far and away the front­runner. I think ­­ here's the thing, the Republican Party is sitting on something that's so bright. They are sitting on millions and millions and millions of people that want to be part of it.

The worst thing they can do is knock me out. If I get knocked out, if I don't make it, every one of those ...

COOPER: Do you think they'll going to start to coalesce around you?

TRUMP: ... every one of those, I'm the only one can beat Hillary and I'll beat her easily.

I'll bring in Michigan, I may bring in New York. You know, we always talk about the path. You know, the path is much tougher for a Republican, you do understand that structurally.

Because if they lose Ohio, it's over, If they lose Pennsylvania, they loose Florida, it's over.

But I'll bring in states along the other. First of all, I'll win in Florida.

COOPER: Will you debate Cruz if it's one on one?

TRUMP: Yeah, that's fine.

COOPER: You would do a debate with Cruz ....

TRUMP: I don't think he's a good debater. I think he's ­­ frankly, the way I look at Ted, I think it's very phony. I think Ted is actually a bad talker, pretty good debater, bad talker, can't talk.

I don't mHinodmdeebating him at all. The problem is when I debate somebody, then people say, I'm not a nice person. But they say you won the debate. Live TV COOPER: So, bottom line, tomorrow night you're expecting a different tone, but you'll be ready for anything?

TRUMP: ... be softer, but I'll be ready. I mean, you know, I think that Marco is going to be a different person. Marco has been, you know, mortally wounded. You know,

http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

13/17

(109 of 153)

2/6/2017 TRUMP:

...

be

softer,Cbuat Is'lleb:e

r1ea7d-y.3I5m1ea0n,5y,ou0k2no/w0,6I t/h2in0k 1th7at,MIaDrco:Ci1sNg0No3i.nc0gomt4o3­beT6ar0adn,isffcDerriepkntsttEpenrsotrny. M: a8rc2o -h3as,bPeena, gyoeu

k7no5w,omfor1ta1lly9wounded.

You

know,

question is, will Marco even be there? I hope he makes the right decision. I'm not going to make the decision for him.

But Marco has been, you know, pretty, badly wounded. It will be interesting to see what happens. Kasich is interesting, because he said he's going to win Michigan and he lost. He said he's going to win, I mean, he said it to you. I think I watched him on your show.

COOPER: He never came out and said he'd win. But, he said, he thought he would do very well.

TRUMP: ...said, he would Michigan. He didn't even come in second. OK.

So, you know, I mean, I was of the impression if he didn't win Michigan ­­ I'm not talking about Ohio, I'm talking about Michigan.

If he didn't win Michigan, he would drop out. He came in third. OK. He didn't even come in second.

So, it'll be interesting to see what he says. And Ted is Ted. I mean, we've been playing the game now for a long time.

These debates to me are getting very boring, if you want to know the truth. COOPER: Mr. Trump, thank you.

TRUMP: Have a good time.

COOPER: Appreciate it.

(END VIDEO CLIP)

A lot to talk about in that interview. Just ahead, we'll have some reaction to what Donald Trump said.

Steaks and all, we'll also talk about what is at stake tonight for the Democrat, Bernie Sanders, Hillary Clinton about to take the debate stage in about 10 minutes. Stay with us, we'll be right back.

(COMMERCIAL BREAK)

[20:53:14] COOPER: Well, the Univision Democratic Debate will be starting here on CNN just a few minutes from now you can watch right here just stake around for that. There's a lot of excitement in this hall. We're also looking forward to our CNN Republican Debate over the University of Miami tomorrow night. It's a very busy week for us in light of my conversation with the GOP front­runner, I want start offer panel discussion on Donald Trump and then will switch the Democrats his victory speech last night his opponents and also his path going to forward.

Joining us right now with CNN "Inside Politics" Anchor John King and Chief Political Analyst Gloria Borger. You know, it's interesting to hear Trump. He is clearly you and I we're talking about this. He's aware of the moment he is in right now.

JOHN KING, CNN ANCHOR, "INSIDE POLITICS": Yeah. I take the whole interview globally. Especially when you start very measured, leaning back. You asked him a question about Larry Kudlow his used in China trade. Six weeks ago, Donald Trump would not have let you finish that sentence. He would have jumped and attacked Larry Kudlow. He would made a solution on steaks. He would have been more combative.

He understands you heard a bit debate last night before he got into the infomercial two where he said its time to let keep the Republican Senate, keep the Republican Congress. He understands the moment that he's very close to being the presumptive nominee and trying to see more measured, trying to see more frankly, in a word, presidential.

COOPER: He can't stop himself from like going back to what Mitt Romney said about his failed businesses showing steaks which are not steaks that are ­­ they aren't

Trump sHteoakms.eThey are bought from a local meat seller in West Palm Beach Florida called Bush brothers that still sold

Live TV

KING: Irony there? That was witness.

COOPER: It's a minor ridiculous point but the fact that he was sort of fibbing about it in a nationally, you know, broadcast press conference is kind of surreal. GLORIA

http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

14/17

2/6/2017

(110 of 153) Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 76 of 119

BORGER, CNN CHIEF POLITICAL ANALYST: You know, he can only exhibit a certain amount of self­control to a point, I think, and I thought he was trying to do so

with you today because, clearly, people have gotten to him and said, OK, you need to act presidential. But then when you ask him a question, he turns into sort of Donald

Trump who has to go on the attack, attack, attack.

[20:55:00] KING: He got most of the way through. Ted Cruz doesn't get under my skin, doesn't get under my skin, roar.

COOPER: I want to bring Alicia Menendez, on Fusion. This is the Network Univision. Thank you so much joining us its pleasure to be here. What are you looking on the stage now? I mean, it comes at a critical time. We do a debate on Sunday night with the democrats for the states now. I mean, a lot has changed just since then.

ALICIA MENENDEZ, FUSION CORRESPONDENT: Yeah, and listen, I think the candidates understand that they're speaking tonight to a broad audience, but also very specifically to a Latino audience, which Univision knows that it caters to.

So, top of mind for that audience economic issues, one and three Latino voters say that's what's top of mind for them but, immigration, of course, a deeply personal issue to this community.

I saw a study that said one in every three Latino voters actually has someone in their family who is undocumented. When you think about that, that's an issue not only that, you know, you might say to a pollster, yes, it's important to me. It's an issue that actually gets you out on the door on Election Day, especially the candidate like Donald Trump.

COOPER: And also, Alicia, I've seen polls based where they show Donald Trump very unpopular among Latino voters in a general election.

I'm curious to see how much they sort of try to define the GOP as Donald Trump's party and how much they try to talk about Donald Trump.

MENENDEZ: I think they would be insane not to. I think Democrats see that there's an opportunity for them to pivot to the general election to use Trump as an example of what the GOP stands for.

And yet, even though you see a vast majority of Latino voters saying that they find Trump's remarks on immigration abhorrent. You also see that only a small percentage thinks it's reflective of the Republican Party overall.

So the question is, if it's someone other than Trump namely, if it is Cruz, can he get out from under the damage that Trump has done?

BORGER: And, you know, tonight, you'll see Hillary Clinton hug President Obama to a certain degree on the executive orders on immigration. But on the question of deportation ...

MENENDEZ: Yeah. BORGER: ... and the number of illegal immigrants who have been deported, it's a very big issue in the Latino community. And we'll see how she deals with that.

KING: I think it fascinates questions, who are they talking to? They have a national audience, but Senator Sanders is trying to build the relationships from the Latino community, very important to him, because he's a newcomer, because he's from the state of Vermont.

So, is he want to focus there or does he want to focus on Ohio or Illinois next week, because he has a national audience, even though he's at a Univision debate.

Also on the trade issue, does he want to talk like he talks to the Rust Belt about, you know, you're getting screwed by these deals, we need to be tougher, we need to take them away.

Well, in Florida and among the Latino community, a lot of the small businesses do a lot of business throughout the hemisphere.

They havHeofmameily relationships, they have cultural relationship, they have historical relationships. So, the tough on trade argument that you can sell in Michigan, Ohio and Illinois is a little bit different here when you get to Florida.

Live TV

COOPER: And does Hillary Clinton start to ­­ I mean, did she learn some lesson from what happened in Michigan and start to pivot that, you know, famous word of

politics which you can interpret in a multitude of different ways? http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

15/17

2/6/2017

Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 77 of 119

politics which you can interpret in a multitude of different ways?

(111 of 153)

MENENDEZ: I saw a statistic that should perhaps, make the Clinton campaign nervous, which is that about 18 percent of the early voting that's been done in the state by democratic voters are from voters who did not vote in the last two elections.

So, those are voters that are more likely to come out and vote for an outsider candidate, which is what Sanders is trying to position himself as.

So, I think you have the possibility of seeing the type of spike we saw in Michigan that pollsters missed, actually happen on Election Day.

BORGER: It's such a diverse state, though, right? And I think that, you know, somebody who can win Florida in either party can say, I have an appeal to a broad coalition because, you know, this is in many ways, three different states.

And so, you know, either one of them would want to win this state.

COOPER: And just in terms of delegate count. I mean, that you have that floating around in your head at all times. I mean, Bernie Sanders had, I mean, amazing win in Michigan, surprised a lot of people, certainly in the pundit world. The path forward, though, is tough. KING: And yet, she stretched her lead last night in the delegate race.

So, you have two campaigns going on. Her campaign says it's OK. Yeah, we took a punch. We didn't want to lose Michigan, it's embarrassing. But, we stress our lead in the delegate debate for the psychology of the race is now in Sanders camp.

And the question is one win is not enough, but, if he can take in Ohio and in Illinois, or at least, one of them, if he can have a stronger showing in Florida than people expect. Last night was an opening, it was not a game­changer. It was an opening to a game­changer.

Next Tuesday could be a game changer if he wins again. If he understands the pressure up there tonight, she wants to put him back in his place, if he will make him more of a message candidate.

So, they both have reasons to escalate the attacks because of the stakes in the campaign, but there are huge risks if you do that, too. That's what I'm fascinated by, the chess.

COOPER: Right, how aggressive is it going to get tonight? I mean, we saw a lot of tension on the stage on Sunday ...

BORGER: Yeah.

COOPER: ... of the debate over the issues of NAFTA and trade. But, are they going to be coming out from the get­go ready to go?

BORGER: I think they might. It's hard to say, but so much is at stake, particularly for Bernie Sanders right now that I can't imagine that he would back off. He was very aggressive from the last debate. I think he'll continue.

COOPER: Yeah, well, I want to thank John King and Gloria Borger, Alicia Menendez, it's great to have you. Thank you for joining us.

We will see all of our panelists after the debate. It's about 10 seconds way now.

[21:00:00] Time now for the main event and we'll be on live right afterward. Here it is.

Home
Search CNN... http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

Live TV
 16/17

2/6/2017
U.S. World

(112 of 153) Case: 17-35105, 02/06/2017, ID:C1N0N3.c0om43­ T6r0an,scDripktstEntry: 82-3, Page 78 of 119

Opinion Health

Travel

Living Video More…

 U.S. Edition +
© 2017 Cable News Network. Turner Broadcasting System, Inc. All Rights Reserved. CNN Sans ™ & © 2016 Cable News Network.
Terms of Use | Privacy Policy | AdChoices | About us | Visit CNN | Newsletters | Work for us | Help | Transcripts | License Footage | CNN Newsource

Home

Live TV

http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html

17/17

(113 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 79 of 119
Ware Declaration Exhibit G

2/6/2017

(114 of 153) Case: 17-35105, 02/T0ra6ns/c2r0ipt1: D7o,naIDld T:r1um0p3's0n4at3ion6a0l s,ecDurkitytEspneetrcyh:­ P8O2L-IT3IC, OPage 80 of 119



Donald J. Trump speaks at the Saint Andelm College New Hampshire Institute of Politics in Manchester, N.H. on June 13.
Transcript: Donald Trump's national security speech
06/13/16 03:06 PM EDT
As posted on his website, this is the transcript of Donald Trump's June 13 speech on national security and terrorism in the wake of the Orlando massacre. Underlined segments are the author's.
Thank you for joining me today.
This was going to be a speech on Hillary Clinton and how bad a President, especially in these times of Radical Islamic Terrorism, she would be.
Even her former Secret Service Agent, who has seen her under pressure and in times of stress, has stated that she lacks the temperament and integrity to be president.

http://www.politico.com/story/2016/06/transcript­donald­trump­national­security­speech­224273

1/11

2/6/2017

(115 of 153) Case: 17-35105, 02/T0ra6ns/c2r0ipt1: D7o,naIDld T:r1um0p3's0n4at3ion6a0l s,ecDurkitytEspneetrcyh:­ P8O2L-IT3IC, OPage 81 of 119

There will be plenty of opportunity to discuss these important issues at a later time, and I will deliver that speech soon.
But today there is only one thing to discuss: the growing threat of terrorism inside of our borders.
The attack on the Pulse Nightclub in Orlando, Florida, was the worst terrorist strike on our soil since September 11th, and the worst mass shooting in our country’s history.
So many people dead, so many people gravely injured, so much carnage, such a disgrace.
The horror is beyond description.
The families of these wonderful people are totally devastated. Likewise, our whole nation, and indeed the whole world, is devastated.
We express our deepest sympathies to the victims, the wounded, and their families.
We mourn, as one people, for our nation’s loss – and pledge our support to any and all who need it.
I would like to ask now that we all observe a moment of silence for the victims of the attack.
[SILENCE]
Our nation stands together in solidarity with the members of Orlando's LGBT Community.
This is a very dark moment in America’s history.
A radical Islamic terrorist targeted the nightclub not only because he wanted to kill Americans, but in order to execute gay and lesbian citizens because of their sexual orientation.
It is a strike at the heart and soul of who we are as a nation.
It is an assault on the ability of free people to live their lives, love who they want and express their identity.
Trump: Clinton, Obama protecting terrorists to be 'politically correct'
By LOUIS NELSON

http://www.politico.com/story/2016/06/transcript­donald­trump­national­security­speech­224273

2/11

2/6/2017

(116 of 153) Case: 17-35105, 02/T0ra6ns/c2r0ipt1: D7o,naIDld T:r1um0p3's0n4at3ion6a0l s,ecDurkitytEspneetrcyh:­ P8O2L-IT3IC, OPage 82 of 119

It is an attack on the right of every single American to live in peace and safety in their own country.
We need to respond to this attack on America as one united people – with force, purpose and determination.
But the current politically correct response cripples our ability to talk and think and act clearly.
If we don't get tough, and we don't get smart – and fast – we're not going to have a country anymore -- there will be nothing left.
The killer, whose name I will not use, or ever say, was born to Afghan parents who immigrated to the United States. His father published support for the Afghan Taliban, a regime which murders those who don’t share its radical views. The father even said he was running for President of that country.
The bottom line is that the only reason the killer was in America in the first place was because we allowed his family to come here.
That is a fact, and it's a fact we need to talk about.
We have a dysfunctional immigration system which does not permit us to know who we let into our country, and it does not permit us to protect our citizens.
We have an incompetent administration, and if I am not elected President, that will not change over the next four years -- but it must change, and it must change now.
With fifty people dead, and dozens more wounded, we cannot afford to talk around the issue anymore -- we have to address it head on.
I called for a ban after San Bernardino, and was met with great scorn and anger but now, many are saying I was right to do so -- and although the pause is temporary, we must find out what is going on. The ban will be lifted when we as a nation are in a position to properly and perfectly screen those people coming into our country.
The immigration laws of the United States give the President the power to suspend entry into the country of any class of persons that the President deems detrimental to the interests or security of the United States, as he deems appropriate.

http://www.politico.com/story/2016/06/transcript­donald­trump­national­security­speech­224273

3/11

2/6/2017

(117 of 153) Case: 17-35105, 02/T0ra6ns/c2r0ipt1: D7o,naIDld T:r1um0p3's0n4at3ion6a0l s,ecDurkitytEspneetrcyh:­ P8O2L-IT3IC, OPage 83 of 119

I will use this power to protect the American people. When I am elected, I will suspend immigration from areas of the world when there is a proven history of terrorism against the United States, Europe or our allies, until we understand how to end these threats.
After a full, impartial and long overdue security assessment, we will develop a responsible immigration policy that serves the interests and values of America.
We cannot continue to allow thousands upon thousands of people to pour into our country, many of whom have the same thought process as this savage killer.
Many of the principles of Radical Islam are incompatible with Western values and institutions.
Radical Islam is anti-woman, anti-gay and anti-American.
I refuse to allow America to become a place where gay people, Christian people, and Jewish people, are the targets of persecution and intimidation by Radical Islamic preachers of hate and violence.
Trump attacks Obama: 'He's got something else in mind'
By NICK GASS
It’s not just a national security issue. It is a quality of life issue.
If we want to protect the quality of life for all Americans – women and children, gay and straight, Jews and Christians and all people – then we need to tell the truth about Radical Islam.
We need to tell the truth, also, about how Radical Islam is coming to our shores.
We are importing Radical Islamic Terrorism into the West through a failed immigration system -- and through an intelligence community held back by our president.
Even our own FBI Director has admitted that we cannot effectively check the backgrounds of the people we are letting into America.
All of the September 11th hijackers were issued visas.
Large numbers of Somali refugees in Minnesota have tried to join ISIS.
The Boston Bombers came here through political asylum.

http://www.politico.com/story/2016/06/transcript­donald­trump­national­security­speech­224273

4/11

2/6/2017

(118 of 153) Case: 17-35105, 02/T0ra6ns/c2r0ipt1: D7o,naIDld T:r1um0p3's0n4at3ion6a0l s,ecDurkitytEspneetrcyh:­ P8O2L-IT3IC, OPage 84 of 119

The male shooter in San Bernardino – again, whose name I won't mention -- was the child of immigrants from Pakistan, and he brought his wife – the other terrorist - from Saudi Arabia, through another one of our easily exploited visa programs.
Immigration from Afghanistan into the United States has increased nearly five-fold in just one year. According to Pew Research, 99% of people in Afghanistan support oppressive Sharia Law.
We admit many more from other countries in the region who share these same oppressive views.
If we want to remain a free and open society, then we have to control our borders.
Yet, Hillary Clinton – for months and despite so many attacks – repeatedly refused to even say the words “radical Islam,” until I challenged her yesterday to say the words or leave the race.
However, Hillary Clinton – who has been forced to say the words today after policies she supports have caused us so much damage – still has no clue what Radical Islam is, and won’t speak honestly about what it is.
She is in total denial, and her continuing reluctance to ever name the enemy broadcasts weakness across the world.
In fact, just a few weeks before the San Bernardino slaughter, Hillary Clinton explained her refusal to say the words Radical Islam. Here is what she said: “Muslims are peaceful and tolerant people, and have nothing whatsoever to do with terrorism.”
Hillary Clinton says the solution is to ban guns. They tried that in France, which has among the toughest gun laws in the world, and 130 were brutally murdered by Islamic terrorists in cold blood. Her plan is to disarm law-abiding Americans, abolishing the 2nd amendment, and leaving only the bad guys and terrorists with guns. She wants to take away Americans’ guns, then admit the very people who want to slaughter us.
I will be meeting with the NRA, which has given me their earliest endorsement in a Presidential race, to discuss how to ensure Americans have the means to protect themselves in this age of terror.
The bottom line is that Hillary supports the policies that bring the threat of Radical Islam into America, and allow it to grow overseas.

http://www.politico.com/story/2016/06/transcript­donald­trump­national­security­speech­224273

5/11

2/6/2017

(119 of 153) Case: 17-35105, 02/T0ra6ns/c2r0ipt1: D7o,naIDld T:r1um0p3's0n4at3ion6a0l s,ecDurkitytEspneetrcyh:­ P8O2L-IT3IC, OPage 85 of 119

In fact, Hillary Clinton’s catastrophic immigration plan will bring vastly more Radical Islamic immigration into this country, threatening not only our security but our way of life.
When it comes to Radical Islamic terrorism, ignorance is not bliss – it's deadly.
The Obama Administration, with the support of Hillary Clinton and others, has also damaged our security by restraining our intelligence-gathering and failing to support law enforcement. They have put political correctness above common sense, above your safety, and above all else.
I refuse to be politically correct.
I will do the right thing--I want to straighten things out and to Make America Great Again.
The days of deadly ignorance will end, and they will end soon.
As President I will give our intelligence community, law enforcement and military the tools they need to prevent terrorist attacks.
We need an intelligence-gathering system second to none. That includes better cooperation between state, local and federal officials – and with our allies.
I will have an Attorney General, a Director of National Intelligence, and a Secretary of Defense who will know how to fight the war on Radical Islamic Terrorism – and who will have the support they require to get the job done.
We also must ensure the American people are provided the information they need to understand the threat.
The Senate Subcommittee on Immigration has already identified hundreds of immigrants charged with terrorist activities inside the United States since September 11th.
Nearly a year ago, the Senate Subcommittee asked President Obama's Departments of Justice, State and Homeland Security to provide the immigration history of all terrorists inside the United States.
These Departments refused to comply.
President Obama must release the full and complete immigration histories of all individuals implicated in terrorist activity of any kind since 9/11.
The public has a right to know how these people got here.

http://www.politico.com/story/2016/06/transcript­donald­trump­national­security­speech­224273

6/11

2/6/2017

(120 of 153) Case: 17-35105, 02/T0ra6ns/c2r0ipt1: D7o,naIDld T:r1um0p3's0n4at3ion6a0l s,ecDurkitytEspneetrcyh:­ P8O2L-IT3IC, OPage 86 of 119

We have to screen applicants to know whether they are affiliated with, or support, radical groups and beliefs.
Trump takes credit for 'being right on radical Islamic terrorism'
By NOLAN D. MCCASKILL and KRISTEN EAST

We have to control the amount of future immigration into this country to prevent large pockets of radicalization from forming inside America.
Even a single individual can be devastating, just look at what happened in Orlando. Can you imagine large groups?
Truly, our President doesn't know what he is doing. He has failed us, and failed us badly, and under his leadership, this situation will not get any better -- it will only get worse.
Each year, the United States permanently admits more than 100,000 immigrants from the Middle East, and many more from Muslim countries outside the Middle East. Our government has been admitting ever-growing numbers, year after year, without any effective plan for our security.
In fact, Clinton's State Department was in charge of the admissions process for people applying to enter from overseas.
Having learned nothing from these attacks, she now plans to massively increase admissions without a screening plan, including a 500% increase in Syrian refugees.
This could be a better, bigger version of the legendary Trojan Horse.
We can't let this happen.
Altogether, under the Clinton plan, you'd be admitting hundreds of thousands of refugees from the Middle East with no system to vet them, or to prevent the radicalization of their children.
The burden is on Hillary Clinton to tell us why she believes immigration from these dangerous countries should be increased without any effective system to screen who we are bringing in.
The burden is on Hillary Clinton to tell us why we should admit anyone into our country who supports violence of any kind against gay and lesbian Americans.

http://www.politico.com/story/2016/06/transcript­donald­trump­national­security­speech­224273

7/11

2/6/2017

(121 of 153) Case: 17-35105, 02/T0ra6ns/c2r0ipt1: D7o,naIDld T:r1um0p3's0n4at3ion6a0l s,ecDurkitytEspneetrcyh:­ P8O2L-IT3IC, OPage 87 of 119

The burden is also on Hillary Clinton to tell us how she will pay for it. Her plan will cost Americans hundreds of billions of dollars long-term.
Wouldn't this money be better spent on rebuilding America for our current population, including the many poor people already living here?
We have to stop the tremendous flow of Syrian refugees into the United States – we don't know who they are, they have no documentation, and we don't know what they're planning.
What I want is common sense. I want a mainstream immigration policy that promotes American values.
That is the choice I put before the American people: a mainstream immigration policy designed to benefit America, or Hillary Clinton's radical immigration policy designed to benefit politically-correct special interests.
We've got to get smart, and tough, and vigilant, and we've got to do it now, because later is too late.
The media talks about “homegrown,” terrorism, but Islamic radicalism, and the networks that nurture it, are imports from overseas.
Yes, there are many radicalized people already inside our country as a result of the poor policies of the past. But the whole point is that it will be much, much easier to deal with our current problem if we don’t keep on bringing in people who add to the problem.
For instance, the controversial Mosque attended by the Boston Bombers had as its founder an immigrant from overseas charged in an assassination plot.
This shooter in Orlando was the child of an immigrant father who supported one of the most repressive regimes on Earth. Why would we admit people who support violent hatred?
Hillary Clinton can never claim to be a friend of the gay community as long as she continues to support immigration policies that bring Islamic extremists to our country who suppress women, gays and anyone who doesn’t share their views.
She can’t have it both ways. She can’t claim to be supportive of these communities while trying to increase the number of people coming in who want to oppress them.

http://www.politico.com/story/2016/06/transcript­donald­trump­national­security­speech­224273

8/11

2/6/2017

(122 of 153) Case: 17-35105, 02/T0ra6ns/c2r0ipt1: D7o,naIDld T:r1um0p3's0n4at3ion6a0l s,ecDurkitytEspneetrcyh:­ P8O2L-IT3IC, OPage 88 of 119

How does this kind of immigration make our life better? How does this kind of immigration make our country better?
Why does Hillary Clinton want to bring people here—in vast numbers—who reject our values?
Ask yourself, who is really the friend of women and the LGBT community, Donald Trump with his actions, or Hillary Clinton with her words? Clinton wants to allow Radical Islamic terrorists to pour into our country—they enslave women, and murder gays.
I don’t want them in our country.
Immigration is a privilege, and we should not let anyone into this country who doesn’t support our communities – all of our communities.
America has already admitted four times more immigrants than any country on earth, and we continue to admit millions more with no real checks or scrutiny.
Not surprisingly, wages for our workers haven’t budged in many years.
So whether it’s matter of national security, or financial security, we can’t afford to keep on going like this. We owe $19 trillion in debt, and no longer have options.
All our communities, from all backgrounds, are ready for some relief. This is not an act of offense against anyone; it is an act of defense.
White House smacks down 'small' Trump for Obama attacks
By NICK GASS
I want us all to work together, including in partnership with our Muslim communities. But Muslim communities must cooperate with law enforcement and turn in the people who they know are bad – and they do know where they are.
I want to fix our schools, roads, bridges and job market. I want every American to succeed. Hillary Clinton wants to empty out the Treasury to bring people into the country that include individuals who preach hate against our own citizens.
I want to protect our citizens – all of our citizens.
The terrorist attack on the Pulse Night Club demands a full and complete investigation into every aspect of the assault.

http://www.politico.com/story/2016/06/transcript­donald­trump­national­security­speech­224273

9/11

2/6/2017

(123 of 153) Case: 17-35105, 02/T0ra6ns/c2r0ipt1: D7o,naIDld T:r1um0p3's0n4at3ion6a0l s,ecDurkitytEspneetrcyh:­ P8O2L-IT3IC, OPage 89 of 119

In San Bernardino, as an example, people knew what was going on, but they used the excuse of racial profiling for not reporting it.
We need to know what the killer discussed with his relatives, parents, friends and associates.
We need to know if he was affiliated with any radical Mosques or radical activists and what, if any, is their immigration status.
We need to know if he travelled anywhere, and who he travelled with.
We need to make sure every single last person involved in this plan – including anyone who knew something but didn't tell us – is brought to justice.
If it can be proven that somebody had information about any attack, and did not give this information to authorities, they must serve prison time .
America must do more – much more – to protect its citizens, especially people who are potential victims of crimes based on their backgrounds or sexual orientations.
It also means we must change our foreign policy.
The decision to overthrow the regime in Libya, then pushing for the overthrow of the regime in Syria, among other things, without plans for the day after, have created space for ISIS to expand and grow.
These actions, along with our disastrous Iran deal, have also reduced our ability to work in partnership with our Muslim allies in the region.
That is why our new goal must be to defeat Islamic terrorism, not nation-building.
For instance, the last major NATO mission was Hillary Clinton's war in Libya. That mission helped unleash ISIS on a new continent.
Christie talks 'radical Islam,' doesn't address Trump's remarks
By MATT FRIEDMAN

I've said NATO needs to change its focus to stopping terrorism. Since I've raised that criticism, NATO has since announced a new initiative focused on just that.

http://www.politico.com/story/2016/06/transcript­donald­trump­national­security­speech­224273

10/11

2/6/2017

(124 of 153) Case: 17-35105, 02/T0ra6ns/c2r0ipt1: D7o,naIDld T:r1um0p3's0n4at3ion6a0l s,ecDurkitytEspneetrcyh:­ P8O2L-IT3IC, OPage 90 of 119

America must unite the whole civilized world in the fight against Islamic terrorism, just like we did against communism in the Cold War.
We've tried it President Obama's way. He gave the world his apology tour, we got ISIS, and many other problems, in return.
I'd like to conclude my remarks today by again expressing our solidarity with the people of Orlando who have come under attack.
When I am President, I pledge to protect and defend all Americans who live inside of our borders. Wherever they come from, wherever they were born, all Americans living here and following our laws will be protected.
America will be a tolerant and open society.
America will also be a safe society.
We will protect our borders at home.
We will defeat ISIS overseas.
We will ensure every parent can raise their children in peace and safety.
We will make America rich again.
We will make America safe again.
We will make American Great Again.
Thank you.

http://www.politico.com/story/2016/06/transcript­donald­trump­national­security­speech­224273

11/11

(125 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 91 of 119
Ware Declaration Exhibit H

(126 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 92 of 119
THE SLATEST YOUR NEWS COMPANION JAN. 29 2017 12:09 PM
Rudy Giuliani Admits Trump Asked How to Implement a Muslim Ban Legally
By Daniel Politi
Rudy Giuliani speaks to reporters at Trump Tower on Jan. 12 in New York City.
Drew Angerer/Getty Images
Whatever they may say now, it turns out that President Donald Trump’s controversial executive order on refugees and immigration was actually the result of his desire to ban Muslims from entering the United States. Rudy Giuliani said as much in an interview, noting that Trump asked him for help on how to implement his desired ban. Ever since Trump signed the executive order Friday stopping the country’s refugee program for four months, and preventing entry of visitors from seven Muslim-majority countries for 90 days, supporters have insisted that it was incorrect to characterize the move as a ban on Muslims. “It’s not a Muslim ban,” Trump said Saturday afternoon. After all, supporters argued, several countries with huge Muslim populations were excluded from the list. (Many were also quick to point out that those excluded from the list have ties to Trump’s business interests.)
Advertisement
But now Giuliani has essentially admitted that Trump wanted to ban Muslims from the United States, he just knew that an outright blockade would be illegal, so he asked the former New York mayor for help.
Giuliani revealed the stark details in an interview on Fox News, where host Jeanine Pirro essentially set up what should have been a softball question: “Does the ban have anything to do with religion?” And that’s when Giuliani got into the explanation:
OK. I’ll tell you the whole history of it. So when he ﬁrst announced it he said, “Muslim ban.” He called me up and said, “Put a commission together, show me the right way to do it legally.” I put a commission together with Judge Mukasey, with Congressman McCaul, Pete King, a whole group of other very expert lawyers on this. And what we did was we focused on, instead of religion, danger. The areas of the world that create danger for us. Which is a factual basis. Not a religious basis. Perfectly legal, perfectly sensible, and that’s what the ban is based on. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.
This is just the beginning. Help us hold President Trump accountable.

(127 of 153) Despite Giuliani’s claiCmatsheat:t1he7-o3rd5e1r0h5as, n0o2“/r0e6lig/2io0u1s 7ba, sIiDs,”: t1h0at3is0n4’t3q6u0it,e DtruketEconntrsyid:e8ri2ng-3th, aPt aTrguemp9’3s moefa1su1r9e speciﬁcally states
that once the refugee program resumes, it will “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.” Trump has outright said he wants to give priority to Christian refugees. He hinted as much again Sunday morning, writing on Twitter that “Christians in the Middle-East have been executed in large numbers. We cannot allow this horror to continue!”

Donald J. Trump
@realDonaldTrump

Follow

Christians in the Middle­East have been executed in large numbers. We cannot allow this horror to continue!
10:03 AM ­ 29 Jan 2017

60,116

226,746

In the interview, Pirro expressed surprise that Saudi Arabia and Pakistan were left oﬀ the list. Giuliani said Saudi Arabia deserves the beneﬁt of the doubt: “Saudi Arabia is going through a massive change. I think the kingdom particularly under the new prince has a real understanding that we are dealing with a massive radical Islamic terrorist problem.” And Pakistan? “Pakistan I would have to know more about,” Giuliani said. “It troubles me a little bit like it troubles you.”

THE SLATEST YOUR NEWS COMPANION JAN. 29 2017 7:31 PM
Trump Defends Immigration Order, Blasts Senate Critics Amid Growing Protests
By Daniel Politi

Thousands attend an afternoon rally in lower Manhattan to protest President Donald Trump's new immigration policies on Sunday in New York City.
Spencer Platt/Getty Images
Amid growing chaos and confusion across the country—and the world—regarding President Donald Trump’s executive order barring refugees and arrivals from seven predominantly Muslim countries, the commander in chief defended his order and made it clear he has no plans to back down. As large number of protesters gathered in airports across the country to protest the order that bars Syrian refugees indeﬁnitely, suspends the nation’s refugee program for four months, and halts arrivals of citizens from seven nations—Syria, Iraq, Iran, Sudan, Somalia, Yemen, and Libya—lawyers struggled to ﬁgure out how many people were being detained by Trump’s surprisingly broad executive order that was signed on Friday. And, ﬁnally, a few Republican lawmakers decided to stand up (at least meekly) to the commander in chief.
This is just the beginning. Help us hold President Trump accountable.

(128 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 94 of 119

Elliott Lusztig
@ezlusztig

Follow

Full statement of John McCain and Lindsey Graham on Trump's EO on Immigration: reckless, ill­considered, irresponsible, counter­productive.
1:39 PM ­ 29 Jan 2017

3,093

4,594

CONTINUE READING

FOLLOW SLATE SLATE ON IPHONE ANDROID KINDLE REPRINTS

ABOUT US CONTACT US WORK WITH US FEEDBACK CORRECTIONS

USER AGREEMENT PRIVACY POLICY FAQ

Slate is published by The Slate Group, a Graham Holdings Company. All contents © 2017 The Slate Group LLC. All rights reserved.

ADVERTISE WITH US

This is just the beginning. Help us hold President Trump accountable.

(129 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 95 of 119
Ware Declaration Exhibit I

2/6/2017

(130 of 153) Case: 17-3D5on1a0ld5T,ru0m2p/N0a6tio/n2al0S1ec7u,ritIyDA:dv1is0er3M0ik4e3F6lyn0n,HDaskCtEallnedtrIsyla:m8'2a C-3an,cPer'a­gAeBC9N6ewosf 119

Donald Trump National Security Adviser Mike Flynn Has Called Islam 'a Cancer'

 By MARIAM KHAN · Nov 18, 2016, 2:08 PM ET Share with Facebook

Share with Twitter

U.S. World

Menu

 Log In

Lifestyle

Politics

Entertainment

Health

… … 

George Frey/Getty Images

EHnetaeWlrtthAaTinCmHent Michael Flynn: Everything You Need to Know

Tech
InvestigaStiHvAeRE Sports
Weather


The man whom President-elect Donald Trump picked as his national security adviser has said he doesn’t believe that all cultures are “morally equivalent” and once described Islam as "a cancer," comments

More ABCNews that have many in the Muslim community worried about what his new

Cities Cities

job might mean for them.

NLoeswAYnogrekleCsityLoNseAwnRgYeoetrlierkesCditAyrmy Lt. Gen. Michael Flynn served as an adviser to Trump on
Chicago Chicago national security and foreign policy throughout the presidential Philadelphia Philadeclapmhpiaaign. Flynn has said he agreed with Trump's initial proposal to San Francisco - Oaktelamnpdo-rSaarinlyJboasneMSaunsliFmrasnfrcoismcoe-nOteariknlganthde- USanniteJdosSetates, but told Al Houston Houston Jazeera earlier this year it likely "wouldn't work," and that he supports

Durham - Raleigh - FthaeyevtetettvinilgleoDf uMrhuaslmim-sRcaolemiginhg-fFroamyeSttyerviaillaend places where terrorism is
Fresno Fresno a major threat. Partner Sites Partner Sites

abc.com abc.com He also accompanied Trump to his first top-secret national security espn.com espn.combriefing in August this year, and he was vetted as a potential running fivethirtyeight.com fivethirtyeight.com

http://abcnews.go.com/Politics/donald­trump­national­security­adviser­mike­flynn­called/story?id=43575658

1/10

2f/6iv/2e01t7hirtyeight.cComasfeiv: e1t7h-i3rDt5yon1ea0ilgd5Th,rtu0.mc2po/Nm0a6tio/n2al0S1ec7u,ritIyDA:dv1is0er3M0ik4e3F6lyn0n,HDaskCtEallnedtrIsyla:m8'2a C-3an,cPer'a­gAeBC9N7ewosf 119

disney.com disney.cmoamte before Vice President-elect Mike Pence was eventually

theundefeated.comatnhneouunndceefdea, twedo.csoemnior level sources with direct knowledge told ABC

Privacy PolicyPrivacNyePwosliceyarlier this year.

Your CA Privacy RightsYour CA Privacy Rights

Children's Online Pr“iIvaamcypPleoalicseyCdhthildarteLnie'suOtennlainnet GPreivnaecryalPMoilcichyael Flynn will be by my side Interest-Based AdsIanstewreeswt-BoraksetoddAedfesat radical Islamic terrorism, navigate geopolitical Terms of UseTermscohfaUllesenges and keep Americans safe at home and abroad,” Trump said CYSahohonowtaosc!-tAUBsCCNonetwacstNieUnxespatwesorttarskteo|mn©em2nit0litt1ao7rdyAaaByn.C“dGNineetnweelslriagInletFnelcyrnenenmt iVsaetotnentreusroaefnstd.hAehlelcrowiguihlnlttsbryere’sasnfeorirvneevmadol.usatble Good Morning AmearsicsaetGtooomdeMaonrdninmgyAamdmeriniciastration.”

World News Tonight World News Tonight Nightline Nightline The position of National Security Adviser does not require U.S. Senate

20/20 20/20

approval.

This Week This Week

Live 2

Michael Flynn: Everything You Need to Know

Watch

Refuse to Hide: Muslim Americans Speak Out on Trump's Election, Rise in Hate Crimes Michael Flynn: Everything You Need to Know

(131 of 153)

­

Lifestyle Entertainment Health
… … 
Entertainment Health Tech Investigative Sports Weather

U.AS.nti-Muslim Hate Crimes Up 67 Percent, FBI Says

World

Menu



PoHlieticres are some of his controversial comments:

Flynn on ‘Radical Islam’
Flynn, a registered Democrat who had a decades-long military career, served under the Obama administration until reportedly being forced to retire early as director of the Defense Intelligence Agency in 2014. The early retirement resulted from "the stand I took on radical Islam,” he wrote in an op-ed for the New York Post.

Pentagon press secretary John Kirby reportedly said at the time that
More ABCNews the retirement had “been planned for some time” and that then-

Cities Cities

Defense Secretary Chuck Hagel “appreciates [his] service."

New York City New York City

Los Angeles Los AnFgoerleFslynn’s part, he told Fox News in April 2015, “I've been at war with

Chicago Chicago Islam, or a component of Islam, for the last decade.”

Philadelphia Philadelphia

San Francisco - OakFllaynndn -eSaarlnieJrothsies SyaenarFrrealnecaissecdo a- Oboakolkan--d"T- hSeanFiJeoldseof Fight: How We

Houston Houston Can Win The Global War Against Radical Islam And Its Allies” -- that he

Durham - Raleigh - Fcoay-werttoetveilslehaDruinrghahmis -vRieawlesigohn-wFhaaytehtteevciallleled the “global war against

FPabraercts.ncneoormFSraietbescsn.ocPoamrtneruranSddiicteearssl tIasnladmin,”gcoafllirnagdifcoarl

the United ideology.

States

to

develop

a

deeper

espn.com espn.com

fivethirtyeight.com fivethirtyeight.com

http://abcnews.go.com/Politics/donald­trump­national­security­adviser­mike­flynn­called/story?id=43575658

Log In
2/10

2f/6iv/2e01t7hirtyeight.cComasfeiv: e1t7h-i3rDt5yon1ea0ilgd5Th,rtu0.mc2po/Nm0a6tio/n2al0S1ec7u,ritIyDA:dv1is0er3M0ik4e3F6lyn0n,HDaskCtEallnedtrIsyla:m8'2a C-3an,cPer'a­gAeBC9N8ewosf 119 disney.com disney.cFolymnn wrote, “we’re in a world war against a messianic mass movement theundefeated.comotfheevuilnpdeofepalete, dm.coosmt of them inspired by a totalitarian ideology: Radical Privacy PolicyPrivacIsylaPmol.i”cy Your CA Privacy RightsYour CA Privacy Rights Children's Online PrHiveacaylsPooslaicidyCinhitlhderebno'soOk,n“lIindeoPn’rtivbaeclyiePvoeliaclyl cultures are morally Interest-Based AdsIenqteuriveaslte-Bnat,saenddAIdthsink the West, and especially America, is far more Terms of UseTermscoivf iUlizseed, far more ethical and moral, than the system our main enemies CYaohnotaoc!-tAUBsCCNonetwacstNwUeastnwtotorkim| ©po2s0e17onABusC."News Internet Ventures. All rights reserved. Shows Good Morning Ame“rAicnadGwoeo’vdeMgoortntiongstAomp eferieclaing the slightest bit guilty about calling them World News Tonighbt yWnoarlmdeNaenwdsidToennitgifhyting them as fanatical killers acting on behalf of a Nightline Nightline failed civilization.” 20/20 20/20 This Week This Week Live 2 Watch

(132 of 153)

­

Michael Flynn: Everything You Need to Know

Lifestyle Entertainment Health
… … 
Entertainment Health Tech Investigative Sports Weather

U.S. World Politics

Menu

 Log In

Brooks Kraft/Getty Images Retired Lt. Gen. Michael Flynn delivers a speech on the first day of the Republican National Convention, July 18,

More ABCNews 

Flynn, who’s chairman and CEO of Flynn Intel Group, is also a board

Cities Cities

member of ACT for America, which the Southern Poverty Law Center

NLCohesiwcAaYngogorekCleChsiictyLaogNsoeAwncAgYamoellrlesekrs“iCcfaaitr.y”and away the largest grassroots anti-Muslim group in

Philadelphia Philadelphia San Francisco - OakTlhaendo-rgSaannizJaotisoenSbailnlsFirtsaenlcfiascso“t-hOeankaltaionnd’s- SlaarngeJsotsneon-profit, nonHouston Houston partisan, grassroots national security organization” that’s “committed to Durham - Raleigh - Freacyreutiteinvgil,letrDaiunrinhga,man- dRamleoigbhiliz-iFnagyceittizeevnillsecommunity by community to
Fresno Fresno help protect and preserve American culture and to keep this nation

Partner Sites PartnesraSfeit,e” saccording to its website. abc.com abc.com

espn.com espn.comACT for America did not respond to ABC News’ request for comment fivethirtyeight.com fivethirtyeight.com

http://abcnews.go.com/Politics/donald­trump­national­security­adviser­mike­flynn­called/story?id=43575658

3/10

2f/6iv/2e01t7hirtyeight.cComasfeiv: e1t7h-i3rDt5yon1ea0ilgd5Th,rtu0.mc2po/Nm0a6tio/n2al0S1ec7u,ritIyDA:dv1is0er3M0ik4e3F6lyn0n,HDaskCtEallnedtrIsyla:m8'2a C-3an,cPer'a­gAeBC9N9ewosf 119 disney.com disney.c“oMmr. Flynn's past Islamophobic statements, and his association with the

theundefeated.comntahteiounn'sdemfeoastevde.ncomous anti-Muslim hate group, should disqualify him

Privacy PolicyPrivacfyroPmolsiceyrving in any public office,” Ibrahim Hooper, spokesman for the Your CA Privacy RigChotsuYnocuilroCnAAPmrievraiccyanR-iIgslhatms ic Relations, told ABC News before Flynn’s Children's Online ProivffaicciyalPsoelilceycCtiohnild. ren's Online Privacy Policy Interest-Based AdsInterest-Based Ads

Terms of UseTermsIonftUhissetweet from February, Flynn said the fear of Muslims is a rational CYaohnotaoc!-tAUBsCCNonetwacstNoUenstew: ork | © 2017 ABC News Internet Ventures. All rights reserved.

Shows Good Morning AmeFriecaarGoof oMdusMliomrsniinsgRAAmTIeOrNicAaL: please forward this to others: the truth World News TonighfteWarosrlndoNqeuwesstTioonnsig.h..t“ he tweeted, referring to an anti-Muslim video Nightline Nightline from a third party.

20/20 20/20 This Week This Wee“Rkadical Islam” is a designation that President Obama has refused to

Live 2

recognize. Throughout his tenure as president, he has sought to make

Watch

a clear distinction between Islam built on peaceful teachings and the

acts of terrorism carriedMoicuhtabelyFelyxntnr:eEmveisrytsthwinghoYoaudNheeerdetotoKnraodwical interpretations of the religion.

(133 of 153)

­

U.FSl.ynn did not respond to ABC News’ request for comment left with

WPooFlirltylidcnsn Intel.

Menu



Lifestyle Entertainment Health
… … 
Entertainment

But he said in a statement this morning via the Trump Transition team that, "I am deeply humbled and honored to accept the position as National Security Adviser to serve both our country and our nation's next President, Donald J. Trump."

Health

Tech Investigative

Muslims ‘All on Guard’

Sports Weather

Speaking this summer at an ACT for America event in Dallas, Flynn likened Islam to "a cancer," according to the Dallas Morning News,

More ABCNews adding that documents taken from terrorist groups tell followers to "get

into the bloodstream of the opposition," which Flynn said he interprets

Cities Cities New York City

NewaYsoarkttaCcitkys

on

Western

nations.

LCohsicAanggoeClehsicLaogsoAnMgueslelism activists are troubled by the prospect of a Trump administration Philadelphia Philadethlpaht ima ight include Flynn.

San Francisco - Oakland - San Jose San Francisco - Oakland - San Jose Houston Houston “President-elect Trump is carefully curating a senior team that seem to Durham - Raleigh - FhayvetotenveilltehiDnugrihnacmom- Rmaoleni:gah d- eFeapyesteteavteilldeanimosity against Islam and
Fresno Fresno Muslims. [Lt.] General Flynn is one of them, and has been on the record

Partner Sites PartnearbSoituetshis sentiments towards Islam and Muslims repeatedly,” said Rabia
abc.com abc.com Chaudry, a senior fellow at the United States Institute of Peace and a espn.com espn.com

fivethirtyeight.com fivethirtyeight.com

http://abcnews.go.com/Politics/donald­trump­national­security­adviser­mike­flynn­called/story?id=43575658

Log In
4/10

2f/6iv/2e01t7hirtyeight.cCoamsefi:v1e7th-3irD5tyo1ne0ailgd5Th,rt0u.mc2po/0Nma6ti/o2na0l 1Se7c,urIitDy A:d1vi0se3r 0M4ike3F6ly0n,n HDakstCEanlletdryIs:lam82'a-C3a,ncPera' g­ AeBC1N0e0wsof 119

disney.com disney.cboomard member of the new Muslim-Jewish Advisory Council that was

theundefeated.comlathuenuchneddefteoacteodm.cboamt Islamophobia and anti-Semitism.

Privacy PolicyPrivacy Policy

Your CA Privacy Rig“hPtustYtoinugr tChAisPmriavnaciny cRhigahrgtse of domestic security matters has the

Children's Online PrpivoatecyntPiaolloicfygCrheialdtrdeanm'saOgnelitnoeAPmrievariccyanPoMliucsylims, who are certain to be Interest-Based AdsIanttetorepsot-fBhaisse‘ednAedmsy within’ list, rather than white nationals, which both Terms of UseTermssotuf dUisees and authorities show are the real greatest domestic threat we CYaohnotaoc!-tAUBsCCNonetwacstNfUaecstew,”osrkhe| ©sa2id01b7eAfoBreC FNlyenwns’sInotfefircniaelt sVeelenctutiroens.. All rights reserved.

Shows Good Morning AmeHriaczaeGmooBdatMa,osrencinregtaArmy egreicnaeral of the Islamic Society of North America, World News TonighstaWyos rMlduNsleimwsleTaodneigrshat cross the United States “are all on guard.”

Nightline Nightline

20/20 20/20

“Our community is preparing for an America that has parts of

This Week This Weegkovernment openly hostile to Muslims,” Bata said before Flynn’s official

Live 2

selection. “We are hoping for the best, but getting ready for the worst.”

Watch

(134 of 153)

­

Sponsored Stories

Michael Flynn: Everything You Need to Know

U.S. World Politics Lifestyle Entertainment Health
 … … Obama Quietly Signed Bill
EntertaGinimvinegnt$42.4 B “Cash Rebate” Health to 119 Million Americans Tech The Oxford Club Investigative Sports Weather

Menu
10 Classic Baby Girl Names That Are Ready to Make a Comeback
Ancestry

 Log In
Man Who Predicted Trump Victory Makes Unexpected Prediction About Presidency
MoneyWise 411 Recommended by

More ABCNews 



Cities Cities

1K Comments

New York City New York City

Los Angeles Los Angeles

Chicago Chicago

With Trump's Travel Ban on Hold, Iraqi Philadelphia Philadelphia
San Francisco - Oakland - San Jose San Francisco - Oakland - San Jose
Family Arrives in Nashville in 2nd Houston Houston
Durham - Raleigh - Fayetteville Durham - Raleigh - Fayetteville

Attempt to Reach US Fresno Fresno
Partner Sites Partner Sites

abc.com abc.com
 espn.coBmy MeOsRpGnA.cNoWmINSOR · Feb 6, 2017, 12:42 PM ET Share with Facebook

Share with Twitter

fivethirtyeight.com fivethirtyeight.com

http://abcnews.go.com/Politics/donald­trump­national­security­adviser­mike­flynn­called/story?id=43575658

5/10

(135 of 153)

2f/6iv/2e01t7hirtyeight.cCoamsefi:v1e7th-3irD5tyo1ne0ailgd5Th,rt0u.mc2po/0Nma6ti/o2na0l 1Se7c,urIitDy A:d1vi0se3r 0M4ike3F6ly0n,n HDakstCEanlletdryIs:lam82'a-C3a,ncPera' g­ AeBC1N0e1wsof 119

disney.com disney.com

theundefeated.com theundefeated.com

Privacy PolicyPrivacy Policy

Your CA Privacy RightsYour CA Privacy Rights

Children's Online Privacy PolicyChildren's Online Privacy Policy

Interest-Based AdsInterest-Based Ads

Terms of UseTerms of Use Contact UsContact Us



Yahoo!-ABC News Network | © 2017 ABC News Internet Ventures. All rights reserved.


­

Shows

Good Morning America Good Morning America

World News Tonight World News Tonight

Nightline Nightline

20/20 20/20 This Week This Week

Joe Penney/Reuters

LiveW2ATCH With Travel Ban on Hold, Thousands of Visa Holders Race to Enter the US Watch

SHARE

Michael Flynn: Everything You Need to Know
Iraqi citizen Fuad Sharef Suleman and his family landed in Nashville,


Lifestyle 
Entertainment
Health 
… … 
Entertainment Health Tech Investigative Sports Weather

Tennessee, Sunday night to start a new life, more than a week after

UWPo.otcSlhoir.teliudcynswtryeroef

barred origin.

from

entering

thMeeUnunited

States

because

of

their



It had taken Suleman more than two years to receive U.S. immigrant visas for him, his wife and three children. He and his wife quit their jobs and sold their house in Iraq, and their three children left their school, all with the expectation of coming to America.

Suleman worked in Iraq as a nongovernmental organization subcontractor for the U.S. Agency for International Development (USAID), which administers civilian foreign aid. Suleman said one of the reasons he applied for immigration visas was because he feared for the

family’s safety, given his work with the U.S. government.
More ABCNews 

Cities Cities

"For the terrorists [in Iraq], if you work for the Americans, you become a

New York City NewtYaorgrketC. Tityhey consider you an infidel," or unfaithful, the Muslim man told

Los Angeles Los AnAgBeClesNews in an interview on Jan. 28.

Chicago Chicago

Philadelphia PhiladeSluplheima an said his family had paid about $5,000 for airline tickets to the

San Francisco - OakUlannitded- SatanteJso,saenSdatnhaFtrathnecyiswcoer-eOtarakvlaenlidng- SoannaJsopseecial immigrant visa

Houston Houston for Iraqis because of the work he did with the United States in his home Durham - Raleigh - Fcoayuentttrey.vTillheeDyucrhhoasme -toRamleoivgeht-oFNayaeshttveivlliellewhere they already have Fresno Fresno friends and which hosts one of the largest Kurdish populations in the Pabarct.nceormSaitbecs.cPoamrtneUr nSiitteeds States. The Tennessee capital is known as “Little Kurdistan” by espn.com espn.commany of its Kurdish residents.

fivethirtyeight.com fivethirtyeight.com

http://abcnews.go.com/Politics/donald­trump­national­security­adviser­mike­flynn­called/story?id=43575658

Log In
6/10

2f/6iv/2e01t7hirtyeight.cCoamsefi:v1e7th-3irD5tyo1ne0ailgd5Th,rt0u.mc2po/0Nma6ti/o2na0l 1Se7c,urIitDy A:d1vi0se3r 0M4ike3F6ly0n,n HDakstCEanlletdryIs:lam82'a-C3a,ncPera' g­ AeBC1N0e2wsof 119 disney.com disney.cBoumt the Suleman’s were prohibited from boarding their connecting flight

theundefeated.cominthEeguynpdtefrfeoamteCda.ciroomInternational Airport to John F. Kennedy Airport in

Privacy PolicyPrivacNyePwolYicoyrk Jan. 28, a day after President Donald Trump signed an Your CA Privacy RigehxtesYcoutuivr eCoArdPerirvascuyspReignhdtisng refugee admittance and immigration from Children's Online Prsievavceyn PporelicdyoCmhinildarnetlny'sMOunslliinmenPartiivoancsywPiothlictyies to terror, including Iraq. Interest-Based AdsInterest-Based Ads

Terms of UseTermsTohfeUSseuleman family was one of many stuck in transit because of CYSahohonowtaosc!-tAUBsCCNonetwacstNTiUsresustumweopdr’skac|no©antit2or0onv1w7eirdAseBiaCtlebmNaepnwo. BrsauIrntytoernernsFterrtaidVinaeiynn,gtauofreerddse.eArrabllllrojuigcdkhgitnsegrienthsSeeervaettdle. Good Morning AmeprirceasiGdeonotd’sMeoxernciuntgivAemacetriiocna. So airlines around the world were given World News TonightthWeogrrledeNnelwigshtTotonirgehstume refugee admittance and immigrant entry into Nightline Nightline America from the seven countries covered in the order: Iran, Iraq, Libya,

20/20 20/20

Somalia, Sudan, Syria and Yemen.

This Week This Week

Live 2

Iraqi Family Stuck at Airport, Barred From Flying Into JFK

Watch

Appeals Court Denies Justice Department Motion to Immediately Lift Block on Travel Ban Michael Flynn: Everything You Need to Know

(136 of 153)

­

U.WS.here the Legal Showdown Over Trump's Travel Ban Stands

World

Menu



PoHlioticusrs after the judge’s ruling, Suleman and his family boarded a plane

Lifestyle Entertainment Health
… … 
Entertainment Health

from Erbil, the capital of the autonomous Kurdish region in northern Iraq, in their second attempt to reach the United States. Iraqi Kurdish troops, known as Peshmerga, are a crucial U.S. ally in the fight against ISIS in the city of Mosul, the Islamic militant group’s last stronghold in the country.

Tech Investigative Sports Weather

In their first steps on U.S. soil, the Sulemans arrived at New York’s Kennedy Airport Sunday afternoon before boarding another flight to Nashville, their final destination. A crowd of residents, activists and government officials anxiously awaited the family’s arrival at Nashville

More ABCNews International Airport with welcoming signs.

Cities Cities

“Hopefully, they’ll be allowed to stay once they’re here,” Nashville

New York City NewrYeosridkeCnittyJoyce Stainbrook told ABC Nashville affiliate WKRN-TV as she

LCohsicAanggoeClehsicLaogsoAnwgaeilteesd. “I think [Trump] is going to have quite a fight on his hands

Philadelphia Philadeblepchaiause he has no idea the sleeping tiger that he awoke in this

San Francisco - Oakcloaunndtr-yS.”an Jose San Francisco - Oakland - San Jose

Houston Houston Durham - Raleigh - FUa.Sy.eRtteepv.ilJleimDCurohoapmer-,RDa-lTeeignhn.-, NFaaysehtvtiellveilMleayor Megan Barry and Fresno Fresno actress Connie Britton of the show “Nashville” were also among the

Partner Sites PartnehruSnidterseds in attendance.

abc.com abc.com

espn.com espn.com

fivethirtyeight.com fivethirtyeight.com

http://abcnews.go.com/Politics/donald­trump­national­security­adviser­mike­flynn­called/story?id=43575658

Log In
7/10

(137 of 153)

2f/6iv/2e01t7hirtyeight.cCoamsefi:v1e7th-3irD5tyo1ne0ailgd5Th,rt0u.mc2po/0Nma6ti/o2na0l 1Se7c,urIitDy A:d1vi0se3r 0M4ike3F6ly0n,n HDakstCEanlletdryIs:lam82'a-C3a,ncPera' g­ AeBC1N0e3wsof 119 disney.com disney.c“oOmur great city of Nashville is known for southern hospitality, and it’s

theundefeated.comvtehreyuimndpeofretatnetdth.caotmwe extend that hospitality to families like Fuad

Privacy PolicyPrivacSyuPleomlicayn’s family so that they know that they’re welcome here,” Cooper

Your CA Privacy RigshatisdY,oaudrdCreAssPirnivgatchyeRcirgohwtsd. “Nashville is a city of the American dream Children's Online Praivnadcwy ePogloictytCohkielderpenit'sthOantlwinaeyP.”rivacy Policy Interest-Based AdsInterest-Based Ads

Terms of UseTermsAosf UthseeSuleman’s disembarked and entered the terminal, the crowd



CYSahohonowtaosc!-tAUBsCCNonetwacstNe“UWersutewpltcoeordkmi|en©hloo2um0d1e7c.”hAeBeCrsNaenwdsaIpnptelarunseet .VTehnetunrpees.oApllleribgehgtsanretsoecrvheadn.t,

­

Good Morning America Good Morning America World News TonighSt uWleomrldanNaenwdshTiosnfiagmhtily shook hands, gave hugs and blew kisses as Nightline Nightline they made their way through the crowd. They received flowers, cards

20/20 20/20

and gifts. Suleman said they were overcome by the dozens of people

This Week This Weewkho came to welcome them to their new home.

Live 2

Watch

“Today is a very important day in my and my family’s life, as it marks the

first day of my new life iMn iNchaasehl Fvliyllnen,:TEevnernyethsinsgeeYo, uUNneiteeddtoSKtantoews of America,” Suleman said, addressing the crowd. “But your presence

Lifestyle Entertainment Health

here and the amount of support that you showed and your open arms

UWPo.omvSleir.talirdckysemtuhcisha.” very, very exceptionaMl deanyufor me. Thank you. Thank you



Speaking to WKRN Sunday night, Suleman was overwhelmed with emotion and struggled to find the words in reaction to the welcome.

Log In

… … 
Entertainment Health

“I don’t know how to describe it,” he said. “The welcoming, it was genuine. You see genuine smiles, genuine happiness in their faces.”

Tech Investigative Sports Weather

Suleman plans to continue his college education here and wants his children to get a U.S. education as well, he told the TV station, adding that he was looking forward to some down time in his new home.

More ABCNews “It was a long journey from Erbil to Nashville,” he said. “This day is a

Cities Cities

turning point in my life.”

New York City New York City Los Angeles Los AnAgBeClesNews’ Randa Ali, Eva Pilgrim, Darren Reynolds, Benjamin Siegel Chicago Chicago and Veronica Stracqualursi contributed to this report.

Philadelphia Philadelphia

San Francisco - Oakland - San Jose San Francisco - Oakland - San Jose
Houston Houston

Durham - Raleigh - Fayetteville Durham - RaleighC-oFmamyeentttesville Fresno Fresno

Partner Sites Partner Sites

abc.com abc.com

espn.com espn.com

fivethirtyeight.com fivethirtyeight.com

http://abcnews.go.com/Politics/donald­trump­national­security­adviser­mike­flynn­called/story?id=43575658

8/10

2f/6iv/2e01t7hirtyeight.cCoamsefi:v1e7th-3irD5tyo1ne0ailgd5Th,rt0u.mc2po/0Nma6ti/o2na0l 1Se7c,urIitDy A:d1vi0se3r 0M4ike3F6ly0n,n HDakstCEanlletdryIs:lam82'a-C3a,ncPera' g­ AeBC1N0e4wsof 119 disney.com disney.com theundefeated.com theundefeated.com Privacy PolicyPrivacy Policy Your CA Privacy RightsYour CA Privacy Rights Children's Online Privacy PolicyChildren's Online Privacy Policy Interest-Based AdsInterest-Based Ads Terms of UseTerms of Use Contact UsContact Us Yahoo!-ABC News Network | © 2017 ABC News Internet Ventures. All rights reserved. Shows Good Morning America Good Morning America World News Tonight World News Tonight Nightline Nightline 20/20 20/20 This Week This Week Live 2 Watch

(138 of 153)

­

Michael Flynn: Everything You Need to Know

http://abcnews.go.com/Politics/donald­trump­national­security­adviser­mike­flynn­called/story?id=43575658

9/10

2/6/2017

(139 of 153) Case: 17-3D5o1n0ald5T,r0um2p/0Na6ti/o2na0l 1Se7c,urIitDy A:d1vi0se3r 0M4ike3F6ly0n,n HDakstCEanlletdryIs:lam82'a-C3a,ncPera' g­ AeBC1N0e5wsof 119

http://abcnews.go.com/Politics/donald­trump­national­security­adviser­mike­flynn­called/story?id=43575658

10/10

(140 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 106 of 119
Ware Declaration Exhibit J

2/6/2017

(141 of 153) CasMeic:h1ae7l F-3ly5nn1in0A5u,gu0st2: I/s0la6m/is2m0a1'7vic,ioIuDs:ca1n0ce3r'0in4b3od6y 0of,alDl MkutsElimnstrthya:t '8ha2s-to3b,ePexacigseed' 1­ C0N7NoPofli1tic1s.9com

Michael Flynn in August: Islamism a 'vicious cancer' in body of all Muslims that 'has to be excised'
By Andrew Kaczynski, CNN  Updated 8:36 PM ET, Tue November 22, 2016

Story highlights
Flynn: "This is Islamism, it is a vicious cancer inside the body of 1.7 billion people on this planet and it has to be excised."
In the same speech, Flynn falsely claimed that Florida Democrats voted to impose Islamic shariah law at the state and local level.
people on this planet and it has to be excised."

(CNN) — Donald Trump's pick to be national security adviser, retired Lt. Gen. Michael Flynn, called Islamism a "vicious cancer inside the body of 1.7 billion people" that has to be "excised" during an August speech.
Flynn, who has called Islam as a whole a "cancer" in the past, made the comments during a speech to the Ahavath Torah Congregation in Stoughton, Massachusetts. Video of his speech is available on YouTube and was reviewed by CNN's KFile.
"We are facing another 'ism,' just like we faced Nazism, and fascism, and imperialism and communism," Flynn said. "This is Islamism, it is a vicious cancer inside the body of 1.7 billion



Flynn's views a departure from US policy 02:44

In the same speech, Flynn falsely claimed that Florida Democrats voted to impose Islamic shariah law at the state and local level. The claim, peddled by far-right blogs in 2014, was rated "pants on ﬁre" by the independent factchecking organization PolitiFact, which explained that the bill in question was about prohibiting judges from using

httpf:o//wrewiwg.ncnnla.cwomi/n20f1a6/m11i/2ly2/plaolwiticcs/akfsilee­smiifchtaheel­fllyanwn­acugounstﬂ­sicpeteecdh/with existing U.S. policy. Democrats voted against the bill,

1/4

(142 of 153)

2/6/2017

CasMeic:h1ae7l F-3ly5nn1in0A5u,gu0st2: I/s0la6m/is2m0a1'7vic,ioIuDs:ca1n0ce3r'0in4b3od6y 0of,alDl MkutsElimnstrthya:t '8ha2s-to3b,ePexacigseed' 1­ C0N8NoPofli1tic1s.9com

foreign law in family law cases if the law conﬂicted with existing U.S. policy. Democrats voted against the bill,

saying it was unnecessary and targeted Muslims in the state.

"Look up something called 'the American laws for American courts,'" Flynn said. "I don't know if it's happening up here in Massachusetts, it's happening in other states. I have had people in the media, mainstream media, say, 'oh, that's all a conspiracy, it's a lie.'"

"No, in the state of Florida," he continued. "The state of Florida they have 36 senators at the state level. 36 senators at the state level. 12, of them are Democrats, the Republicans hold the majority in the Florida state senate. All 12 Democrats, all 12 Democrats voted to impose shariah at the local and state level. Now, it was beaten because the Republicans are in charge. I'm telling you, this is 'American laws for America's courts.'"

Flynn didn't respond to a comment request for this story. CNN's KFile reported last week Flynn shared fake news and interacted with ﬁgures of the so-called alt-right on Twitter. On Monday, CNN's KFile reported Flynn said "who knows" when asked about a conspiracy about the 2013 sarin gas attack in Syria being a "false ﬂag."

In the speech, Flynn ﬁelded a question asking if President Obama was a Muslim.

"Okay let me repeat the question," Flynn said. "Is Obama doing this intentionally or is he incompetent and is he a Muslim? This is where I say we're to blame. We. We. You, me, are to blame. All you have to do, and most people don't do these things, I do because it's part of who I am, all you got to do is read what he's written and listen to what he says. It's that simple."

"Well before he became president of the United States the

Related Article: Trump's pick for national security adviser once bashed torture,

ﬁrst time, he said what he was going to do," Flynn added. "He said it. The second time -- fool me once, shame on me. Fool me twice, shame on you. I mean what happened? The

drone strikes, night raids

second time he comes in -- honestly, the ﬁrst time I was kind

of hopeful. Maybe we're enlightened. This country, this is

going to be a good guy. He says all these things. I'm listening

to what he's saying. I'm like, 'wow. This is di傰erent. This is di傰erent.'

"This is an individual who has an ideology ,and he has apologized for all the ill will of the United States of America over our history, for who we have been. He has. The apology tour. His speech in Cairo was unbelievable. I'm sitting there and I'm listening to it because I was deployed at that time and we were watching what our president's saying because it's going to cause some impact, and boy did it cause some impact. It caused the Muslim world to blow up."

Watch the full speech:

By using this site, you agree to the Privacy Policy and Terms of



Service.

http://www.cnn.com/2016/11/22/politics/kfile­michael­flynn­august­speech/

2/4

2/6/2017

(143 of 153) CasMeic:h1ae7l F-3ly5nn1in0A5u,gu0st2: I/s0la6m/is2m0a1'7vic,ioIuDs:ca1n0ce3r'0in4b3od6y 0of,alDl MkutsElimnstrthya:t '8ha2s-to3b,ePexacigseed' 1­ C0N9NoPofli1tic1s.9com

"Field of Fight" with Ret. Lt. Gen. Michael T. Flynn

 Rapper falls on stage with Drake

Donald Trump's most bone-chilling tweet

By using this site, you agree to the Privacy Policy and Terms of



Service.

All eyes on 9th Circuit Court of Appeals in battle over Trump's travel ban

UK Speaker 'strongly opposed' to Trump speech in Houses of Parliament

http://www.cnn.com/2016/11/22/politics/kfile­michael­flynn­august­speech/

3/4

2/6/2017

(144 of 153) CasMeic:h1ae7l F-3ly5nn1in0A5u,gu0st2: I/s0la6m/is2m0a1'7vic,ioIuDs:ca1n0ce3r'0in4b3od6y 0of,alDl MkutsElimnstrthya:t '8ha2s-to3b,ePexacigseed' 1­ C1N0NoPofli1tic1s.9com

By using this site, you agree to the Privacy Policy and Terms of



Service.

http://www.cnn.com/2016/11/22/politics/kfile­michael­flynn­august­speech/

4/4

(145 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 111 of 119
Ware Declaration Exhibit K

(146 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 112 of 119
The Fix
Donald Trump just completely undercut his own Muslim ban alternative
By Aaron Blake September 15, 2016
The question of whether Donald Trump still supports a ban on Muslim immigrants and refugees coming to the United States just got a whole lot murkier.
The Republican presidential nominee has recently sought to emphasize the concept of "extreme vetting" ­­ apparently as an alternative to his previous blanket proposal to block all foreign Muslims from coming to the United States. But his comments Wednesday night in Canton, Ohio, suggest that even he doesn't think such vetting could work.
"We don't know where these people come from," he said while discussing Syrian refugees. "We don't know if they have love or hate in their heart, and there's no way to tell."
Trump's comment that "there's no way to tell" whether people have hate in their heart is completely at odds with his proposal to exhaustively vet immigrants. He said last month that the vetting would include an ideological screening test to determine whether people "share our values and respect our people."
In other words, the test is meant precisely to determine whether people have love or hate in their hearts.
Trump was talking specifically about Syrian refugees, who apparently still would be banned even under his revamped proposal. But he also is talking about a matter of the heart ­­ not documentation, which Syrian refugees may not have. And if you can't see what's in a Syrian refugee's heart, you also can't see what's in the heart of a Muslim immigrant from England. The latter might have more paperwork, but that's not what Trump is talking about here.
It's just the latest example of the candidate seeming to argue with himself about his proposed ban.
While adding the "extreme vetting" proposal, the Trump campaign has offered conflicting signals about just whom the vetting would cover and how much he's backing away from his previous proposal to ban all Muslims from coming to the United States. That proposal, by the way, still appears on the Trump campaign website under the headline: "Donald Trump Statement on Preventing Muslim Immigration."

(147 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 113 of 119
In May, the candidate deflected questions about whether the Muslim ban was still his policy, saying, "We're going to look at a lot of things."
In June, Trump suggested that the ban would not be on Muslims but on countries "where there is a proven history of terrorism."
Later that month, Trump said it "wouldn't bother me" to admit a Muslim immigrant from Scotland. A spokeswoman at the time told CNN that his Muslim ban applied only to Muslims from "terror states," but didn't elaborate beyond that.
Trump then delivered his speech on extreme vetting in August.
Trump's comments Wednesday even contradict his own remarks from two weeks ago when Sean Hannity asked him specifically about vetting what's in one's heart and Trump suggested there was a way:
HANNITY: How do you possibly vet what's in their heart?
TRUMP: Right, let me just tell you, you get very smart people, and there are those people. And they are very good at understanding what's going on. But beyond that, you use social media, because a lot of these people, I mean, they are better at social media than we are. ISIS, if you look at what ISIS is doing with social, they are recruiting over the Internet. And I also said we have to end that.

5-Minute Fix newsletter Keeping up with politics is easy now.

Sign up

Through it all, the Trump campaign hasn't clarified whether he is disowning his blanket ban on Muslim immigration, whether he is strengthening it, or whether he is scaling it back. He or his top aides and surrogates have indicated all of these things at one point or another. (The New York Times has a good visualization of how the proposal has shifted over time.)

Asked in July whether he was scaling back his proposal, Trump told NBC's Chuck Todd: "I don't think so. I actually don't think it's a rollback. In fact, you could say it's an expansion."

Trump's comments Wednesday night further obscure what his exact proposal on this is. In his Ohio speech, Trump repeated a previous comment that Syrian refugees could represent "the great Trojan horse."

"I don't want to be known in 200 years for having created the Trojan horse with a different name," he said.

Trump still doesn't appear to have decided precisely how he would halt that Trojan horse.

(148 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 114 of 119 Aaron Blake is senior political reporter for The Fix.  Follow @aaronblake

Do you like game shows? Do you like politics? Whatever,
you’ll LOVE The Ciquizza anyway.
Listen on iTunes.
Listen on Stitcher.

The Post Recommends
CNN’s president has 㺘red a warning shot at Donald Trump
Jeﬀ Zucker said it would be a "mistake" for Trump to keep bashing the network.
Opinion
The true, correct story of what happened at Donald Trump’s inauguration
This is the true story that has been hidden for so long.
How Donald Trump totally destroyed Chris Christie
A tragedy, in a LOT of acts.
PAID PROMOTED STORIES

Recommended by

(149 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 115 of 119

Use Data To Sell Your Home For More
Homelight

Thousands of Cancer Patients Now Know Why They Aren't Getting Well
Envita

How Older Men Tighten Their Skin
The Modern Man Today

Here's What New Dental Implants Should Cost You ­ View Pricing & Dentist Information
New Dental Implants

3 Tips To A Flat Stomach After 40
MAX Workouts

Boston, MA: This Brilliant Company Is Disrupting a $19 Billion Industry
EverQuote

(150 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 116 of 119
Ware Declaration Exhibit L

(151 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 117 of 119

(152 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 118 of 119
Ware Declaration Exhibit M

(153 of 153) Case: 17-35105, 02/06/2017, ID: 10304360, DktEntry: 82-3, Page 119 of 119

 
 Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 1 of 40

(1 of 42)

CASE NO. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Appellants
v.
DONALD J. TRUMP, PRESIDENT, et al., Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, CASE NO. 2:17-cv-00141-JLR.
BRIEF OF AMICUS CURIAE FREEDOM WATCH, INC., IN SUPPORT OF APPELLANTS-DEFENDANTS
ON EMERGENCY MOTION FOR STAY PENDING APPEAL
ORAL ARGUMENT REQUESTED

Attorney for Amicus Curiae February 7, 2017

Larry Klayman, Esq. FREEDOM WATCH, INC. 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Telephone: (561) 997-9956 Email: leklayman@gmail.com

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 2 of 40

(2 of 42)

TABLE OF CONTENTS

TABLE OF CONTENTS

ii

FRAP RULE 26.1 AND FRAP 29(a)(4)(E) DISCLOSURE STATEMENT

iii

STATEMENT OF INTEREST OF AMICUS CURIAE

iv

I. SUMMARY OF ARGUMENT

1

II. ARGUMENT

3

A. Appellee States Will Fail On The Merits

3

B. President's Power To Regulate Entry Into The

United States Is Clear And Almost Unlimited

4

C. Executive Order Targets "Failed States" Plus

Terrorist Sponsor, Hostile Iran, Not Religion

4

D. Appellees Misrepresent 8 U.S.C. § 1152(A)(1)(A)

7

E. Straw-Man Argument Of Religious Discrimination

10

F. Irreparable Harm Supports The Executive

Order, Not The Appellees

12

G. Enjoining The Executive Order Is Mistaken

15

I. Forum Non Conveniens And Judge Shopping

16

III. REQUEST FOR ORAL ARGUMENT

18

III. CONCLUSION

18

ii

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 3 of 40

(3 of 42)

TABLE OF AUTHORITIES
Cases Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952)................................................................... 4 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)........................................................................ 17 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001) ........... 3 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008) 3 Zivotofsky v. Kerry, 576 U.S. ___, 135 S. Ct. 2076, 2083-84 (2015) ............................................. 4 Statutes 28 U.S. Code § 1391 ..................................................................................................................... 16 8 U.S. Code § 1182(f) ................................................................................................................. 4, 6 8 U.S.C. § 1152........................................................................................................................... 7, 8 8 U.S.C. § 1152(a)(1)(A) ............................................................................................................ 7, 8 8 U.S.C. § 1182(f)..................................................................................................................... 8, 15 8 U.S.C. § 1187(a)(12)........................................................................................................ 5, 11, 12 Section 212(f) of the Immigration and Naturalization Act ............................................................. 4 Rules Fed. R. Civ. P. 65(b)(1)................................................................................................................... 3 FRAP 29(a)(4)(E) .......................................................................................................................... iv FRAP RULE 26.1 .......................................................................................................................... iv

iii

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 4 of 40

(4 of 42)

FRAP RULE 26.1 AND FRAP 29(a)(4)(E)) DISCLOSURE STATEMENT Freedom Watch, Inc. is a 501(c)(3) not-for-profit organization, with no
parent corporation and no publicly traded stock. In compliance with under FRAP 29(a)(4)(E), the Freedom Watch, Inc.
further states that this brief was authored by counsel for Freedom Watch, without the involvement of counsel for any party in this matter. No party or counsel for such party contributed money that was intended to fund preparing or submitting this brief. No person other than the Amicus or its counsel contributed money that was intended to fund preparing or submitting this brief.

Dated: February 6, 2017

/s/ Larry Klayman Larry Klayman Counsel for Amicus Curiae FREEDOM WATCH, INC.

iv

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 5 of 40

(5 of 42)

STATEMENT OF INTEREST OF AMICUS CURIAE
Amicus Curaie Freedom Watch, Inc. hereby respectfully submits this brief to assist the Court and the ends of justice pursuant to the Federal Rules of Appellate Procedure ("FRAP") Rule 29. Counsel for the Appellants and Appellees have given their consent to this filing and therefore pursuant to FRAP Rule 29 and Circuit Rule 29, on the direction of said rules, a separate motion for leave to file this brief is not required.
Freedom Watch is a public interest group dedicated to preserving freedom, pursuing individual rights and civil liberties, preserving the rule of law and public confidence in the courts, and fighting for ethics in government and the judicial system, as well as investigating and prosecuting government corruption and abuse. As part of its goal to remain constant to the principles of the Founding Fathers, Freedom Watch is dedicated to ensuring the rights of all citizens through action, frequently with legal cases and other means.
Previously, Freedom Watch filed an Amicus Curiae brief before the U.S. Supreme Court in a related case, Arizona v. United States, 567 U.S. __, 132 S.Ct. 2492 (2012) which addressed some of the legal issues and considerations implicated here. Similarly, Freedom Watch filed Amicus Curiae briefs before the U.S. Supreme Court and the U.S. District Court for the Southern District of Texas in Texas v. United States, 787 F.3d 733 (5th Cir. 2015), and brought a parallel
v

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 6 of 40

(6 of 42)

case Arpaio v. Obama , in a petition before the U.S. Supreme Court as Case No. 15-643, including a petition for writ of certiorari in the U.S. Supreme Court concerning somewhat similar issues regarding President Barack Obama's authority to disregard federal law on immigration by Executive Order.
With the majority of the country's citizens demanding the integrity of the rule of law, enforcement of our nation's immigration laws, protection of the country's borders, and defense of their families, communities, and nation against terrorist threats, Freedom Watch is required to speak on behalf of those unable to do so. As such, consistent with its mission, Freedom Watch seeks to provide the means and mechanism to protect American citizens’ rights in this matter of great public interest and to uphold our constitutional system of separation of powers and the rule of law.

vi

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 7 of 40

(7 of 42)

I. SUMMARY OF ARGUMENT Before the Court is an emergency motion by the Appellants, Defendants
below, for a stay of a Temporary Restraining Order pending a full appeal and resolution of the case below. Here, Amicus Curiae Freedom Watch respectfully offers its analysis for the benefit of this Court on that decision immediately before the Court concerning a stay. As other aspects of the case come before the Court, it is likely that the Amicus Curiae may also have additional observations to offer at a later time as the case progresses.
On January 27, 2017, President Donald Trump issued an Executive Order "Protecting the Nation from Foreign Terrorist Entry into the United States," attached hereto as Exhibit A. The Executive Order is clearly, unambiguously, and explicitly aimed at the U.S. Government improving its methods for investigating, screening, and filtering ("vetting") entrants into the United States to do a better job of protecting the people Washington state, Minnesota and the rest of the nation against the risk of terrorist attacks. It is dramatically false to misrepresent the Executive Order. Its focus is to improve discrimination between terrorists, terrorist support networks, and terrorist sympathizers as opposed to others who present no danger to the country, based exclusively upon demonstrated empirical risks of actual terrorism.

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 8 of 40

(8 of 42)

The President of the United States, as constitutional head of the nation's international relations and foreign policy, and as Commander in Chief, entered a formal finding that -- in direct opposition to the arguments of the Appellees -- the status quo of complacency and lax border enforcement presents a clear and present danger to the national security of the United States. In the language of the governing statute, President Trump entered a finding that entry from seven failed or dangerous states "would be detrimental to the interests of the United States."
In fact, because the issue is the risk of terrorism, not religion, the Muslim nation of Kuwait has also implemented a travel ban from five (5) of the same seven (7) countries covered by the Executive Order.1 A Muslim country has banned travel from five of the same Muslim countries. But the Appellees seek to obscure this reality that national security, not religion, is at stake.
The three crucial questions on the issue of a stay are that (1) the TRO makes no attempt to demonstrate a likelihood of success on the merits by the PlaintiffsAppellees, who cannot succeed on the merits under the prevailing law, and (2) the persons -- who are strangers to the case, for whom the Appellees purport to speak - cannot show irreparable damage where each is eligible for an individual waiver

1

"After Trump, Now Kuwait Bans 5 Muslim-Majority Countries, Including Pakistan,"

NDTV, February 2, 2017, accessible at: http://www.ndtv.com/world-news/kuwait-bans-5-

muslim-majority-countries-including-pakistan-1655311

2

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 9 of 40

(9 of 42)

and the Executive Order creates only a 90 day pause in entry from the world's seven most dangerous countries, and (3) the Appellees lack standing. II. ARGUMENT
A. APPELLEE STATES WILL FAIL ON THE MERITS The Temporary Restraining Order ("TRO") in the U.S. District Court for the
Western District of Washington ("District Court") is fatally flawed because it does not even attempt to show that the Plaintiff State have any chance of succeeding in their lawsuit in the end. This is a central requirement.
To obtain a temporary restraining order, the Appellees must have established (1) a likelihood of success on the merits; (2) that irreparable harm is likely in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and 4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008); Fed. R. Civ. P. 65(b)(1); Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001).
Here, of course, the Appellants seek a stay of a stay (TRO). However, if the February 3, 2017, TRO is fatally flawed, which it is, then the moving Appellants here are entitled to a stay from the Ninth Circuit of the defective TRO. That is, the Appellants will prevail on the merits of challenging the TRO if it is deficient.

3

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 10 of 40

(10 of 42)

B. PRESIDENT'S POWER TO REGULATE ENTRY INTO THE UNITED STATES IS CLEAR AND ALMOST UNLIMITED
Congressional legislation confirms the President’s authority in 8 U.S. Code
§ 1182(f), which is Section 212(f) of the Immigration and Naturalization Act:
(f) 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.
However, even without the benefit of legislation, the President has inherent
constitutional authority over foreign policy. See, e.g., Zivotofsky v. Kerry, 576
U.S. ___, 135 S. Ct. 2076, 2083-84 (2015). Of course that power is at its zenith
when Congress by statute has agreed by legislation, as here. Youngstown Sheet &
Tube Co. v. Sawyer, 343 U. S. 579 (1952). see also, e.g., Harisiades v.
Shaughnessy, 342 U.S. 580, 588 (1952)) (recognizing that control over
immigration is an integral part of Article II authorities “in regard to the conduct of
foreign relations [and] the war power”).
C. EXECUTIVE ORDER TARGETS "FAILED STATES" PLUS TERRORIST SPONSOR, HOSTILE IRAN, NOT RELIGION
The Appellees misrepresent this case as being about religion, and even if it
were this is irrelevant, as there is not right for foreign aliens of any race, religion,
4

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 11 of 40

(11 of 42)

ethnicity, national origin or sexual preference to enter the United States, if he or
she is not a citizen or permanent resident. And, that bogus argument cannot
survive the clear text of the Executive Order. The Executive Order targets
terrorism. This is not a case about religion at all.
The Executive Order explicitly, clearly, and unambiguously covers only
those countries identified, during the Obama Administration, pursuant to 8 U.S.C.
§ 1187(a)(12), as being the seven most dangerous countries in the world for their
risk of terrorists infiltrating the United States.
Specifically invoking 8 U.S. Code § 1182, President Trump ordered in the
Executive Order, attached (emphasis added):
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 Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
These are so-called "failed states" from whom reliable records cannot be
obtained to sufficiently vet against the risk of terrorism. The seven (7) countries
are selected not because they are Muslim, but because those countries are in chaos
(or in the case of Iran implacably hostile and a state sponsor of terrorism), such
5

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 12 of 40

(12 of 42)

that documents and records related to a person seeking entry into the United States cannot be trusted. Records about potential entrants necessary to investigate and screen entrants for national security purposes are either non-existent or incomplete or worse commonly forged or falsified due to rampant corruption of officials, poverty-stricken bureaucrats, threats of violence or intimidation against bureaucrats, or terrorist infiltration of governments.2
It is beyond reasonable question, that the defining characteristic is the unreliability of records from these seven (7) countries. This is underscored by the temporary 90 day time limit on the Executive Order (in relevant portions).
The Executive Order ignores 42 other Muslim-majority countries. Thus, the fiction of the Appellees that the Executive Order targets religion is untenable and absurd. If the Executive Order constituted discrimination against religion, (a) it would not be limited to only 90 days, and (b) it would not be limited only to those seven countries from whom records necessary for vetting cannot be trusted. The Appellees would have us believe that the Trump Administration seeks to discriminate against Muslims -- but only for 90 days -- and then only from the world's seven most dangerous countries in terms of terrorism.

2

Chuck Ross, " FBI Director Admits US Can’t Vet All Syrian Refugees For Terror Ties

[VIDEO]," The Daily Caller, accessible at: http://dailycaller.com/2015/10/21/fbi-director-

admits-us-cant-vet-all-syrian-refugees-for-terror-ties-video/; Jerry Markon, "Senior Obama

officials have warned of challenges in screening refugees from Syria," The Washington Post,

November 17, 2015, accessible at: https://www.washingtonpost.com/news/federal-

eye/wp/2015/11/17/senior-obama-officials-have-warned-of-challenges-in-screening-refugees-

from-syria/?utm_term=.bc0746040762

6

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 13 of 40

(13 of 42)

The law upon which the Executive Order depends to identify the seven
countries, federal law codified as 8 U.S.C. 1187(a)(12) is designed to allow a
waiver of inadmissible aliens under 8 U.S. Code § 1182(f), as follows.
The Executive Order tracks with the following countries, rather than
identifying any countries itself, as specified in the statute.
(12) Not present in Iraq, Syria, or any other country or area of concern (A) In general Except as provided in subparagraphs (B) and (C)— (i) the alien has not been present, at any time on or after March 1, 2011— (I) in Iraq or Syria; (II) in a country that is designated by the Secretary of State under section 4605(j) of title 50 (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 2780 of title 22, section 2371 of title 22, or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or (III) in any other country or area of concern designated by the Secretary of Homeland Security under subparagraph (D); and (ii) regardless of whether the alien is a national of a program country, the alien is not a national of— (I) Iraq or Syria; (II) a country that is designated, at the time the alien applies for admission, by the Secretary of State under section 4605(j) of title 50 (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 2780 of title 22, section 2371 of title 22, or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or
7

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 14 of 40

(14 of 42)

(III) any other country that is designated, at the time the alien applies for admission, by the Secretary of Homeland Security under subparagraph (D). Thus, the argument is simply unavailable to the Appellees that the Executive Order discriminates against a religion, even were this relevant, which is clearly is not! It targets countries identified by the Obama Administration under federal law as being dangerous sources of terrorism. D. APPELLEES MISREPRESENT 8 U.S.C. § 1152(a)(1)(A)) Yet the Appellee states seek to avoid the clear power of the President by claiming limitation under 8 U.S.C. § 1152. However, that statute clearly related to the annual numerical quotas for immigrant -- non-visitor -- visas from various countries. It clearly has nothing to do with limiting the President's power. The Appellees hang their entire case on seeking to undercut 8 U.S.C. § 1182(f) with a misrepresentation of 8 U.S.C. § 1152(a)(1)(A)). Clearly, 8 U.S.C. § 1152(a)(1)(A) has nothing to do with limiting the President's power under 8 U.S.C. § 1182(f) and directly under the U.S. Constitution. 8 U.S.C. § 1152 concerns numerical limits on visas. By contrast 8 U.S.C. § 1182(f) is directly relevant, addressing "inadmissible aliens." The context in which the subparagraphs appear, as well as their substance, makes clear that there is no limitation on the President's 8 U.S.C. § 1182(f) power. It would lead to an absurd result to interpret 8 U.S.C. § 1152(a)(1)(A) as
8

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 15 of 40

(15 of 42)

prohibiting the President from basing his actions under 8 U.S.C. § 1182(f) on
national origin, for example. The President could not carry out his duties as the
head of the nation's foreign policy and international relations if he were disabled
from considering the country from which potential visitors or immigrants
originate from in carrying out his constitutional foreign policy decisions. Such
an interpretation -- that a person's country cannot be considered -- would
effectively invalidate the President's role in conducting foreign policy. It would
be absurd to conduct foreign policy and international relations while being
blinded to the countries from which visitors and immigrants come.
8 U.S.C. § 1152 : US Code - Section 1152: Numerical limitations on individual foreign states
(a) Per country level (1) Nondiscrimination
(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence. (B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.
(2) Per country levels for family-sponsored and employment-based immigrants
Subject to paragraphs (3), (4), and (5), the total number of immigrant visas made available to natives of any single foreign state
9

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 16 of 40

(16 of 42)

or dependent area under subsections (a) and (b) of section 1153 of this title in any fiscal year may not exceed 7 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.
(3) Exception if additional visas available If because of the application of paragraph (2) with respect to
one or more foreign states or dependent areas, the total number of visas available under both subsections (a) and (b) of section 1153 of this title for a calendar quarter exceeds the number of qualified immigrants who otherwise may be issued such a visa, paragraph (2) shall not apply to visas made available to such states or areas during the remainder of such calendar quarter. (4) Special rules for spouses and children of lawful permanent resident aliens
(A) 75 percent of 2nd preference set-aside for spouses and children not subject to per country limitation
(i) In general Of the visa numbers made available under section 1153(a) of this title to immigrants described in section 1153(a)(2)(A) of this title in any fiscal year, 75 percent of the 2-A floor (as defined in clause (ii)) shall be issued without regard to the numerical limitation under paragraph (2). (ii) "2-A floor" defined In this paragraph, the term "2-A floor" means, for a fiscal year, 77 percent of the total number of visas made available under section 1153(a) of this title to immigrants described in section 1153(a)(2) of this title in the fiscal year.
Id. (Emphasis added).
E. STRAW-MAN ARGUMENT OF RELIGIOUS DISCRIMINATION
The Plaintiff states, Appellees here, have invented a straw man case. This is
not merely a straw-man argument. This entire case is based upon fictions. Having
spun these fictions, the Plaintiff-Appellee states cling desperately to the falsehood
10

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 17 of 40

(17 of 42)

at the core of their case, and strive mightily to distract from the fatal errors in their entire case.
It is surprising -- after reading the emotional hyperbole of the Appellees and Plaintiff states, Amici, and others -- to actually read the operative Executive Order. After reading the pleadings of the Appellees one would imagine a completely different document than the one actually before the Court: (See Exhibit A.)
1) Nowhere does the Executive Order mention Muslims or Islam. 2) Nowhere does the Executive Order mention Christians. 3) Nowhere does the Executive Order mention Jews. 4) Nowhere does the Executive Order mention religion at all. 5) In fact, nowhere does the Executive Order mention any particular
country, nor specify any of the seven (7) countries affected. The clear and present danger to the national security of refugees and travel from hostile Iran as a sponsor of terrorism and six failed states is designated by Congressional statute now codified at 8 U.S.C. § 1187(a)(12) and President Obama's Secretary of State John Kerry. This Court is faced not only with a Presidential finding that travel to the United States from these seven (7) nations presents an unacceptable risk to the people of the United States -- including those in Washington state and Minnesota -- but a Congressional statute agreeing that Iraq and Syria, and the other five designated by Obama's Secretary of State Kerry
11

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 18 of 40

(18 of 42)

present an unacceptable risk to the nation. The Appellees bring their case by asserting fictions that the Executive Order
targets Muslims, even though of the world's 49 Muslim-majority countries,3 the Executive Order bans entry only from seven (7). However, the defining characteristic by which those seven were selected is the inability for the U.S. Government to effectively investigate ("vet") people from those countries due to the near total collapse of those countries as so-called "failed states" and hostile sponsor of terrorism Iran.
In fact, the Executive Order does not even mention the countries affected, but refers instead to the countries designated by the Obama Administration pursuant to 8 U.S.C. § 1187(a)(12) as countries of concern. Because of the chaos created in those countries after the so-called "Arab Spring," and the hostility of Iran, records are either unavailable or easily forged by money-strapped or corrupt officials.4
In other words, a terrorist could present himself at the U.S. border posing as a Hasidic Jew under a false name, and the records from those seven countries are too deficient to confirm the entrant's true identity. It is the nature of the

3

"Muslim-Majority Countries Comprising the Islamic World," Center for the Education of

Women, University of Michigan, accessible at: http://www.cew.umich.edu/muslim_majority ;

The Pew Research Center identifies 49 countries: "The Future of the Global Muslim Population:

Muslim-Majority Countries," Pew Research Center, January 27, 2011, accessible at:

http://www.pewforum.org/2011/01/27/future-of-the-global-muslim-population-muslim-majority/

4

See Footnote 2.

12

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 19 of 40

(19 of 42)

countries, not the religion of entrants that drives the Executive Order. Another fiction of the Appellees' case is the suggestion that the Executive
Order is a ban on entrants when in fact potential entrants can receive waivers on a case-by-case basis and apparently 100% of all affected travels have in fact received waivers allowing them to enter notwithstanding the Executive Order.5 Furthermore, the Executive Order limits entry only during a modest 90 day period while vetting methods are improved.
F. IRREPARABLE HARM SUPPORTS THE EXECUTIVE ORDER, NOT THE APPELLEES The Appellees cannot show irreparable harm or even any legally-cognizable
harm, including because the Executive Order and surrounding law allows each potential visitor, entrant, or immigrant to obtain an individual, case-by-case waiver. There cannot be harm to a potential entrant from the Executive Order when he or she can be granted entrance under a waiver. Indeed, news reports indicate that 100% of all persons who were initially detained upon arriving at U.S. airports under the Executive Order have been cleared to enter the United States and released into the interior of the country. That is, not a single person was denied entry pursuant to the waiver authority. This is fatal to the Appellees' case.

5

"Travelers Detained Due To Trump Travel Ban Released, Attorneys Say," January 28,

2017, CBS News Chicago Channel 2, accessible at:

http://chicago.cbslocal.com/2017/01/28/travelers-detained-due-to-trump-travel-ban-released-

attorneys-say/

13

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 20 of 40

(20 of 42)

The harm that can be identified might be purely financial as a result of delay. By definition, financial costs are not irreparable. While out of pocket expenses due to delay may be inconvenient, they cannot constitute "irreparable harm" for a TRO.
On the other side of the equation, there is irreparable harm to the national security of the United States. Appellees argue that the status quo before the Executive order cannot represent irreparable harm. But that is exactly the Presidential Finding in the Executive Order and the considered judgment of the U.S. Department of State and of the U.S. Congress. It is precisely the finding that the status quo of lax foreign policy, lax enforcement and a careless lack of concern for the safety of the American people has spawned death, violence, and destruction on U.S. soil in recent years.
Actual recent terrorist attacks in San Bernadino, California,6 Boston, Massachusetts,7 Orlando, Florida, and Garland, Texas, 8 and Ft. Lauderdale International Airport in addition to earlier incidents such as the first and second terrorist attacks at the World Trade Center on February 26, 1993 and September,

6

Michael S. Schmidt and Richard Perez-Pena, "F.B.I. Treating San Bernardino Attack as

Terrorism Case," New York Times, December 4, 2015, accessible at:

https://www.nytimes.com/2015/12/05/us/tashfeen-malik-islamic-state.html

7

"Russia warned U.S. about Boston Marathon bomb suspect Tsarnaev: report," Reuters,

March 25, 2014, accessible at: http://www.reuters.com/article/us-usa-explosions-boston-

congress-idUSBREA2P02Q20140326

8

Jim Sciutto, Pamela Brown, Paul Cruic, "ISIS claims responsibility for Texas shooting

but offers no proof," CNN, May 5, 2015, accessible at:

http://www.cnn.com/2015/05/05/us/garland-texas-prophet-mohammed-contest-shooting/; Jim

Sciutto, Pamela Brown, Paul Cruic, CNN, May 5, 2015, accessible at:

http://www.cnn.com/2015/05/05/politics/texas-attack-terror-tweets/index.html

14

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 21 of 40

(21 of 42)

11, 2001. The Executive Order clearly, unambiguously, and explicitly "... suspends
entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days..." Id. (emphasis added). The 90 day suspension is clearly, unambiguously, and explicitly temporary for the purpose of the U.S. Government investigating and developing improved scrutiny, review, and filtering of dangerous applicants. The focus is on improving national security -- not on any religion.
The 90 day suspension is clearly, unambiguously, and explicitly limited to only seven (7) countries identified by President Barack Obama as so-called "failed states" or technically "countries of concern." While conspicuously taking no action concerning the other 42 nations out of the world's 49 Muslim-majority countries, the Executive Order focuses exclusively on actual danger to the country.
Thus, the danger to the national security clearly outweighs temporary delays in travel by persons affected who come from the world's seven most dangerous countries in terms of terrorist activity directed against the United States.
G. ENJOINING THE EXECUTIVE ORDER IS MISTAKEN There are many different kinds of executive orders. This Executive Order is
exercising the President's delegated authority under 8 U.S.C. § 1182(f). Therefore, the District Court is attempting to enjoin the Congressional statute. The President's role in proclaiming a suspension under 8 U.S.C. § 1182(f) is a statutory
15

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 22 of 40

(22 of 42)

role. Thus, it is ineffectual for the District Court to enjoin the Executive Order when the President is exercising his statutory role under 8 U.S.C. § 1182(f). The Appellees are actually attacking the statute.
H. LACK OF STANDING The TRO must also be vacated because the Appellees lack standing. It
is undisputed that the Appellees claim for standing grounds routinely rejected by the courts, at least when a legal challenge is in support of the rule of law and enforcement of immigration laws. The Appellees clearly ground their claim of standing exclusively upon the supposed -- highly speculative -claims of others.
I. FORUM NON CONVENIENS AND JUDGE SHOPPING It is clear that the Appellees, Plaintiff states below, engaged in prohibited
forum-shopping. The Defendants, Appellants here, are all in the District of Columbia. All of the evidence and witnesses are in the District of Columbia or overseas, including the visa processing of potential entrants by the U.S. Department of State. All of the events at issue occurred or are occurring in the District of Columbia.
Venue is governed by 28 U.S. Code § 1391, which requires that: (a)Applicability of Section—Except as otherwise provided by law—
(1) this section shall govern the venue of all civil actions brought in district courts of the United States; and
16

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 23 of 40

(23 of 42)

(2) the proper venue for a civil action shall be determined without regard to whether the action is local or transitory in nature.
(b)Venue in General—A civil action may be brought in— (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. * * *
(e) Actions Where Defendant Is Officer or Employee of the United States—
(1) In general.— A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party. The Court should transfer the case to the U.S. District Court for the District
17

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 24 of 40

(24 of 42)

of Columbia under the doctrine of forum non conveniens. Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) III. REQUEST FOR ORAL ARGUMENT
The Amicus Curiae requests oral argument at hearing consisting of 10 minutes to address these important issues. While Appellees have consented to this instant filing, Appellees do not consent to Amicus Curiae’s request for oral argument. However, this Court should exercise its discretion and grant Amicus Curiae’s request for 10 minutes of oral argument. As set forth in this brief, there are pressing and important national issues at stake here. Amicus Curiae, with its extensive experience in this arena, will be able to provide this Court with important perspective, through oral argument, to assist this Court in rendering its decision. Amicus Curiae’s request for 10 minutes is short, and will not unduly burden this Court or the parties involved, and will be of great utility to this Court. IV. CONCLUSION AND REQUEST FOR ORAL ARGUMENT
The Appellees, Plaintiff States, have set up a constitutional crisis, crippling the President of the United States as Commander in Chief and head of international relations, from carrying out his Constitutional duties under Article II. The U.S. Constitution was developed and ratified largely due to our Founders' realization that in international relations and national defense a single national leader must be free to act for the nation. This is obviously true for the presidency.
18

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 25 of 40

(25 of 42)

Emergency treatment and prompt action on these matters is appropriate. Increasingly-frequent terrorist attacks have been occurring on U.S. soil in response to the spread of radical Islamic terrorism and the rise of the Islamic State of Iraq and Syria (ISIS) styling itself as the re-establishment of an Islamic Caliphate dedicated, in the minds of ISIS, to conquer the entire Earth without exception.
The people who live and work in this circuit, no less than any other large U.S. city as an inviting "soft target," primarily Jews and Christians, are in imminent danger of sworn enemies of the United States of America, enemies who believe in their own minds -- however much we might view things differently ourselves -- that their eternal destiny is contingent upon their murder of Americans to further their religious beliefs. In the case of Islam, this, according to the Quran, is the elimination of “infidels” in the name of Allah. The U.S. Government, of course, cares not why people want to kill us, only that they do. The question is not religion but threats to the nation.
Terrorist supporters and conspirators from the seven dangerous countries may not be the gunmen or bombers who end up in the news. They may also be the ones who train, assist, equip, and finance those who do. Thus, all need to be thoroughly vetted before they are permitted to gain entry into the United States. The president’s executive order merely places a temporary 90 day moratorium on immigration as the new administration develops a truly functional means of this
19

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 26 of 40

(26 of 42)

required vetting, in the interests of national security. Finally, amicus curiae respectfully requests the opportunity to present 10
minutes of oral argument should this Court decide to hold a hearing. This request is in the public interest, for the reasons stated above, as the oral argument of the undersigned will represent the interests of the American citizenry and help this Court focus on and asking questions about the relevant arguments, which are in some instances unique and not identical with those of the parties herein.

Dated: February 6, 2017

Respectfully submitted,

/s/ Larry Klayman, Esq. Larry Klayman, Esq. FREEDOM WATCH, INC. 2020 Pennsylvania Avenue N.W. Suite 345 Washington, D.C. 20006 Telephone: (561) 997-9956 leklayman@gmail.com

CERTIFICATE OF SERVICE
I hereby certify that service of the foregoing motion and proposed brief will be delivered electronically on February 6, 2017, to counsel for Plaintiffs and Defendants through the District’s Electronic Case Filing system.
/s/ Larry Klayman, Esq. Larry Klayman, Esq.
CERTIFICATE OF COMPLIANCE

20

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 27 of 40

(27 of 42)

I hereby certify that this brief is in Times New Roman in 14-point font size, and totals 5,172 words, in keeping with FRAP 29 and Circuit Rules.
/s/ Larry Klayman, Esq. Larry Klayman, Esq.
CERTIFICATE OF FILING BY CONSENT
I hereby certify that counsel for the Appellees and Appellants have given their consent in writing (by email) to the filing of this Amicus Curiae brief.
/s/ Larry Klayman, Esq. Larry Klayman, Esq.

21

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 28 of 40

(28 of 42)

EXHIBIT A

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-prote(c2ti9ngo-nfat4io2n)-for... Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 29 of 40

Speeches & Remarks Press Briefings Statements & Releases Presidential Actions
Executive Orders Presidential Memoranda Proclamations Related OMB Material
Budgetary Impact Analysis Memorandum Statements of Administration Policy Legislation Nominations & Appointments Disclosures
1 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-prote(c3ti0ngo-nfat4io2n)-for... Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 30 of 40

2 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-prote(c3ti1ngo-nfat4io2n)-for... Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 31 of 40

3 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-prote(c3ti2ngo-nfat4io2n)-for... Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 32 of 40

4 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-prote(c3ti3ngo-nfat4io2n)-for... Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 33 of 40

5 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-prote(c3ti4ngo-nfat4io2n)-for... Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 34 of 40

6 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-prote(c3ti5ngo-nfat4io2n)-for... Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 35 of 40

7 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-prote(c3ti6ngo-nfat4io2n)-for... Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 36 of 40

8 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-prote(c3ti7ngo-nfat4io2n)-for... Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 37 of 40

9 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-prote(c3ti8ngo-nfat4io2n)-for... Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 38 of 40

10 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-prote(c3ti9ngo-nfat4io2n)-for... Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 39 of 40

HOME BRIEFING ROOM From the News Room Latest News From the Press Office Speeches & Remarks Press Briefings Statements & Releases Presidential Actions Legislation Nominations & Appointments Disclosures
11 of 12

ISSUES Top Issues America First Energy Plan America First Foreign Policy Bringing Back Jobs And Growth Making Our Military Strong Again Standing Up For Our Law Enforcement Community Trade Deals That Work For All Americans

THE ADMINISTRATION People President Donald J. Trump Vice President Mike Pence First Lady Melania Trump Mrs. Karen Pence The Cabinet Special Events The 58th Presidential Inauguration

PARTICIPATE Join Us Tours & Events Jobs with the Administration Internships White House Fellows Share Your Thoughts We the People Petitions Contact the White House

1600 PENN History & Grounds Presidents First Ladies The Vice President's Residence & Office Eisenhower Executive Office Building Camp David Air Force One Our Government The Executive Branch The Legislative Branch The Judicial Branch The Constitution Federal Agencies &

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-prote(c4ti0ngo-nfat4io2n)-for... Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-1, Page 40 of 40
Commissions Elections & Voting State & Local Government
USA.gov Privacy Policy Copyright Policy

12 of 12

2/5/2017 4:00 PM

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-2, Page 1 of 2

(41 of 42)

Office of the Clerk

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

P.O. Box 193939

Molly C. Dwyer Clerk of Court

San Francisco, California 94119-3939

(415) 355-8000

NOTICE OF APPEARANCE OF COUNSEL or

RE-ASSIGNMENT OF COUNSEL WITHIN THE SAME OFFICE

NOTE: For readability and security, print the filled-in form to PDF (File > Print > PDF Printer/Creator). You may also fill in the form, print it, and then scan the filled-in form to a PDF file.

9th Circuit Case Number(s) 17-35105

Case Name: State of Washington, et al.

v. Donald J. Trump, et. al.

List the name(s) of the party or parties you are representing: FREEDOM WATCH, INC., Amicus Curiae

Appellant Appellee

Petitioner Respondent

Amicus Curiae Intervenor

Appellant/Cross-Appellee Appellee/Cross-Appellant

If this case has been re-assigned to you from another attorney in your office (i.e., the Federal Public Defenders Office, OIL, or a law firm), indicate who you are replacing. Provide the name of counsel only if the attorney is no longer on the case.

I am replacing (name of counsel):

Name Larry Klayman, Esq.

Firm/ Office

Freedom Watch, Inc.

Address 2020 Pennsylvania Avenue, N.W., Suite 345

City Washington, D.C.

State DC

Zip Code 20006

Email leklayman@gmail.com

Re-enter Email leklayman@gmail.com

Phone Number (including area code) (561) 997-9956

Signature (use "s/" format)

Date 02/06/2017

Case: 17-35105, 02/06/2017, ID: 10304535, DktEntry: 84-2, Page 2 of 2
9th Circuit Case Number(s) 17-35105

(42 of 42)

NOTE: For readability and security, print the filled-in form to PDF (File > Print > PDF Printer/Creator). You may also fill in the form, print it, and then scan the filled-in form to a PDF file.

*********************************************************************************
CERTIFICATE OF SERVICE When All Case Participants are Registered for the CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the CM/ECF system

on (date) 02/06/2017

.

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
Signature (use "s/" format)

*********************************************************************************
CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the CM/ECF system

on (date)

.

Participants in the case who are registered CM/ECF users will be served by the CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Signature (use "s/" format)

 
 Case: 17-35105, 02/06/2017, ID: 10304733, DktEntry: 89, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

FEB 6 2017
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

STATE OF WASHINGTON and STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.

No. 17-35105
D.C. No. 2:17-cv-00141 Western District of Washington, Seattle

DONALD J. TRUMP, President of the United States; et al.,

ORDER

Defendants-Appellants.

The previous order regarding live streaming of the oral argument scheduled for February 7, 2017 at 3:00 p.m. PST is clarified as follows:
The live audio stream can be accessed on the court’s public web site at the bottom of the page under the subheading “Live Streaming Oral Arguments,” or from the “Cases of Interest Page” nearer the top through the following link: http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010884
Because the hearing will be conducted telephonically, the stream is audio only and there will be no courtroom proceedings or associated video feed.
FOR THE COURT: MOLLY C. DWYER CLERK OF COURT

 
 Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 1 of 22
No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD J. TRUMP, et al., Defendants-Appellants.
On Appeal from an Order of the United States District Court for the Western District of Washington
__________________________ United States District Judge James L. Robart
Case No. 2:17-CV-00141-JLR
MOTION FOR LEAVE TO FILE BRIEF OF THE JEWISH FEDERATION OF GREATER SEATTLE
AS AMICUS CURIAE IN SUPPORT OF APPELLEES
Matthew P. Bergman BERGMAN DRAPER LADENBURG , PLLC 821 Second Avenue, Suite 2100 Seattle, WA 98104 (T) 206-957-9510 (F) 206-957-9549
Attorneys for Amici Curiae

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 2 of 22
MOTION FOR LEAVE TO FILE BRIEF OF THE JEWISH FEDERATION OF GREATER SEATTLE
AS AMICI CURIAE IN SUPPORT OF APPELLEES Pursuant to Rule 29 of the Federal Rules of Appellate Procedure and Circuit Rule 29-3, The Jewish Federation of Greater Seattle respectfully moves for leave to file a 10-page amicus curiae brief in support of Appellees’ Opposition to Appellants’ Emergency Motion for Stay Pending Appeal. Amicus states as follows: 1. The Jewish Federation of Greater Seattle was founded in 1928 to serve the Jewish community, locally and around the world. Over its nearly nine decades of service, helping immigrants and refugees fleeing overseas persecution has been a central component of the Federation’s mission. In the 1940s, the Federation worked to rescue and resettle Holocaust survivors; in the 1970s and 1980s, the community welcomed Russian emigres fleeing Soviet persecution and in the 1990s and 2000s supported Ethiopian immigrants escaping starvation and civil war on the Horn of Africa. 2. The Federation’s work is affected by the Executive Order issued on January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Order”). 3. The Order represents a significant departure from the principles of compassion, fairness, equity and religious neutrality that have governed the United States immigration policy for more than fifty years and inflicts significant harm on
1

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 3 of 22
the Seattle Jewish Community as a result. The Order makes it more difficult for innocent victims of overseas oppression to seek refuge in the United States, discriminates against asylum seekers who do not subscribe to the Christian faith, and is not rationally related to the governmental objective of protecting Americans from terror.
4. The proposed amicus brief, attached to this motion as Exhibit A, explains how the Order will undermine the mission and goals of the Seattle Jewish Federation and is contrary to law.
5. Counsel for the State of Washington has consented to the filing of an amicus brief.
6. Out of an abundance of caution, amici file this motion to request the Court’s leave to file a 10-page brief.
7. Neither the Federal Rules of Appellate Procedure nor this Court’s Rules clearly authorize the filing of an amicus curiae brief in connection with a motion for a stay, even when the parties have consented to its filing.
8. In addition, Fed. R. App. P. 29(a)(5) states that, except with the Court’s permission, an amicus brief may be no more than one-half the maximum length authorized by these rules for a party’s principal brief. Circuit Rule 27-1(1)(d) does not speak in terms of “briefs,” instead stating that, except with the Court’s permission, a motion or response to a motion may not exceed 20 pages.
2

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 4 of 22
Because it is unclear whether Circuit Rule 27-1 limits amici to 10 pages, and because amici believe that a 10-page brief is warranted in light of the importance and novelty of the issues presented, amici request the Court’s leave to file a 10page brief.
CONCLUSION The Jewish Federation of Greater Seattle respectfully requests that the Court grant its motion for leave to file a 10-page amicus curiae brief and accept for filing the amicus curiae brief attached as Exhibit A. Dated: February 6, 2017
Respectfully submitted, /s/ Matthew P. Bergman Matthew P. Bergman, WSBA #20894 BERGMAN DRAPER LADENBURG 821 Second Avenue, Suite 2100 Seattle, WA 98104 (T) 206-957-9510 (F) 206-957-9549 Attorneys for Amici Curiae
3

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 5 of 22
CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the undersigned counsel certifies that this motion: (i) complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared using Microsoft Office Word 2007 and is set in Times New Roman font in a size equivalent to 14 points or larger and, (ii) complies with the length requirement of Rule 27(d)(2) because it is 506 words. Dated: February 6, 2017
Respectfully submitted, /s/ Matthew P. Bergman Matthew P. Bergman, WSBA #20894 BERGMAN DRAPER LADENBURG
4

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 6 of 22
CERTIFICATE OF SERVICE AND FILING I hereby certify that on the 6th day of February 2017, I electronically filed Motion for Leave to File Brief of The Jewish Federation of Greater Seattle as Amicus Curiae In Support of Appellees 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 who are registered CM/ECF users will be served by the appellate CM/ECF system. Dated: February 6, 2017
Respectfully submitted, /s/ Matthew P. Bergman Matthew P. Bergman, WSBA #20894 BERGMAN DRAPER LADENBURG
5

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 7 of 22
Exhibit A

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 8 of 22
No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD J. TRUMP, et al., Defendants-Appellants.
On Appeal from an Order of the United States District Court for the Western District of Washington
__________________________ United States District Judge James L. Robart
Case No. 2:17-CV-00141-JLR
BRIEF OF THE JEWISH FEDERATION OF GREATER SEATTLE AS AMICUS CURIAE IN SUPPORT OF APPELLEES
Matthew P. Bergman BERGMAN DRAPER LADENBURG, PLLC 821 Second Avenue, Suite 2100 Seattle, WA 98104 (T) 206-957-9510 (F) 206-957-9549
Attorneys for Amici Curiae

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 9 of 22
CORPORATE DISCLOSURE STATEMENT The Jewish Federation of Greater Seattle is a nonprofit corporation. It has no parent corporations, and no publicly held corporation owns any portion of it.
- i -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 10 of 22

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

1

ARGUMENT

1

A. The Executive Order Barring Innocent Refugees is Not Rationally Related to

the Governmental Objective of Curtailing Terrorism.

1

B. The Executive Order Resurrects Discredited Constitutional Arguments. 4

CONCLUSION

9

- ii -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 11 of 22

TABLE OF AUTHORITIES
Cases
Hirabayashi v. United States, 320 U.S. 81, 63 S. Ct. 1375 (1943)
Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987)
Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193 (1944)
Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590 (1958)

4, 6 4, 5, 6, 7
4, 7 8

Rules

Federal Rule of Appellate Procedure 32(a)(7)(C)

9

Rule 32(a)(5)

9

Rule 32(a)(6)

9

Regulations

3 C.F.R. 1092

4

- iii -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 12 of 22
INTEREST OF AMICI CURIAE The Jewish Federation of Greater Seattle was founded in 1928 to serve the Jewish community, locally and around the world. Over nearly nine decades of service, helping refugees fleeing overseas persecution has been an important concern of the Federation. As the community representative of a historically persecuted religious minority, the Jewish Federation stands vigilantly opposed to all forms of racial, ethnic and religious discrimination. Because the Executive Order under challenge bars innocent refugees from seeking refuge in the United States and discriminates against Muslims based primarily on their faith, and because constitutional injuries will accrue immediately if the temporary restraining order is stayed, the Federation has a strong interest in ensuring that the TRO remains in place.
ARGUMENT A. The Executive Order Barring Innocent Refugees is Not Rationally
Related to the Governmental Objective of Curtailing Terrorism. The story of the Jewish community -- like the collective story of the United States -- is one of refugees and immigrants, children and families, seeking safety, opportunity, and a better life in a country founded on the promise of opportunity for all. Over thousands of years, from Israel to Babylon to Egypt to Spain to Western and Eastern Europe, Jews have been torn from their homes through
- 1 -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 13 of 22
violence. This experience has imbued the Jewish Community with a commitment to fulfill the biblical dictum: “You shall not oppress a foreigner, since you yourselves know the feelings of a foreigner, for you also were foreigners in the land of Egypt.” Exodus 23:9.
Washington State has always welcomed strangers and those seeking a new start. Washington’s early leaders were Jewish immigrants -- including a territorial governor and Seattle mayor. In the 20th Century survivors of regional conflict and world wars found a home in our region. They brought hopes for a safer life. They embraced with ingenuity and determination the opportunities unique to the United States.
During the Holocaust, the United States turned down thousands of Jewish refugees seeking sanctuary because they did not look like other Americans, or speak the same language, or practice the same religion. In one of the most infamous cases, in 1939 President Roosevelt turned away the transatlantic liner St. Louis laden with 950 German refugees fleeing Nazi persecution. The ship was sailing so close to Florida that the passengers aboard could see the Miami lights. Nevertheless, with public opinion against taking in refugees — fueled by claims that there were Nazi spies hiding among them or that they were a “menace to America,” - the president shut the doors. With the United States unwilling to let the ship dock and refusing to take in those aboard, the St. Louis turned back to
- 2 -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 14 of 22
Europe. Almost a quarter of the passengers aboard were slaughtered in the Holocaust.
Jewish Family Service, on whose behalf, the Jewish Federation advocates, is one of five refugee resettlement agencies in Washington. Each year, Jewish Family Service resettles 300 refugees across the Puget Sound and helps almost 1,000 refugees and immigrants to make a life here - with job training, language skills, mentoring and support. These are children and families fleeing persecution and violence. Jewish Family Services has nearly 60 refugees waiting across the world, who have already passed the rigorous screening process, airplane tickets in hand and scheduled to travel within the next four weeks. This Executive Order will immediately cancel their travel. Many clients are awaiting reunification with family members who are still stuck overseas. Reinstatement of the Executive Order will prevent their families from joining them in the U.S., leaving them in vulnerable situations.
With more than 65 million people forcibly displaced from their homes, today the world faces the worst refugee crisis since World War II. The refugee screening process is the strictest, most intense of any process for persons trying to enter this country. The Administration has failed to demonstrate how restricting refugees from Syria, Iraq, Iran, Somalia, Yemen, Libya, and Sudan will make America safer. Not a single individual from one of the affected countries has been
- 3 -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 15 of 22
involved in a terrorist attack on American soil since 9/11. While the Executive Branch bears primary responsibility for protecting the homeland from terrorist attack, wholesale exclusion of well-vetted refugees bears no rational relationship to that laudatory objective.
B. The Executive Order Resurrects Discredited Constitutional Arguments.
The Administration castigates the district court for “second-guessing a formal national-security judgment made by the President himself pursuant to broad grants of statutory authority.” Reply Brief at 8. Appellant thus urges this Court to withhold Constitutional and legal scrutiny because the Executive Order was promulgated under the President’s plenary authority over immigration with the ostensible goal of protecting the homeland from terrorist attack. In advancing this argument, the Administration resurrects the same legal rationale that was used in Hirabayashi v. United States, 320 U.S. 81, 63 S. Ct. 1375 (1943), and Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 204–05 (1944), to uphold the forced internment of Japanese Americans during World War II.
On February 19, 1942, President Roosevelt signed Executive Order No. 9066 authorizing the Secretary of War to prescribe military areas from which any or all persons, citizens as well as aliens, might be excluded. Exec. Order No. 9066, 3 C.F.R. 1092 (1938–1943 Comp.). Based upon the authority of the Executive
- 4 -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 16 of 22
Order, General DeWitt began issuing orders requiring certain persons to obey curfew restrictions and report at designated times and places for evacuation from military areas. Hirabayashi v. United States, 828 F.2d 591, 595 (9th Cir. 1987). Pursuant to this order, more than 110,000 Japanese Americans, who mostly lived on the West Coast, were forcibly relocated into internments camps for the duration of the war.
Gordon Hirabayashi was an American citizen of Japanese ancestry born in Seattle, Washington. Id. at 591-92. In 1942, he refused to honor the curfew or to report to the control station and was criminally convicted in the United States District Court for the Western District of Washington. He appealed to the United States Supreme Court on the grounds that the military orders were based upon racial prejudice and violated the protections the Constitution affords to all citizens. Id. As in this case, the Justice Department justified the exclusion and curfew orders upon what it said was a reasonable exercise of national security judgment by the Executive. Id. at 956. The Government argued that because of cultural characteristics of the Japanese Americans, including religion, it was likely that some, though not all, American citizens of Japanese ancestry were disloyal and that because of the military exigencies it could not wait to segregate the loyal from the disloyal. Id. Like Appellants in this case, the government’s brief argued that national classifications were constitutionally permissible when deemed by the
- 5 -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 17 of 22
Executive as necessary for national security.
The classification was not based upon invidious race discrimination. Rather, it was founded upon the fact that the group as a whole contained an unknown number of persons who could not readily be singled out and who were a threat to the security of the nation; and in order to impose effective restraints upon them it was necessary not only to deal with the entire group, but to deal with it at once. Id.
As urged upon this Court by Appellants, the Supreme Court deferred to the
Executive’s Constitutional authority of national security and declined to overturn
the curfew that Hirabayashi was convicted of violating. While recognizing that
racial and ethnic classifications were constitutionally suspect, the Supreme Court
held that because “the Constitution commits to the Executive and to Congress the
exercise of the war power in all the vicissitudes and conditions of warfare, it has
necessarily given them wide scope for the exercise of judgment and discretion in
determining the nature and extent of the threatened injury or danger and in the
selection of the means for resisting it.” Hirabayashi, 320 U.S. at 93.
The following year in The Supreme Court displayed similar deference to the
Executive branch in upholding the forced relocation and internment of 110,000
Japanese Americans.
Exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military
- 6 -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 18 of 22
authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground.
Korematsu, 323 U.S. at 218–19. However, in a stirring dissent that has animated
jurists and scholars for 60 years, Justice Jackson upbraided the Court for abdicating
its Constitutional responsibility to administrative expediency.
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. . . . But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution . . . the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. . . . A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution.
Id. at 245–46 (Jackson, J. dissenting).
This Court recognized that “[t]he Hirabayashi and Korematsu decisions
have never occupied an honored place in our history.” Hirabayashi, 828 F.2d at
593. In the six decades since those opinions were rendered, the legal rationale that
justified the Japanese internments has been relegated to the dustbin of judicial
disrepute -- together with arguments invoked to support Jim Crow laws and gender
- 7 -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 19 of 22
discrimination. Nevertheless, the arguments raised by Appellants to support the Executive Order struck down by the district court in this case are hauntingly familiar to the arguments advanced (and accepted) in Hirabayashi and Korematsu. This Court should reject Appellants’ effort to resurrect arguments that have been long surpassed by “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590 (1958).
Over a hundred years ago, Santayana observed that “[t]hose who cannot remember the past are condemned to repeat it.” G. Santayana THE LIFE OF REASON (1905). Seventy-five years ago, the United States turned away German refugees seeking refuge from Nazi oppression, despite their posing no threat to our country. Sixty years ago, Justice Jackson warned of the enduring consequences to Constitutional liberties where courts abdicate their authority in times of national emergency. The Executive Order before this Court offends long-enshrined Constitutional principles of equal protection and religious neutrality and undercuts America’s example as a beacon of hope for persecuted refugees yearning to breathe free. This Court should heed the lessons from the past and uphold the district court at this historic juncture in our nation’s history.
- 8 -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 20 of 22
CONCLUSION The Court should deny Appellants’ motion. Dated: February 6, 2017
Respectfully submitted, /s/ Matthew P. Bergman Matthew P. Bergman, WSBA #20894 BERGMAN DRAPER LADENBURG 821 Second Avenue, Suite 2100 Seattle, WA 98104 (T) 206-957-9510 (F) 206-957-9549 Attorneys for Amicus Curiae
- 9 -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 21 of 22
CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the undersigned counsel certifies that this brief: (i) complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared using Microsoft Office Word 2007 and is set in Times New Roman font in a size equivalent to 14 points or larger and, (ii) amici have requested leave to file a 10-page brief. Dated: February 6, 2017
Respectfully submitted, /s/ Matthew P. Bergman Matthew P. Bergman, WSBA #20894 BERGMAN DRAPER LADENBURG
- 10 -

Case: 17-35105, 02/06/2017, ID: 10304753, DktEntry: 90, Page 22 of 22
CERTIFICATE OF SERVICE AND FILING I hereby certify that on the 6th day of February 2017, I electronically filed Brief of The Jewish Federation of Greater Seattle As Amicus Curiae In Support of Appellees 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 who are registered CM/ECF users will be served by the appellate CM/ECF system. Dated: February 6, 2017
Respectfully submitted, /s/ Matthew P. Bergman Matthew P. Bergman, WSBA #20894 BERGMAN DRAPER LADENBURG
- 11 -

 
 Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-1, Page 1 of 4

(1 of 27)

Docket No. 17-35105

IN THE
United States Court of Appeals

FOR THE
Ninth Circuit
________________

STATE OF WASHINGTON, ET AL.,

Plaintiffs-Appellees, v.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,

________________

Defendants-Appellants.

On Appeal from the United States District Court for the Western District of Washington Civil Action No. 2:17-cv-00141-JLR The Honorable James L. Robart
_________________________________________________

MOTION FOR LEAVE TO FILE BRIEF OF AMERICAN IMMIGRATION COUNCIL, NATIONAL IMMIGRATION
PROJECT OF THE NATIONAL LAWYERS GUILD, NORTHWEST IMMIGRANT RIGHTS PROJECT, HUMAN RIGHTS FIRST, KIND
(KIDS IN NEED OF DEFENSE), AND THE TAHIRIH JUSTICE CENTER AS AMICI CURIAE IN SUPPORT OF APPELLEES
________________________________________________

HARRISON (BUZZ) FRAHN CA BAR NO. 206822 JONATHAN MINCER CA BAR NO. 298795
SIMPSON THACHER & BARTLETT LLP 2475 Hanover Street
Palo Alto, California 94304 (650) 251-5000

Counsel of Record

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-1, Page 2 of 4

(2 of 27) 1

Northwest Immigrant Rights Project, National Immigration Project of the National Lawyers Guild, American Immigration Council, KIND (Kids in Need of Defense), Human Rights First, and Tahirih Justice Center (collectively, “Amici”) respectfully move for leave to file an amicus curiae brief in support of Appellees’ Response to the Government’s Emergency Motion for Stay Pending Appeal. Counsel for all parties have consented to the filing of an amicus brief; however, out of an abundance of caution, Amici also file this motion to request the Court’s leave to file an amicus brief by 11:59 p.m. on February 6, 2007. Amici state as follows:
1. Amici are organizations that provide, inter alia, legal assistance and technical support to immigrant communities, advocate in favor of immigrant rights, educate the public and policymakers about the enduring contributions of America’s immigrants, and promote justice and equality of treatment in all areas of immigration law.
2. Amici are concerned about the real-life implications of the Executive Order issued on January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”). Amici are concerned with the interference in familial relations that will result from enforcement of the Executive Order, as well as limitations on immigrant travel and economic interests.

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-1, Page 3 of 4

(3 of 27) 2

3. The proposed amicus brief, attached to this motion, explains why the Court should not hear this extraordinary appeal of a temporary restraining order, how the Executive Order will harm amici and the populations they serve, and how the Executive Order is unlawful.
4. Although all parties consented to the filing of an amicus brief, amici file this motion out of an abundance of caution because neither the Federal Rules of Appellate Procedure nor this Court’s Rules expressly address the filing of an amicus brief in connection with a motion for a stay.
5. The Federal Rules of Appellate Procedure and this Court’s Rules similarly are unclear regarding the deadline for filing an amicus brief in light of the expedited briefing schedule on the Appellants’ emergency motion. The Court ordered that Appellees file their opposition by 1:00 a.m. on February 6, 2017, and Appellants file their reply by 3:00 p.m. on February 6, 2017. Out of an abundance of caution, amici request leave to file their amicus brief within twenty-three hours of the filing of Appellants’ reply brief, by 11:59 p.m. on February 6, 2017.
6. Out of an abundance of caution, amici file this motion to request the Court’s leave to file a 16-page brief, because the Federal Rules of Appellate Procedure are unclear as to the permitted length of an amicus brief under these circumstances, and because amici believe that a 16-page brief is warranted in light of the importance of the issues presented.

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-1, Page 4 of 4

(4 of 27) 3

CONCLUSION Amici respectfully request that this Court grant them leave to file the 16-page amicus brief attached hereto.
Respectfully submitted,

/s/ Harrison (Buzz) Frahn Harrison (Buzz) Frahn Jonathan Mincer SIMPSON THACHER & BARTLETT LLP 2475 Hanover Street Palo Alto, California 94304 (650) 251-5000 (650) 251-5002 (fax)
Counsel for Amici Curiae

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 1 of 23

(5 of 27)

Docket No. 17-35105

IN THE
United States Court of Appeals

FOR THE
Ninth Circuit
________________

STATE OF WASHINGTON, ET AL.,

Plaintiffs-Appellees, v.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,

________________

Defendants-Appellants.

On Appeal from the United States District Court for the Western District of Washington Civil Action No. 2:17-cv-00141-JLR The Honorable James L. Robart
_________________________________________________

BRIEF OF THE AMERICAN IMMIGRATION COUNCIL, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, NORTHWEST IMMIGRANT RIGHTS PROJECT, HUMAN RIGHTS
FIRST, KIND (KIDS IN NEED OF DEFENSE), AND TAHIRIH JUSTICE CENTER AS AMICI CURIAE IN SUPPORT OF APPELLEES
________________________________________________

HARRISON (BUZZ) FRAHN CA BAR NO. 206822 JONATHAN MINCER CA BAR NO. 298795
SIMPSON THACHER & BARTLETT LLP 2475 Hanover Street
Palo Alto, California 94304 (650) 251-5000

Counsel of Record

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 2 of 23

(6 of 27)

CORPORATE DISCLOSURE STATEMENT
I, Harrison Frahn, attorney for Amici Curiae, certify that amici are not-for-
profit organizations. No amicus has a parent corporation; nor issues stock; nor
does there exist a publicly held corporation that owns 10% or more of the stock of
any amicus.
/s/ Harrison (Buzz) Frahn Harrison (Buzz) Frahn SIMPSON THACHER & BARTLETT LLP 2475 Hanover Street Palo Alto, California 94304 (650) 251-5000 (650) 251-5002 (fax)
Counsel for Amici Curiae

i

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 3 of 23

(7 of 27)

TABLE OF CONTENTS
Page SUMMARY OF ARGUMENT .................................................................................4
ARGUMENT .............................................................................................................5
I. APPELLANTS CANNOT APPEAL THE TEMPORARY RESTRAINING ORDER......................................................................5
II. THE JUDICIARY MUST ACT AS A CHECK ON PRESIDENTIAL ACTIONS. ...............................................................9
III. THE EXECUTIVE ORDER CAUSES IRREPARABLE HARM TO NUMEROUS INDIVIDUALS AND ORGANIZATIONS. ........11
CONCLUSION ........................................................................................................15

ii

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 4 of 23

(8 of 27)

TABLE OF AUTHORITIES
Page(s)
CASES
Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978)..............................................................................6
Alsea Valley All. v. Dep’t of Commerce, 358 F.3d 1181 (9th Cir. 2004) ..............................................................................9
Bolling v. Sharpe, 347 U.S. 497 (1954)............................................................................................12
Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) ..............................................................................10
Envtl. Def. Fund, Inc. v. Andrus, 625 F.2d 861 (9th Cir. 1980) ................................................................................6
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)..................................................................................................9
Marbury v. Madison, 5 U.S. 137 (1803)..................................................................................................5
Meyer v. Nebraska, 262 U.S. 390 (1923)............................................................................................12
Moore v. City of E. Cleveland, 431 U.S. 494 (1977)............................................................................................11
Ne. Ohio Coal. for Homeless & Serv. Employees Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999 (6th Cir. 2006) ................................................................................6
Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d 1091 (9th Cir. 2008) ..............................................................................8
Orange Cty. v. Hongkong & Shanghai Banking Corp., 52 F.3d 821 (9th Cir. 1995) ..............................................................................5, 6
Pierce v. Soc’y of Sisters, 268 U.S. 510 (1928)............................................................................................12
Religious Tech. Ctr. v. Scott, F.2d 1306 (9th Cir. 1989) .....................................................................................7

iii

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 5 of 23

(9 of 27)

Thompson v. Enomoto, 815 F.2d 1323 (9th Cir. 1987) ..............................................................................8
Valdivia v. Schwarzenegger, 599 F.3d 984, 988 (9th Cir. 2010) ........................................................................8

STATUTES 28 U.S.C.A. § 1291 ....................................................................................................6

iv

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 6 of 23

(10 of 27)

CONSENT TO FILE AS AMICI CURIAE All parties consent to the filing of this brief.

1

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 7 of 23

(11 of 27)

INTEREST OF AMICI CURIAE The American Immigration Council is a national non-profit organization established to increase public understanding of immigration law and policy, advocate for the just and fair administration of our immigration laws, protect the legal rights of noncitizens, and educate the public about the enduring contributions of America’s immigrants. The National Immigration Project of the National Lawyers Guild is a non-profit membership organization of immigration attorneys, legal workers, grassroots advocates, and others working to defend immigrant rights. The Northwest Immigrant Rights Project (“NWIRP”) is a Washington State nonprofit organization that promotes justice by defending and advancing the rights of immigrants through direct legal services, systemic advocacy, and community education. NWIRP strives for justice and equity for all persons, regardless of where they were born. Human Rights First (formerly known as the Lawyers Committee for Human Rights) has worked since 1978 to promote fundamental human rights and to ensure protection of refugees’ rights, including the right to seek and enjoy asylum. Human Rights First grounds its refugee protection work in the standards set forth in the 1951 Convention Relating to the Status of Refugees (the “Refugee Convention”), the 1967 Protocol Relating to the Status of Refugees (the “1967

2

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 8 of 23

(12 of 27)

Protocol”), the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and other international human rights instruments, and advocates adherence to these standards in the policies, practices and laws of the United States government. Human Rights First also operates one of the largest pro bono asylum representation programs in the country, providing legal representation without charge to hundreds of indigent asylum applicants each year. Human Rights First is committed to ensuring that all protections granted under the 1951 Refugee Convention and the 1967 Protocol remain available to refugees and asylum seekers in the United States.
KIND (Kids in Need of Defense) (“KIND”) is the leading organization committed to ensuring high-quality legal representation for immigrant children appearing in immigration court.
Tahirih Justice Center is a national non-profit that has served courageous individuals fleeing violence since 1997. Through direct services, policy advocacy, and training and education, Tahirih protects immigrant women and girls and promotes a world where women and girls enjoy equality and live in safety and dignity. Tahirih serves immigrant women and girls who have rejected violence, but face incredible obstacles to justice, including language barriers, lack of resources, and a complex immigration system. Some are U.S. citizens or have another type of resident status. Some do not.

3

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 9 of 23

(13 of 27)

case.1

All six organizations have a direct interest in the outcome of this

SUMMARY OF ARGUMENT

As an initial matter, our nation’s laws make clear that this appeal

should not be heard at all. Temporary restraining orders are generally non-

appealable, and Appellants have provided no credible argument otherwise. But if

the Court does consider this appeal, it clearly should not reverse the district court’s

temporary restraining order (“TRO”).

As President George Washington wrote to a religious minority

community containing many immigrants in 1790, “the government of the United States . . . gives to bigotry no sanction, to persecution no assistance.”2 From as

early as the arrival of the Pilgrims, this land has been a haven for immigrants,

regardless of their faith and country of birth. Freedom of religion and from the

establishment of religion are, of course, enshrined in our First Amendment.

1 All parties have consented to the filing of this brief. Amici state that no party’s counsel authored this brief in whole or in part, that no party or party’s counsel contributed money that was intended to fund preparing or submitting the brief, and that no person other than amici or their counsel contributed money that was intended to fund preparing or submitting the brief. See Fed. R. App. P. 29(a)(4)(E).
2 From George Washington to the Hebrew Congregation in Newport, Rhode Island, 18 August 1790, NATIONAL ARCHIVES, https://founders.archives.gov/documents/Washington/05-06-02-0135.
4

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 10 of 23

(14 of 27)

The Executive Order hews away at these foundations of our nation. If this Court reverses the TRO, scores of refugees, students, professors, skilled workers, and many others who already have been approved to enter, or re-enter, the United States will be blocked from doing so solely based on their religion or national origin. For U.S. citizens and legal permanent residents (“LPR”) who petitioned for immigrant visas for their family members and for the family members themselves, reversal of the TRO would cause them to lose their fundamental, constitutional right to live together as a family.
As organizations committed to serving and advocating on behalf of the nation’s immigrant populations, amici urge this Court to recognize the incalculable and irreparable harms that immigrant families will face under the Executive Order, by refusing to lift the District Court’s TRO.
Appellants argue that the President has the unfettered right to suspend the entry of aliens, even if based on their religion or national origin. But we live in a nation “of laws and not men.” Marbury v. Madison, 5 U.S. 137, 163 (1803). And the Constitution and Immigration and Nationality Act (“INA”) make clear that such distinctions are forbidden.
ARGUMENT I. APPELLANTS CANNOT APPEAL THE TEMPORARY
RESTRAINING ORDER This Court lacks jurisdiction to hear this appeal because “courts of
5

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 11 of 23

(15 of 27)

appeals may review only final decisions of district courts.” Orange Cty. v. Hongkong & Shanghai Banking Corp., 52 F.3d 821, 823 (9th Cir. 1995) (internal quotation omitted); 28 U.S.C. § 1291. The general rule is that the grant of a TRO is not subject to interlocutory review. “The rationale for this rule is that TROs are of short duration and usually terminate with a prompt ruling on a preliminary injunction, from which the losing party has an immediate right of appeal.” Ne. Ohio Coal. for Homeless & Serv. Emps. Int'l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1005 (6th Cir. 2006). There are three general exceptions to this rule. One exception is if the case touches on extraordinary considerations or the infliction of irreparable consequences. Id. at 1005–06 (6th Cir. 2006); Adams v. Vance, 570 F.2d 950, 955–56 (D.C. Cir. 1978). The second exception is where “the denial of the temporary restraining order is tantamount to the denial of a preliminary injunction.” Envtl. Def. Fund, Inc. v. Andrus, 625 F.2d 861, 862 (9th Cir. 1980). Finally, courts have allowed interlocutory appeals of temporary restraining orders if the stays “do not preserve the status quo but rather act as a mandatory injunction requiring affirmative action.” Ne. Ohio Coal., 467 F.3d at 1006 (6th Cir. 2006). None of these exceptions apply here.
First, the TRO in this case acts to preserve the status quo, and there is no factual evidence of irreparable harm before it expires and the preliminary injunction can be considered. See, e.g., Ne. Ohio Coal., 467 F.3d 999, 1006 (6th

6

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 12 of 23

(16 of 27)

Cir. 2006). Appellants cite to no incidents of national security violations from individuals subject to the Executive Order that justify a reversal of the status quo for purposes of the appeal of the TRO grant.
Second, the granting of the TRO in this case is not tantamount to the denial of a preliminary injunction. The practical length of the TRO is sufficiently short and no decision on the merits was made by the District Court’s order. Cf. Religious Tech. Ctr. v. Scott, 869, F.2d 1306, 1309 (9th Cir. 1989) (finding that a TRO denial was tantamount to denial of a preliminary injunction where “[t]he futility of any further hearing was [] patent” because the decision was based on the merits).
Finally, the TRO in this case does not act as a mandatory injunction. The TRO simply halts the Executive Order from applying while the District Court considers the legal arguments and the evidence the State Plaintiffs will present at the preliminary injunction stage.
Appellants are unable to show they will suffer “serious, perhaps irreparable consequences.” Ne. Ohio Coal., 467 F.3d at 1005. In fact, Appellants have failed to demonstrate any harm by allowing those affected to enter the country. In the last 30 years, no individual from the seven affected countries has killed an American in a terrorist attack in the United States. See Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security”
7

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 13 of 23

(17 of 27)

Reasons, CATO INSTITUTE (Jan. 26, 2017), https://www.cato.org/blog/guidetrumps-executive-order-limit-migration-national-security-reasons. So, rather than facing serious, irreparable consequences, Appellants’ compliance with the District Court order will spare them the expense of reprocessing those who have already been approved. The order is thus unlike those orders found to have irreparable consequences because of “numerous costly obligations,” Valdivia v. Schwarzenegger, 599 F.3d 984, 988 (9th Cir. 2010), or interference with other actions, see Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d 1091, 1097 (9th Cir. 2008).
Finally, because the District Court is moving forward to hear the preliminary injunction motion, Appellants will not be able to show the order “can be effectively challenged only by immediate appeal.” Thompson v. Enomoto, 815 F.2d 1323, 1327 (9th Cir. 1987). Appellants will be able to present their arguments on the constitutionality and importance of the Executive Order to this Court after the District Court issues a final ruling. This Court found an order can be effectively challenged by immediate appeal only when there are significant costs to the party, and “[a] decision by us months or years after that cannot repair the damage.” Valdivia, 599 F.3d at 988 (citing Negrete, 523 F.3d at 1097). But Appellants have not demonstrated any cost to delaying implementation of the Executive Order, nor have they established that the District Court will delay

8

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 14 of 23

(18 of 27)

issuing a ruling for “months or years.” In short, “no aspect of the district court’s ruling vitiates the [Appellants’] access to appellate review of the eventual outcome of the district court’s decision.” Alsea Valley, 358 F.3d at 1184. II. THE JUDICIARY MUST ACT AS A CHECK ON PRESIDENTIAL
ACTIONS. Appellants argue that this Court should not look behind the
President’s proffered explanation that his Executive Order was issued for legitimate national security reasons, despite contemporaneous public statements by the President and his advisers indicating that unlawful animus was in fact the prime motivation. Supreme Court “precedents, old and new, make clear that concerns of national security and foreign relations do not warrant abdication of the judicial role.” Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010). Despite this clear command to the contrary, Appellants insist that this Court must close its eyes to the evident indications of animus.
Beginning as early as December 2015, and throughout the Presidential campaign, President Trump repeatedly called for a “total and complete shutdown of Muslims entering the United States.”3 Most recently, just two days after the

3 Press Release, Donald J. Trump for President, Inc., Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-onpreventing-muslim-immigration.
9

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 15 of 23

(19 of 27)

Executive Order was issued, former New York City Mayor and Trump advisor Rudy Giuliani stated that the President sought to impose a “Muslim ban.”4
These statements, taken together, provide a strong basis for this Court to decline to defer to the government’s purported national security rationale. Courts have refused to take the government’s assertions at face value where there is a risk of “complete deference in all facets of immigration law,” particularly where the law “infringe[s] upon the Constitution.” Detroit Free Press v. Ashcroft, 303 F.3d 681, 685 (6th Cir. 2002). Here, Appellants seek to exclude whole nations of individuals—without any individualized consideration—so it is difficult to fathom what legitimate purpose the Executive Order could have. While Appellants claim a national security interest, there is no basis to believe a national security threat is posed by all nationals of the seven affected countries, much less nationals of those countries who are now here as LPRs or whose visa applications have been approved by the U.S. government. In the absence of some more concrete basis for the stated national security rationale, reversing the TRO would set a precedent preventing review of any alleged constitutional violations when the President claims a national security interest.

4 Amy B. Wang, Trump asked for a ‘Muslim ban,’ Giuliani says – and ordered a commission to do it ‘legally,’ WASHINGTON POST (Janary 29, 2017).
10

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 16 of 23

(20 of 27)

III. THE EXECUTIVE ORDER CAUSES IRREPARABLE HARM TO NUMEROUS INDIVIDUALS AND ORGANIZATIONS. The Executive Order already has harmed—and, if the Temporary
Restraining Order is lifted, will continue to harm—numerous and varied categories of people and organizations. These categories include, but are not limited to (1) U.S. citizens and LPRs with family overseas, and those family members themselves; (2) foreign nationals lawfully present in the United States with valid immigrant and non-immigrant visas; (3) for-profit corporations that employ foreign nationals; and (4) non-profit organizations that seek to serve refugees. Amici seek to strengthen diversity and promote justice and equality. Connected by our common humanity, amici believe that these groups’ interests reflect the broader interests of American society. The individual and organizational harms faced by these groups are irreparable, weighing against a stay of the TRO issued by the District Court.
U.S. citizens, LPRs, and overseas visa applicants from Iraq, Iran, Libya, Somalia, Sudan, Syria, or Yemen (together the “banned countries”) are currently suffering concrete harms to their recognized liberty interest in maintaining familial relationships, specifically in the right to live together as a family. See Moore v. City of E. Cleveland, 431 U.S. 494 (1977). The Supreme Court long has held that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s
11

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 17 of 23

(21 of 27)

history and tradition.” Id. at 503; see also Pierce v. Soc’y of Sisters, 268 U.S. 510 (1928); Meyer v. Nebraska, 262 U.S. 390 (1923).
By utilizing a discriminatory test to prevent U.S. citizens and LPRs from sponsoring family members who are nationals of the seven targeted countries for lawful permanent residence, the Executive Order violates the constitutional rights of these U.S. citizens, LPRs, and overseas visa applicants to familial relations. Specifically, it violates their right to the equal protection guarantee inherent in the Due Process Clause of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497 (1954). It is beyond question that U.S. citizens, LPRs, and overseas visa applicants have concrete Due Process interests at stake when the government interferes with their familial relations on the basis of national origin.
That these harms to U.S. citizens, LPRs, and their family members have resulted from the Executive Order is not speculative, but rather self-evident in countless individual stories of husbands separated from wives5 and children

5 See, e.g., Decl. of Abdelaziq Adam, Ex. A; Decl. of Carol E. Edwards, Ex. B; Decl. of Elias Abdi, Ex. C; Decl. of Jaffer Akhlaq Hussain, Ex D. The declarations cited in and attached to this brief are from pleadings filed on February 6, 2017 by the American Immigration Council, the National Immigration Project of the National Lawyers Guild, and the Northwest Immigrant Rights Project in Ali, et al. v. Trump, et al., No. 2:17-cv-00135JLR (W.D. Wash. 2017).
12

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 18 of 23

(22 of 27)

separated from parents.6 Many of these separated family members have not been able to see each other for years due to the already long and thorough vetting process that foreign nationals must pursue to obtain visas.7 This lengthy process also imposes significant financial hardship on the U.S.-based sponsors as they sometimes must pay the visa application fees while supporting their separated family members at a higher cost than if the family members were able to live with them in the United States. See e.g., Decl. of Abdelaziq Adam, Ex. A ¶ 9. That financial hardship will multiply if the TRO is lifted and their separation prolonged. Additional economic harms resulting from canceled plane tickets and temporary housing for those who had expected to travel to the United States rapidly reach into the thousands of dollars. See, e.g., Decl. of Elias Abdi, Ex. C ¶ 5; Decl. of Ahmed Mohammad Ahmed Ali, Ex. E ¶ 23. U.S. and LPR sponsors of family members trying to escape war-torn countries such as Syria and Iraq also must grapple with the emotional toll arising from constant fear for their loved ones’ safety. See, e.g., Decl. of Ghassan Tahhan, Ex. G ¶ 5. These U.S. citizens and LPRs, as well as the

6 See, e.g., Decl. of Ahmed Mohammed Ahmed Ali, Ex. E; Decl. of Azin Safari, Ex. F; Decl. of Ghassan Tahhan, Ex. G; Decl. of Hesam Moazzami Farahani, Ex. H; Decl. of Mohamed Barre Omar, Ex. I; Decl. of Nikoo Niknejad, Ex. J.
7 Decl. of Azin Safari, Ex. F; Decl. of Hesam Moazzami Farahani, Ex. H.
13

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 19 of 23

(23 of 27)

individuals they sponsor, are constitutionally protected and should be spared further irreparable harm during the pendency of this litigation.
Foreign nationals from the banned countries already present in the United States pursuant to lawful spousal, student, employment, and other immigrant and non-immigrant visas also would suffer irreparable harm if the TRO is stayed and the administration is once again allowed to enforce the Executive Order. These foreign nationals are prevented from traveling internationally while the Executive Order is in effect because they will be unable to re-enter despite their valid visas. This ban on travel into the country – effectively operating as a ban on travel out of the country – prevents students from seeing their families during school breaks and inhibits the ability of employees to do business on a global scale. It similarly prohibits travel to share once in a lifetime events with overseas family, including births, weddings, and funerals, even if the destination is not one of the banned countries.
Likewise, staying the TRO would inflict harm at the organizational level. Non-profit organizations serving refugee communities in the United States, including faith-based organizations, are prevented from fulfilling their missions while the Executive Order is in effect because of its categorical ban on all refugees. For-profit corporations and other enterprises are also harmed by the Executive

14

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 20 of 23

(24 of 27)

Order.8 These companies rely on skilled foreign workers to fuel their innovation,

revenue generation, and job creation. Moreover, these workers must often be able

to travel to carry out corporate goals. The interruption to normal immigration

processes caused by the Executive Order materially harms these corporations’

ability to conduct business, hurting their bottom lines and the local economies they

support.

These individual and organizational harms are irreparable.

Individuals who are prevented from returning home, traveling for work, and

reuniting with family are suffering ongoing harms that can never be adequately

redressed. Whether the harms are lost profits and job opportunities, or graver ones

such as the threat of bodily harm or death of family members trapped in war-torn

countries, the District Court was correct to issue a TRO, and this Court should not

reverse that decision.

CONCLUSION

For the foregoing reasons, amici respectfully request that the Court

deny Appellants’ request for a stay.

Dated: February 6, 2017

Respectfully submitted,

/s/ Harrison (Buzz) Frahn

8 See generally Br. of Technology Companies and Other Businesses as Amici Curiae in Support of Appellees. ECF No. 19.

15

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 21 of 23

(25 of 27)

Harrison (Buzz) Frahn Jonathan Mincer SIMPSON THACHER & BARTLETT LLP 2475 Hanover Street Palo Alto, California 94304 (650) 251-5000 (650) 251-5002 (fax)
Counsel for Amici Curiae

16

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 22 of 23

(26 of 27)

CERTIFICATE OF COMPLIANCE WITH RULE 32(G)(1) 1. This brief complies with the type-volume limitations of Fed. R. App. P. 29 and 32(a)(7)(B) because it contains 3159 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and amici have requested leave to file a 16-page brief.
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14 point Times New Roman font.

/s/ Harrison (Buzz) Frahn Harrison (Buzz) Frahn Jonathan Mincer Counsel for Amici Curiae

17

Case: 17-35105, 02/06/2017, ID: 10304762, DktEntry: 91-2, Page 23 of 23

(27 of 27)

CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/EMF system.
I hereby certify that on February 6, 2017, the foregoing document was served on all parties or their counsel of record through the CM/EMF system.
/s/ Jonathan Mincer Jonathan Mincer Counsel for Amici Curiae

18

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-1, Page 1 of 5

(1 of 49)

EXHIBIT A

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-1, Page 2 of 5

(2 of 49)

Honorable James L. Robart

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2: 17-cv-00135-JLR II Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf of themselves as individuals and on
13 behalf of others similarly situated,

DECLARATION OF ABDELRAZIQ ADAM IN SUPPORT OF PLAINTIFFS

14

Plaintiffs,

15 v.
16
Donald TRUMP, President ofthe United States 17 of America; U.S. DEPARTMENT OF STATE;
Tom SHANNON, Acting Secretary of State; 18 U.S. DEPARTMENT OF HOMELAND 19 SECURITY; John F. KELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND 20 IMMIGRATION SERVICES; Lori
SCIALABBA, Acting Director ofUSCIS; 21 OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY, Acting
Director ofNational Intelligence,
23
Defendants.
24

25

26

27

28
DECLARATION OF ABDELRAZIQ ADAM Case No.2: 17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-0

Seattle, WA 98104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-1, Page 3 of 5

(3 of 49)

I, Abdelraziq Adam, declare under penalty of perjury as follows:

2 1.

I am a United States (U.S.) citizen and I live in Burien, Washington State. I am a

3
University of Washington (UW) Alumni, and current UW student earning a Post Baccalaureate

4

in Accounting.
5

2.
6

I was born in Sudan, and I came to the U.S. when I was about 20 years old. I became a

U.S. citizen in around 2012. When I moved to the U.S., I had no family, and my English skills
7

were very limited. I worked in warehouses and assembly production lines, and I was able to
8

attend Highline Community College in the evening. I did successfully complete my Associate of
9

10 Arts perquisites and then transferred to UW. During my academic career, I did encounter many

II hardships; my mother passed away, and two years later my father passed away. Yet, I have been

12 part of Washington State communities. I volunteered for middle schools for two quarters and

13 help students in various subjects. I also helped many high school students through UW Dream

14 Project; I recall helping students with their personal statement letters, scholarship applications

15 and the process of college admission. Moreover, I did take advantage of my Accounting skills

16 and helped low income communities to file their tax returns. Furthermore, I volunteered six

17 month for Washington State Attorney General's Office in the Consumer Protection Division.

18 These are few of the activities that I participated in during my academic career.

19 3.

My wife's name is Alya Ahmed, and she is from Sudan. We have been married since

20 May 3, 2013. During our relationship, I did visit my wife three times, and the last time I visited

21 her was in March 2016.

22 4.

In June 2014, I did submit form I-130 petition, and the United States Citizenship and

23
Immigration Services (USCIS) approved my wife's petition. I paid the required fees for my

24
wife's consular process on February 27, 2015.

25
5.

My wife had an interview in November 2015, but the Consulate thought that we were

26 first cousins, and they returned to USCIS for review. However, the USCIS found no evidence

27
that we were first cousins. Therefore, the USCIS reaffirmed my wife's petition, and they 28

DECLARATION OF ABDELRAZIQ ADAM Case No. 2:17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

- .I

Seattle, WA 98104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-1, Page 4 of 5

(4 of 49)

forwarded to the National Visa Center (NYC).

2 6.

On January 24, 2017, the NYC notified me by mail that they completed the review, and

3
they were forwarding my wife's case to the U.S. Consulate in Khartoum. The process of my
4
wife's case has taken over two years, and as a result of President Trump's executive order that
5

banned all Sudanese visas for at least 90 days, the U.S. Consulate in Sudan refuses to issue a visa
6

to my wife even though all the documents have been submitted, reviewed and approved. The
7

case status of my wife with the NYC now says it's under administrative processing, updated
8

9 January 30, 2017.

IO 7.

I have not seen my wife since March 2016, and this executive order has at least two

II irreparable impacts on our lives:

I2 8.

First, I am on my final quarter to graduate, and I cannot focus on my studies. I also have

I3 trouble sleeping well because I worried what would happen to my wife. In addition, as a citizen,

14 I am concern about my constitutional rights because this executive order is discriminatory. My

15 wife lives alone in Sudan, and she does not know what would happen to her. Since my parents

16 passed away and had no chance to attend any of my graduations, I was hoping my wife could

17 attend this lifetime opportunity.

I8 9. Second, I am financially responsible to pay a rent here and in Sudan and other living
19 expenses to wife, and I do budget about $550 monthly to support her. The Consulate already
20 consumed one year suspecting that we were first cousins, and I did spend about $7,000 during
21 that time supporting my wife. I also spent $1,500 for airfares when I went to visit her in March
22 2016 after the Consulate returned her application to USCIS for review. Consequently, this
23
executive order is causing more trauma, anxiety and financial hardship to me and my wife.
24
10. I would like my wife to come to the U.S. because this is my home. We would like to
25
settle together and help each other as a family. Even though I did visit my wife three times 26
during our marriage, we have been a part for about three and half years because those visits were
27
for a short period oftime; I had to return to U.S. to continue my studies. As I mentioned above,
28

DECLARATION OF ABDELRAZIQ ADAM Case No. 2:17-cv-OOI35-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-2

Seattle, WA 98104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-1, Page 5 of 5

(5 of 49)

my parents passed away, and my wife is half and or part ofmy life. We did not marry to live
2
across continents and have a relationship from far distance. Therefore, I ask this court to issue
3
court order to allow U.S. Consulate in Khartoum, Sudan to resume issuance of my wife's visa
4
immediately. Thank you.
5

6
I declare under penalty of perjury under the laws of the United States that the foregoing is
7
true and correct to the best of my information, knowledge or belief.
8

9

IO

Executed on this 2nd day ofFebruary, 2017, in Seattle, Washington State

II

I2

13

I4

I5

I6

I7

I8

I9

20

2I

22

23

24

25

26

27

28

DECLARATION OF ABDELRAZIQ ADAM Case No.2: I7-cv-OOI35-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-3

Seattle, WA 981 04

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-2, Page 1 of 4

(6 of 49)

EXHIBIT B

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-2, Page 2 of 4

(7 of 49)

1

Honorable James L. Robart

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2:17-cv-00135-JLR 11 Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf of themselves as individuals and on
13 behalf of others similarly situated,

DECLARATION OF CAROL E. EDWARDS IN SUPPORT OF PLAINTIFFS

14

Plaintiffs-Petitioners,

15 v.
16
Donald TRUMP, President of the United States 17 of America; U.S. DEPARTMENT OF STATE;
Tom SHANNON, Acting Secretary of State; 18 U.S. DEPARTMENT OF HOMELAND 19 SECURITY; John F. KELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND 20 IMMIGRATION SERVICES; Lori
SCIALABBA, Acting Director of USCIS; 21 OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY, Acting
Director of National Intelligence,
23
Defendants-Respondents.
24

25

26

27

28

DECLARATION OF CAROL E. EDWARD Case No. 2:17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-2, Page 3 of 4

(8 of 49)

DECLARATION UNDER OATH
I, Carol L. Edward, hereby declare under penalty of perjury of the law of the State of Washington, and the laws of the United States of America, that the following is true and correct to the best of my knowledge and belief:
l. My Law Offices, tht:: Law Offices of Carol L. Edward & Associates, P.S., are the attorneys ofrecord for lbado Hassan and Isahaq Ahmed Rahi. Attorney Eric Lin was involved in assisting the clients with processing the paperwork.
2. Jbado Hassan is a United States citizen and sponsored her husband Isahaq Ahmed Rabi to join her in the United States.
3. Tbado and Isahaq went through all the normal legal channels and met all the requirements for Isahaq to immigrate to the United States as a lawful pennanent resident, commonly referred to as a green card holder. This includes filing papervvork with the U.S. Department ofHomeland Security: United States Citizenship and Immigration Services, the National Visa Center, and the U.S. Department of State.
4. lsahaq is a Somali national and has been living in the country of Austria with a refugee application pending. He tied Somalia due to serious and life threatening problems he faced in Somalia.
5. Isahaq traveled to tht:: U.S. with a refugee travel document issued by tht: wuntry of Austria and with a validly issued immigrant visa issued by the U.S. Consulate in Vienna, Auf'tria. He had previously been interviewed and submitted the necessary information so that background security checks could be completed prior to his visa issuance by the Amerit:an Consulate.
6. Isahaq tle\V to the U.S. with a one-way ticket as he was planning on living in tht: United States permanently with his wife ll1ado. He carried with him legal documents that he provided to the customs and border patrol agents at SeaTac International Airport. Isahaq was refused entrance to the United States at SeaTac Airport on Saturday, January 28, 20 17.
7. The fact that Isahaq was forced to lt:avc the United States by U.S. Customs and Border Enforcement without even an opportunity to talk to her caused Tbado great distress as she did nol know what was happening. According to family members who spoke to Isahaq after he returned to Vierum, he himself was not sure whether he would be allowed to return to Vienna or would be deported back to Somalia, the country he had fled. He was also told when he \Vas at the airport that he could not speak to his lawyer.

DECLARATION OF CAROL E. EDWARD Case No. 2:17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-2, Page 4 of 4

(9 of 49)

8. After learning that Isahaq had not been allowed to enter, I contacted CBP at the airport by telephone and was informed that they \Yould not discuss the case w ith me, even though I was tht: attorney for Isaha4 and further would not cwn discuss the current procedure in dealing \Vith persons arriving from one of the seven countries that are part of President Tnunp's executive order.

1- Signed on \ { :)._q \ :;).J) I
(date)

at Con.c.r<..k t..vcs tlvt
(Place of signing, city,state

Signature

DECLARATION OF CAROL E. EDWARD Case No. 2:17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-3, Page 1 of 4

(10 of 49)

EXHIBIT C

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-3, Page 2 of 4

(11 of 49)

Honorable James L. Robart

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2:17-cv-00135-JLR I I Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf of themselves as individuals and on
13 behalf of others similarly situated,

DECLARATION OF ELIAS ABDI IN SUPPORT OF PLAINTIFFS

14

Plaintiffs-Petitioners,

15 vs.
16
Donald TRUMP, President of the United States 17 of America; U.S. DEPARTMENT OF STATE;
Tom SHANNON, Acting Secretary of State; 18 U.S. DEPARTMENT OF HOMELAND 19 SECURITY; John F. KELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND 20 IMMIGRATION SERVICES; Lori
SCIALABBA, Acting Director ofUSCIS; 21 OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY, Acting
Director ofNational Intelligence,
23
Defendants-Respondents.
24

25

26

27

28

DECLARATION OF ELIAS MOHAMUD ABDI Case No. 2: 17-cv-00 135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-0

Seattle, WA 981 04

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-3, Page 3 of 4

(12 of 49)

I, Elias Moharnud ABDI, declare under penalty of perjury as follows:

2 1.

I am a United States citizen. I live in Seattle, Washington. I am a taxi and Uber driver.

3
2.

I carne to the United States as a refugee in about 2009. At that time, I was living in

4

Kenya, but I was born in Somalia. I became a U.S. citizen in March 2015.
5

3.
6

I am married to Nasteho Adan Kulane, since March 10, 2014. We married in Uganda. My

wife Nasteho is a citizen of Somalia. We have two children together. Our first son, A.E.M., was
7

born on January 1, 2015, and our second son, M.E.M., was born on September 29,2016. My
8

wife and our two sons are currently in Kenya, with my mother, while we wait to be together. I
9

10 have not seen my wife and oldest son since early September 2016, and I have yet to meet my

11 second son. I send money to my family every month, sometimes every fifteen days. I want my

12 family here with me.

13 4. I petitioned for my wife in around May 2014. I submitted her online immigrant visa

14 application (Form DS-260) on August 19,2015. My wife was interviewed on August 22,2016 in

15 Nairobi, Kenya and her immigrant visa was approved and issued to her on January 20, 2017. She

16 picked up her immigrant packet on January 23, 2017.

17 5. On Friday, January 27, 2017 around 9:59p.m. I booked a flight for my wife and infant

18 son (costing close to $1 ,400). I did this before I knew about the President's order to stop some

19 people to get in the U.S., targeting people like my wife who is Somalian. My wife went to the

20 airport in Nairobi, Kenya with our infant son, on January 29, 2017, and was told by the Emirates

21 airline crew that they could not take her to the United States because of the ban. I called to so

22 many places asking what was happening. I booked another flight, on January 30, 2017, for my

23 wife and son through Delta Airlines (costing about $1 ,900). I asked if I could book the ticket

24
even though there was a ban. I was told if my wife had a valid visa, they could bring her. My

25
wife went to the airport on 1/31, but the airline told her again that they would not take her.

26 6.

My family-based petition for my oldest son, A.E.M. was approved on October 21, 2016. I

27
submitted his immigrant visa application (Form DS-260) on November 23, 2016 and was waitin

28

DECLARATION OF ELIAS MOHAMUD ABDI Case No.2: 17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-1

Seattle, WA 98104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-3, Page 4 of 4

(13 of 49)

for his interview in Nairobi, Kenya. I was told he would get an interview in early January, but I

2 have not yet heard from them.

3
7.

My wife and two children have never been to the U.S. My wife and my infant son, who

4

has a U.S. citizen passport, were not allowed on the plane twice. I have incurred so much
5

financial hardship because of this. I have spent too much. I did the petition process by myself.
6

This is heartbreaking. I have not been able to get through the embassy.
7

8.
8

Today, on January 31, 2017, I received an email about my wife's immigrant visa. They

told me it had been revoked because of the ban.
9

10 9.

I did not think this would be possible. I did not believe people were actually going to be

11 affected like this. Asking why I want my family with me is very silly and shameful. There is no

l2 need to ask this question. I do not want to be separated from my family. I cannot continue to

13 endure financial and emotional hardship. I have to households to support, here and in Kenya. I

14 need my family with me.

15 10. My family received an exit letter from Kenya. It's going to expire in about 20 days. My

16 wife who is Somalian citizen is not allowed to stay in Nairobi past that permit date.

17 11. Please help stop this injustice. It is not just me or my family who is suffering.

18

19

I declare under penalty of perjury under the laws of the United States the foregoing is lru

20 and correct to the best of my information, knowledge, and belief.

21

22

Executed on this 31st day of January, 2017, in Seattle, Washington.

23

24

Elias Mohamud ABD.

25

26

27

28

DECLARATION OF ELIAS MOHAMUD ABDI Case No.2: 17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-2

Seattle, WA 98104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-4, Page 1 of 5

(14 of 49)

EXHIBIT D

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-4, Page 2 of 5

(15 of 49)

l

1IonorahJe James L. Robart

...

6

7

8

DI lRlCfCOURT

FOR Tl IE \\"1 "' II RN DI TRICT OF

Al "' fATILL

10

JU\\d) a \bdiaziz ALI: A.I .r\., u

Rccma Case No : 2.17-cv-00 135-JLR

11 h.halcd D.\I li\1.\N: G.E... n n1inor: Ahm.ed

12

.\hn1ed ALL E.A .. n

on

bdlal f of thcn1gcl\ cs ns indh iduab and on

tj bchal f t)f others

situated.

DECLARATIO OF
JAFFER .AKllLAQ HU AIN

14

I UPPORT OF PLAI TIFFS

15 \ .

16
DL)nald TRU!\IP. President of the United tatcs

17 oft\n1cric..1: ll. '. DEPARTl\.1[ TOF Tt\Th:

1on1 .. II ..\ .·. 0:\. Acting ecr\!ta.f) ofState:
18 ' L· .... DEP:\Rl\1F. ·r OF HO

19 'FC'LRITY: John F. KFLLY. ecrctar) of

Hornclnnd

U.S. Clfl7bl\ HIP AND I

20 It\ I tiGRA flO ER\'ICE :Lori

."'Cl. \l. ABBA. Acting Director of U CI : 21 OFFICE Of TI IE DIRECTOR OF NATIONAL

--J

ll:.Ll lGl= NCE: !\,tichael

"EY, Acting

Dirt.:ctor of National Intelligence.

,...

-.J

,_____ Defendants-Respondents.

I
6
27

DFCl .\R \ T11J', 0!

.I \I Fl H .\ .

\1

;\(.l 7-l'\·OOJJ5-JLR

NORTH\\1 f lMMlGRANT Rl tlHS PROJECT

b 15 .. econd A' e.., tc. 400

.. 1

c...tt\e. A 9 \(\4

l

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-4, Page 3 of 5

(16 of 49)

1
L Jaffer Akhlaq Hussain, declare under penalty of perjury as follo\vs:
2
1. I am a United States lawful permanent resident. I live in Parlin. New Jersey. I am
3
employed as a Software Developer specializing in the development and implementation of
4

Microsoft ERP (Enterprise Resource Planning) software.
5

2.
6

I was born in Karachi, Pakistan on November 3, 1980. and I am now 36 years of age. I

came to the United States in August 1999 as an F-1 student to attend the University of
7

8 Wisconsin. I was awarded the degree of Bachelor of Science in Electrical Engineering in

9 December 2003. I continued my studies at Northeastern University in Boston, Massachusetts. I

10 was awarded the degree of Master of Science in Engineering Management in January 2008. 1

I I was granted a change of status to H-1 B on October 1) 2008. My previous employer Fullscope.

12 Inc. sponsored me for pet tnanent residence. My application was approved by

and I

13 became a permanent resident of the United States on October 2 2013.

14 3. I am married to Seyedehfatemeh Hamedani ("Fatemeh..), a citizen of Iran. Fatemeh holds

15 the degree of Master of Science in Biotechnology. My family and her family are friends, and I

16 have known Fatemeh from childhood. Beginning in 2012, we began to get to know each other

17 better by chatting through Skype and Facebook. We saw each other in person at my sister's

18 wedding in Pakistan. We realized we were strongly attracted to each other. We decided to marry,

19 with the enthusiastic support of both of our families. Fatemeh and I were married in Karachi,

20 Pakistan on January 8, 2015. Both Fatemeh and I are

and our marriage was celebrated

21 in accord with Muslim traditions.

22 4.

Immediately after our marriage J contacted my immigration lawyer in the United StateCi,

23 and filed an I-130 Immigrant Relative Petition on behalfofFatemeh on April15, 2015 . The

24
petition was approved on November 13.2015, and forwarded to the National Visa Center. The
25
petition could not be processed further at that time due to the limited number of visas available
26
aru1ually to the spouses of U.S. pennanent residents. While we were waiting for visas to become
27
available, Faten1eh continued to live in Iran. We visited as often as possible given the constra\nts
28

DECLARATION Of JAFFER A. HUSSAIN
Case No 2: 17-cv-00 135-JLR

NORTIIWf:.Sl' IMMIGRANT R1GHT PROJE<..'"T

6\ 5 Second Avc.. tc. 400

-2

eau\c. WA \0·1

\\

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-4, Page 4 of 5

(17 of 49)

1
of my employment in the United States. Fatemeh became pregnant with our child. On July 2,
2

2016 we were greatly blessed with the birth of our son Ermiya Syed. Our son is now se\ en
3
months old. He lives with his mother in Iran.
4

5.
5

Around this same time, priority dates had advanced to the point where we were able to

pay our visa application fees, file our DS-260 visa application, and submit our civil documents
6

7 and Affidavit of Support to the National Visa Center. Thi s required great effort on my part

8 including a trip to Pakistan to obtain a passport for our son, as my son is a citizen of Pakistan

9 under Pakistan law. Eventually, all of the necessary documents were

and were

10 submitted to the National Visa Center on January 30, 2017.

11 6.

On February 1, 2017 Fatemeh's priority date became current according to the February

12 2017 Visa Bulletin. This means Fatemeh and Ermiya are now eligible to obtain a visa

13 appointment at the U.S. consulate in Abu Dhabi, obtain their immigrant visas, and proceed to the

14 United States. However, due to the Executive Order issued on January 27, 2017, it is no longer

15 possible for my wife and child to obtain a visa appointment or immigrant visas.

16 7. I have been separated from my wife since our marriage, and I have been separated from

17 our son since his birth. There is no practical place for us to live except the United States. It

18 would be very difficult for me to live with my family in

since I am not a citizen of Iran, and

19 I could not own property or bold civil rights of any kind in Iran. There would be limited if any

20 opportunity to pursue my profession in Iran. It would also be very difficult for our family to live 21 in Pakistan. My family are Shia Muslims, which is a minority in Pakistan. My brother was a
22 member of the National Assembly of Pakistan, and received threats during most of his term.
23 These threats could well extend to myself and my family. Fatemeh wishes to pursue her
24
education in bio-sciences in the United States. We both want our son to receive his education in

the United

and to becon1e a United States citizen as we wish to do as \veil. All of our

26 plans are now on hold indefinitely because of the travel ban.

27

28

DECLARArJON OF JAFFER A. HUSSAIN
Case No. 2: 17-cv-00 135-JLR

NORTJIWEST lMMIGRAl\'1' RIGHTS PROJECT

61 5 ccond Ave....tc. 400

-3

')eattle, WA981 04

206-957-86 11

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-4, Page 5 of 5

(18 of 49)

1

-,.,

I declare under penalty of perjury under the lavvs of the United States that the foregoing is

true and correct to the best of my infonnation, knowledge, and belief.
J

4
Executed on this 3rd day of February, 2017, in Parlin, New Jersey.
5

6

7
JAFFER A. HUSSAIN
8

9

10

1 I

12

I 3

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECLARATION OF JAFfER A. HUSSAIN Ca:se No.2: 17-cv-00 135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second A' l:.. te. 400

-4

\ c v.rA 98 I04

206-95 7-86 11

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-5, Page 1 of 7

(19 of 49)

EXHIBIT E

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-5, Page 2 of 7

(20 of 49)

1

Honorable James L. Robart

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2:17-cv-00135-JLR 11 Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf of themselves as individuals and on
13 behalf of others similarly situated,

DECLARATION OF AHMED MOHAMMED AHMED ALI

14

Plaintiffs-Petitioners,

IN SUPPORT OF PLAINTIFFS

15 v.
16
Donald TRUMP, President of the United States 17 of America; U.S. DEPARTMENT OF STATE;
Tom SHANNON, Acting Secretary of State; 18 U.S. DEPARTMENT OF HOMELAND 19 SECURITY; John F. KELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND 20 IMMIGRATION SERVICES; Lori
SCIALABBA, Acting Director of USCIS; 21 OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY, Acting
Director of National Intelligence,
23
Defendants-Respondents.
24

25

26

27

28

DECLARATION OF

AHMED MOHAMMAD AHMED ALI

Case No. 2:17-cv-00135-JLR

- 0

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-5, Page 3 of 7

(21 of 49)

1
I, Ahmed Mohammad Ahmed ALI, declare under penalty of perjury as follows:

2
1.

I was born on May 1, 1978 in Alshear, Ibb, Yemen. I currently reside at 724 Gamay

3
Court, Los Banos, CA, 93635. I make this declaration in support of a temporary restraining order

4

to help effectuate my daughter, E.A.’s entry to the United States.

5

2. I am married to a U.S. citizen and have 2 U.S. citizen children and one child with a valid

6

immigrant visa, but who has been denied the ability to board a plane due to the January 27, 2017

7

executive order, merely because she is a citizen of Yemen.
8

3.
9

My wife and I have been trying for so many years to have our whole immediate family

united safely in the United States. My wife Intikhab Mohamed Saleh (“Intikhab”) and I own a
10

home in Los Banos, California where we live with our two U.S. citizen children, and where we
11

have been hoping that our daughter E.A. would also be residing. We have a monthly mortgage
12

payment of approximately $950. My wife has been helping to raise our daughters. We are a very
13

close family. Our family is Muslim.
14

15 4. I am the sole breadwinner for my family of five. I am the manager at the Buy N Save

16 Market in Los Banos that is in a local shopping market and part-owner of Los Amigos. I have

17 worked at Buy N Save since 2004. I work long hours so that I can provide for my family. I make

18 approximately $35,000 a year. I pay my U.S. taxes.

19 5. I married my wife, Intikhab on May 3, 2001. My eldest daughter, S.A.M.A. was born

20 within one year of our marriage – on February 24, 2002. Both my wife Intikhab and my daughter

21 S.A.M.A. are U.S. citizens.

22 6. I first entered the United States with my wife and daughter S.A.M.A. on January 27,

23 2004, and became a lawful permanent resident that date, based on a visa petition my U.S. citizen

24 wife had filed on my behalf. I became a naturalized U.S. citizen on July 19, 2010.

25 7. Approximately 6 months after my family and I entered the United States in 2004, we

26 received news that Intikhab’s mother had fallen ill and required caretaking assistance. As a

27 result, Intikhab decided she would temporarily return to Yemen (with S.A.M.A.) to care for her

28 mother. However, the length of Intikhab’s trip increased because my mother-in-law’s health

DECLARATION OF

AHMED MOHAMMAD AHMED ALI

Case No. 2:17-cv-00135-JLR

- 1

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-5, Page 4 of 7

(22 of 49)

1
improved slowly. By the time Intikhab left for Yemen, she was already pregnant with my second

2
daughter, E.A.A. E.A.A. was born while my wife was still in Yemen, on December 3, 2004

3
8.

I remained in the United States where I was working to financially support the family.

4
When my wife left for Yemen, we planned for her to return to the United States as soon as her

5
mother’s health improved. At no point did we intend for my wife to live in Yemen permanently.
6
With my second child on the way, I knew it was best that I remain in the United States, although
7
I knew the separation would be difficult.
8
9. When I learned that my mother-in-law’s health had improved to the point that she no
9

longer required my wife’s caretaking assistance, I immediately began making arrangements for
10

my family to join me in the United States. By 2010, I had saved enough money to cover the
11

travel expenses for my entire family (Intikhab, S.A.M.A., and E.A.A.).
12

10. Around 2010, when my wife and daughters was considering joining me in the United
13

States, we thought our daughter E.A.A. was a U.S. citizen since both me and my wife were
14

citizens. However, we didn’t know the technicality of the law, and only later learned that in fact
15

she was not a U.S. citizen because my wife had not physically resided in the United States for 5
16

17 years before E.A.A.’s birth. Thus, we learned we needed to have her go through the immigrant

18 visa consular process.

19 11. Thus, on April 25, 2011, I filed a family-based immigrant visa petition (Form I-130) for

20 my daughter E.A.A. with United States Citizenship and Immigration Services (“USCIS”) along

21 with the requisite $420 filing fee. USCIS approved the immediate relative I-130 petition for

22 E.A.A. on June 10, 2013.

23 12. On August 11, 2014, E.A.A., with the assistance of counsel, filed the Form DS-260,

24 Immigrant Visa Electronic Application. On August 12, 2014, counsel for E.A.A. emailed the

25 National Visa Center all of the civil documents.

26 13. Meanwhile, my wife had continued to stay with our older daughter S.A.M.A. and E.A.A.

27 in Yemen so that they travel to the United States together. However, while the immigrant visa

28 application was pending, the situation in Yemen deteriorated and became increasingly

DECLARATION OF

AHMED MOHAMMAD AHMED ALI

Case No. 2:17-cv-00135-JLR

- 2

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-5, Page 5 of 7

(23 of 49)

1
dangerous. Frustrated that the immigrant visa process was taking so long, and worried about the
2
security situation in Yemen, my wife and I made the difficult decision sometime in 2013 that she
3
and S.A.M.A. would come to the United States, and E.A.A. would remain in Sana’a with my
4
parents, her grandparents. We were hopeful the immigrant visa would be approved soon.
5
14. My wife and I have had another daughter, S., who was born on February 4, 2015 in the
6
7 United States and is a U.S. citizen.
8 15. Meanwhile, the consular services in Yemen shut down so we learned the immigrant visa

9 interview would be scheduled at a different consulate. Finally, on December 15, 2016, the

10 National Visa Center sent an email that an immigrant visa interview was scheduled for January

11 22, 2017.

12 16. I then made arrangements for my daughter to be able to appear at this interview. E.A.A.’s

13 uncle helped her to travel by bus for over fifteen hours through a very dangerous part of Yemen,

14 and then took a flight from Aden, Yemen to Jordan. I meanwhile flew from the United States to

15 Jordan to meet my daughter. We then obtained a visitor visa for my daughter to travel from

16 Jordan to Djibouti. My Djibouti visa and my daughter’s Djibouti visa were issued on January 15,

17
2017 and are valid for one entry for 14 days. We then flew from Jordan to Djibouti on January

18
17, 2017.

19
17.
20

We arrived in Djibouti with enough time that my daughter could get her medical

examination that was required for the immigrant visa interview.
21

22 18. On January 22, 2017, I accompanied my daughter E.A.A. to the immigrant visa interview

23 at the U.S. Embassy in Djibouti, and we were notified that the immigrant visa was approved. We

24 were required to give the Embassy E.A.A.’s passport so that the visa could be issued. We were

25 instructed to check a website to see when visa would be ready to pick up.

26 19. We checked the website and learned the visa was issued on January 25, 2017, and went to

27 pick up the visa at the next available time that was permissible, which was on Thursday, January

28 26, 2017. The visa is valid until July 21, 2017.

DECLARATION OF

AHMED MOHAMMAD AHMED ALI

Case No. 2:17-cv-00135-JLR

- 3

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-5, Page 6 of 7

(24 of 49)

1
2 20. We quickly attempted to make flight arrangements to the United States. We first arranged 3 a flight that departed on Friday, January 27, 2017, but flight flew through Canada, and the airline 4 called and said we would have to cancel the flight because my daughter didn’t have a visa to 5 Canada. We therefore quickly booked the next flight we could, which left on Saturday, January 6 28, 2017.

7
21. Our Ethiopian Airlines flight was scheduled to depart Djibouti on Saturday, January 28,
8
2017 at 7:00 pm local time (which was 6am pacific time). The flight had multiple layovers, but
9
final destination was San Francisco International Airport. However, after we had gone through
10
security and were getting ready to board our flight, we were told by airline officials that my
11
daughter was not permitted board the flight due to the U.S President’s Executive Order that was
12
issued on January 27, 2017. I immediately called my attorney to inform her of the situation.
13

14 22. On January 28, 2017, my attorney sent a letter to the U.S. Embassy in Djibouti requesting

15 that my daughter E.A.A. be issued a travel letter because she should qualify for a case-by-case

16 exemption to the executive order because it would in the national interest to permit her to come

17 to the United States with our family. She spoke to a consular officer in Djibouti on January 30,

18 2017, but was informed that the embassy did not have guidance yet on how the waivers to the

19 executive action would be reviewed or issued.
20
23. We have thus been extending our stay at a hotel in Djibouti, which is quite expensive. We
21
had been paying approximately $115 a night, although recently moved to a smaller and more
22
23 affordable room for $80 a night.

24 24. I was able to take a leave of absence from my work to travel to help my daughter E.A.A.

25 come to the United States. But now, I do not know when I will be able to return to the United

26 States and do not know when I will be able to earn money for my family.

27
25.
28

The uncertainty of our situation is very stressful. We have no idea when we will be able

DECLARATION OF

AHMED MOHAMMAD AHMED ALI

Case No. 2:17-cv-00135-JLR

- 4

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-5, Page 7 of 7

(25 of 49)

to travel to the United States. I obviously cannot leave rny 12-year-old daughter alone. We are
2
currently temporarily staying Djibouti, where we have no family or friends, and it is very
3
expensive stay. I arn worried because both my visa and my daughter' s visa· for Djibouti have
'
exp ired. But we have nowhere else to go. We don ' t want to return to Yemen because it is
5
extraordinarily dangerous, and a very long journey. All we want is for our family to be united in
6
our horne in the United States.
7

8

9

I declare under penalty of perjury under the laws of the United States that the foregoing is

10 true and co rrect to the best of my information , knowledge, belief.

II

12

Executed on this Ist day of Febniary, 2017, in Djibouti, Djibouti.

13

14
Ahmed Mohammed Ahmed Ali
15

16

17

18

19

20

21

22

24

25

26

...

27

DECLARATION OF

AHMED MOHAMMAD AHMED ALI

Case No. 2: 17-cv-00 135-J LR

-5

NORTHWEST IMMIGRANT RIGHTS PROJ ECT
6 15 Second Ave.. Ste. 400 Seatt le, WA 98104 206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-6, Page 1 of 5

(26 of 49)

EXHIBIT F

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-6, Page 2 of 5

(27 of 49)

Honorable James L. Robart

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2:17-cv-00135-JLR II Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf of themselves as individuals and on
13 behalf of others similarly situated,

DECLARATION OF AZIN SAFARI IN SUPPORT OF PLAINTIFFS

14

Plaintiffs,

15 v.
16
Donald TRUMP, President ofthe United States 17 of America; U.S. DEPARTMENT OF STATE;
Tom SHANNON, Acting Secretary of State; 18 U.S. DEPARTMENT OF HOMELAND 19 SECURITY; John F. KELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND 20 IMMIGRATION SERVICES; Lori
SCIALABBA, Acting Director ofUSCIS; 21 OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY, Acting
Director of National Intelligence,
23
Defendants.
24

25

26

27

28
DECLARATION OF AZINSAFARI Case No. 2:17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-0

Seattle, WA 98104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-6, Page 3 of 5

(28 of 49)

I, Azin SAFARI, declare under penalty of perjury as follows:

2
1.

I am a United States citizen and I moved to the United States on July 3, 2011 on an

3
immigrant visa through maniage when I was 23 years old from Iran. I became a U.S. citizen on

4

May 28,2015. I cunently live in Westminster, Colorado and work as a programmer for a
5

marketing company.
6

2.
7

My parents live in Iran and miss us tenibly every day. They once went through getting a

tourism visa and came to visit us in 2013. Due to the fact that there is no U.S. embassy in Iran, it
8

9 cost my parents thousands of dollars to travel to Austria, stay in a hotel, and go for their

10 interview. After 18 months of waiting for the application processing, they finally got their

11 visitor's visa to come to the U.S. and visit us for 3 months.

12 3.

When they were returning back to Iran, my father humbly told me that he really could no

13 afford these kinds of pressures at this age financially and emotionally. Because the whole

14 process oftraveling would be so exhausting and frustrating for them to go through again, my

15 father was hesitant to visit again.

16 4. After my naturalization on May 28, 2015, I decided to immediately apply for my parents'

17 green cards so they could travel one last time and they could remain in the U.S. with me. I sent

18 my petition to USCIS in July, 2015.

19 5.

We received their welcome letters from NVC in January 2016. This time, my mother

20 was referred to the Emirates embassy and my father was refetTed to Turkey embassy for a

21 consular interview. Since they didn't want to travel separately, I had to request for both to be

22 interviewed in one country/embassy. It took another 5 months for the National Visa Center to

23
change the location and update my mother's location of interview to Ankam, Turkey.

24
6.

My parents were scheduled for a consular interview in Ankara, Turkey on September 30,

25
2016. My mother got her visa immediately after the interview. However, they requested for 2
26
supporting documents from my father to issue his visa which is still under processing.
27

28
DECLARATION OF AZINSAFARI Case No. 2:17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-1

Seattle, WA 98104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-6, Page 4 of 5

(29 of 49)

I
7.

Although my mother had a valid visa issued on October 6, 2016, she bought her ticket for

2
March 7, 2017 with the hope that my father can get his visa during this time and join her. Her

3
immigrant visa expiration date was noted as March 28, 2017 so we were certain she had plenty

4
of time. She was so excited every single day to finally see us.
5

8.
6

A week after their interview, I realized I'm pregnant. I decided to surprise my parents

when they arrive here so I kept it a secret. We were certain that at least my mother will be with
7

us to help us when the baby arrives. Hence, we put all our life plans based on her arrival by
8

9 March2017.

10 9.

On Friday, January 29,2017, we heard the cruel news. My mother's visa was revoked.

11 After 2 years of waiting and fighting to make everything work, with a baby on the way, it ruined

12 our entire life plan. After 90 days of suspension, her visa will expire and all the hard work will

13 turn into ashes.

14 10. After a few shocking hours, I started calling Custom and border Protection and Denver

15 international airport to see if the order is effective yet or if we had some time left. I was willingly

16 ready to do whatever I could to bring her here before the executive order became effective.

17 11. CBP informed that they don't have any order yet and Denver Airport informed us that

18 they haven't heard the news yet and they will process all valid visas since they currently are not

19 advised about any order. Also Lufthansa airline cooperated and changed my mother's ticket to

20 Saturday 1/30. She packed a baggage and got ready to go to the airport in 2 hours.

21 12. But at the airpmi, they informed her that her ticket is voided by Lufthansa airline and all

22 flights from Iran to the U.S. are blocked by the airlines because they JUST received the order.

23
13.

My parents still don't know that they have a grandchild on the way. The great news will

24
be a sad one for them now since they know they are not able to see the baby anytime soon.

25
14. All the joy in our lives is gone by an immature decision and a rolling pen on a paper.

26

27
I declare under penalty of pe1jury under the laws of the United States that the foregoing i
28

DECLARATION OF AZINSAFARI Case No. 2:17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-2

Seattle, WA 98104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-6, Page 5 of 5

(30 of 49)

I
hue and correct to the best of my information, lmowledge, and belief.
2

3
Executed on this 2nd day of February, 2017, in Westtninster, Colorado.
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

DECLARATION OF AZINSAFARJ Case No. 2:17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-3

Seattle, WA 98104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-7, Page 1 of 4

(31 of 49)

EXHIBIT G

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-7, Page 2 of 4

(32 of 49)

Honorable James L. Robart
2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2:17-cv-00135-JLR 11 Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf ofthemselves as individuals and on
13 behalf of others similarly situated,

DECLARATION OF GHASSAN TAHHAN IN SUPPORT OF PLAINTIFFS

14

Plaintiffs-Petitioners,

15 v.
16
Donald TRUMP, President ofthe United States 17 of America; U.S. DEPARTMENT OF STATE;
Tom SHANNON, Acting Secretary of State; 18 U.S. DEPARTMENT OF HOMELAND 19 SECURITY; John F. KELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND 20 IMMIGRATION SERVICES; Lori
SCIALABBA, Acting Director ofUSCIS; 21 OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY, Acting
Director ofNational Intelligence,
23
Defendants-Respondents.
24

25
26

27

28

DECLARATION OF

GHASSAN TAHHAN

Case No.2: 17-cv-00135-JLR •

-0

NORTiiWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98 104 206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-7, Page 3 of 4

(33 of 49)

I, GHASSAN TAHHAN , declare under penalty ofperjury as follows:

2 I.

I am a citizen ofthe United States. I live in Frisco, Texas. I am a software engineer.

3
2.

I came to the United States in 2006 when I was about 22 years old from Syria. r became

4

citizen on August 18, 2015.

5

3. 6

My parents are citizens of Syria and they currently live in Damascus, Syria

4.
7

As a U.S. citizen, I applied for my parents to become Permanent Lawful Residents. They

already got approved and they already received their immigrant visas. My father's immigrant
8

9 visa was issued on January 19, 2017, and my mother's immigrant visas was issued on January

10 23, 2017.

-

11 5.

My parents already purchased their plane tickets to the United States but they didn't start

12 their travel yet. My parents live in a war-torn country. Nothing is safe over there and no one

13 knows what might happen the next day. My father is 76 years old, and my mother is 70 years

14 old. All of their children live outside Syria. It' s very important for them to have a safe place

15 where they can rest and feel safe.

16 6. We lost about $500.00 so far for cancelling the tickets. It has been almost 1 year since the

17 last time I've seen my parents.

18 7. My parents are old people, they need all the care and rest they can get here in the United
19 States. As I mentioned before, none of their children live in Syria anymore, which is why it 20 becomes very important for them to be able to come to the United States for safety, medical care, 21 and so much more. In Syria it is very hard nowadays to get anything - even clean drinking 22 water. With all ofwhat's going on right now, I am afraid that this E xecutive Order will prevent 23
me from seeing my parents for the rest of my life.
24

25
26

27

28

DECLARATION OF GHASSAN TAHHAN C ase No. 2: 17-cv-00135-JLR

NORTHWEST IMMlGRANT IUGHTS PROJECT

61 5 Second Ave., Ste. 400

-I

Seattle, WA 98104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-7, Page 4 of 4

(34 of 49)

I declare under penalty of perjury under the laws ofthe United States that the foregoing is
2
true and correct to the best of my inforrnation, knowledge, and belief
3
Executed on this 4th day ofFebruary, 2017, in Frisco, TX.
4

5

6

GHASSAN TAHHAN

7

8

9

10

11

12

13

14

15

16

17
·s II

? II

:} I I

21
.,. ,

Il.I,i
!!

!i
'
I:!4
.,, I
26 II

II 27
:!8
I DECLARATION OF GHASSAN TAHHAN
I Case No. 2 :17-cv-00135-JLR
I
II

NORTHWEST lMMJGRANT RIGHTS PROJECT

6 15 Second Ave., Ste. 400

-2

Seattle, WA 98 104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-8, Page 1 of 6

(35 of 49)

EXHIBIT H

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-8, Page 2 of 6

(36 of 49)

Honorable James L. Robart

2

3

4

5

6

7

8

ITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON
9
ATSEATfLE

10
A.F a minor; Reema I Case No.:

11 'Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf of themselves as individuals and on
13 behalf of others similarly situated,

DECLARATION OF HESAM MOAZZAMI FARAHANI IN SUPPORT

14

Plaintiffs-·Petitioners,

OF PLAINTIFFS

15 v.

16
Donald TRUMP, President of the United States

17 of America; U.S. DEPARTMENT OF STATE;

Tom SHANNON, Acting Secretary of State; 18 U.S. DEPARTMENT OF HOMELAND

19 SECURITY; John F. KELLY, Secretary of Homeland Security; U.S. CITIZENSHIP AND

20 IMMIGRATION SERVICES; Lori

SCIALABBA, Acting Director ofUSCIS; 21 OFFICE OF THE

22

. Acting

23
Defendants-Respondents.
24

25

26

27

28

DECLARATION OF

HESAM MOAZZAMI FARAHANl

Case No.2: 17-cv-00 135-JLR

-0

NORTHW[:ST IMMIGRANT RIGHTS PROJECT 615 Second Ave.• Ste. 400 Seattle, WA 98! 04 206-957 .. 8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-8, Page 3 of 6

(37 of 49)

I, Hesam Moazzami Farah ani, declare under penalty of pe1jury as follows:

1.

My name is Hesam Moazzami Farahani and I was

in Iran. l am years old and I

3
work as a banker in Los A..ngeles, California. I've lived in the

since 2010 and I am a

4

naturalized citizen. I became a U.S. citizen in 2016 and it was a proud day for me. I love this

5

country and becoming a citizen made me feel like I officially belonged here.

6 I

7 !1 2.

My mother's name Simindokht Naghi Zadeh and she is

five

father's

1

name is Mohammadhossin Moazzami Farahani and he is seventy-one years old. My parents are
8

both citizens of Iran. Since I left Iran in 2010, I have only seen my parents
9

because I

10 did not want to see them, because our situation is complicated. It has been tough to be apati

11 from my parents for so long.

12 3.

I have three sisters and I am the only son. My parents are elderly and sick. My father

13 suffers from early stage Parkinson's disease and early onset Alzheimer's. My mother has high

14 blood pressure. I am constantly worried about my parents because of their health. As the only

15 son of the family, it is my responsibility to take care of my parents. I see it as my duty to help m

16 family, particularly since I now have the resources to do so. I want my parents to live with me

17 and one of my older sisters in Los Angeles so that we can take care of them as they age.

18 4. I filed I-130 Petitions for my parents shortly after I became a U.S. citizen. I was really

19 eager for my parents to come and reunite with me and my sister in Los Angeles. My sister lives

20 with me and she is recovering from breast cancer I wanted us all to be together.

21 5.

Once my parents' I-130 petitions were approved, we began the process of applying for

22 their immigrant visas. In late November 2016, my parents travelled from Tehran, Iran to Ankara,

23 Turkey for their interview with U.S. immigration officials. Their applications were approved and

24
immigration issued their visas on December 1, 16. I remember my parents called me after
25
learned that their visa was approved. They were so excited. My father is normally a very calm, 26
neutral man, butT could hear the excitement in his voice. It sounded like 20 years were added to
27
his life. I felt so relieved knowing that my parents would be able to come and live with me. 28

DECLARATION OF

HESAlVl MOAZZAM! FARAHANl

Case No. 2:17-cv-00135-JLR

-l

NORTHWEST IMMIGRANT RK3HTS PROJEC"f 615 Second AVG... Ste. 400 Seattle, W A 9R l 04 206-957-1\611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-8, Page 4 of 6

(38 of 49)

On December 20, 2016, we bought my parents' airline tickets to travel to the U.S. on

2
March 15, 2017. We decided f(x them to travel March so that l had time to

buy anew

3
l1ouse that had more space for my parents to live with me. Right now, I live in an apartment with

4

my sister. \Ve decided on the 1

March so that we could celebrate Nowruz, the Persian New

.I5
6 Year, together as a family. My parents also needed time to wind down their business little by

7 11
8 I 7.

to sell one of their homes. In January 2017, I started hearing that Trump might take action to stop people

traveling to the U.S.
9

Muslim countries. Friends were posting things on Facebook and I was

10 hearing things on the news that made me concerned. I couldn't have imagined that my parents

11 would have been impacted by any sort of ban. They had permission to come to the U.S. and I

12 thought they would be fine. However, I did not want to take any chances. I decided that my

13 parents should try and travel to the U.S. as soon as possible. On January 26, 2017, my parents

14 bought new tickets to come to Los Angeles two days later. Unfortunately, while they were on

15 their way to the U.S., everything changed.

16 8.

On January 28, 2017, at approximately 4:10 in the moming my parents boarded a plane

17 in Tehran to begin their journey to Los Angeles. They had a connection in Abu Dhabi. My

18 parents never made it on their flight to Los Angeles. They were scheduled to board Etihad

19 Airways Flight 171, leaving for Los Angeles at 8:45 in the morning on January 28111• However,

20 when they an·ived in Abu Dhabi, officials at the airport told them that there was a new law and

21 they could not come to the United States anymore.

22 9.

My parents were detained and questioned by U.S. immigration officials in Abu Dhabi.

23 The officers spoke to my parents a dialect they could not understand very well. The officials

24
said that the American President had signed a law that meant they could not go to the United

25
States. Officials told my parents to sign a piece of paper. The document was in English, which

26
my parents do not speak. My parents did not understand what was happening to them and did
27 what they were told because they trusted the officials. The officials told my parents that signing
2R

DECLARATiON OF

HESAM MOAZZAMI FARAI-lANl

Case No.2: 17-cv-00135-JLR

-2

NORTHWEST !MMfGRANT RIGHTS PROJECT 615 Second A vc.. Ste. 400 Seattle. WA 981 04 20(,.'-J57-8<J II

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-8, Page 5 of 6

(39 of 49)

the paper was simply proof they v,rere turned away and that it would help them in the future to go

2
to the United States.

3
10. Later that , my parents sent me a text message telling me that officials told them they

4 I could not come to the U.S. and that they had to go back to Iran. My parents told me they were
5
waiting in Abu Dhabi for a flight to Tehran. They told me that immigration officials had them
6

sign a paper and they sent a photo to my phone. I looked at the photo and saw an English

7

language document titled ''To Be Completed by Alien When Application for Admission

I

8

Withdrawn. It was JUSt a snapshot of a single page. I asked my parents why they signed the I
9
td form and they told me they dtd not know what they were signing. They said they never wanted
10

11 withdraw their application and they wanted to come to Ame1ica. My parents sounded very sad

12 and worried. I was in shock. It was a very stressful moment for me. I had thought I was going to

13 be reunited with my parents. Instead, I wasn't sure we would be together again.

14 11. My parents were at the airport in Abu Dhabi for approximately 18 hours. During their

15 detention, they were cold, uncomfortable, confused, and scared. My sister and I were panicking.

16 We did not know what to do. Eventually, my parents boarded a plane and were sent back to

17 Tehran. My father said it was the worst day ofhis life. It was also one of my worst days too. I

18 felt pressure and pain in my chest. I was so upset and confused.

19 12. My parents are still Tehran. My whole life is on hold now. I can't sleep at night. I havel

20 had to take off work because l cannot focus. All I can think about is my family. My parents are

21 iworried. When I talk to them on the phone, all they want to know is what is going to happen next

I'22 and when they can come to the United States. My mother told me she is having trouble sleeping.
23 ·13. January 28,2017 was supposed to be the start of a new, happy chapter for my family. We

24 spent a lot of money,

and effort into getting my family's papers order so they could

25 I
come here. I feel discriminated against and like a second class citizen because of where I was 26
bom. It hurts. AU I want is my parents to be here with me.
27

28

DECLARATJON OF

HESAM MOAZZAMI FARAHANI

Case No. 2:17-cv-00135-JLR

-3

NORTHWEST iMMiGRANT RIGHTS PROJECl 615 Second Avc.. Ste. 400 Seattle. WA 98104 206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-8, Page 6 of 6

(40 of 49)

I declare under penalty of perjury under the laws of the United States that the foregoing i

2 true and correct to the best of my information, knowledge, belief.
3

4

5

Executed on this 2nd day ofFebruary, 2017, i

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECLARATION OF

HESAM MOAZZAMI FARAHANI

Case No. 2:17-cv-00135-JLR

-4

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-9, Page 1 of 5

(41 of 49)

EXHIBIT I

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-9, Page 2 of 5

(42 of 49)

Honorable James L. Robart
2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2: 17-cv-00135-JLR II Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf of themselves as individuals and on
13 behalf of others similarly situated,

DECLARATION OF MOHAMED BARRE OMAR

14

Plaintiffs-Petitioners,

IN SUPPORT OF PLAINTIFFS

15 v.
16
Donald TRUMP, President of the United States 17 of America; U.S. DEPARTMENT OF STATE;
Tom SHANNON, Acting Secretary of State; 18 U.S. DEPARTMENT OF HOMELAND 19 SECURITY; John F. KELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND 20 IMMIGRATION SERVICES; Lori
SCIALABBA, Acting Director of USCIS; 21 OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY, Acting
Director of National Intelligence,
23
Defendants-Respondents.
24

25 26

27

28
DECLARATION OF MOHAMEDBARREOMAR
Case No. 2: 17-cv-00 135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

6 15 Second Ave., Ste. 400

-0

SeanIe. WA 98104

206-957-86 11

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-9, Page 3 of 5

(43 of 49)

2 I.
3

I, MOHAMED BARRE OMAR, declare under penalty of perjury as follows: I am a United States citizen. I live in Tukwila, Washington. I own a small grocery store i

Seattle, Washington, and I am an instructional assistant for Seattle Public Schools.
4

2. 5

I was born in Somalia. I came to the United States as a refugee when I was 61 years old

from Kenya. I became a U.S. Citizen on March 13,2012 in Seattle, Washington.
6

3.
7

My biological son is Ahmed Mohamed Barre. He was born on October 5, 1992 in

8 Mombasa, Kenya. He is a citizen of Somalia by birth, because my wife and I were refugees. He

9 and his mother moved to Ethiopia shortly after he was born. His mother died in Kenya on April

10 20, 2012. He grew up in Addis Ababa, Ethiopia and has not left it since moving there. He has

II never physically been in Somalia.

12 4. I last saw Ahmed in 2012, before his mother died. She had been in Kenya, so I visited

13 her and then went to Ethiopia to visit him. After visiting him, I decided to apply to bring him to

14 the United States to live with me. He is my only child that does not live in the United States.

15 5. I filed my Form 1-130, Petition for Alien Relative, for him on October 25,2012. The

16 preference classification for the case is 201 B INA Minor Child of USC. The petition was

17 approved and transferred to the National Visa Center in 2015. My son was interviewed for an

18 immigrant visa at the U.S. Embassy in Addis Ababa, Ethiopia on January 23, 2017 at 07:45AM.

19 His case was approved and his immigrant visa was issued on January 25, 2017.

20 6.

Upon receipt of his immigrant visa, we had planned to have him pack up and then

2 1 purchase a plane ticket to the U.S. The executive order was issued before he could buy a ticket.

22 He has attempted to buy a ticket, but no airline will sell one to him because they do not want to

23 take the risk that the U.S. will not allow him to immigrate despite the issuance of a valid

24 immigrant visa.

25
7.

My son has never lived in Somalia, has no experience with his country of citizenship, and

26 does not know how to navigate the risks of living there. It is unsafe and impossible for him to

27

live in Somalia. 28

DECLARATION OF MOHAMEDBARREOMAR
Case No.2: 17-cv-00 135-JLR

N ORTHW EST IMM IG RA NT RIGHTS PROJECT

6 15 Second Ave., Ste. 400

-I

Seattle. WA 981 04

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-9, Page 4 of 5

(44 of 49)

8. 2

My son cannot return to Kenya. The Kenyan government is actively refusing entry for

Somalian citizens and is refusing to take additional refugees. He no longer holds refugee status
3
in Kenya.
4

9.
5

I fear for my son's safety in Ethiopia due to the state of emergency related to protests and

violence in Addis Ababa and throughout Oromia. My son has little opportunity in Ethiopia,
6

because he is not a citizen there, and is present only at the permission of the government.
7

10.
8

I fear that my son's immigrant visa will expire before he the travel ban in the executive

9 order is lifted for citizens of Somalia. I would then lose his priority date of October 23, 2012,

10 which allows him to be the immediate relative, minor child of a U.S. Citizen for visa preference

II purposes under the Child Status Protection Act. I would be required to file a new petition for

12 him as the adult child of a U.S. Citizen, family-sponsored first preference category, which has a

13 current priority date of January l , 2011. It would most likely take over six years before he woul

14 be able to obtain a new immigrant visa to the United States, which would mean he would be ove

15 the age of 30 by the time he arrived. That delay would directly interfere with his ability to attend

16 a school in the United States and build a career. It would have a permanent, negative impact on

17 his earning abilities and his ability to marry and grow a family. It is not reasonable nor rational

18 to prevent my son, who is a Somalian citizen only as a result of his being born to refugee parents
19 in Kenya, from coming to the U.S.
20 11. It is too expensive for me to travel to Ethiopia regularly. It has been nearly five years
21 since the last time I visited Ethiopia. My son lives over 8,000 miles from me. His time zone is 22 11 hours ahead of mine. When I go to bed, he is waking up; when he is going to bed, I am
23
waking up. It is difficult for us to talk on the phone because of the time difference, but we try to
24
make time for each other every week. I have to send him money to support in Ethiopia, because
25
he does not have a job. It is an enormous financial and emotional hardship to my son, myself,
26
and my family for him to live in Ethiopia while everyone else lives in the United States.
27

28
DECLARATION OF MOHAMEDBARREOMAR
Case No.2:17-cv-00135-JLR

N ORT HWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-2

Sean1e, WA 98104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-9, Page 5 of 5

(45 of 49)

12. I want to bring my whole family together by having all of us live in the United States. 2
My son is the only person left outside of the United States. I want him to be able to go to a good
3
university, to have a career, and to be able to live the American Dream. Moments before Janu
4

27, 2017, I believed that dream was a reality and that we would be reunited. Now, because of
5

the executive order, I no longer know if that dream is possible.
6

13.
7

Please reunite my family by allowing my son to come to the United States as quickly as

possible.
8

9

10

I declare under penalty of perjury under the laws of the United States that the foregoing i

II true and correct to the best of my information, knowledge, belief.

12

13

Executed on this 1st day ofFebruary, 2017, in Seattle, Washington.

14

15

h ed B

mar

16

14839 Military Rd S, #108

17

Tukwila, WA 98168

(206) 566-4338

18

19

20

21

22

23

24

25

26

27

28
DECLARATION OF MOHAM EDBARREOMAR
Case No.2: 17-cv-00135-JLR

N ORTHW EST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-3

Seattle, WA 981 04

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-10, Page 1 of 4

(46 of 49)

EXHIBIT J

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-10, Page 2 of 4

(47 of 49)

Honorable James L. Robart

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10
Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2:17-cv-00135-JLR

11 Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf of themselves as individuals and on
13 behalf of others similarly situated,

DECLARATION OF NIKOO NIKNEJAD IN SUPPORT OF PLAINTIFFS

14

Plaintiffs-Petitioners,

15 vs.
16
Donald TRUMP, President of the United States 17 of America; U.S. DEPARTMENT OF STATE;
Tom SHANNON, Acting Secretary of State; 18 U.S. DEPARTMENT OF HOMELAND 19 SECURITY; John F. KELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND 20 IMMIGRATION SERVICES; Lori
SCIALABBA, Acting Director ofUSCIS; 21 OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY. Acting
Director of National Intelligence,
23
Defendants-Respondents.
24

25

26

27

28
DECLARATION OF NlKOO NIKNEJAD Case No. 2: 17-cv-00 135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-0

Seattle, WA 981 04

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-10, Page 3 of 4

(48 of 49)

I, Nikoo Niknejad, declare under penalty of perjury as follows:

2
1.

I am a lawful permanent resident. I live in Atlanta, Georgia. I am a homemaker.

3
2.

I came to the United States when I was 61 years old from Iran. I became a resident on

4
September 25, 2009 through my brother's petition. That was the beginning of my journey to

5
come to the US and eventually bring my children to the US so we could start a new life.

6

3.
7

My son, Amirbahador is a citizen of Iran. He is 34 years old and is currently in Iran.

4. 8

I filed an I-130 petition for him on April21, 2010. The petition was approved and I had

to wait until his priority date became current. It was a long process to wait but it finally came in
9

2015. I hired US immigration attorney, Carl Balediata, and he helped me through the process.
10

We submitted all the documents and paid fees. We followed all the rules. My son received his
II

12 US immigrant visa on December 19, 2016 in Abu Dhabi.

13 5.

I was so happy that I also traveled to be with him so I could bring him home with me to

14 start his new life with me. I am now currently in Iran with him. We booked a flight for January

15 30, 2017 with British Airways out ofTehran, Iran to return to the United States. Upon check-in

16 we were told that only I could board the flight but that my son could not because he did not have

17 a green card. We immediately called Carl Balediata who spoke on our behalf with British

18 Airways to tell them my son's US Immigrant Visa was the same as a green card. British Airways

19 said no and told us to go home.

20 6.

Carl Balediata was able to discuss our case in more detail with a British Airways regional

21 supervisor. It was arranged for us to try to depart again out of Tehran, Iran on February 2, 2017.

22 This time we were told that me and my son had to be given an okay by US Customs and Border

23 Protection from New York, USA. We arrived at the airport at 6:30am and waited 1 hr. We were 24 told that we both could not board the plane. The British Airways agent showed us an email from 25 US Customs and Border Protection that said I could not board the flight and that my son was not 26
"cleared" and that he had to go back to the US Embassy in Abu Dhabi. That is all they told us.
27

28
DECLARATION OF NIKOO NIKNEJAD Case No.2: 17-cv-00 135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 Second Ave., Ste. 400

-I

Seattle, WA 98104

206-957-8611

Case: 17-35105, 02/07/2017, ID: 10304763, DktEntry: 92-10, Page 4 of 4

(49 of 49)

7. I was again devastated. I feel helpless. Why is the country I love doing this to my son.

2 Carl Balediata is now working hard to try and bring my son home. I do not want to go home

3
without my son. I need him. I have already been separated from him for so long.

4
8.

I am old and I want my son to be with me. I want him to start a new life in the United

5

States, the land of opportunity.
6
9. It has been a life long dream for me for my son to come and be with me in the United
7

States. I also filed an I-130 petition for my daughter and we were in the process of starting her
8

case too but now I have also lost hope with her case as well.
9

10 10. I just want my family to reunite and be with me in the United States. I always wanted

11 what was best for my son and my daughter. Now I cannot see how we can get through this. I am

12 heartbroken and cannot understand why this country I love is doing this to me and my family.

13

14

I declare under penalty of perjury under the laws of the United States that the foregoing i

15 true and correct to the best of my information, knowledge, belief.

16

17

Executed on this 2"d day of February, 2017, in Tehran, Iran.

18

19

20

21
22

23

24

25
26

27

28

DECLARATION OF

NIKOO NIKNEJAD

Case No. 2:17-cv-00135-JLR

-2

IMMIGRANT Rl HTS PROJECt' 615 Second A c.. t.c. 400 cattle. WA 9 I04 206-957-861 I

 
 Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-1, Page 1 of 6

(1 of 33)

No. 17-35105

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.

On Appeal from an Order of the United States District Court for the Western District of Washington

AMENDED MOTION FOR LEAVE TO FILE 20-PAGE BRIEF BY AMICI CURIAE STATES IN SUPPORT OF
PLAINTIFFS-APPELLEES

ERIC T. SCHNEIDERMAN Attorney General State of New York 120 Broadway, 25th Floor New York, NY 10271 (212) 416-8921
JOSH SHAPIRO Attorney General Commonwealth of
Pennsylvania Strawberry Square, 15th Floor Harrisburg, PA 17120

MAURA HEALEY Attorney General Commonwealth of
Massachusetts GENEVIEVE C. NADEAU Assistant Attorney General One Ashburton Place Boston, MA 02108 (617) 963-2121
Dated: February 7, 2017

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-1, Page 2 of 6

(2 of 33)

Amici curiae States submit this amended motion to account for the addition of two states to our brief. The amendments to this motion and the attached brief include changes only to the cover and signature pages, as well as internal lists of the signatory states. Neither the substance of this motion, nor the substance of the attached brief, have been changed.
Pursuant to Rule 29 of the Federal Rules of Appellate Procedure and Circuit Rule 29(a)(5), amici curiae States1, by and through undersigned counsel, respectfully move for leave to file a 20-page, or 5,600 word, memorandum of law in support of Appellees’ Opposition to Appellants’ Emergency Motion for Stay Pending Appeal. The Amici state as follows:
1. Amici are many States within the United States which are harmed by the Executive Order issued on January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”).
2. The Executive Order inflicts significant harm on States across the Country, including upon the Amici. It harms, among other things, state colleges and universities, state medical institutions, and state tax revenues from students, tourists and business visitors.

1 The full list of amici is: California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia, and the District of Columbia.
1

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-1, Page 3 of 6

(3 of 33)

3. The proposed amicus response explains that States have standing to challenge the Executive Order in light of the harm it inflicts on them and that Appellants’ Emergency Motion for Stay should be denied because granting it would not preserve the status quo and would cause further chaos.
4. Though no such consent is required for States under Fed. R. App. P. 29(a)(2), counsel for Appellants and Appellees both have consented to the filing of an amicus response.
5. Because of the number of different States involved in this response and the desire of each to detail specific harm to it caused by the Executive Order as well as to fully brief the issues therein, the Amici have required additional space.
6. Fed. R. App. P. 29(a)(5) states that, “[e]xcept by the Court’s permission, an amicus brief may be no more than one-half the maximum length authorized by these rules for a party’s principal brief.” Fed. R. App. P. 27 and Circuit Rule 27-1(1)(d) do not speak in terms of “briefs,” instead stating that, except with the Court’s permission, “a motion or response to a motion may not exceed 20 pages,” or 5,600 words pursuant to Circuit Rule 32-3(2). If the Rule 29 language applies to a response to a motion, an amicus would be limited to 10 pages, or 2,800 words.

2

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-1, Page 4 of 6

(4 of 33)

7. Out of an abundance of caution, the Amici file this motion to request

the Court’s leave to file a 20-page (or 5,600-word) memorandum of law under the

provisions of Rule 27, Circuit Rule 27-1, and Circuit Rule 32-3(2)

8. Amici believe that a 20-page memorandum is necessary to detail the

specific harm caused by the Executive Order to a number of different States and is

warranted in light of the importance and novelty of the issues presented.

9. Accordingly, Amici respectfully request that the Court grant this

motion and permit the Amici leave to file a 20-page memorandum of law.

ERIC T. SCHNEIDERMAN Attorney General State of New York BARBARA D. UNDERWOOD Solicitor General
ANISHA S. DASGUPTA Deputy Solicitor General 120 Broadway, 25th Floor New York, NY 10271
JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania JONATHAN SCOTT GOLDMAN Executive Deputy Attorney General Civil Law Division Strawberry Square, 15th Floor Harrisburg, PA 17120
XAVIER BECERRA Attorney General State of California Suite 11000 455 Golden Gate Avenue San Francisco, CA 94102

Respectfully submitted,

/s/ Genevieve C. Nadeau

x

MAURA HEALEY Attorney General Commonwealth of Massachusetts ELIZABETH N. DEWAR GENEVIEVE C. NADEAU JONATHAN B. MILLER Assistant Attorneys General One Ashburton Place Boston, MA 02108

LISA MADIGAN Attorney General State of Illinois 100 West Randolph Street, 12th Floor Chicago, IL 60601

3

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-1, Page 5 of 6

(5 of 33)

GEORGE JEPSEN Attorney General State of Connecticut 55 Elm Street Hartford, CT 06106
MATTHEW P. DENN Attorney General State of Delaware Carvel State Building, 6th Floor 820 North French Street Wilmington, DE 19801
BRIAN E. FROSH Attorney General State of Maryland 200 Saint Paul Place, 20th Floor Baltimore, MD 21202
HECTOR BALDERAS Attorney General State of New Mexico 408 Galisteo Street Santa Fe, NM 87501
JOSH STEIN Attorney General State of North Carolina 9001 Mail Service Center Raleigh, NC 27699
ELLEN F. ROSENBLUM Attorney General State of Oregon 1162 Court Street N.E. Salem, OR 97301
PETER F. KILMARTIN Attorney General State of Rhode Island 150 South Main Street Providence, RI 02903
Dated: February 7, 2017

THOMAS J. MILLER Attorney General State of Iowa 1305 E. Walnut Street Des Moines, IA 50319
JANET T. MILLS Attorney General State of Maine 6 State House Station Augusta, ME 04333
THOMAS J. DONOVAN, JR. Attorney General State of Vermont 109 State Street Montpelier, VT 05609
MARK R. HERRING Attorney General State of Virginia 202 North 9th Street Richmond, VA 23219
KARL A. RACINE Attorney General District of Columbia Suite 1100 South 441 4th Street, NW Washington, DC 20001
JOSEPH A. FOSTER Attorney General State of New Hampshire 33 Capitol Street Concord, NH 03301

4

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-1, Page 6 of 6

(6 of 33)

CERTIFICATE OF SERVICE I, Genevieve C. Nadeau, hereby certify that a true copy of the above document, filed through the CM/ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered participants on this date.

Dated: February 7, 2017

/s/ Genevieve C. Nadeau

x

Genevieve C. Nadeau

5

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 1 of 27

No. 17-35105

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.

On Appeal from an Order of the United States District Court for the Western District of Washington

BRIEF OF THE STATES OF PENNSYLVANIA, MASSACHUSETTS, NEW YORK, CALIFORNIA, CONNECTICUT, DELAWARE, ILLINOIS,
IOWA, MAINE, MARYLAND, NEW HAMPSHIRE, NEW MEXICO, NORTH CAROLINA, OREGON, RHODE ISLAND, VERMONT, AND VIRGINIA, AND THE DISTRICT OF COLUMBIA AS AMICI CURIAE
STATES IN SUPPORT OF PLAINTIFFS-APPELLEES

MAURA HEALEY Attorney General Commonwealth of
Massachusetts One Ashburton Place Boston, MA 02108

ERIC T. SCHNEIDERMAN Attorney General State of New York 120 Broadway, 25th Floor New York, NY 10271 (212) 416-8921

JOSH SHAPIRO Attorney General Commonwealth of
Pennsylvania Strawberry Square, 15th Floor Harrisburg, PA 17120
Dated: February 7, 2017

(7 of 33)

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 2 of 27

(8 of 33)

TABLE OF CONTENTS

Page

INTERESTS OF AMICI ............................................................................................1
ARGUMENT ..........................................................................................................2
I. Washington, Minnesota, and Other States Have Standing to Challenge the Executive Order Because of the Harm It Inflicts on the States Themselves. .....................................................................................................2
A. Disruption and Additional Costs at State Colleges and Universities. ............................................................................................. 3
B. Disruption to State Medical Institutions..................................................8
C. Diminished Tax Revenues from Students, Tourists, and Business Visitors ....................................................................................................9
D. Irreparable Harm from Establishment Clause Violations .....................12
E. Harm to Sovereign and Quasi-Sovereign Interests ...............................13
II. The Emergency Motion for a Stay Should Be Denied Because Granting It Would Cause Further Chaos. ......................................................16
CONCLUSION ........................................................................................................22

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 3 of 27

(9 of 33)

INTERESTS OF AMICI Amici States Pennsylvania, Massachusetts, and New York, together with California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, New Hampshire, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, and Virginia, and the District of Columbia, submit this brief as amici curiae in support of appellees the States of Washington and Minnesota. The Executive Order at issue in this suit bars entry into the United States of nationals of seven majority-Muslim countries, including those who hold valid U.S. visas for work, study, and travel. It hinders the free exchange of information, ideas, and talent between the affected countries and the States, including at the States’ many educational institutions; harms the States’ life sciences, technology, health care, finance, and other industries, as well as innumerable small businesses throughout the States; and inflicts economic harm on the States through diminished tax revenues and other means. Although the residents, institutions, industries, and economies of the amici States differ, all stand to face the concrete, immediate, and irreparable harms caused by the Executive Order. Indeed, several amici have filed or intervened or sought to intervene in parallel lawsuits raising similar claims. Those lawsuits may well be affected by the decision in this case.

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 4 of 27

(10 of 33)

ARGUMENT I. Washington, Minnesota, and Other States Have Standing to
Challenge the Executive Order Because of the Harm It Inflicts on the States Themselves. The Executive Order is inflicting actual, concrete, and particularized injuries to
the States’ proprietary, sovereign, and quasi-sovereign interests. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601-08 (1982).1 These injuries2 include
harm to state colleges and universities, medical institutions, tax revenues; States’
interests in seeing the Establishment Clause upheld within our jurisdictions; and States’ interests in ensuring the health, welfare, and civil rights of our residents.3

1 See also Massachusetts v. EPA, 549 U.S. 497, 518-20 (2007) (recognizing that a state’s “stake in protecting its quasi-sovereign interests” entitles it to “special solicitude” in a standing analysis); United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973) (emphasizing that the standing inquiry focuses on the fact of an injury, not its magnitude).
2 All of the amici States support the legal arguments put forward in this brief, although some of the facts alleged do not apply uniformly to them. For example, the State of Delaware does not have a state medical hospital and is still in the process of attempting to verify some of the other specified harms incurred by other amici states.
3 Moreover, because many of these harms are caused directly by the Executive Order’s effect on nonimmigrant visa-holders, these injuries are not ameliorated by the federal government’s current position that long-term permanent residents are unaffected by the Executive Order (notwithstanding the plain language in Section 3(c) of the order).
2

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 5 of 27

(11 of 33)

A. Disruption and Additional Costs at State Colleges and Universities.
The Executive Order has inflicted and continues to inflict harm on state colleges and universities across the country, including in the amici States, which rely on faculty and students from across the world.
First, the Executive Order has disrupted our state educational institutions’ ability to meet their staffing needs. The Order is already preventing and dissuading scholars from coming to our institutions—including scholars who had already committed to filling positions. The University of Massachusetts has more than 120 employees who are affected by the Executive Order; the City University of New York has 46 such employees; and the University of Maryland, College Park, has about 350 such members of its community. While there is no absolute right to the maintenance or continuation of a visa, our state educational institutions rely on predictability in the visa system. Moreover, foreign-born faculty who are here on visas typically have specialized expertise that cannot easily be replaced. Colleges and universities are already forming task forces and making contingency plans to fill these particular voids in their faculty rosters. These efforts represent a considerable expenditure of scarce resources and may not be successful.
Contrary to the federal government’s suggestion, these expenditures are compelled by the Executive Order, and are not merely elective or speculative. The amici States are aware of numerous staffing-related harms to specific programs in
3

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 6 of 27

(12 of 33)

our state institutions. These include foreign scholars from the affected countries holding duly-issued, otherwise-valid J-1 visas who have abandoned their plans to come to the United States and teach because of the Executive Order. In some such cases, the scholars were expected to teach during the spring semester of 2017, leaving holes in faculty rosters that our institutions must immediately fill.
Additional immediate disruption to staffing has occurred in the context of medical residency staffing. State medical schools participate in the “match” program for purposes of placing residents in their various university hospital programs. These medical residents perform crucial services at our hospitals, including, in many cases, providing medical care for underserved residents. The state institutions’ decisions on ranking these future residents are due on February 22; the computerized “match” occurs on March 17; and matched residents are expected to begin work on July 1. Many programs regularly match medical residents from the seven affected countries and, prior to the Executive Order, medical schools like the University of Massachusetts Medical School were already actively considering and had interviewed specific applicants from the affected countries. These programs must

4

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 7 of 27

(13 of 33)

forgo ranking applicants from the affected countries or risk having insufficient medical residents to meet staffing needs.4
Second, the Executive Order creates uncertainty and will impose additional costs related to nonimmigrant faculty and other employees who are already present in the United States. Because of the “at least” 90-day freeze on processing of visa applications under section 3(c) of the Executive Order, state institutions face the imminent prospect of paying an additional $1,225 fee per visa for “Premium Processing Service” to expedite the approval of certain eligible visas.5
Third, the Executive Order has disrupted the process of admitting students for enrollment and imminently threatens the loss of hundreds of millions of tuition dollars. State colleges and universities across the country enroll thousands of students from the affected countries. The City University of New York has more than 800 affected undergraduate students; the University of California’s ten

4 If a program “matches” with an applicant who is then unable to come into the country, the program is left with an open slot. The only way to fill the slot is to seek a waiver from the National Resident Matching Program. Such a waiver puts a medical school in the difficult position of trying to hire a resident from the pool of applicants who did not match anywhere else, and the school may be unable to find a resident at all. These problems are described in detail in Louhghalam v. Trump, Declaration of Michael F. Collins, MD, No. 17-cv-10154-NMG, Dkt. No. 52-2, at 2 (D. Mass. Feb. 2, 2017).
5 Information regarding U.S. Citizenship and Immigration Services’ expediting service, including the fee, is available at https://www.uscis.gov/i-907.
5

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 8 of 27

(14 of 33)

campuses have almost 500 affected graduate students and 40 affected undergraduates; the State University of New York has 320 affected undergraduates; the University of Massachusetts has 300 affected graduate and undergraduate students; the California State University System has more than 1,300 students from the affected countries with immigrant status and more than 250 students on student visas; and there are more than 350 affected students at Virginia’s public institutions, including Virginia Commonwealth University, Virginia Tech, George Mason University, the University of Virginia, and William & Mary. The University of Illinois has over 300 enrolled students from the affected countries and has already admitted 20 students for Fall 2017 from the affected countries. Other public institutions like the Pennsylvania State University, Texas A&M University, the University of Central Florida, the University of Houston System, the University of Texas at Arlington, and Arizona State University each have hundreds of affected students.6
The Executive Order has already disrupted the on-going admissions process for the 2017-2018 school year. The amici States’ colleges and universities have already extended some offers of admission to students from the affected countries

6 Abby Jackson, The 10 U.S. Colleges That Stand to Lose the Most from Trump’s Immigration Ban, Business Insider (Feb. 1, 2017), https://amp.businessinsider.com/colleges-potentially-most-affected-trumpimmigration-ban-2017-2.
6

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 9 of 27

(15 of 33)

who may now be unable to attend, and anticipate that—but for the Executive Order—they would admit many more over the coming months. Already, the amici States are aware of students from the affected countries who have had to abandon plans to enroll in their programs due to the Executive Order and students who have withdrawn applications. As a result, these public institutions must now alter their admissions processes because admitted students may not be able to accept or attend, depriving these schools of tuition dollars. While public colleges and universities are always subject to federal immigration law and policy, the Executive Order has injured them unexpectedly, by up-ending with no advance notice the established framework around which these institutions have designed their enrollment processes.
Finally, the President’s Order has in many cases eliminated the ability of faculty and students from the affected countries with nonimmigrant visas to travel. The amici States are aware of specific examples where that inability to travel is harming our institutions’ core missions of education and scholarship. These include graduate and undergraduate students who traveled to see families abroad over winter break and became trapped abroad; admitted students and recent faculty hires who cannot now reach the United States; and faculty and doctoral students who are in the United States but unable to travel abroad for fieldwork or conferences because they will not be able to reenter. In some cases, such travel is necessary to complete a
7

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 10 of 27

(16 of 33)

dissertation or remain on the tenure track. Even if reentry ultimately may become possible for foreign faculty and students who leave the country, the amici States are concerned that the Executive Order’s suspension of the Visa Interview Waiver Program will greatly prolong visa approval wait times, making travel more difficult and unpredictable. See Executive Order, Sec. 8.
B. Disruption to State Medical Institutions The Executive Order has also inflicted or imminently threatens to inflict similar injuries on state medical institutions and the provision of medical care within the amici States—including at institutions serving some of our neediest populations. In addition to disrupting the matching process by which our state medical schools staff hospitals through medical residents, the Executive Order also has affected medical residents who are already here and serving our patient populations as they train in multi-year programs. If such residents are unable to renew or extend their nonimmigrant visas, state medical schools will be unable to continue to employ them; the schools will be left with unfilled positions in their years-long programs for training physicians; and staffing gaps will open up at hospitals. Moreover, if the residents are unable to complete their medical residencies, they will not be able to become licensed physicians to serve the public. The University of Massachusetts Medical School, for example, is particularly known for its primary care program— at a time when primary care physicians are in short supply in many areas across the
8

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 11 of 27

(17 of 33)

country—and currently has six medical residents from the affected countries under employment contracts.
Public medical institutions, including medical schools and public hospitals, also employ individuals from the affected countries in many other positions, including as fully trained physicians, research faculty, and post-doctoral researchers. For example, 307 licensed healthcare professionals in Pennsylvania have trained in one of the affected countries. The amici States are aware of employment offers from public entities that have already been extended to and accepted by individuals from the affected countries, who are now waiting for visas to be approved and uncertain if and when they will be able to begin their employment. And the amici States have current employees, located in the United States, who, for the time being, cannot renew or extend their visas or statuses. Hospitals and medical schools will suffer decreased staffing as a result. Although the federal government dismisses such eventualities as speculative, they are not. Patients at our medical facilities cannot wait for care, and those facilities must immediately adapt to these changed circumstances—and spend precious time and resources to do so.
C. Diminished Tax Revenues from Students, Tourists, and Business Visitors
The Executive Order is also immediately causing the amici States to lose tax revenue—and poses a grave, long-term threat to internationally-linked industries that, in many cases, are the lifeblood of our economies. Such economic injuries, even
9

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 12 of 27

(18 of 33)

by themselves, give rise to Article III standing. See, e.g., City of Sausalito v. O’Neill, 386 F.3d 1186, 1199 (9th Cir. 2004).
Every foreign student, tourist, and business visitor to the amici States contributes to our respective economies—through tuition and room and board payments to state schools as well as through sales tax receipts from our hotel, retailers, and other businesses. The Executive Order abruptly halted the entry of such consumers from seven countries—and their tax revenue. As described above, the amici States are aware of specific individuals—scholars, students, and others— whose trips were abruptly cancelled. If the Order is not enjoined during the pendency of this litigation, it will cost the States weeks or months of additional tax revenues from such visitors, even if Washington and Minnesota ultimately prevail. Indeed, even assuming the Executive Order continues to be enjoined, it has already created economic damage that cannot be undone.
The collective amounts at issue are immense, even just with respect to student tax dollars. In New York, in 2015, there were almost 1,000 nationals from the affected countries studying on temporary visas, who collectively contributed $30.4 million to the State’s economy, including direct payments for tuition and fees and living expenses.7 This figure does not include indirect economic benefits, such as

7 See http://www.iie.org/Research-and-Publications/Open-Doors/Data/ Economic-Impact-of-International-Students.
10

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 13 of 27

(19 of 33)

the contributions of international students and scholars to innovation in academic and medical research. In 2014-15, more than 50,000 foreign students contributed an estimated $1.5 billion to the economy of Illinois.8 And these are not the only States affected. For example, in the 2014-2015 academic year, Iran sent 11,338 students to institutions across the United States, yielding an estimated economic impact of $323 million.9 California universities and colleges host the largest number of students from the seven targeted countries. The overwhelming majority of them are from Iran, with 1,286 visas issued to students headed to California institutions in 2015.10 The Executive Order abruptly prevented a large number of anticipated tourists and students from traveling to the States, directly and immediately decreasing the revenues flowing to state academic institutions and tax authorities.11

8 See Open Doors 2016 Fact Sheet: Illinois, Institute of International Education, http://bit.ly/2lfVfBr.
9 Open Doors Data, Fact Sheets for Iran: 2015, at http://www.iie.org/Research-and-Publications/Open-Doors/Data/Fact-Sheets-byCountry/2015#.WJfgjGczWUk.
10 See T. Watanabe and R. Xia, Trump Order Banning Entry from Seven Muslim-Majority Countries Roils California Campuses, Los Angeles Times (January 30, 2017).
11 This case is thus unlike Pennsylvania v. Kleppe, 533 F.2d 668, 679-80 (1976) and Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985)
11

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 14 of 27

(20 of 33)

The long-term harms to the amici States’ tax revenue caused by the Executive Order from loss of tourism and business investment are certainly greater. Although our regional economies may vary, we all depend on remaining internationally competitive, attractive destinations for companies in the life sciences, technology, finance, health care, and other industries, and for tourists and entrepreneurs. In Illinois alone, for example, 22.1% of entrepreneurs are foreign-born, and immigrantand refugee-owned businesses employ more than 281,000 people.12 The Executive Order will create broad harm because it hampers the movement of people and ideas from the affected countries into our States.
D. Irreparable Harm from Establishment Clause Violations The amici States have also suffered irreparable harm because the Executive Order violates the Establishment Clause of the First Amendment. Where an Establishment Clause violation is alleged, “infringement occurs the moment the government action takes place—without any corresponding individual conduct.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006). This conclusion follows from “the inchoate, one-way nature of Establishment Clause violations, which inflict an ‘erosion of religious liberties [that] cannot be deterred by awarding damages to the victims of such erosion[.]’” Id. (quoting ACLU of Ill. v.

12 See The Contributions of New Americans in Illinois at 2, New American Economy (Aug. 2016), http://bit.ly/2kRVaro.
12

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 15 of 27

(21 of 33)

City of St. Charles, 794 F.2d 265, 275 (7th Cir. 1986)). Thus, “where a movant alleges a violation of the Establishment Clause, this is sufficient, without more, to satisfy the irreparable harm prong for purposes of the preliminary injunction determination.” Id.13
E. Harm to Sovereign and Quasi-Sovereign Interests In addition to the injuries that the Executive Order is inflicting on States’ proprietary interests, the Executive Order also harms the amici States’ wellestablished sovereign and quasi-sovereign interests. See, e.g., Snapp, 458 U.S. at 602-608 (describing those interests). These harms further underscore the existence of State standing to sue the federal government to invalidate the Executive Order.
1. Enforcing Antidiscrimination Laws As the United States Supreme Court has observed, States have a sovereign interest in “the exercise of sovereign power over individuals and entities within . . . [their] jurisdiction” that includes “the power to create and enforce a legal code, both civil and criminal.” Id. at 601. States also possess a quasi-sovereign interest in protecting the civil rights of all residents within their jurisdiction. Id. at 609.

13 See also ACLU v. McCreary Cnty, 354 F.3d 438, 445 (6th Cir. 2003) (presuming irreparable harm where plaintiffs were likely to succeed on the merits of their Establishment Clause claim); Parents’ Ass’n of P.S. 16 v. Quinones, 803 F.2d 1235, 1242 (2d Cir 1986) (same).
13

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 16 of 27

(22 of 33)

The Executive Order harms these sovereign and quasi-sovereign interests by preventing states from enforcing regimes of non-discrimination created by their state constitutions and laws. Residents and businesses in many of the amici States—and indeed many of the amici States themselves—are prohibited by state law from taking national origin and religion into account in determining to whom to extend employment and other opportunities.14 Although the States, state residents and state businesses are always constrained in their employment decisions by validly-enacted federal immigration law, the Executive Order represents an act of unconstitutional discrimination. It is well recognized that States have standing to sue the federal government where a federal law or federal action with the force of law impairs their legitimate, sovereign interest in the continued enforceability of their own statutes.15

14 See, e.g., Cal. Const. art. I, §§ 7-8; Cal. Gov’t Code §§ 11135-11137; Conn. Gen. Stat. § 46a-60; 5 Maine Rev. Stat. Ann. §§ 784, 4551-4634 (2013). Mass. Gen. L. ch. 151B, §§ 1, 4; Mass. Gen. L. ch. 93, § 102; Md. Code Ann., State Gov’t § 20606; N.Y. Exec. Law §§ 291 (1)-(2); 296(1)a-e; 296(1-a) a-d; 296(2); 296(2-a); 296(3-b); 296(4); 296(5)(a)1-3,(b)1-2, (c)1-2,(d); 296(10)a; 296(13);296-c (2)a-c; 43 P.S. § 952(a); 43 P.S. § 952(b); 43 P.S. § 953; 43 P.S. § 955; Pa. Const. Art. I, § 1; Pa. Const. Art. I, § 3; Pa. Const. Art. I, § 26.
15 See, e.g., Gonzales v. Oregon, 546 U.S. 243, 273-75 (2006) (state challenge to federal rule that purported to bar dispensing of controlled substances in the face of state medical regime permitting such conduct); Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1239-40 (10th Cir. 2008) (state challenge to federal agency’s assertion that the federal definition of a statutory term controlled the meaning of the same term in a state statute that defined the term differently).
14

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 17 of 27

(23 of 33)

2. Ensuring the Benefits of Existing Federal Laws and Regulations A State has a legally cognizable “interest, independent of the benefits that might accrue to any particular individual, in assuring that the benefits of the federal system are not denied to its general population.” Snapp, 458 U.S. at 608. Here, in direct violation of that interest, individuals arriving at the amici States from the seven designated countries have been denied a variety of rights and procedures established by federal statutes and regulations. Individuals arriving at a port of entry in the United States are entitled to certain rights and procedures specified by the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq. Sections 1158 and 1225 of the INA entitle aliens present or arriving in the United States to apply for asylum. Section 1231 provides that an alien may not be removed to a country where his or her life or freedom would be threatened on certain specified grounds, and entitles an alien to attempt to make such a showing. Id. § 1231(b)(3). Federal regulations set out detailed procedures for effectuating these rights. For example, where an arriving alien subject to expedited removal “indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country,” the alien is entitled to a credible fear interview with an asylum officer and review by an immigration judge. See 8 C.F.R. § 235.3(b)(1)(i), (4); see also id. §§ 208.30(g), 208.30(g)(2).

15

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 18 of 27

(24 of 33)

3. Protecting Our Residents, Businesses, and Communities The Executive Order also harms state interests far broader than the injuries to any single person who has been denied entry under the Executive Order. These interests include States’ unique concern for their economies, academic institutions, and public health. See, e.g., Snapp, 458 U.S. at 602 (noting States’ independent interest “in the well-being of [their] populace”). The harm that the Executive Order threatens to non-state academic institutions and non-state providers of essential health-care services exacerbates the injuries that research and public health sectors already suffer from the Executive Order’s effect on state institutions. See supra at 3-9. In addition, the Executive Order threatens key sectors of the States’ economies, such as technology and finance, that rely heavily upon the talents and contributions of immigrants. See Br. for Tech. Cos. & Other Bus. as Amici Curiae Supporting Plaintiffs-Appellees at 8-21, Washington v. Trump, No. 17-35105 (9th Cir. Feb. 5, 2017), ECF No. 19-2. II. The Emergency Motion for a Stay Should Be Denied Because
Granting It Would Cause Further Chaos. A stay is not a matter of right, but an “exercise of judicial discretion that is dependent upon the circumstances of the particular case.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (citations and internal quotation marks omitted). In evaluating a stay motion, this Court’s discretion is guided by a four factor analysis that asks (1) whether the applicant “is likely to succeed on the merits;” (2) “whether
16

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 19 of 27

(25 of 33)

the applicant will be irreparably injured absent a stay;” (3) whether issuance of the stay will “substantially injure” other interested parties; and (4) “where the public interest lies.” Id. (quoting Nken v. Holder, 556 U.S. 418, 434 (2009).) The party requesting the stay “bears the burden of showing that the circumstances justify an exercise of this Court’s discretion.” Lair, 697 F.3d at 1203 (quoting Nken, 556 U.S. at 433-34) (brackets omitted).16
As the District Court concluded, Washington is likely to succeed on the merits of its challenge to the Executive Order. Indeed, in the ten days since the Executive Order was signed, district courts across the Nation have determined— both expressly and by implication—that claims like those advanced by Washington and Minnesota are likely to succeed on the merits.17

16 In the past, this Court has sometimes applied an alternative standard in the context of issuing stays, allowing the moving party to demonstrate that the case raised “‘serious legal questions’” and that the balance of the hardships tipped “‘sharply in its favor.’” Golden Gate Restaurant Ass’n v. City and County of San Francisco, 512 F.3d 1112, 1116 (9th Cir. 2008) (quoting Lopez v. Heckler, 713 F.3d 1432, 1435 (9th Cir. 1983). Since the Supreme Court’s decision in Nken, this Court has indicated that this alternative approach remains available in the stay context. See Leiva-Perez v. Holder, 640 F.3d 962, 964-966 (9th Cir. 2011) (per curiam). Regardless of which approach this Court applies, the stay requested by the federal government in this case should be denied.
17 See, e.g., Darweesh v. Trump, No. 17-cv-480, Dkt. No. 8 (E.D. N.Y. Jan. 28, 2017); Vayeghan v. Kelly, No. 17-cv-702, Dkt. No. 6 (C.D. Cal., Jan. 29, 2017); Mohammed v. United States, No. 17-cv-786 (C.D. Cal., Jan 31, 2017); Arab-
17

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 20 of 27

(26 of 33)

The States have already been harmed by this Executive Order and its shifting implementation by the federal government. See Emergency Mot. Ex. C at 4-5 (district court order); see supra Section I.A.-I.E. The Executive Order “unleashed global chaos” almost as soon as it was issued on January 27.18 Customs and border control officials arrived at airports on January 28 without instructions on how to implement it.19 The lack of advance warning led to “homeland security officials ‘flying by the seat of their pants[]’ to try to put policies in place.”20 Officials at different airports applied different policies.21 Visitors to our country—and many lawful permanent residents as well—were detained for days at airports, often without

American Civil Rights League v. Trump, No. 17-cv-10310, Dkt. No. 8 (E.D. Mich. Feb. 2, 2017); Aziz v. Trump, No. 17-cv-116, Dkt. No. 38 (E.D. Va. Feb. 3, 2017).
18 M. Shear & R. Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017), available at https://www.nytimes.com/2017/01/29/us/politics/donald-trump-rush-immigrationorder-chaos.html?_r=0 (last visited Feb. 5, 2017)
19 Id. 20 Id. 21 See, e.g., J. Allen & B. O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017), available at www.reuters.com/article/us-usa-trump-immigration-confusion-idUSKBN15D07S (last visited Feb. 5, 2017) (while many visa-holders reported being “allowed into the country without a problem,” some lawful permanent residents were “turned away”).
18

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 21 of 27

(27 of 33)

access to counsel.22 If this Court were to grant the stay that the federal government now seeks, it would only exacerbate that harm.
This uncertainty was compounded by the actions of officials at the highest levels of the federal government, who vacillated over how to interpret and apply the Executive Order. For example, the federal government changed its mind multiple times about whether the Executive Order applies to lawful permanent residents.23 On February 1, the White House Counsel acknowledged “that there has been reasonable uncertainty about whether” the travel ban applies to lawful permanent residents of the United States, and “clarif[ied] that Sections 3(c) and 3(e) [of the Order] do not apply to such individuals.”24

22 M. Shear et al., Judge Blocks Trump Order on Refugees Amid Chaos and Outcry Worldwide, N.Y. Times (Jan. 28, 2017), available at https://goo.gl/OrUJEr (last visited Feb. 5, 2017); A. Whiting, Despite Court Order, US Officials Won’t Allow Lawyers at Dulles to See Detainees, Washingtonian (Jan. 29, 2017), available at https://www.washingtonian.com/2017/01/29/customs-and-border-protectionstill-not-allowing-lawyers-to-see-detainees/ (last visited Feb. 5, 2017).

23 See, e.g., E. Perez, Inside the Confusion of the Trump Executive Order and

Travel

Ban

(Jan.

30,

2017),

available

at

http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html (last

visited Feb. 5, 2017); Press Release, U.S. Department of Homeland Security,

Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents

Into The United States (Jan. 29, 2017), available at https://goo.gl/6krafi (last visited

Feb. 5, 2017).

24 See Memorandum to the Acting Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security from Donald F. McGahn II (Feb.

19

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 22 of 27

(28 of 33)

The District Court’s temporary restraining order returned the policies and procedures regarding travel to the United States to the status quo that existed before the Executive Order. Emergency Mot. Ex. C at 5-6 (district court order). As a result of the court’s order, the Department of Homeland Security announced on February 4 that it “has suspended any and all actions implementing the affected sections of the Executive Order” and that “DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.”25 In the aftermath of that announcement, international airlines announced that they would allow citizens of the affected nations onto flights bound for the United States.26 News outlets are reporting that travelers from those countries have already boarded planes headed to the United States.27

1, 2017), available at www.politico.com/f/?id=00000159-fb28-da98-a77dfb7dba170001 (last visited Feb. 5, 2017).
25 Press Release, U.S. Department of Homeland Security, DHS Statement on Compliance with Recent Court Order (Feb. 4, 2017), available at https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-courtorder (last visited Feb. 5, 2017).
26 A. Dewan, Airlines Allow Passengers After Judge Blocks Travel Ban (Feb. 4, 2017), available at http://www.cnn.com/2017/02/04/politics/airlines-airportstrump-travel-ban/index.html (last visited Feb. 5, 2017).
27 See J. Kaleem, Department of Homeland Security Halts Enforcement of Controversial Travel Ban, Los Angeles Times (Feb. 4, 2017), available at http://www.latimes.com/politics/washington/la-na-essential-washington-updatesdepartment-of-homeland-security-halts-1486224232-htmlstory.html
20

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 23 of 27

(29 of 33)

If this Court were to grant a stay, it would resurrect the chaos experienced in our airports beginning on the weekend of January 28 and 29, and cause harm to the States—including to state institutions such as public universities, to the businesses that sustain our economies, and to our residents. See supra Sections I & II. Travelers with valid visas to enter the United States, who boarded planes to our country in reliance on the order below and the guidance of the Department of Homeland Security, will be stopped, detained, and turned around yet again. That shift would exacerbate the confusion and uncertainty that has already harmed the amici States and the public at large. See supra Section I.D.28
Under these circumstances, the federal government cannot carry its burden of showing that a stay is warranted. The District Court’s temporary restraining order merely preserves the status quo that existed before President Trump’s Executive Order. In contrast to the abstract injuries that the federal government asserts it has suffered, a stay would lead to real and immediate hardships for the States, our

28 See also Pl.’s Emergency Mot. for TRO at 21-22, Washington v. Trump, No. 17-cv-00141 (W.D. Wash. Jan. 30, 2017), ECF No. 3; Br. for Am. Civil Liberties Union as Amici Curiae Supporting Pl. at 3-10, Washington, No. 17-cv00141 (W.D. Wash. Feb. 2, 2017), ECF No. 26-1; Br. for Serv. Employees Int’l Union as Amici Curiae Supporting Pl. at 2-7, Washington, No. 17-cv-00141 (W.D. Wash. Feb. 2, 2017), ECF No. 42-2; Br. for Wash. State Labor Council as Amici Curiae Supporting Pl. at 8-11, Washington, No. 17-cv-00141 (W.D. Wash. Feb. 2, 2017), ECF No. 46-1; Decl. of Emily Chiang Supporting Pl.’s Emergency Mot. for TRO at 2-8, Washington, No. 17-cv-00141 (W.D. Wash. Jan. 30, 2017), ECF No. 3.
21

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 24 of 27

(30 of 33)

residents, businesses, and institutions. The interests of the public, the States, and the

Nation would be best served by keeping the temporary restraining order in place—

and avoiding further turmoil—pending a more thorough review by the Court.

CONCLUSION For the foregoing reasons, this Court should affirm the Temporary Restraining

Order and deny the Emergency Motion for Stay.

ERIC T. SCHNEIDERMAN Attorney General State of New York BARBARA D. UNDERWOOD Solicitor General ANISHA S. DASGUPTA Deputy Solicitor General 120 Broadway, 25th Floor New York, NY 10271

Respectfully submitted,

/s/ Genevieve C. Nadeau

x

MAURA HEALEY

Attorney General

Commonwealth of Massachusetts

ELIZABETH N. DEWAR

GENEVIEVE C. NADEAU

JONATHAN B. MILLER

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania JONATHAN SCOTT GOLDMAN Executive Deputy Attorney General Civil Law Division Strawberry Square, 15th Floor Harrisburg, PA 17120

22

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 25 of 27

(31 of 33)

XAVIER BECERRA Attorney General State of California Suite 11000 455 Golden Gate Avenue San Francisco, CA 94102
GEORGE JEPSEN Attorney General State of Connecticut 55 Elm Street Hartford, CT 06106
THOMAS J. MILLER Attorney General State of Iowa 1305 E. Walnut Street Des Moines, IA 50319
JANET T. MILLS Attorney General State of Maine 6 State House Station Augusta, ME 04333
BRIAN E. FROSH Attorney General State of Maryland 200 Saint Paul Place, 20th Floor Baltimore, MD 21202
HECTOR BALDERAS Attorney General State of New Mexico 408 Galisteo Street Santa Fe, NM 87501

MATTHEW P. DENN Attorney General State of Delaware Carvel State Building, 6th Floor 820 North French Street Wilmington, DE 19801
ELLEN F. ROSENBLUM Attorney General State of Oregon 1162 Court Street N.E. Salem, OR 97301
LISA MADIGAN Attorney General State of Illinois 100 West Randolph Street, 12th Floor Chicago, IL 60601
PETER F. KILMARTIN Attorney General State of Rhode Island 150 South Main Street Providence, RI 02903
THOMAS J. DONOVAN, JR. Attorney General State of Vermont 109 State Street Montpelier, VT 05609
MARK R. HERRING Attorney General State of Virginia 202 North 9th Street Richmond, VA 23219

23

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 26 of 27

(32 of 33)

JOSH STEIN Attorney General State of North Carolina 9001 Mail Service Center Raleigh, NC 27699
JOSEPH A. FOSTER Attorney General State of New Hampshire 33 Capitol Street Concord, NH 03301
Dated: February 7, 2017

KARL A. RACINE Attorney General District of Columbia Suite 1100 South 441 4th Street, NW Washington, DC 20001

24

Case: 17-35105, 02/07/2017, ID: 10305544, DktEntry: 103-2, Page 27 of 27

(33 of 33)

CERTIFICATE OF SERVICE I, Genevieve C. Nadeau, hereby certify that a true copy of the above document, filed through the CM/ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered participants on this date.

Dated: February 7, 2017

/s/ Genevieve C. Nadeau

x

Genevieve C. Nadeau

 
 Case: 17-35105, 02/07/2017, ID: 10305888, DktEntry: 112, Page 1 of 6

Feo. 7. 2017 !2:29PM Res i aence Inn - Lake Oswego

No. 3445 P. 3

Case: 17-35105, 02/07/2017, ID: 10305888, DktEntry: 112, Page 2 of 6

w. Washington, which both Attorney General (ATG) Robert Ferguson and the Attorney General's (ATG)
Office have been charged with.

MEMORANDUM OF LAW IN SUPPORT OF G.'S MOTION TO INTERVENE
G. respectfully submits this Memorandum of Law' in support of this Motion to Intervene in this action against appellants State of Washington and State of Minnesota. G. moves pursuant to Federal Rule of Civil Procedure 24 to intervene as of right, or alternatively, by permission, to assert claims against appellants under the Civil Rights Act of 1964 (42 U.S.C. Chapter 21 Subchapters I, II, and VI); the
Racketeering Influenced and Corrupt Organizations Act (RICO, 18 U.S.C. §1964); and the Treason,
Sedition, and Subversive Activities Act {18 U.S:C. §2382).
PRELIMINARY STATEMENT
G., a former employee of Washington State, who while serving in this capacity, was charged
with protecting the safety and welfare of every single person travelling upon the highways in
Washin~rtoo State (resident. citizen, or otherwisel..alleges that appellants Attorney General Robert W.
Fo!l't':U~OI1 ~nd Attorney Ceno!rsl'~ Offiee (ATC) of Woohington, did concpira ~s~intt him and th.;o citizom< of Washington State. Accordingly, G. filed a plea for damages in the Superior Ct. of Spokane County on 12/14/16, see Golden v. WSDOT, eta/ No. 16-02·04773-9.
FACTUAL8ACKGROUND • On 10/4/16,13. filed a $16 billion tort claim against the State of Washington for tax fraud. This claim
was denied by ATG. • On 10/31/16, G. fil8d an ~mended tort claim a~ainst thl' .~tHtf! of Washington for tax fraucl with
proof of malice. This claim was denied by ATG.
• On 11/14/16, G. filed an amended $70 billion tort claim against the State of Washington for tax
fraud. This claim was denied by ATG.
• On 12/14/16, G. filed a motion in the Superior Ct. of Spokane County against WSDOT, et al. Included as defendants were Robert W. Ferguson, Jay R.lnslee, The Democratic Party, US Department of
Page 2 I 6

Feo. 7. 2017 !2:30PM Res i aence Inn - Lake Oswego

No. 3445 P. 4

Case: 17-35105, 02/07/2017, ID: 10305888, DktEntry: 112, Page 3 of 6

Labor (led by Tom Perez), Christine Gregoire, and Barack Obama. See Golden v. WSDOT, eta/. No.
16·02-04773-9.
• On or about 1/30/17, ATG Robert W. Ferguson filed a Temporary Restraining Order (TRO) in case
State o!WA, eta/. v. Donald Trump, et of. No. 2:17-cv-00141-JLR.
• On 2/3/17, Hon. James Robart issued decision in case State of WA, eta/. v. Donald Trump, eta/. No.
2:17-cv-00141-JLR.
• Despite awareness of G's case, media has chosen to aggrandize case State of WA,. eta/. v. Trump, et a/., while simultaneously ignoring G.'s case, as being un-"newi'-worthy.
• G. was born at Somers Point. NJ on March 20~~>, 1974. G. is a citizen of the United States of America
and entitled to all rights thereof. • Microsoft, Expedia, and Amazon (aka Challenge Seattle) are known co-conspirators of defendant
Gregoire (see Golden v. WSDOT, eta/. No 16-02-04773·9}.

ARGUMENT

I.

G. Should Be Permitted to Intervene as of Right.

Federal Rule of Civil Procedure 24{a)(1) provides that a court must permit intervention by
anyone: "who is given unconditional right to intervene by a federal statute.'' G. claims right to intervene
under 42 U.S.C. Chapter 21 Subchapters I, II, and VI; 18 U.S.C § 1964; and 18 U.S.C. § 2382.

Furthermore, Federal Rule of Civil Procedure 24(a)(2) provides that a court must permit intervention on timely application by anyone: (1) who "claims an interest relating to the property or transaction that is the subject of the action." And {2) whose interest may be "impair{ed) or impede(d)" by disposition of the action:, "unless existing parties adequately represent that interest." This rule is "broadly construed in favor of poten.tial interve.ntors," who must be permitted to intervene if "{1) the application was timely filed; (2) the applicant possesses a substantial legal interest in the case; (3) the applicant's ability to protect its interest will be impaired without intervention; and {4) the existing parties will not adequately represent the applicant's interest.'' Grutter v. Bollinger, 188 F. 3d 394, 397-98
(6"' Cir. 1999). G. meets each of these requirements for intervention as of right.

Page 3/6

Feo. 7. 2017 !2:31PM Res i aence Inn - Lake Oswego

No. 3445

f' '

h
)

Case: 17-35105, 02/07/2017, ID: 10305888, DktEntry: 112, Page 4 of 6

A.

G.'s Motion is Tim~ ·

The timeliness of an application for intervention is evaluated "in the context of all relevant circumstance," including:

(1) the point to which the ~uit has progressed; (Z) the puf]Jose for which intorvention is sought;. (3)the length of time preceding the application during which tho proposed intervenors knew or should have known of their interest in the cose; (4) the prejudice to the original parties due to the proposed intervenors' failure to promptly intervene after they knew or reasonably should have known of their interest io the case; and (5} the existence of unusual circumstances militating :against or in favor of intervention.
Jensen v. City ofCincinatti, 904 F.2d 336,340 (6"' Cir 1990); United States v. City ofDetroit, 712 F. 3d 925,
930-31 (6'h Cir 2013) (same).

Here, though decision has been issued in the District Court of Western Washington, this decision was made only without knowledge of G.'s complaint. And though G. is required to provide (under 18
U.S.C. § 2382) intervention in this matter, he vainly hoped that either "newz" media or Hon. James
Triplett would do so while this case was still in the District Court. After all, this is only G's second motion filed. This did not happen.

B.

G. Has a Significant Interest In the Subject Matter ofthis Case.

G. has significant interest in this case as he is curious how people who are not citizens of the United States of America are entitled to non-solicited representation by ATG while G. is entitled to none. See 42 U.S.C. Chapter 21 Subchapters I, II, and VI.

C.

Intervention in this Case is Necessary to Protect G.'s Interests

Under the third intervention prong, "a would-be intervenor must show only that impairment of
its substantial legal interest is possible if intervention is denied." While G. has been denied media coverage for his 2016 auditor/governor campaign, and corrupt media (aka "fake newz"} has chosen to disregard G.'s own allegations of public corruption (see Golden v. WSDOT, et ol. No.16-02-04773-9) as being un-"newz"- worthy, ATG Robert W. Ferguson and "Democrats" have been hailed as civil rights champions. This bias only serves to quash G.'s interests while furthering the interests of Robert W. Ferguson and ATG.

Page 4/6

Feo. 7. 2017 !2:32PM Res i aence Inn - Lake Oswego

No. 3445 P. 6

Case: 17-35105, 02/07/2017, ID: 10305888, DktEntry: 112, Page 5 of 6

D.

The Existing Parties Cannot Protect the Interests of G.

As G.'s own interests often coincide with the safety and welfare of the citizens of the United
States, and Robert W. Ferguson has acted repeatedly against G.'s interests, G. has obligation to intervene under 18 U.S.C. § 2382.

II.

Alternatively. G. Should Be Allowed to Intervene By Permission

G. may also be granted leave to intervene by permission. Rule 24(b)(1) permits intervention on
timely motion by anyone who: (A)is given a conditional right to intervene by a federal statute; or (B) has
a claim or defense that shares with the main action a common question of law or fact. G. satisfies both ofthese requirements.

CONCLUSION
For the foregoing reasons, G. respectfully requests that the Court grant G.'s Motion to Intervene.
Dated: February 5, 2017

Page 5/6

Feo. 7. 2017 !2:32PM Res i aence Inn - Lake Oswego

No. 3445 P. 7

Case: 17-35105, 02/07/2017, ID: 10305888, DktEntry: 112, Page 6 of 6

CERTIFICATE OF SERVICE
I, David A. Golden, certify that pursuant to L.R. 5.2 that I attempted to file the foregoing motion at the clerk's office, located at 1000 SW. Third Ave., Portland, OR 97204 on 2/6/17 but was unable to do so. Furthermore, Ido certify that I attempted to use the Electronic Filing System established for the Ninth Circuit by the appellate court, but was unable to do so.
Alternatively, I was given the address of all counsel named in the complaint and have emailed them a true copy ofthis motion.

; A!; point in f~ct, G. admits that he blatantly plagiarized motion of United St~e5 right to Intervene in case A/eeha Dudley v. Miami University, eta/. 1.14-cv-038 authored by William F. Lynch, due to time const~ints.

Page 6/6

 
 Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-1, Page 1 of 7

(1 of 31)

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
__________________________________________________________________
STATE OF WASHINGTON; STATE OF MINNESOTA, et al. Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, et al., Defendants-Appellants.
__________________________________________________________________
On Appeal From The United States District Court For The Western District of Washington at Seattle
Case No.: 2:17-cv-00141 The Honorable James L. Robart United States District Court Judge __________________________________________________________________
MOTION OF PARTICIPATING LAW FIRMS OF THE EMPLOYMENT LAW ALLIANCE FOR LEAVE
TO FILE BRIEF AS AMICUS CURIAE IN SUPPORT OF APPELLEES __________________________________________________________

MELANIE GURLEY KEENEY Missouri Bar No. 37789 Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. 34 N. Meramec Ave. Suite 600 St. Louis, MO 63105 mkeeney@tuethkeeney.com Attorneys for Amicus Curiae Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C.

P.K. RUNKLES-PEARSON Oregon Bar No. 061911 Miller Nash Graham & Dunn LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, OR 97204 Telephone: 503.224.5858 p.k.runkles-pearson@millernash.com Attorneys for Amicus Curiae Miller Nash Graham & Dunn, LLP

MOTION FOR LEAVE TO FILE AMICUS BRIEF NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-1, Page 2 of 7

(2 of 31)

MARY ELLEN SIMONSON Arizona SBN 009298 Lewis Roca Rothgerber Christie LLP 201 East Washington Street, #1200 Phoenix, AZ 85004 msimonson@lrrc.com Attorneys for Amicus Curiae Lewis Roca Rothgerber Christie LLP

NATASHA J. BAKER California SBN 226981 Hirschfeld Kraemer LLP 505 Montgomery Street, 13th Floor San Francisco, CA 94111 nbaker@HKemploymentlaw.com Attorneys for Amicus Curiae Hirschfeld Kraemer LLP

ALISON M. HAMER California SBN 258281* Hirschfeld Kraemer LLP 233 Wilshire Boulevard, Suite 600 Santa Monica, CA 90401 ahamer@hkemploymentlaw.com Attorneys for Amicus Curiae Hirschfeld Kraemer LLP

* Ninth Circuit admission pending

MOTION FOR LEAVE TO FILE AMICUS BRIEF NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-1, Page 3 of 7

(3 of 31)

I. INTRODUCTION

Participating member firms of the Employment Law Alliance

(“ELA”), respectfully seek leave to file the attached brief as amici curiae in

support of affirming the District Court’s Temporary Restraining Order. Proposed

amici approached Appellants and Appellees requesting consent to file this brief.

Appellees have consented, but Appellants have not responded. In support of their

Motion, proposed amici states as follows:

II. IDENTITY AND INTEREST

The Employment Law Alliance (“ELA”) is an integrated, global

practice network whose independent law firm members are well known and well

respected for their employment and labor law practices. With more than 3,000

lawyers across more than 120 countries, all 50 U.S. states and every Canadian

province, the ELA is the world’s largest such network. This following U.S. law

firm members of the ELA, one of which with counsel in Washington, and each of

which has significant experience in employment-related matters, hereby submit

this brief:

Dinse Knapp McAndrew

Fortney & Scott, LLC

Hirschfeld Kraemer, LLP

Lewis Roca Rothgerber Christie LLP

MOTION FOR LEAVE TO FILE AMICUS BRIEF NO. 17-35105

1

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-1, Page 4 of 7

(4 of 31)

Miller Nash Graham & Dunn LLP Partridge, Snow & Hahn LLP Shawe Rosenthal LLP Tueth Keeney Cooper Mohan & Jackstadt, PC The ELA has a substantial interest in this case because its member law firms collectively represent hundreds of employers nationwide, including employers in Washington and Minnesota, who have been and will continue to be adversely impacted by Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States, issued January 27, 2017 (“Executive Order”). Many of these employers are institutions of higher education whose educational missions are adversely affected. In light of the above disruption of ELA member clients’ ability to do business, the undersigned respectfully submit this brief on behalf of the participating member law firms of the ELA in order to explain the grave impact of the Executive Order on U.S. employers. III. REASONS THE COURT SHOULD GRANT AMICUS COUNSEL’S BRIEF As noted above, many of the ELA’s participating member’s clients (and their employees and students) will suffer irreparable harm as a result of the Executive Order. As such, the ELA is well situated to provide the Court with significant guidance as to how the Executive Order is and will negatively affect

MOTION FOR LEAVE TO FILE AMICUS BRIEF NO. 17-35105

2

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-1, Page 5 of 7

(5 of 31)

employers (and their employees and students) across the nation, including in Washington and Minnesota.
We respectfully request that the court accept our brief and allow us to appear as amici curiae.
Respectfully submitted this 7th day of February, 2017.

/s/ P.K. RUNKLES-PEARSON P.K. RUNKLES-PEARSON Oregon Bar No. 061911 Miller Nash Graham & Dunn LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, OR 97204 Telephone: 503.224.5858 p.k.runkles-pearson@millernash.com Attorneys for Amicus Curiae Miller Nash Graham & Dunn, LLP
/s/ NATASHA J. BAKER NATASHA J. BAKER California SBN 226981 Hirschfeld Kraemer LLP 505 Montgomery Street, 13th Floor San Francisco, CA 94111 nbaker@HKemploymentlaw.com Attorneys for Amicus Curiae Hirschfeld Kraemer LLP

MOTION FOR LEAVE TO FILE AMICUS BRIEF NO. 17-35105

3

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-1, Page 6 of 7

(6 of 31)

/s/ ALISON M. HAMER ALISON M. HAMER California SBN 258281 Hirschfeld Kraemer LLP 233 Wilshire Boulevard, Suite 600 Santa Monica, CA 90401 ahamer@hkemploymentlaw.com Attorneys for Amicus Curiae Hirschfeld Kraemer LLP
/s/ MARY ELLEN SIMONSON MARY ELLEN SIMONSON Arizona SBN 009298 Lewis Roca Rothgerber Christie LLP 201 East Washington Street, Suite 1200 Phoenix, AZ 85004 msimonson@lrrc.com Attorneys for Amicus Curiae Lewis Roca Rothgerber Christie LLP
/s/ MELANIE GURLEY KEENEY MELANIE GURLEY KEENEY Missouri Bar No. 37789 Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. 34 N. Meramec Ave. Suite 600 St. Louis, MO 63105 mkeeney@tuethkeeney.com Attorneys for Amicus Curiae Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C.

MOTION FOR LEAVE TO FILE AMICUS BRIEF NO. 17-35105

4

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-1, Page 7 of 7

(7 of 31)

CERTIFICATE OF SERVICE
I, P.K. RUNKLES-PEARSON, hereby certify that I electronically filed the following document 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 7, 2017.
MOTION OF PARTICIPATING LAW FIRMS OF THE EMPLOYMENT LAW ALLIANCE FOR LEAVE
TO FILE BRIEF AS AMICUS CURIAE IN SUPPORT OF APPELLEES
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
Executed February 7, 2017, at Portland, Oregon.

/s/ P.K. RUNKLES-PEARSON P.K. RUNKLES-PEARSON Oregon SBN 061911

MOTION FOR LEAVE TO FILE AMICUS BRIEF NO. 17-35105

1

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 1 of 24

(8 of 31)

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
__________________________________________________________________
STATE OF WASHINGTON; STATE OF MINNESOTA, et al. Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, et al., Defendants-Appellants.
__________________________________________________________________
On Appeal From The United States District Court For The Western District of Washington at Seattle
Case No.: 2:17-cv-00141 The Honorable James L. Robart United States District Court Judge __________________________________________________________________
BRIEF OF PARTICIPATING LAW FIRMS OF THE EMPLOYMENT LAW ALLIANCE IN SUPPORT OF APPELLEES

MELANIE GURLEY KEENEY Missouri Bar No. 37789 Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. 34 N. Meramec Ave. Suite 600 St. Louis, MO 63105 mkeeney@tuethkeeney.com Attorneys for Amicus Curiae Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C.

P.K. RUNKLES-PEARSON Oregon Bar No. 061911 Miller Nash Graham & Dunn LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, OR 97204 Telephone: 503.224.5858 p.k.runkles-pearson@millernash.com Attorneys for Amicus Curiae Miller Nash Graham & Dunn, LLP

BRIEF OF PARTICIPATING LAW FIRMS OF THE EMPLOYMENT LAW ALLIANCE NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 2 of 24

(9 of 31)

MARY ELLEN SIMONSON Arizona SBN 009298 Lewis Roca Rothgerber Christie LLP 201 East Washington Street, #1200 Phoenix, AZ 85004 msimonson@lrrc.com Attorneys for Amicus Curiae Lewis Roca Rothgerber Christie LLP

NATASHA J. BAKER California SBN 226981 Hirschfeld Kraemer LLP 505 Montgomery Street, 13th Floor San Francisco, CA 94111 nbaker@HKemploymentlaw.com Attorneys for Amicus Curiae Hirschfeld Kraemer LLP

ALISON M. HAMER California SBN 258281* Hirschfeld Kraemer LLP 233 Wilshire Boulevard, Suite 600 Santa Monica, CA 90401 ahamer@hkemploymentlaw.com Attorneys for Amicus Curiae Hirschfeld Kraemer LLP

* Ninth Circuit admission pending

BRIEF OF PARTICIPATING LAW FIRMS OF THE EMPLOYMENT LAW ALLIANCE NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 3 of 24

(10 of 31)

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT.......................................... ......... ii I. INTEREST OF AMICI CURIAE.......................................................................1 II. ARGUMENT.......................................................................................................2
A. The Haphazard Implementation of the Executive Order Created Unprecedented Chaos and Uncertainty for Employers.........................4
B. The Order Harms U.S. Employers ELA represents....................................9 1. The Sudden, Chaotic Impact of the Executive Order Harmed Many Employers' Operations......................................................9 2. Uncertainty About the Executive Order is Hindering Business Travel and Investment. ..............................................11 3. The Order Negatively Impacts Recruitment. ..................................13
C. The Order Harms U.S. Institutions of Higher Education. ........................14 III. CONCLUSION................................................................................................15

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

i

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 4 of 24

(11 of 31)

CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1(a) of the Federal Rules of Appellate Procedure, Amici state as follows: Dinse, Knapp & McAndrew PC has no parent corporation and no publicly held corporation owns 10% or more of its stock. Fortney & Scott, LLC has no parent corporation and no publicly held corporation owns 10% or more of its stock. Hirschfeld Kraemer, LLP has no parent corporation and no publicly held corporation owns 10% or more of its stock. Lewis Roca Rothgerber Christie LLP has no parent corporation and no publicly held corporation owns 10% or more of its stock. Miller Nash Graham & Dunn LLP has no parent corporation and no publicly held corporation owns 10% or more of its stock. Partridge, Snow & Hahn LLP has no parent corporation and no publicly held corporation owns 10% or more of its stock. Shawe Rosenthal LLP has no parent corporation and no publicly held corporation owns 10% or more of its stock.

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

ii

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 5 of 24

(12 of 31)

Tueth Keeney Cooper Mohan & Jackstadt, PC has no parent
corporation and no publicly held corporation owns 10% or more of its stock.
Pursuant to Federal Rule of Appellate Procedure 29(c), Amici state
that no party or person other than Amici authored or contributed funding for this
brief.
/s/ P.K. RUNKLES-PEARSON P.K. RUNKLES-PEARSON OSB No. 061911 Miller Nash Graham & Dunn, LLP 111 S.W. Fifth Avenue, Suite 3400 Portland, Oregon 97204 Telephone: (503) 224-5858 Facsimile: (503) 224-0155 p.k.runkles-pearson @millernash.com
Attorneys for Amicus Curiae Miller Nash Graham & Dunn, LLP

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

iii

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 6 of 24

(13 of 31)

I. INTEREST OF AMICI CURIAE

The Employment Law Alliance (“ELA”) is an integrated global

practice network whose independent law firm members are well-known and well-

respected for their employment and labor law practices. With more than 3,000

lawyers across more than 120 countries, all 50 U.S. states, and every Canadian

province, the ELA is the world’s largest such network. The following U.S. law

firm members of the ELA, each of which has significant expertise in employment-

related matters, hereby submit this brief:

Dinse, Knapp & McAndrew PC

Fortney & Scott, LLC

Hirschfeld Kraemer, LLP

Lewis Roca Rothgerber Christie LLP

Miller Nash Graham & Dunn LLP

Partridge, Snow & Hahn LLP

Shawe Rosenthal LLP

Tueth, Keeney, Cooper, Mohan, & Jackstadt, P.C.

Collectively, ELA member law firms represent hundreds of U.S.-

based employers that have been and would continue to be adversely impacted by

the Executive Order Protecting the Nation from Foreign Terrorist Entry into the

United States, issued January 27, 2017 (“Order”). Many of the ELA member law

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

1

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 7 of 24

(14 of 31)

firms represent employers that are institutions of higher education; the Order also adversely affects their educational and financial interests.
Amici submit this brief to provide examples of how the Order adversely affects the ability of its member clients to do business and fulfill their educational missions. II. ARGUMENT
On Friday, January 27, 2017, President Trump signed an "Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States" (the “Order”). The Order bars people from seven foreign countries (“EO Countries”) from entering the United States for an initial period of 90 days with the potential for an indefinite ban. These people include employees, students, affiliates, and contractors of U.S. employers that ELA members represent.
The Order and its implementation have caused – and, unless this court upholds the district court's decision, will continue to cause – harmful financial and operational consequences to ELA member clients. The Order prevents employees, students, affiliates, and contractors who pose absolutely no security risk from returning to the United States, separating them from their families and homes potentially indefinitely and without notice. These people fear that if they leave the United States, they will not be allowed to return. For those reasons, the Order

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

2

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 8 of 24

(15 of 31)

hampers travel for ordinary and legitimate travelers on business for and related to

ELA member clients.

Even if such employees and contractors are eventually admitted,

many have been subjected to lengthy investigation and questioning by Department

of Homeland Security ("DHS") officers and detained upon arrival for, sometimes,

several hours. These investigations often include searches of cell phones and

social media accounts, inquiries into religious practices and beliefs, extensive

interrogation of personal residence and travel histories and other subjects. The

investigations and detentions may separate families of business travelers, including

young children. This is not only personally frightening. It also severely disrupts

work, study, and business of the travelers and their ELA-represented institutions.

These concerns are causing employers to suspend travel for

vulnerable employees and advise vulnerable students not to travel. This, of course,

causes further disruption to their business efforts and relationships.

Such disruption – should it be allowed to continue – would inevitably

and irreparably erode business opportunities for U.S. employers. Employers may

lose valuable employees, students, affiliates, and contractors who – precisely

because of their skills, talents, education, experience, foreign origin, knowledge of

language, culture and business practices, and special relationships – are uniquely

able to advance employers’ interests in and connections to the EO Countries.

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

3

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 9 of 24

(16 of 31)

A. The Haphazard Implementation of the Executive Order Created Unprecedented Chaos and Uncertainty for Employers. The Order took effect on January 27, 2017. In the week after
implementation and before the Western District of Washington enjoined enforcement of various sections of the Order in its February 3, 2017 Temporary Restraining Order, the scope and effect of the Order remained fluid, and the federal government implemented it in an inconsistent and contradictory manner.
Amici address the shifting interpretation of the Order here because it contributes directly to the sense of unpredictability they face. While every new law or regulation is subject to interpretation, the inconsistencies and contradictions associated with the Order are truly unprecedented in our experience. The changes have whipsawed back and forth over the course of a single week with life-changing consequences for the affected employees and students each time. As we describe more fully in Sections B and C, the resulting climate stunts the growth and disrupts the orderly administration of the business and educational enterprises that amici represent.
For example, the Department of State ("DOS") and DHS have applied the Order inconsistently to lawful permanent residents from the affected countries. By its plain language, the Order purports to bar immigrants and nonimmigrants – including lawful permanent residents and other long-time U.S. residents – from

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

4

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 10 of 24

(17 of 31)

entering the United States.1 The same day the Order was issued, Edward J.

Ramatowski, Deputy Assistant Secretary of the Bureau of Consular Affairs for

DOS, provisionally revoked all valid nonimmigrant and immigrant visas of

nationals of the EO Countries, except certain specified diplomatic visas and visas

of foreign nationals granted the national interest exception under Section 3(g) of

the Order. The DOS estimated that this provisional revocation impacted 60,000

people, while the Department of Justice estimated the impact at 100,000. The

provisional revocation of these visas renders the affected individuals potentially

deportable.

Even long-term permanent residents of the U.S. were denied return to

the U.S. upon the signing of the Order if they had been born in EO Countries. But

on January 29, 2017, two days after the Order was signed, John Kelly, the

Secretary of DHS, stated that the entry of lawful permanent residents would be

deemed to be in the national interest and that “absent the receipt of significant

1 “Immigrants” include individuals lawfully admitted for permanent residence, often referred to as LPRs or green card holders. LPRs have been “accorded the privilege of residing permanently in the United States … in accordance with immigration laws,” see 8 U.S.C. § 1101(a)(20), and they often reside in, work, and raise their families in the United States over period of many years. LPRs are also eligible to apply for U.S. citizenship after a specified period of time, typically five years. “Nonimmigrants” include visitors, individuals with student visas (F, J, or M visas), highly-skilled workers (H-1Bs), intracompany transferees (L-1As and L1Bs), and numerous other temporary classifications (Os, TNs, etc.). See 8 U.S.C. § 1101(a)(15)(A)-(V).

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

5

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 11 of 24

(18 of 31)

derogatory information indicating a serious threat to public safety and welfare,

permanent resident status will be a dispositive factor in [the agency’s] case-by-case

determinations.” That guidance was welcome, but because it addressed an entire

category of people at once, it contradicted the Order's statement that determinations would be made on a case-by-case basis.2 That guidance could be

changed at any time, and there still is no guidance regarding how to apply or

qualify for a case-by-case waiver or exemption.

On January 31, 2017, Secretary Kelly and other leaders from DHS

spoke at a news conference about how DHS and the DOS were implementing the

Order. Kevin McAleenan, Acting Commissioner of U.S. Customs and Border

Protection (“CBP”), (part of DHS), addressed dual nationals (i.e., individuals who

are nationals of both an EO Country and another country), stating that “[t]ravelers

will be assessed at our border based on the passport they present.” In other words,

foreign nationals from one of the EO Countries would still be able to enter the

United States if they present a valid passport from a non-EO Country.

But on or about February 1, 2017, DOS announced on its website that

it had “temporarily stopped scheduling appointments and halted processing of

2 The Order provides a highly discretionary exception, stating that “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.” See Order, § 3(g).

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

6

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 12 of 24

(19 of 31)

immigrant visa applications for individuals who are nationals or dual nationals" of

the EO Countries. The announcement further stated that all interviews scheduled

for these applicants in February 2017 had been cancelled. This directly

contradicted the January 31 statements that dual nationals would not be affected.

The same day, on January 31, 2017, CBP also published additional

information relating to the Order in a "question and answer" format on its website,

stating that “USCIS will continue to adjudicate N-400 applications for

naturalization and administer the oath of citizenship consistent with prior

practices.” That guidance is inconsistent with reports amici have received from

clients who have been told that processing of their naturalization applications

and/or administration of the oath have been suspended.

On February 1, 2017, Donald F. McGahn II, Counsel to the President,

released a Memorandum to the Acting Secretary of State, the Acting Attorney

General, and the Secretary of DHS providing “Authoritative Guidance” on the

Executive Order. In this memorandum, Mr. McGahn acknowledged that there had

been “reasonable uncertainty” about whether the 90-day ban on entries applies to

lawful permanent residents from the EO Countries and clarified that Sections 3(c)

and 3(e) of the Order do not apply to such individuals.

The unclear government interpretations and communications

regarding the intended scope of the Order and the lack of advance notice, agency

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

7

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 13 of 24

(20 of 31)

guidance and inter-agency collaboration on the Order's scope caused substantial concern and chaos. Dual nationals of the U.S and EO Countries, and their employers, fearing they were subject to the travel ban, sought legal counsel to confirm they still were authorized to return to the U.S. in their capacity as U.S. citizens with U.S. passports. Lawful permanent residents of the U.S. whose country of origin is among the EO Countries were informed the travel ban applied to them and were blocked from their planned return to the U.S. for several days. Some lawful permanent residents were even forced to sign an I-407, abandoning their rights as a permanent resident, at which time they were immediately deported. The fear associated with the Order has even resulted in foreign nationals questioning the ability to travel domestically within the U.S.
This uncertainty did cause and is causing ELA-represented employers substantial harm. Not only did it cause actual harm as to those who were unable to travel or who were traveling and could not return, but it also caused future harm for those who fear the Order's impact and potential expansion or further executive orders on immigration and are thus cancelling work-related or education-related travel on behalf of their organizations. The prospect that additional executive orders could be issued with similar lack of clarity and guidance amplifies the climate of uncertainty for U.S. employers.

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

8

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 14 of 24

(21 of 31)

B. The Order Harms U.S. Employers ELA represents. The Order has harmed and is harming U.S. employers in several ways.
The ban was implemented so suddenly that many executives and employees were stranded abroad, potentially indefinitely, or had to cancel work-related travel plans for meetings, conferences and other travel on behalf of their employers. Employers cancelled work-related travel extensively across many industries out of fear of the ban being reinstated or expanded.
These circumstances harm U.S. employers’ ability to recruit and retain employees who had been previously vetted and approved, and who have specialized skill and knowledge.
All of this puts U.S. employers at a competitive disadvantage. It cannot continue without severe harm to U.S. employers and the U.S. economy.
1. The Sudden, Chaotic Impact of the Executive Order Harmed Many Employers' Operations.
Many U.S. employers with global operations employ temporary nonimmigrant foreign workers and U.S. permanent resident green card holders who are based in the United States but who travel internationally for work. Such workers require flexible international travel to attend meetings at worldwide company offices, to visit various customer locations, and to participate in global industry activities. U.S. employers that are institutions of higher education also

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

9

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 15 of 24

(22 of 31)

routinely admit students from other countries, including hundreds of students from the seven countries named in the Order.
The Order's sudden implementation immediately affected employees and students who were traveling outside the U.S. and were not able to return, despite being already vetted and approved for employment or scholarship in this country and actively engaged in such activities in the U.S.
A few examples demonstrate the problems ELA-employer clients face across the country. For example, employees with valid visas who were traveling abroad temporarily when the Order was issued were unable to return, with no warning. Employees with valid visas were unable to travel on behalf of their employers and had to cancel long-standing meetings and professional engagements. Visiting researchers and tenure-track university faculty members employed in H-1B status and traveling abroad temporarily when the Order was issued were unable to return to campus to resume teaching and research duties, with no warning. Students who have already been admitted or were temporarily away have been barred from traveling to their campuses.
Employers have lost the work that those employees would have performed upon their return to the U.S. They have covered the lodging and travel costs of stranded employees. In addition, employers' interest is not limited to

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

10

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 16 of 24

(23 of 31)

immediate financial loss. In many cases, the loss of a critical employee damages future business plans.
2. Uncertainty About the Executive Order is Hindering Business Travel and Investment.
The harm to U.S. employers is not limited to stranded individuals. Reasonable employers are concerned that the manner in which the Order has already been implemented is a warning of other radical changes in the Order or its interpretation. Employers are concerned that the list of seven countries will be expanded to other countries in a similar manner. Changing the list without notice would strand other employees outside the U.S., separated from family, school, and jobs. Employers are also concerned about the "case-by-case" waiver process described in the Order. We do not know what that process will involve, or what criteria will be used to make a determination.
As a result of this uncertainty, many employees are afraid to travel, even if they are not from one of the seven EO Countries. The fear of being denied entry or re-entry has increased employee unwillingness to come to the U.S. for business or to leave the U.S. for business. This has caused multinational business executives with visas or admission stamps for visiting one of the listed countries on business or holiday to question their continued ability to travel to the U.S. for business purposes. It has caused physicians from non-EO Countries in the Middle

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

11

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 17 of 24

(24 of 31)

East who are employed in the U.S. on H-1B visas to question whether the U.S. government will allow them to stay in this country to provide medical care in underserved areas of the U.S.
U.S. employers with cross-border business are restricted as to which foreign national employees are eligible to travel to and from work on a daily basis. Many cross-border commuters now fear entering the U.S. for work or departing the U.S. for work regardless of whether they are from the named countries in the order. Such fear has caused disruption in business in border states where employees are electing to remain on one side or the other until they fully understand what risks they face when traveling internationally.
The uncertainty is not limited to employees. U.S. investors and entrepreneurs who work with U.S. employers are putting their plans to bring startup and other business ventures to the U.S. on hold given the immediate and potential impact of the Order. Those from the EO Countries may not have the opportunity to invest in the U.S. economy, and the ban may deter others from doing so entirely.
Due to these circumstances, employers are hesitant to require employees to travel, because there is no certainty that employees will be admitted into (or back into) the U.S. Some employers are putting business on hold, at

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

12

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 18 of 24

(25 of 31)

significant expense. This cannot continue indefinitely, or the companies and

institutions will lose their competitive edge and standing in the global economy.

3. The Order Negatively Impacts Recruitment.

U.S. employers are already experiencing a negative impact on

recruitment, hiring, and retention practices as a result of the Order. For example,

U.S. employers in the STEM fields (Science, Technology, Engineering, and Math)

have difficulty recruiting and hiring qualified U.S. workers to fill STEM roles.

Workers and students from other countries, including EO Countries, fill STEM

roles that U.S. workers are not otherwise able to fill. But because of the Order,

U.S. employers do not know whether they may continue to employ workers from

EO Countries, or whether they can pursue qualified workers from EO Countries for

future positions.

Examples of these recruitment problems are already arising. For

example, valued recruits for employment in the United States have been unable to

travel to the U.S. for scheduled job interviews and worksite tours based on their

country of birth, even if they are currently residing in a country not subject to the

Order. New permanent residents in the U.S. whose immediate family still resides

elsewhere (pending the long immigration process) are suddenly facing a much

longer family separation because the family members was born in a country

subject to the Order. These hardships will make it less likely that these valuable

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

13

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 19 of 24

(26 of 31)

employees will come here or that they will stay. The loss of their expertise will be

substantial.

C. The Order Harms U.S. Institutions of Higher Education.

Amici represent many employers who are higher education

institutions. The Order presents particular challenges for them.

Knowledge is universal, and teachers, researchers, and students are

part of a global academic community. U.S. colleges and universities employ

numerous instructors and researchers from the seven EO Countries. The Order has

barred scholars from entering the country. Others have been afraid to leave the

country for conferences or research for fear they would not be allowed to return.

The inability to invite scholars from the EO Countries causes more

harm than the loss of those scholars alone. In some cases, academics may hold

conferences in other countries so that all can attend. Research and scholarship will

move elsewhere, causing both economic and academic loss.

Students are also significantly affected. U.S. colleges and universities

enroll many students from EO countries. Students who are already admitted to

colleges and universities for this and the upcoming term may not be able to enter

the country to attend class. Since the Order, universities are prudently advising

vulnerable students who are already here not to leave the country to visit family, to

study abroad, for internships and field work, or to vacation over the upcoming

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

14

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 20 of 24

(27 of 31)

spring break, because they will not be allowed to return. These travel restrictions create impossible dilemmas for students who in some cases must leave the country to renew student visas, only to be denied reentry. And even students whose visas are intact for now must cope with the loss of family visits. Some families may not be able to attend their student's graduation ceremonies.
The loss of international students and scholars is more than financial. It represents a hole in the fabric of the university community – a loss of scholarship, innovation, understanding, and perspective that is simply not replaceable. This loss will quickly have a significant negative impact on the economy of the United States. III. CONCLUSION
Based on the foregoing, amici respectfully request that the Court deny Appellants’ Motion.

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

15

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 21 of 24

(28 of 31)

Respectfully submitted this 7th day of February, 2017.
/s/ P.K. RUNKLES-PEARSON P.K. RUNKLES-PEARSON Oregon Bar No. 061911 Miller Nash Graham & Dunn LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, OR 97204 Telephone: 503.224.5858 p.k.runkles-pearson@millernash.com Attorneys for Amicus Curiae Miller Nash Graham & Dunn, LLP
/s/ NATASHA J. BAKER NATASHA J. BAKER California SBN 226981 Hirschfeld Kraemer LLP 505 Montgomery Street, 13th Floor San Francisco, CA 94111 nbaker@HKemploymentlaw.com Attorneys for Amicus Curiae Hirschfeld Kraemer LLP

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

16

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 22 of 24

(29 of 31)

/s/ ALISON M. HAMER ALISON M. HAMER California SBN 258281 Hirschfeld Kraemer LLP 233 Wilshire Boulevard, Suite 600 Santa Monica, CA 90401 ahamer@hkemploymentlaw.com Attorneys for Amicus Curiae Hirschfeld Kraemer LLP
/s/ MARY ELLEN SIMONSON MARY ELLEN SIMONSON Arizona SBN 009298 Lewis Roca Rothgerber Christie LLP 201 East Washington Street, Suite 1200 Phoenix, AZ 85004 msimonson@lrrc.com Attorneys for Amicus Curiae Lewis Roca Rothgerber Christie LLP
/s/ MELANIE GURLEY KEENEY MELANIE GURLEY KEENEY Missouri Bar No. 37789 Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. 34 N. Meramec Ave. Suite 600 St. Louis, MO 63105 mkeeney@tuethkeeney.com Attorneys for Amicus Curiae Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C.

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

17

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 23 of 24

(30 of 31)

CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation of
Fed. R. App. P. 28.1(e)(2) because this brief contains 3,405 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief
complies with the typeface requirement of Fed. R. App. P. 32(a)(5) and the type
style requirements of Fed. R. App. P. 32(a)(6) because this brief has been
prepared in a proportionally spaced typeface using Microsoft Word for Windows
software in 14 pt. Times New Roman.
/s/ P.K. RUNKLES-PEARSON P.K. RUNKLES-PEARSON OSB No. 061911 Miller Nash Graham & Dunn, LLP 111 S.W. Fifth Avenue, Suite 3400 Portland, Oregon 97204 Telephone: (503) 224-5858 Facsimile: (503) 224-0155 p.k.runkles-pearson @millernash.com
Attorneys for Amicus Curiae Miller Nash Graham & Dunn, LLP

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

1

NO. 17-35105

Case: 17-35105, 02/07/2017, ID: 10305896, DktEntry: 113-2, Page 24 of 24

(31 of 31)

CERTIFICATE OF SERVICE
I, P.K. RUNKLES-PEARSON, hereby certify that I electronically filed the following document 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 7, 2017.
BRIEF OF PARTICIPATING LAW FIRMS OF THE EMPLOYMENT LAW ALLIANCE IN SUPPORT OF APPELLEES
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
Executed February 7, 2017, at Portland, Oregon.

/s/ P.K. RUNKLES-PEARSON P.K. RUNKLES-PEARSON Oregon SBN 061911

BRIEF OF PARTICIPATING LAW FIRMS OF

THE EMPLOYMENT LAW ALLIANCE

2

NO. 17-35105

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 STATE OF WASHINGTON, et al.,
10 Plaintiffs,
11 v.
12 DONALD J. TRUMP, et al.,

CASE NO. C17-0141JLR
ORDER ON BRIEFING SCHEDULE FOR PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

13 Defendants.

14 Before the court is the parties’ Joint Status Report (“JSR”). (JSR (Dkt. # 56).)
15 The court hereby ADOPTS the parties’ proposed briefing schedule for Plaintiffs’ motion
16 for a preliminary injunction (see id. at 1) and ORDERS the parties to comply with the
17 following schedule:
18 1. Plaintiffs shall file their motion for a preliminary injunction no later than
19 11:59 p.m., Pacific Standard Time (“PST”), on February 9, 2017;
20 2. Defendants shall file their opposition to Plaintiffs’ motion no later than 11:59
21 p.m., PST, on February 15, 2017; and
22

ORDER - 1

1

3. Plaintiffs shall file their reply in support of their motion no later than

2

11:59 p.m., PST, on February 17, 2017.

3

Dated this 7th day of February, 2017.

4

5

A

6

JAMES L. ROBART

United States District Judge

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

ORDER - 2

 
 Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 1 of 29

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W. TILLERSON, Secretary of State; JOHN F. KELLY, Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA,
Defendants-Appellants.

No. 17-35105 D.C. No.
2:17-cv-00141
ORDER

Motion for Stay of an Order of the United States District Court for the
Western District of Washington James L. Robart, District Judge, Presiding
Argued and Submitted February 7, 2017
Filed February 9, 2017
Before: William C. Canby, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges
Per Curiam Order

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 2 of 29

2

STATE OF WASHINGTON V. TRUMP

COUNSEL
August E. Flentje (argued), Special Counsel to the Assistant Attorney General; Douglas N. Letter, Sharon Swingle, H. Thomas Byron, Lowell V. Sturgill Jr., and Catherine Dorsey, Attorneys, Appellate Staff; Chad A. Readler, Acting Assistant Attorney General; Noel J. Francisco, Acting Solicitor General; Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellants.
Noah G. Purcell (argued), Solicitor General; Marsha Chien and Patricio A. Marquez, Assistant Attorneys General; Colleen M. Melody, Civil Rights Unit Chief; Anne E. Egeler, Deputy Solicitor General; Robert W. Ferguson, Attorney General; Attorney General’s Office, Seattle, Washington; for Plaintiff-Appellee State of Washington.
Jacob Campion, Assistant Attorney General; Alan I. Gilbert, Solicitor General; Lori Swanson, Attorney General; Office of the Attorney General, St. Paul, Minnesota; for PlaintiffAppellee State of Minnesota.

ORDER
PER CURIAM:
At issue in this emergency proceeding is Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries. Two States challenged the Executive Order as unconstitutional and violative of federal law, and a federal district court preliminarily ruled in their favor and

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 3 of 29

STATE OF WASHINGTON V. TRUMP

3

temporarily enjoined enforcement of the Executive Order. The Government now moves for an emergency stay of the district court’s temporary restraining order while its appeal of that order proceeds.
To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.
Background
On January 27, 2017, the President issued Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Executive Order”). 82 Fed. Reg. 8,977. Citing the terrorist attacks of September 11, 2001, and stating that “numerous foreign-born individuals have been convicted or implicated in terrorismrelated crimes” since then, the Executive Order declares that “the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” Id. It asserts, “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

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 4 of 29

4

STATE OF WASHINGTON V. TRUMP

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.” Id.
The Executive Order makes several changes to the policies and procedures by which non-citizens may enter the United States. Three are at issue here. First, section 3(c) of the Executive Order suspends for 90 days the entry of aliens from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. 82 Fed. Reg. 8,977-78 (citing the Immigration and Nationality Act (INA) § 217(a)(12), codified at 8 U.S.C. § 1187(a)(12)). Second, section 5(a) of the Executive Order suspends for 120 days the United States Refugee Admissions Program. 82 Fed. Reg. 8,979. Upon resumption of the refugee program, section 5(b) of the Executive Order directs the Secretary of State to prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality. Id. Third, section 5(c) of the Executive Order suspends indefinitely the entry of all Syrian refugees. Id. Sections 3(g) and 5(e) of the Executive Order allow the Secretaries of State and Homeland Security to make case-by-case exceptions to these provisions “when in the national interest.” 82 Fed. Reg. 8,978-80. Section 5(e) states that situations that would be in the national interest include “when the person is a religious minority in his country of nationality facing religious persecution.” 82 Fed. Reg. 8,979. The Executive Order requires the Secretaries of State and Homeland Security and the Director of National Intelligence to evaluate the United States’ visa, admission, and refugee programs during the periods in which entry is suspended. 82 Fed. Reg. 8,977-80.
The impact of the Executive Order was immediate and widespread. It was reported that thousands of visas were

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 5 of 29

STATE OF WASHINGTON V. TRUMP

5

immediately canceled, hundreds of travelers with such visas were prevented from boarding airplanes bound for the United States or denied entry on arrival, and some travelers were detained. Three days later, on January 30, 2017, the State of Washington filed suit in the United States District Court for the Western District of Washington, challenging sections 3(c), 5(a)-(c), and 5(e) of the Executive Order, naming as defendants the President, the Secretary of the Department of Homeland Security, the Secretary of State, and the United States (collectively, “the Government”). Washington alleged that the Executive Order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the State’s economy and public universities in violation of the First and Fifth Amendments, the INA, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act. Washington also alleged that the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a “Muslim ban” as the President had stated during his presidential campaign that he would do.
Washington asked the district court to declare that the challenged sections of the Executive Order are illegal and unconstitutional and to enjoin their enforcement nationwide. On the same day, Washington filed an emergency motion for a temporary restraining order (TRO) seeking to enjoin the enforcement of sections 3(c), 5(a)-(c), and 5(e) of the Executive Order. Two days later, Washington’s Complaint was amended to add the State of Minnesota as a plaintiff and to add a claim under the Tenth Amendment. Washington and Minnesota (collectively, “the States”) jointly filed an amended motion for a TRO. The Government opposed the

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 6 of 29

6

STATE OF WASHINGTON V. TRUMP

motion the next day, and the district court held a hearing the day after that.
That evening, the court entered a written order granting the TRO. Washington v. Trump, No. C17-0141-JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017). The district court preliminarily concluded that significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States, by means of an Executive Order that the States were likely to be able to prove was unlawful. Id. at *2. The district court enjoined and restrained the nationwide enforcement of sections 3(c) and 5(a)-(c) in their entirety. Id. It enjoined section 5(e) to the extent that section “purports to prioritize refugee claims of certain religious minorities,” and prohibited the government from “proceeding with any action that prioritizes the refugee claims of certain religious minorities.” The court also directed the parties to propose a briefing schedule for the States’ request for a preliminary injunction and denied the Government’s motion to stay the TRO pending an emergency appeal. Id. at *3.
The Government filed a notice of appeal the next day and sought an emergency stay in this court, including an immediate stay while its emergency stay motion was under consideration. We denied the request for an immediate stay and set deadlines for the filing of responsive and reply briefs on the emergency stay motion over the next two days.1 Washington v. Trump, No. 17-35105, 2017 WL 469608 (9th Cir. Feb. 4, 2017). The motion was submitted after oral argument was conducted by telephone.

1 We have also received many amicus curiae briefs in support of both the Government and the States.

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 7 of 29

STATE OF WASHINGTON V. TRUMP

7

Appellate Jurisdiction
The States argue that we lack jurisdiction over the Government’s stay motion because the Government’s appeal is premature. A TRO is not ordinarily appealable. See Bennett v. Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002). We may nonetheless review an order styled as a TRO if it “possesses the qualities of a preliminary injunction.” Serv. Emps. Int’l Union v. Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010). This rule has ordinarily required the would-be appellant to show that the TRO was strongly challenged in adversarial proceedings before the district court and that it has or will remain in force for longer than the fourteen-day period identified in Federal Rule of Civil Procedure 65(b). See, e.g., id.
We are satisfied that in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction. The parties vigorously contested the legal basis for the TRO in written briefs and oral arguments before the district court. The district court’s order has no expiration date, and no hearing has been scheduled. Although the district court has recently scheduled briefing on the States’ motion for a preliminary injunction, it is apparent from the district court’s scheduling order that the TRO will remain in effect for longer than fourteen days. In light of the unusual circumstances of this case, in which the Government has argued that emergency relief is necessary to support its efforts to prevent terrorism, we believe that this period is long enough that the TRO

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 8 of 29

8

STATE OF WASHINGTON V. TRUMP

should be considered to have the qualities of a reviewable preliminary injunction.2
Standing
The Government argues that the district court lacked subject matter jurisdiction because the States have no standing to sue. We have an independent obligation to ascertain our jurisdiction, Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006), and we consider the Government’s argument de novo, see, e.g., Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1098 (9th Cir. 2016). We conclude that the States have made a sufficient showing to support standing, at least at this preliminary stage of the proceedings.
Article III, section 2 of the Constitution allows federal courts to consider only “Cases” and “Controversies.” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). “Those two words confine ‘the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.’” Id. (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)). ”Standing is an essential and unchanging part of the case-or-controversy requirement” and is therefore a prerequisite to our jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The “gist of the question of standing” is whether the plaintiff has a sufficiently “personal stake in the outcome of the controversy” to ensure that the parties will be truly adverse and their legal

2 Our conclusion here does not preclude consideration of appellate jurisdiction at the merits stage of this appeal. See Nat’l Indus., Inc. v. Republic Nat’l Life Ins. Co., 677 F.2d 1258, 1262 (9th Cir. 1982).

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 9 of 29

STATE OF WASHINGTON V. TRUMP

9

presentations sharpened. Massachusetts, 549 U.S. at 517 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
To establish Article III standing, a plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Id. (citing Lujan, 504 U.S. at 560-61).
Because standing is “an indispensable part of the plaintiff’s case,” it “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. At this very preliminary stage of the litigation, the States may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their TRO motion to meet their burden. See id. With these allegations and evidence, the States must make a “clear showing of each element of standing.” Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013).3
The States argue that the Executive Order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law. See, e.g., Hontz v. State, 714 P.2d 1176, 1180 (Wash. 1986) (en banc); Univ. of Minn. v. Raygor, 620 N.W.2d 680, 683 (Minn. 2001).

3 Our decision in Townley concerned a motion for a preliminary injunction, but the legal standards applicable to TROs and preliminary injunctions are “substantially identical.” Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 10 of 29

10

STATE OF WASHINGTON V. TRUMP

Specifically, the States allege that the teaching and research missions of their universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries. These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all. The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.
According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa. Similarly, the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States. The University of Washington also sponsored two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington. The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted. Both schools have a mission of “global engagement” and rely on such visiting students, scholars, and faculty to advance their educational goals. Students and faculty at Minnesota’s public universities were similarly restricted from traveling for academic and personal reasons.
Under the “third party standing” doctrine, these injuries to the state universities give the States standing to assert the

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 11 of 29

STATE OF WASHINGTON V. TRUMP

11

rights of the students, scholars, and faculty affected by the Executive Order. See Singleton v. Wulff, 428 U.S. 106, 11416 (1976) (explaining that third-party standing is allowed when the third party’s interests are “inextricably bound up with the activity the litigant wishes to pursue”; when the litigant is “fully, or very nearly, as effective a proponent of the right” as the third party; or when the third party is less able to assert her own rights). Vendors, for example, “have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.” Craig v. Boren, 429 U.S. 190, 195 (1976). Likewise, doctors have been permitted to assert the rights of their patients. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965). And advocacy organizations such as the NAACP have been permitted to assert the constitutional rights of their members. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958).
Most relevant for our purposes, schools have been permitted to assert the rights of their students. See, e.g., Runyon v. McCrary, 427 U.S. 160, 175 & n.13 (1976) (“It is clear that the schools have standing to assert these arguments [asserting free-association rights, privacy rights, and ‘a parent’s right to direct the education of his children’] on behalf of their patrons.”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 536 (1925) (allowing a school to assert the “right of parents to choose schools where their children will receive appropriate mental and religious training [and] the right of the child to influence the parents’ choice of a school”); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487-88 (9th Cir. 1995) (citing Pierce and rejecting the argument that the plaintiff school had no standing to assert claims of discrimination against its minority students); see also Ohio Ass’n of Indep. Sch. v. Goff, 92 F.3d 419, 422 (6th Cir. 1996) (citing similar authorities). As in those cases, the interests

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 12 of 29

12

STATE OF WASHINGTON V. TRUMP

of the States’ universities here are aligned with their students. The students’ educational success is “inextricably bound up” in the universities’ capacity to teach them. Singleton, 428 U.S. at 115. And the universities’ reputations depend on the success of their professors’ research. Thus, as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members.4
We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.

4 The Government argues that the States may not bring Establishment Clause claims because they lack Establishment Clause rights. Even if we assume that States lack such rights, an issue we need not decide, that is irrelevant in this case because the States are asserting the rights of their students and professors. Male doctors do not have personal rights in abortion and yet any physician may assert those rights on behalf of his female patients. See Singleton, 428 U.S. at 118.

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 13 of 29

STATE OF WASHINGTON V. TRUMP

13

We therefore hold that the States have standing.5
Reviewability of the Executive Order
The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens.” The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our jurisprudence. See, e.g., Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (recognizing that “the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control” (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977))); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010) (explaining that courts should defer to the political branches with respect to national security and foreign relations). Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the

5 The States have asserted other proprietary interests and also presented an alternative standing theory based on their ability to advance the interests of their citizens as parens patriae. Because we conclude that the States’ proprietary interests as operators of their public universities are sufficient to support standing, we need not reach those arguments.

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 14 of 29

14

STATE OF WASHINGTON V. TRUMP

judiciary to entertain a constitutional challenge to executive actions such as this one.
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.
Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”); Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that courts can review “whether Congress has chosen a constitutionally

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 15 of 29

STATE OF WASHINGTON V. TRUMP

15

permissible means of implementing that power”).6 Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).
Kleindienst v. Mandel, 408 U.S. 753 (1972), does not compel a different conclusion. The Government cites Mandel for the proposition that “‘when the Executive exercises’ immigration authority ‘on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.’” The Government omits portions of the quoted language to imply that this standard governs judicial review of all executive exercises of immigration authority. In fact, the Mandel standard applies to lawsuits challenging an executive branch official’s decision to issue or deny an individual visa based on the

6 See also, e.g., Galvan v. Press, 347 U.S. 522, 530 (1954) (reaffirming the broad power of Congress over immigration, but observing that “[i]n the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process”); Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903) (reaffirming, in the context of adjudicating a constitutional challenge to an immigration policy, that “this court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution”); Chae Chan Ping v. United States, 130 U.S. 581, 604 (1889) (“The powers to declare war, make treaties . . . and admit subjects of other nations to citizenship, are all sovereign powers, restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.”).

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 16 of 29

16

STATE OF WASHINGTON V. TRUMP

application of a congressionally enumerated standard to the particular facts presented by that visa application. The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President’s promulgation of sweeping immigration policy. Such exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard; as cases like Zadvydas and Chadha make clear, courts can and do review constitutional challenges to the substance and implementation of immigration policy. See Zadvydas, 533 U.S. at 695; Chadha, 462 U.S. at 940-41.
This is no less true when the challenged immigration action implicates national security concerns. See Ex parte Quirin, 317 U.S. 1, 19 (1942) (stating that courts have a duty, “in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty”); Ex parte Milligan, 71 U.S. 2, 120-21 (1866) (“The Constitution of the United States is a law for rulers and people, equally in war and in peace . . . under all circumstances.”). We are mindful that deference to the political branches is particularly appropriate with respect to national security and foreign affairs, given the relative institutional capacity, informational access, and expertise of the courts. See Humanitarian Law Project, 561 U.S. at 3334.
Nonetheless, “courts are not powerless to review the political branches’ actions” with respect to matters of national security. Alperin v. Vatican Bank, 410 F.3d 532, 559 n.17 (9th Cir. 2005). To the contrary, while counseling deference to the national security determinations of the political branches, the Supreme Court has made clear that

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 17 of 29

STATE OF WASHINGTON V. TRUMP

17

the Government’s “authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war. Humanitarian Law Project, 561 U.S. at 34 (quoting id. at 61 (Breyer, J., dissenting)); see also United States v. Robel, 389 U.S. 258, 264 (1967) (“‘[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”); Zemel v. Rusk, 381 U.S. 1, 17 (1965) (“[S]imply because a statute deals with foreign relations [does not mean that] it can grant the Executive totally unrestricted freedom of choice.”).
Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict. See, e.g., Boumediene, 553 U.S. 723 (striking down a federal statute purporting to deprive federal courts of jurisdiction over habeas petitions filed by non-citizens being held as “enemy combatants” after being captured in Afghanistan or elsewhere and accused of authorizing, planning, committing, or aiding the terrorist attacks perpetrated on September 11, 2001); Aptheker v. Sec’y of State, 378 U.S. 500 (1964) (holding unconstitutional a statute denying passports to American members of the Communist Party despite national security concerns); Ex parte Endo, 323 U.S. 283 (1944) (holding unconstitutional the detention of a law-abiding and loyal American of Japanese ancestry during World War II and affirming federal court jurisdiction over habeas petitions by such individuals). As a plurality of the Supreme Court cautioned in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), “Whatever power the United

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 18 of 29

18

STATE OF WASHINGTON V. TRUMP

States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Id. at 536 (plurality opinion).
In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.
Legal Standard
The Government moves to stay the district court’s order pending this appeal. “A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926)). “It is instead ‘an exercise of judicial discretion,’ and ‘the propriety of its issue is dependent upon the circumstances of the particular case.’” Id. (quoting Virginian, 272 U.S. at 672-73) (alterations omitted). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-34.
Our decision is guided by four questions: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556 U.S. at 434). “The first two factors . . . are the most critical,” Nken, 556 U.S. at 434, and the last two steps are reached “[o]nce an applicant satisfies the first two

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 19 of 29

STATE OF WASHINGTON V. TRUMP

19

factors,” id. at 435. We conclude that the Government has failed to clear each of the first two critical steps. We also conclude that the final two factors do not militate in favor of a stay. We emphasize, however, that our analysis is a preliminary one. We are tasked here with deciding only whether the Government has made a strong showing of its likely success in this appeal and whether the district court’s TRO should be stayed in light of the relative hardships and the public interest.
The Government has not shown that it is likely to succeed on appeal on its arguments about, at least, the States’ Due Process Clause claim, and we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims. We express no view as to any of the States’ other claims.
Likelihood of Success—Due Process
The Fifth Amendment of the Constitution prohibits the Government from depriving individuals of their “life, liberty, or property, without due process of law.” U.S. Const. amend. V. The Government may not deprive a person of one of these protected interests without providing “notice and an opportunity to respond,” or, in other words, the opportunity to present reasons not to proceed with the deprivation and have them considered. United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014); accord Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985); ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1073 (9th Cir. 2015).
The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 20 of 29

20

STATE OF WASHINGTON V. TRUMP

Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.
In the district court, the States argued that the Executive Order violates the procedural due process rights of various aliens in at least three independent ways. First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States. The district court held generally in the TRO that the States were likely to prevail on the merits of their due process claims, without discussing or offering analysis as to any specific alleged violation.
At this stage of the proceedings, it is the Government’s burden to make “a strong showing that [it] is likely to” prevail against the States’ procedural due process claims. Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken v. Holder, 556 U.S. 418, 426 (2009)). We are not persuaded that the Government has carried its burden for a stay pending appeal.
The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 21 of 29

STATE OF WASHINGTON V. TRUMP

21

presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens. For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States. See id. (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963))). Nor has the Government established that the Executive Order provides lawful permanent residents with constitutionally sufficient process to challenge their denial of re-entry. See id. at 35 (“[T]he courts must evaluate the particular circumstances and determine what procedures would satisfy the minimum requirements of due process on the re-entry of a permanent resident alien.”).
The Government has argued that, even if lawful permanent residents have due process rights, the States’ challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued “[a]uthoritative [g]uidance” stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 22 of 29

22

STATE OF WASHINGTON V. TRUMP

signed by the President and now challenged by the States, and that proposition seems unlikely.
Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc., v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (emphasis added).
Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972). Accordingly, the Government has not demonstrated that the States lack viable claims based

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 23 of 29

STATE OF WASHINGTON V. TRUMP

23

on the due process rights of persons who will suffer injuries to protected interests due to the Executive Order. Indeed, the existence of such persons is obvious.
The Government argues that, even if the States have shown that they will likely succeed on some of their procedural due process claims, the district court nevertheless erred by issuing an “overbroad” TRO. Specifically, the Government argues that the TRO is overbroad in two independent respects: (1) the TRO extends beyond lawful permanent residents, and covers aliens who cannot assert cognizable liberty interests in connection with travelling into and out of the United States, and (2) the TRO applies nationwide, and enjoins application of the Executive Order outside Washington and Minnesota. We decline to modify the scope of the TRO in either respect.
First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States. See Din, 135 S. Ct. at 2139 (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting) (six Justices declining to adopt a rule that would categorically bar U.S. citizens from asserting cognizable liberty interests in the receipt of visas by alien spouses). There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 24 of 29

24

STATE OF WASHINGTON V. TRUMP

Second, we decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy. Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016). At this stage of the litigation, we do not need to and do not reach such a legal conclusion for ourselves, but we cannot say that the Government has established that a contrary view is likely to prevail. Moreover, even if limiting the geographic scope of the injunction would be desirable, the Government has not proposed a workable alternative form of the TRO that accounts for the nation’s multiple ports of entry and interconnected transit system and that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders.
More generally, even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order. See United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 479 (1995) (declining to rewrite a statute to eliminate constitutional defects); cf. Aptheker v. Sec’y of State, 378 U.S. 500, 516 (1964) (invalidating a restriction on freedom of travel despite the existence of constitutional applications). The political branches are far better equipped to make appropriate distinctions. For now, it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument in this appeal.
Likelihood of Success—Religious Discrimination
The First Amendment prohibits any “law respecting an establishment of religion.” U.S. Const. amend. I. A law that has a religious, not secular, purpose violates that clause,

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 25 of 29

STATE OF WASHINGTON V. TRUMP

25

Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), as does one that “officially prefer[s] [one religious denomination] over another,” Larson v. Valente, 456 U.S. 228, 244 (1982). The Supreme Court has explained that this is because endorsement of a religion “sends the ancillary message to . . . nonadherents ‘that they are outsiders, not full members of the political community.’” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)). The Equal Protection Clause likewise prohibits the Government from impermissibly discriminating among persons based on religion. De La Cruz v. Tormey, 582 F.2d 45, 50 (9th Cir. 1978).
The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 26 of 29

26

STATE OF WASHINGTON V. TRUMP

68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).
The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.
The Balance of Hardships and the Public Interest
The Government has not shown that a stay is necessary to avoid irreparable injury. Nken, 556 U.S. at 434. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.
The Government has pointed to no evidence that any alien from any of the countries named in the Order has

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 27 of 29

STATE OF WASHINGTON V. TRUMP

27

perpetrated a terrorist attack in the United States.7 Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.8 We disagree, as explained above.
To the extent that the Government claims that it has suffered an institutional injury by erosion of the separation of powers, that injury is not “irreparable.” It may yet pursue and vindicate its interests in the full course of this litigation. See, e.g., Texas v. United States, 787 F.3d 733, 767-68 (5th Cir. 2015) (“[I]t is the resolution of the case on the merits, not whether the injunction is stayed pending appeal, that will affect those principles.”).

7 Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.
8 In addition, the Government asserts that, “[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.” But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that. 28 C.F.R. § 17.17(c) (describing Department of Justice procedures to protect classified materials in civil cases); 28 C.F.R. § 17.46(c) (“Members of Congress, Justices of the United States Supreme Court, and Judges of the United States Courts of Appeal and District Courts do not require a determination of their eligibility for access to classified information . . . .”); W.D. Wash. Civ. L.R. 5(g) (providing procedures governing filings under seal).

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 28 of 29

28

STATE OF WASHINGTON V. TRUMP

By contrast, the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple “other parties interested in the proceeding.” Nken, 556 U.S. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries and even irreparable harms. See Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))).
The Government suggests that the Executive Order’s discretionary waiver provisions are a sufficient safety valve for those who would suffer unnecessarily, but it has offered no explanation for how these provisions would function in practice: how would the “national interest” be determined, who would make that determination, and when? Moreover, as we have explained above, the Government has not otherwise explained how the Executive Order could realistically be administered only in parts such that the injuries listed above would be avoided.
Finally, in evaluating the need for a stay, we must consider the public interest generally. See Nken, 556 U.S. at 434. Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from

Case: 17-35105, 02/09/2017, ID: 10310971, DktEntry: 134, Page 29 of 29

STATE OF WASHINGTON V. TRUMP

29

discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.
Conclusion
For the foregoing reasons, the emergency motion for a stay pending appeal is DENIED.

 
 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
FEB 09 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

STATE OF WASHINGTON and STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States; et al.,
Defendants-Appellants.

No. 17-35105 D.C. No. 2:17-cv-00141 Western District of Washington, Seattle
ORDER

Before: CANBY, CLIFTON, and FRIEDLAND, Circuit Judges. The motions for leave to file amicus curiae briefs, to file a substitute or
amended amicus curiae brief, and for an extension of time to file an amicus curiae brief, are granted (Docket Entry Nos. 19, 20, 22, 24, 26, 43, 49, 53, 55, 58, 62, 65, 66, 68, 69, 76, 79, 82, 87, 90, 91, 103, 113, 132). In light of the filing of a corrected amicus brief, the motions at Docket Entry Nos. 23 and 25 are denied as moot.
David Golden’s motion to intervene is denied (Docket Entry No. 112). Any motion for reconsideration or reconsideration en banc of the court’s February 9, 2017 order denying the motion for stay is due within 14 days. See 9th
MOATT

Cir. R. 27-10(a)(2). If a motion for reconsideration or reconsideration en banc is filed, a response to the motion shall be filed within 7 days after service of the motion. See 9th Cir. R. 27-10(b).
The following briefing schedule shall govern this appeal: the opening brief is due March 3, 2017; the answering brief is due March 24, 2017; and the optional reply brief is due March 29, 2017.

MOATT

2

17-35105

 
 Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 1 of 18

RECEIVED
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

No. 17-35105

='x.3092017

AILED nOCKETED

DATE

INITIAL.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al., Plaintiffs-Appellees
V.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

BRIEF OF AMICUS CURIAE DANIEL O. ESCAMILLA
IN SUPPORT OF DEFENDANT-APPELLANTS

Daniel O. Escamilla 888 W. Santa Ana Blvd., Suite 100 Santa Ana, CA 92701 Telephone: (714) 210-3500 Facsimile (714) 210-3505 Email: dan@escamilla.com
Amicus curiae, in pro se

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 2 of 18
•

Li TABLE OF CONTENTS
RELEVANT FACTS ..................~..............................r .................................... l

ARGUMENT.................................................................................................... 2

I. BECAUSE THERE HAS BEEN A DETERMINATION OF

THE LIKELIHOOD OF SUCCESS ON THE MERITS THE

•

COURT MUST NECESSARILY CONSIDER THE MERITS

OF THE CAUSE IN THIS MATTER ......................................... 2

II. THE EXECUTIVE ORDER IS NOT REVIEWABLE AS A MATTER OF LAW SINCE THE FINDINGS OF THE EXECUTIVE ARE BASED ON MATTERS OF NATIONAL SECURITY, OSTENSIBLY CLASSIFIED AND NOT SUBJECT TO REVIEW BY THE JUDICIARY ........................ 3

•

III. THE ESTABLISHMENT CLAUSE OF THE FIRST

AMENDMENT, BY ITS PLAIN LANGUAGE, DOES NOT

RESTRICT THE PRESIDENT OR PRECLUDE EXECUTIVE

ORDER ISSUED BY PRESIDENT ............................................ 4

i

IV. THE EQUAL PROTECTION CLAUSE OF THE

FOURTEETH AMENDMENT, BY ITS PLAIN LANGUAGE,

DOES NOT APPLY TO THE FEDERAL GOVERNMENT,

INCLUDING THE EXECUTIVE BRANCH .............................. 5

V. THE EXECUTIVE'S ACTION TO TEMPORARILY HALT

IMMIGRATION OF A PARTICULAR CLASS OF

IMMIGRANTS FOR REASONS OF NATIONAL SECURITY

0

OR FOR THE MARSHALLING OF RESOURCES TO

IMPROVE THE EFFECTIVENESS OF THE IMMIGRATION

SCREENING PROCEDURE IS WITHIN THE

EXECUTIVE'S PLENARY POWER ......................................... 6

•

•

•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 3 of 18

TABLE OF CONTENTS (cont.)

VI. THE--POLICY-OF TEMPORARY IMMIGRATION

SUSPENSION IS SOUND AND, IF REVIEWABLE BY THE

0

COURTS ON CONSTITUTIONAL GROUNDS, THE

PRESIDENT'S DETERMINATION TO SUSPEND

ADMISSION OF SYRIAN REFUGEES SHOULD BE

DEEMED PROPER TO ACHIEVE A PROPER

•

GOVERNMENTAL OBJECTIVE .............................................. 8

CONCLUSION................................................................................................. 10

•

CERTIFICATE OF COMPLIANCE ................................................................ 12

CERTIFICATE OF SERVICE ......................................................................... 13

•

•

r
• • •

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 4 of 18 0

0

TABLE OF AUTHORITIES

U.S. Constitution

1st Amendment ...... ...... ................................... .................................. 5

r

14th Amendment ..................................................................................... 5, 6

U.S. Federal Cases

Bolling v. Sharpe

•

347 U.S. 497 (1954) ..................................................................... 5

Title 8 of the United State Code (Immigration and Nationality Act)

8 U.S.C. § 212(f) ..................................................................................... 3, 6

8 U.S.C. § 217(a)(12) ............................................................................. 1

Federal Rule of Appellate Procedures (FRAP)

Rule29(a) ............................................................................................... 2

9

Secondary Sources

Mark Hosenball, Reuters, Trump gets one presidential intelligence brief a week: sources" December 9, 2016, http://www.reuters.com/article/ususa-trump-briefings-idUSKBN I 3X2M9 ..........................................................3, 4

40

Jie Zong and Jeanne Batalova. Frequently Requested Statistics on

Immigrants and Immigration in the United States, April 14, 2016,

http://www.migrationpolic ,g/article/frequentiy-requested-statistics-

immigrants-and-immigration-united-states ...................................................... 7
r Roy Beck, an immigration author with one of the most viewed

immigration policy presentation on the Internet, Immigration, World

Poverty and Gumball — Numbers USA. com

•

https://www.voutube.com/watch?v=LPjzfOChG1E ......................................... 7, 8

Jens Manuel Krogstad and Jynnah Radford, Key facts about refugees to

the U.S. Pew Research Center. http://www.pewresearch.org/fact-

tank/2017/01/30/key-facts-about-refugees-to-the-u-s/ ..................................... 10

iv
•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 5 of 18
•

•

RELEVANT FACTS

Prior to the Trump Administration, in 2015 and after the San Bernardino

terrorism attack, Congress passed section 217(a)(12) of the Immigration and

Nationality Act (INA) which imposes additional restrictions on travel to the US by

persons who have traveled to regions of the world with significant terrorist

•

presence. The statute specifically names Iraq and Syria and provides a process

whereby further countries can be added. At present, five others are also on the list:

Iran, Libya, Somalia, Sudan, and Yemen. •
Seven (7) days into office, on January 27, 2017, President Donald J. Trump

issued an Executive Order (EO): Protecting the Nation from Foreign Terrorist

•

Entry into the United States.

Insofar as is relevant to this amicus brief, the EO (at Section 3) suspends

•

entry into the US for 90-days, of immigrants from the list of countries referred to

in section 217(a)(12) of the INA.

The EO (at Section 5) also suspends U.S. Refugee Admissions Program
C~
(USRAP) for 120 days, indefinitely suspends Syrian refugees based on a

proclamation that "the entry of nationals of Syria as refugees is detrimental to the

•

interests of the United States." Finally, the EO caps the total refugee admissions

for fiscal year 2017 to 50,000.

• ii

•

•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 6 of 18

•

The States of Washington and Minnesota sought and received, on February

3, 2017, a Temporary Order from the U.S. District Court for the Western District

•

of Washington, preventing implementation of the EO. The Trump Administration,

through the Department of Justice, has filed an appeal with the Ninth Circuit Court

of Appeal on February 4, 2017.

•

ARGUMENT

I.

BECAUSE THERE HAS BEEN A DETERMINATION OF THE

•

LIKELIHOOD OF SUCCESS ON THE MERITS THE COURT MUST

NECESSARILY CONSIDER THE MERITS OF THE CAUSE IN THIS

MATTER

The temporary order of the District Court required a finding of the

•

likelihood of success on the merits. On appeal, as Plaintiff argued during oral

argument, Appellant must establish the likelihood of success on appeal.

•,

Absent a dispositive threshold issue (such as standing), the Court is therefore

justified in addressing the merits of the underlying action of Plaintiff's challenge to

the President's Executive Order: Protecting the Nation from Foreign Terrorist
0 Entry into the United States.

Federal Rule of Appellate Procedures (FRAP) Rule 29(a) permits amicus

•

filings during a court's initial consideration of a case on the merits.

/1/

2
•

•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 7 of 18

0

II.

THE EXECUTIVE ORDER IS NOT REVIEWABLE AS A MATTER OF

- LAW -SINCE TFIE FINDINGS -OF- T4E EXECUTIVE ARC BASED ON

MATTERS OF NATIONAL SECURITY, OSTENSIBLY CLASSIFIED AND

0

NOT SUBJECT TO REVIEW BY THE JUDICIARY

There is undeniable statutory authority under the Immigration and

Nationality Act, permitting the president to suspend any class of aliens upon a

•

finding that their entry would be "detrimental to the interest of the United States."

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. Title 8, U.S.C. § 212(f).

•

Facts relating to the president's determination of any national security risk or

as to a particular class of aliens, does not lend itself to judicial review because such

•

determinations would necessarily implicate matters of national security which are

classified and provided only to the president who, as head of the executive branch,

is charged with the protection of our national security.

10

The classified information is generally provided to the president by the

President's Daily Brief (PDB), considered the most highly classified and closely

r

held document in the government, prepared on a regular basis.' PDBs are

presented to presidents and their closest aides by representatives of the Office of

1 Mark Hosenball, Reuters, Trump gets one presidential intelligence brief a week:

•

sources" December 9, 2016, http://www.reuters.com/article/us-usa-trump-

briefings-idUSKBN13X2M9

•

•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 8 of 18

•

the Director of National Intelligence (ODNI), though material in them is prepared

by the CIA, the National Security Agency, the Defense Intelligence Agency and

•

other parts of the U.S. intelligence community.2

It is reasonable to presume that an investigation of risk posed by a particular

class of aliens must include not only the history of domestic incidents of terrorism

•

committed by the particular class, but also the international incidents as well. The

assessment of risk may also include foiled attempts to commit acts of terrorism

•

which may only be known to those in the intelligence community.

It is indisputable that this information, provided by the intelligence

community to the Executive Branch, places the president and his advisors in the
• best position to assess and address the national security risk posed by any

particular class of aliens. The president's exercise of plenary power, ostensibly

•

based on classified information complied by our intelligence community, should

not be second-guessed by the judiciary.

III.

•

THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT, BY ITS

PLAIN LANGUAGE, DOES NOT RESTRICT THE PRESIDENT OR

PRECLUDE EXECUTIVE ORDER ISSUED BY PRESIDENT

•

The Establishment Clause of the First Amendment, provides in relevant part,

that "Congress shall make no law respecting an establishment of religion..."

(Bold added for emphasis.) The plain language of the First Amendment limits its
• 2 Ibid. 4

•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 9 of 18

•

application of the Establishment Clause to laws enacted by Congress and not to

Executive Orders of the President. Accordingly, the president's Executive Order,

•

even it is treated as a law and demonstrates preference of one religion over another,

cannot be deemed unconstitutional as in violation of the Establishment Clause.

IV.

•

THE EQUAL PROTECTION CLAUSE OF THE FOURTEETH

AMENDMENT, BY ITS PLAIN LANGUAGE, DOES NOT APPLY TO THE

FEDERAL GOVERNMENT, INCLUDING THE EXECUTIVE BRANCH

Section 1 of the Fourteenth Amendment provides:

•

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any State

•

deprive any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection of the laws

(emphasis added).

•

By its terms, the equality requirement of the 14th Amendment, whether

derived from the Equal Protection Clause or the Privileges or Immunities Clause,

and the Due Process Clause of the 14`h Amendment, restrains only state

•

governments and not the federal government. (See Bolling v. Sharpe 347 U.S. 497

(1954) [holding that the 14th Amendment applies only to states]).

•

Even if the protections afforded by the 14th Amendment did apply against

the federal government, because alien immigrants are neither citizens of the United

States, nor within the jurisdiction of any State within the United States, they are

0

not within the class of persons entitled to 14th Amendment protections.

5

•

•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 10 of 18

•

V.

THE EXECUTIVE'S ACTION TO TEMPORARILY HALT

4MMIGRATION OF A PARTICULAR CLASS OF IMMIGRANTS FOR

REASONS OF NATIONAL SECURITY OR FOR THE MARSHALLING

•

OF RESOURCES TO IMPROVE THE EFFECTIVENESS OF

THE IMMIGRATION SCREENING PROCEDURE IS WITHIN THE

EXECUTIVE'S PLENARY POWER

While the scope of the terror threat by a particular class of aliens may not be
• fully known to those outside of the president's National Security Council, the

potentially catastrophic consequences of such a terror threat weighs in favor of

•

cautious action by the president. Indeed Congress has vested the president with

broad powers to exercise his discretion to "suspend the entry of all aliens or any

•

class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens

any restrictions he may deem to be appropriate" for "such period as he shall deem

necessary..." under the Immigration and Nationality Act, Title 8, U.S.C. § 212(f),

•

Given the expansive scope of immigration to our country and the daunting

task of screening immigrants, the exercise of the Executive's plenary power to

0

maintain our national security and to properly manage of our nation's immigration

screening process justifies the Executive's temporary or permanent suspension of a

•

particular class or classes of aliens in order to protect the nation from foreign

terrorist entry. The stated purpose for this suspension is to "temporarily reduce

investigative burdens on relevant agencies during the review period..."
•

•

•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 11 of 18

•

According to the Migration Policy Institute, during the last decade just over

1 million persons annually, have lawfully immigrated to the United States. In 2014,

•

California had the highest number of total immigrants of any state, with 10.5

million. This comprised 27 percent of the total state population. Almost one-half

(49 percent) of all children in California under the age of 18, were living with

•

immigrant parents.3

Immigration takes a toll on our nation's infrastructures and may add to our

•

troubling domestic issues such as homelessness, unemployment and the

availability of health care. The negative ramifications of unchecked immigration

have led many to advocate a policy of helping the impoverished in their own

•

country and discouraging immigration to the United States.4

' Jie Zong and Jeanne Batalova. Frequently Requested Statistics on Immigrants and

•

Immigration in the United States, April 14, 2016,

http://www migrationpolicy org/article/frequently-requested-statistics-immigrants-

and-immigration-united-states

4 Roy Beck, an immigration author with one of the most viewed immigration policy

•

presentation on the Internet, Immigration, World Poverty and Gum ball —

NumbersUSA.com,4 advocates helping impoverished people in their own country,

discouraging immigration to the United States. His reasoning is sound:

Allowing immigration may even hurt the impoverished people of the world

•

because the 1 million immigrants that we do take are among the most

energetic, often the better educated, certainly the most dissatisfied people

that if they did not immigrate, would be the aegis for change to improve the

lot of all the people in their countries. The true heroes in the global

•

humanitarian field are the people in the [impoverished] countries who have

the wherewithal to immigrate to another country but instead stay in their

7

•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 12 of 18

•

While Congress enacts laws regulating the admission of immigrants to the

United States, the Executive is charged with the orderly administration of our

•

country's immigration and has been empowered to suspend the entry of aliens as he

as in his Executive Order. This power to manage the immigration process by

allocating its personnel resources in a manner which, in the determination of the

•

Executive, best serves the national interest, should not be subject to interference by

the Courts.

•

VI.

THE POLICY OF TEMPORARY IMMIGRATION SUSPENSION IS

SOUND AND, IF REVIEWABLE BY THE COURTS ON

CONSTITUTIONAL GROUNDS, THE PRESIDENT'S DETERMINATION

0

TO SUSPEND ADMISSION OF SYRIAN REFUGEES SHOULD BE

DEEMED PROPER TO ACHIEVE A PROPER GOVERNMENTAL

OBJECTIVE

Many of the amicus briefs filed in this matter argue the constitutionality of

0

the Executive Order and advocate a particular policy of immigration rather than

addressing the legal issues surrounding the executive's prerogative to suspend

•

immigration pending a revision of security screening measures.

Even if the Courts were to apply the strict scrutiny test to the constitutional

•

challenges made to the Executive Order, there is certainly a compelling

countries to ply their skills to help their fellow countrymen. Unfortunately,

our immigration system tends to entice these very types of people to

abandon their countrymen."

•

https://www.youtube.com/watch?v=l.PizfGChG]E

s
•

•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 13 of 18

•

governmental interest in both national security and responsible immigration policy,

either of which would outweigh any individual rights that are being raised. Further,

limiting the suspension to the particular class of aliens rather than an across-the-

board suspension of immigrant and refugee admissions, demonstrates that the

Executive Order is narrowly tailored to achieve the government's objectives of

•

protecting the nation from foreign terrorist entry.

Section 5 of the EO (Realignment of the U.S. Refugee Admissions Program

•

for Fiscal Year 2017), which suspends the entry of Syrian refugees, is supported by

the presidential proclamation that "the entry of nationals of Syria as refugees is

detrimental to the interests of the United States..." (at Section 5(c)) and that "entry

•

of more than 50,000 refugees in fiscal year 2017 would be detrimental to the

interests of the United States..."

•

Placing a reasonable 50,000-person limitation on refugee immigration is the

prerogative of the Executive and consistent with good management of the nation's

•

infrastructure and national security. The Obama administration had announced a

goal of admitting 110,000 refugees in fiscal 2017, which would have been the

highest number of refugees admitted since 1994. The 50,000 limit on refugee
•

5 Jens Manuel Krogstad and Jynnah Radford, Key facts about refugees to the U.S.

•

Pew Research Center. http://www.pewresearch.org/fact-tank/2017/01/30/key-facts-

about-refugees-to-the-u-s/

9

•

•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 14 of 18

•

immigration is reasonable from a historical context and is calculated to achieve the

approximate figures of our most recent Republican administration:

•

•

•

•

-•

..

___•

i 17.

•

It the Court rejects the lletenclant-Appellant's challenge to Flaintitt's

standing, a consideration of the merits of Plaintiff's argument challenging the

Executive Order is proper. On the merits, the facts upon which the Executive
• Order is based, since they involve ostensibly classified matters of national security,

are not subject to review by the Courts. The President's plenary power permits the

•

immigration and national security actions taken by the Executive Order and the

Plaintiff is not entitled to constitutional protection, as against the Executive, under

•

the Establishment Clause.

10
•

•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 15 of 18

0

Plaintiff is also not entitled to invoke the protections under the 14th

Amendment for the protection of non-citizens who are outside of the jurisdiction of

•

any State of the United States. Even if a strict scrutiny test were applied, the

Plaintiffs fail to establish that the Executive Order is unconstitutional.

Finally, with regard to the limits placed on refugees, the Executive Order is

•

in line with the approximate number of refugees permitted by the most recent

Republican administration.

•

For the reasons set forth herein, and to support the president's efforts to

protect national security and effectively manage immigration procedure as

•

permitted by the Immigration and Nationality Act, Section 212(f), this amicus

urges the Court to grant Appellant-Defendant's Emergency Motion.

DATED: February 8, 2017
•

Respectfully submitted,

Dani O. Es cam illa

•

888 W. Santa Ana Blvd., Suite 100 Santa Ana, CA 92701

Telephone: (714) 210-3500 x80

Facsimile (714) 210-3505

Email: dan(a')escamilla.com

•

Amicus curiae, in pro se

•
11
•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 16 of 18 0

0

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the

undersigned individual, appearing pro se, certifies that this amicus curiae brief:

0

(i) Complies with the typeface requirements of Rule 32(a)(5) and the type

style requirements of Rule 32(a)(6) because it has been prepared using Microsoft

0

Office Professional Plus 2013 and is set in Times New Roman font in a 14-point

size and,

•

(ii) Complies with the length requirement of Rule 29(a)(5) because it is 11

pages.

DATED: February 8, 2017
•

Respectfully submitted,

v'l

•

Daniel O. Esc am illa 888 W. Santa Ana Blvd., Suite 100

Santa Ana, CA 92701

Telephone: (714) 210-3500 x80

Facsimile (714) 210-3505

C

Email: dan(a;escamilla.com Amicus curiae in pro se

•

•
12
0

•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 17 of 18

C

CERTIFICATE OF SERVICE

I hereby certify that on February 8, 2017, a true and correct copy of the

foregoing: BRIEF OF AMICUS CURIAE DANIEL O. ESCAMILLA, PRO SE IN

•

SUPPORT OF DEFENDANT-APPELLANTS with first class postage prepaid has

been deposited in the U.S. Mail in Santa Ana, California, and properly addressed to

the persons whose names and addresses are listed below.

•

Noah G. Purcell

Washington Attorney General's Office

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

•

(Courtesy copy e-mailed to NoahP@atg.wa.gov)

Noel J. Francisco

Acting Solicitor General, U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

C

Washington, DC 20530

(Courtesy copy e-mailed to Noel Francisco@USDOJ.GOV)

•

DATED: February 8, 2017

Edward Parker

888 W. Santa Ana Blvd., Suite 100

•

Santa Ana, CA 92701

Telephone: (714) 210-3500 x80

Facsimile (714) 210-3505

•

•
r
13
•

Case: 17-35105, 02/09/2017, ID: 10309179, DktEntry: 133, Page 18 of 18

 
 Case: 17-35105, 02/09/2017, ID: 10308987, DktEntry: 131, Page 1 of 1
Bob Ferguson
ATTORNEY GENERAL OF WASHINGTON
Administration Division PO Box 40100 ● Olympia, WA 98504-0100 ● (360) 753-6200
February 9, 2017
Molly Dwyer, Clerk of the Court Office of the Clerk U. S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939
RE State of Washington and State of Minnesota v. Donald Trump et al. No. 17-35105; U.S. Dist. Court W.D. of Washington No. 2:17-cv-141
Dear Ms. Dwyer,
On Tuesday, February 7, 2017, the parties presented oral argument to the Court. During the argument, Judge Friedland asked the States whether they would be presenting additional evidence in the district court and the nature of that evidence. I am writing to inform the Court that the States will be filing at least 15 additional declarations in the district court today, regarding harm to the States. Two of these, concerning concrete harm to Washington’s universities, have already been filed. They are at Docket No. 66, Declaration of R. Branon, University of Washington, Continuum College and Docket No. 67, Third Declaration of A. Chaudhry, Washington State University.
Sincerely,
s/ Noah Purcell NOAH PURCELL Solicitor General
Cc: Michelle R. Bennett, U.S. Department of Justice August E. Flentje Special Counsel to the Assistant Attorney General Jacob Campion, Assistant Attorney General for the State of Minnesota

 
 Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 1 of 23

No. 17- 35105 ___________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ___________________________________________

STATE OF WASHINGTON, et al., Plaintiffs-Appellees,
v.

Donald J. TRUMP, et al. Defendants-Appellants.
_______________________________________________
On Appeal from the U.S. District Court for the Western District of Washington No. 2:17-cv-00141
Honorable James L. Robart, U.S. District Court Judge _______________________________________________
PROPOSED PLAINTIFFS-INTERVENORS’ MOTION FOR LEAVE TO INTERVENE

Matt Adams Glenda Aldana Madrid Maria Lucia Chavez Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957-8611 (206) 587-4025 (fax)

Trina Realmuto Kristin Macleod-Ball National Immigration Project of the National Lawyers Guild 14 Beacon Street, Suite 602 Boston, MA 02108 (617) 227-9727 (617) 227-5495 (fax)

Mary Kenney Aaron Reichlin-Melnick Melissa Crow American Immigration Council 1331 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 507-7512 (202) 742-5619 (fax)

Attorneys for Proposed Plaintiffs-Intervenors

i

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 2 of 23
TABLE OF CONTENTS MOTION FOR INTERVENTION UNDER RULE 24............................................ 1 STATEMENT OF THE CASE ................................................................................ 1
I. THE ALI PLAINTIFFS ARE ENTITLED TO INTERVENE AS OF RIGHT PURSUANT TO RULE 24(a)(2). ........................................................................ 7
A. The Ali Plaintiffs’ Motion Is Timely. .......................................................... 7 B. The Ali Plaintiffs Have A Significant Protectable Interest In The Outcome Of This Appeal. .............................................................................................. 10 C. The Disposition Of This Action May Impair the Ability of the Ali Plaintiffs and Proposed Class Members To Protect Their Interests in Lawful Immigrant Visa Processing............................................................................. 12 D. The Interests of the Ali Plaintiffs and Proposed Class Members Cannot Be Adequately Represented............................................................................ 14 II. PERMISSIVE INTERVENTION IS ALSO APPROPRIATE. .................... 18 CONCLUSION ...................................................................................................... 20 CERTIFICATE OF SERVICE ............................................................................... 21
ii

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 3 of 23
MOTION FOR INTERVENTION UNDER RULE 24 Plaintiffs, two U.S. citizen parents, one lawful permanent resident and each of their children, who collectively represent immigrant visa petitioners and beneficiaries/applicants, respectfully request that this Court grant leave to intervene in the instant appeal. Plaintiffs ask this Court to grant leave to intervene as of right under Rule 24(a) of the Federal Rules of Civil Procedure or, in the alternative, to grant them permissive intervention under Rule 24(b). On February 10, 2017, undersigned counsel for Plaintiffs contacted counsel for both parties. Counsel for the States of Washington and Minnesota indicated that the States take no position on this motion. Counsel for the federal government indicated their clients oppose Plaintiffs’ request for intervention.
STATEMENT OF THE CASE On January 27, 2017, President Donald Trump issued Executive Order 13769 (EO), entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” See 82 Fed. Reg. 8977 (Feb. 1, 2017). Section 3 of the EO suspends entry into the United States of citizens or nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—all predominantly Muslim countries—for a minimum of 90 days, allegedly for national security reasons. Id. at 8978. On January 30, 2017, three petitioner parents—two U.S. citizens and one lawful
1

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 4 of 23
permanent resident—and their three beneficiary children—all of whom had pending or approved immigrant visa applications—filed a class action in the District Court for the Western District of Washington, challenging Section 3 of the EO. See Complaint—Class Action for Declaratory and Injunctive Relief, Ali v. Trump, No. 2:17-cv-00135, Dkt. 1 (W.D. Wash.). They brought the case on behalf of themselves and similarly situated immigrant visa petitioners and beneficiaries and alleged that Section 3 of the EO violates § 202(a)(1) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1152(a)(1), the Administrative Procedure Act (APA), as well as the Due Process Clause of the Fifth Amendment and the guarantee of equal protection pursuant to the Due Process Clause, and warrants mandamus relief. Id. The case is assigned to District Court Judge James L. Robart.
Later that same day, the State of Washington filed a complaint and motion for a temporary restraining order (TRO) in this case, also in the Western District of Washington. See State of Washington v. Trump, No. 2:17-cv-00141, Dkts. 1, 3 (W.D. Wash.). The case also is assigned to Judge Robart. The State of Washington challenged Section 3(c) of the EO, along with several other provisions, and also alleged violations of the INA, APA, Due Process Clause and its guarantee of equal protection, as well as other constitutional and statutory claims. Id.
On February 1, the State of Washington filed a supplementary brief on standing outlining the harm caused to the State by the EO, and the State of
2

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 5 of 23
Minnesota joined the case and filed, with Washington, both an amended complaint containing the original claims and an amended TRO motion. See State of Washington, No. 2:17-cv-00141, Dkts. 17, 18, 19.
On February 2, 2017, the Ali Plaintiffs filed a motion seeking certification of a nationwide class of all nationals of countries designated by Section 3(c) of the EO who have applied for or will apply for immigrant visas and the visa petitioners for those nationals, whose visa applications have been or will be suspended or denied, whose immigrant visas have been or will be revoked, or who have been or will be denied the ability to travel to the United States, on the basis of the EO. See Motion for Class Certification, Ali, No. 2:17-cv-00135, Dkt. 3.
Also on February 2, Defendants filed their opposition to the States’ motion for a TRO. Id., Dkt. 50. On February 3, the district court held a hearing and enjoined the provisions of the EO challenged by the States, including Section 3(c). Id. Dkt. 52. On February 4, the federal Defendants filed an emergency motion for an immediate stay of the district court’s order and a motion for a stay pending appeal, arguing, inter alia, that the States lacked standing and had not demonstrated that they would face irreparable harm. ECF 14. On the same day, this Court denied the request for an immediate stay. ECF 15.
On February 6, 2017, the Ali Plaintiffs filed a motion for a preliminary injunction and requested that, should this Court, in State of Washington, dissolve
3

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 6 of 23
the TRO enjoining application of Section 3(c) of the EO on a procedural basis that does not reach the merits of the claims, the Court convert the preliminary injunction motion into a motion for a TRO. Exh. A (Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, Ali, No. 2:17-cv-00135, Dkt. 9). The Ali Plaintiffs argued that they had standing and would experience irreparable harm absent preliminary relief, on grounds different than those asserted by the States in this case. Id. In support of their motion, they included fifteen declarations from Ali Plaintiffs, potential class members, and attorneys representing potential class members, detailing the physical, psychological, and financial harm they faced absent injunctive relief enjoining Section 3 of the EO. Exh. B (Declarations and Exhibits in Support of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, Ali, No. 2:17-cv-00135, Dkts. 1125).
On February 7, the district court presiding over State of Washington set an expedited briefing schedule for the Plaintiffs’ motion for a preliminary injunction. State of Washington, No. 2:17-cv-00141, Dkt. 57. That same day, this Court telephonically held oral argument on Defendants-Appellants’ motion for a stay. ECF 125.
On February 9, this Court denied the emergency stay motion, holding that the federal Defendants had failed to show that they were likely to prevail on the
4

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 7 of 23
merits or that they faced irreparable harm absent a stay. ECF 134. Additionally, the Court found that the TRO “possesses the qualities of an appealable preliminary injunction,” and set a briefing schedule for the merits of Defendants’ appeal of the TRO. Id. at 7; ECF 135. Thereafter, the Ali Plaintiffs moved the district court to renote and amend the briefing schedule for the TRO and preliminary injunction motion filed in that case to coincide with the schedule set by the district court in State of Washington. Plaintiffs’ Motion to Renote and Modify the Briefing Schedule on Their Motion for Temporary Restraining Order and Preliminary Injunction, Ali, No. 2:17-cv-00135, Dkt. 31.
On February 10, the Court announced that “[a] judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three-judge motions panel on February 9, 2017, should be reconsidered en banc” and ordered the parties to brief whether reconsideration en banc is appropriate by February 16, 2017. ECF 139.
ARGUMENT The Ali Plaintiffs and the class members they seek to represent move to intervene as this Court will likely dispose of their claims in its consideration of the instant case, in a way that may impair or impede Ali Plaintiffs and class members’ interests. See generally Fed. R. Civ. P. 24. Both Ali and State of Washington were filed the same day in the Western District of Washington, challenge the same
5

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 8 of 23
Executive Order, and were assigned to the same judge. Both cases have motions for preliminary injunctive relief pending before the district court. While the claims presented by the States encompass the claims presented by the movants, the Ali Plaintiffs and the class members they seek to represent bring an alternative, and critical, perspective with respect to such matters as Plaintiffs’ standing, the irreparable harm Plaintiffs are able to demonstrate in seeking preliminary injunctive relief, and the zone of interests affected by the statutory claims that are now before this Court.
Rule 24 of the Federal Rules of Civil Procedure governs an intervention on appeal. Bates v. Jones, 127 F.3d 870, 873 (9th Cir. 1997). In determining whether intervention is appropriate, this Court “follow[s] ‘practical and equitable considerations’ and construe[s] the Rule ‘broadly in favor of proposed intervenors,’ . . . because a liberal intervention policy ‘serves both efficient resolution of issues and broadened access to the courts.’” Wilderness Soc’y v. U.S. Forest Service, 630 F.3d 1173, 1179 (9th Cir. 2010) (citations omitted).
The Ali Plaintiffs and the class members they seek to represent satisfy the requirements for an intervention as of right under Rule 24(a)(2). In the alternative, they also satisfy the requirements for permissive intervention under Rule 24(b)(1), (3).
6

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 9 of 23
I. THE ALI PLAINTIFFS ARE ENTITLED TO INTERVENE AS OF RIGHT PURSUANT TO RULE 24(a)(2).
The Ninth Circuit applies a four-part rule to determine whether a party may intervene as of right under Rule 24(a)(2):
(1) the motion must be timely; (2) the applicant must claim a “significantly protectable” interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action. United States of America v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir. 2010) (citations omitted). The Ali Plaintiffs satisfy each requirement. They filed this motion within 48 hours of learning that the Ninth Circuit would treat the States’ motion as one for a preliminary injunction; a central issue in the appeal is the legality of Section 3 of the EO, which has harmed all named Plaintiffs and untold thousands of proposed class members and has the potential to cause further irreparable harm if not enjoined; and the distinct interests of Plaintiffs and proposed class members would otherwise not be adequately represented. See Exh. B.
A. The Ali Plaintiffs’ Motion Is Timely. Courts weigh three factors in determining whether a motion to intervene is
timely: “(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay.”
7

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 10 of 23
Cal. Dep’t of Toxic Substances Control v. Commercial Realty Projects, Inc., 309 F.3d 1113, 1119 (9th Cir. 2002) (citation omitted). The Ali Plaintiffs’ motion to intervene is timely under all three factors.
First, and most significantly, there has been no delay by the Ali Plaintiffs. They are filing this motion at the first point in the litigation at which it was reasonable to do so. It comes within 48 hours of this Court’s February 9, 2017 order rejecting the federal Defendants’ request for a stay of the temporary restraining order, finding that the district court’s order “possesses the qualities of an appealable preliminary injunction,” and setting a briefing schedule for the appeal of this order. ECF 134, 135. Soon after this Court ruled, the States informed the district court that, unless notified otherwise, they would not file their motion for a preliminary injunction later that day as previously scheduled. State of Washington, No. 2:17-cv-00141, Dkt. 70. Until this point, the Ali Plaintiffs’ intent had been to seek to amend the briefing schedule on their own preliminary injunction motion, which was already pending before the district court along with their motion for class certification, so that the district court could hear and decide the motions in the two cases concurrently. See Plaintiffs’ Motion to Renote and Modify the Briefing Schedule on Their Motion for Temporary Restraining Order and Preliminary Injunction, Ali, No. 2:17-cv-00135, Dkt. 31.
8

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 11 of 23
Given the turn of events on February 9, moving to have the two motions proceed simultaneously before the district court was no longer the most prudent option for the Ali Plaintiffs. Instead, the present motion to intervene became necessary; they sought to intervene at the stage of the lawsuit in which their interests were implicated—when the possibility of proceeding concurrently on a parallel track with the States’ case in district court was no longer feasible. See United States v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984) (indicating that a “change of circumstances, which suggests that the litigation is entering a new stage” can be a factor that “militate[s] in favor” of intervention); United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004) (“Prior cases suggest that a party’s interest in a specific phase of a proceeding may support intervention at that particular stage of the lawsuit.”). For this reason, the fact that this motion is filed during an appeal does not render it untimely, particularly given the extraordinary nature of the proceedings in this case and the expedited basis on which this Court is hearing the appeal.
Finally, there is no prejudice to either party. The States take no position on intervention. While Defendants oppose the motion, they will not be prejudiced by having to litigate new or additional claims, because the four claims raised in Ali are encompassed within the claims raised by the States in this case. Finally, this motion is made within 48 hours of this Court setting the briefing schedule, and
9

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 12 of 23
three weeks in advance of the federal Defendants’ next scheduled brief. Moreover, the Ali Plaintiffs already have filed their motion for preliminary injunctive relief. Exh. A. As such, the federal Defendants have ample time to address the arguments raised in Plaintiffs’ motions for class certification and for preliminary injunction, filed on February 2 and 6, respectively. B. The Ali Plaintiffs Have A Significant Protectable Interest In The Outcome Of This Appeal.
An applicant for intervention must have a “significantly protectable interest,” meaning that “(1) it asserts an interest that is protected under some law, and (2) there is a relationship between its legally protected interest and the plaintiff’s claims.” State ex. rel. Lockyer v. U.S., 450 F.3d 436, 440-41 (9th Cir. 2006) (citation and internal quotation marks omitted). The central concern is whether the intervenors “will suffer a practical impairment of [their] interests as a result of the pending litigation.” Id. at 441 (rejecting as not determinative such “technical distinctions” as whether the proposed intervenor has an enforceable right).
The Ali Plaintiffs seek to intervene to protect their own and class members’ rights under the U.S. Constitution and the INA. In particular, as set forth in their Complaint and their Motion for a TRO and Preliminary Injunction, they seek nondiscriminatory and constitutional application of the immigration laws. See Complaint—Class Action for Declaratory and Injunctive Relief, Ali, No. 2:17-cv-
10

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 13 of 23
00135, Dkt. 1; Exh. A. All of the Ali Plaintiffs and an untold number of proposed class members already have suffered grievous harm from the implementation of the EO, and will suffer irreparable harm if the EO is not enjoined. See id.; Exh. B.
The Ali Plaintiffs have an interest in ensuring that their interests are fully presented with respect to any future determination made by this Court establishing precedent that could impair their pending motion for a preliminary injunction. Hours before the State of Washington filed this suit, the Ali Plaintiffs filed their lawsuit. Like the State of Washington, the Ali Plaintiffs argued that Section 3 of the EO violated the equal protection and due process components of the Due Process Clause, the INA, and the APA. Within days of filing their complaint, and prior to the district court’s TRO in State of Washington, the Ali Plaintiffs moved to certify a class. Thus, they have a responsibility to represent an untold number— although reasonably estimated to be in the tens of thousands—of purported class members. See Fed. R. Civ. P. 23(g)(2)(A) advisory comm. nn. (Am. 2003)(“[A]ttorney who acts on behalf of the class before certification must act in the best interests of the class as a whole.”); Staton v. Boeing Co., 327 F. 3d 938, 960 (9th Cir. 2003) (“[C]lass attorneys, purporting to represent a class, also owe the entire class a fiduciary duty once the class complaint is filed.” (quoting In re GMC Pick–Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 801 (3d Cir. 1995)). Moreover, the Ali Plaintiffs also moved for a preliminary injunction on
11

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 14 of 23
February 6, 2017. Exhs. A and B. Any decision by this Court could have a binding effect on their pending motion for preliminary injunctive relief.
The congruence of the claims in the two lawsuits demonstrates the strong relationship between the interests of the Ali Plaintiffs and the States’ claims, and favors intervention. See, e.g., In re Estate of Ferdinand E. Marcos Human Rights Litig., 536 F.3d 980, 986-87 (9th Cir. 2008) (holding intervention proper where “an issue [the intervenor] raised in one proceeding …. lands in another proceeding for disposition”); United States v. Oregon, 839 F.2d 635, 638 (9th Cir. 1988) (granting intervention where “an appellate ruling will have a persuasive stare decisis effect in any parallel or subsequent litigation”). Because this suit may directly determine the merits of the Ali Plaintiffs’ motion for a preliminary injunction, they have a significant protectable interest in the outcome of this case. C. The Disposition Of This Action May Impair the Ability of the Ali Plaintiffs and Proposed Class Members To Protect Their Interests in Lawful Immigrant Visa Processing.
The Ali Plaintiffs and proposed class members are “so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect [their] interest.” Fed. R. Civ. P. 24(a)(2). Here, the advisory committee notes to Rule 24(a) are instructive: “[i]f an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a
12

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 15 of 23
general rule, be entitled to intervene.” Fed. R. Civ. P. 24 advisory comm. nn. (Am. 1966).
There is no doubt that the relief federal Defendants seek in this case— rejecting the preliminary injunctive relief barring the suspension of entries and immigrant visa processing for nationals of the seven countries—will directly impair the lives of the Ali Plaintiffs and all proposed class members, disrupting ongoing and expensive immigrant visa processing, suspending entries to the United States, and potentially resulting in indefinite separation of family members and undermining the stability of U.S. employers. If this Court reverses the district court’s order granting injunctive relief, it will immediately re-subject the Ali Plaintiffs and proposed class members to the irreparable harms inflicted by Section 3(c) of the EO. Moreover, whatever opinion this Court issues as to the merits of the claims presented likely will control the resolution of any future motions for relief. At that point, the Ali Plaintiffs and proposed class may very well have little if any recourse.
The Ali Plaintiffs cannot wait until the conclusion of the State of Washington litigation to vindicate their interests and the interests of the proposed class. Courts have recognized that parties seeking intervention would face a “practical impairment” in asserting their rights once a court has rendered a decision. United States v. Stringfellow, 783 F.2d 821, 826 (9th Cir. 1986), vacated on other grounds
13

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 16 of 23
sub nom. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987) (“The prospect of stare decisis may, under certain circumstances, supply the requisite practical impairment warranting intervention as of right.”); Oregon, 839 F.2d at 638 (“We have said that such a stare decisis effect is an important consideration in determining the extent to which an applicant’s interest may be impaired.”); Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir. 1989) (“Where a party seeking to intervene in an action claims an interest in the very property and very transaction that is the subject of the main action, the potential stare decisis effect may supply that practical disadvantage which warrants intervention as of right.”). Because this Court’s decision may well set precedent that will be binding on the merits of the Ali Plaintiffs’ pending motion for preliminary injunctive relief, which requests that Judge Robart in the Western District of Washington declare Section 3(c) unlawful and enjoin its application, the Ali Plaintiffs and proposed class members need to press their claims in this Court and in this appeal. D. The Interests of the Ali Plaintiffs and Proposed Class Members Cannot Be Adequately Represented.
The burden under this prong is “satisfied if [the Proposed PlaintiffsIntervenors] show[] that representation of [their] interest ‘may be’ inadequate; and the burden of making that showing should be treated as minimal.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972) (citing 3B J. Moore,
14

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 17 of 23
Federal Practice 24.09 (1969)). In conducting this inquiry, courts examine: “‘(1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor’s arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect.’” Citizens for Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011) (quoting Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.2003)). The Ali Plaintiffs and proposed class members meet each factor.
First, the Ali Plaintiffs, who are themselves petitioners and beneficiaries in the immigrant visa process and represent a putative class of similarly situated individuals, are uniquely placed to raise the statutory argument that Section 3 of the EO conflicts with Congress’ prohibition against discrimination as to the “issuance of immigrant visas.” 8 U.S.C. § 1152(a)(1)(A) (“Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”). Notably, this Court did not address the statutory claims under the Immigration and Nationality Act in its order denying the federal Defendants’ request to stay the district court’s order in State of Washington v. Trump. In addition, as individuals who suffered physically,
15

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 18 of 23
psychologically, and financially because of the EO, the arguments of the Ali Plaintiffs and proposed class members regarding irreparable harm are different from the arguments about harm put forward by the States. The Ali Plaintiffs are uniquely situated to present the harm suffered by individual immigrant visa petitioners, both family members and employers, who are facing indefinite separation from children, spouses, parents, siblings, and employees.
Courts have recognized that governmental representation of private, nongovernmental intervenors may be inadequate. For example, in Dimond v. District of Columbia, the D.C. Circuit held that because the government was responsible for representing a broad range of public interests rather than the more narrow interests of intervenors, the “application for intervention . . . falls squarely within the relatively large class of cases in this circuit recognizing the inadequacy of governmental representation of the interests of private parties in certain circumstances.” 792 F.2d 179, 192 (D.C. Cir. 1986); see also Natural Res. Def. Council v. Costle, 561 F.2d 904, 911-12 (D.C. Cir. 1977) (holding that the government does not adequately represent private organizations because intervenors’ interests are different and more focused).
Second, the States, as government entities—as opposed to petitioners for and recipients of immigrant visas—do not and cannot present the same standing and irreparable injury arguments as the Ali Plaintiffs. The States have undoubtedly
16

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 19 of 23
suffered harm to their proprietary interests, i.e., injury to their public universities. ECF 134 at 12 (“We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order”). The Ali Plaintiffs and proposed class members, however, have suffered harm to their personal interests, namely their constitutionally protected interests in family life, marriage, and childrearing. In addition, members of the proposed class in Ali include U.S.-based corporations, private academic and other institutions, all of which have suffered financial and other harms caused by the EO. Exh. A at 19-20; Exh. B at 55-51, Siskind Decl., ¶¶10-12; at 63-65, Updahye Decl., ¶8.
Finally, the Ali Plaintiffs may offer “necessary elements to the proceeding” the States and the federal government might not present. If the States’ standing is called into question with respect to any of the claims, the Ali Plaintiffs may be critical to the Court’s retaining Article III jurisdiction over that claim. In addition, the Ali Plaintiffs and proposed class members are ideally situated to represent the harm and human suffering caused by the EO. Finally, counsel for the Ali Plaintiffs and proposed class members are established immigrant rights organizations; they are intimately familiar with immigration law, including visa processing, the national security-related provisions of the INA, the security checks conducted by the U.S. government in conjunction with visa processing, and, furthermore, with the impact that the EO already has had on the lives of U.S. citizen and lawful
17

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 20 of 23
permanent resident petitioners and their beneficiaries. Accord INS v. National Center for Immigrants’ Rights, Inc., 502 U.S. 183, 195 (1991) (noting the “complex regime of immigration law”); Ardestani v. INS, 502 U.S. 129, 138 (1991) (referring to “the complexity of immigration procedures and the enormity of the interests at stake”).
* * * * * In sum, the interests of the Ali Plaintiffs and proposed class members are too vital and too distinct from the interests of the States for them to be denied an active role as intervenors. For these reasons, the Ali Plaintiffs respectfully request that the Court grant them intervention as a matter of right.
II. PERMISSIVE INTERVENTION IS ALSO APPROPRIATE. Even if the Court finds that the Ali Plaintiffs and the proposed class are not
entitled to intervene as of right, they should nonetheless be permitted to intervene pursuant to Federal Rule of Civil Procedure 24(b). This Court may allow “‘permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main action, have a question of law or a question of fact in common.’” United States v. City of Los Angeles, 288 F.3d 391, 403 (9th Cir. 2002) (quoting Northwest Forest Res. Council v. Glickman, 82 F.3d
18

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 21 of 23
825, 839 (9th Cir. 1996)). In considering whether to grant permissive intervention, the Court “must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
As a threshold matter, the Ali Plaintiffs’ motion to intervene is timely. See supra Section I.A. Second, the Ali Plaintiffs’ claims share substantial questions of law and fact with the case now before this Court, as the States similarly seek to enjoin the EO as unlawful and unconstitutional. Third, as discussed above, intervention will not create delay or prejudice the existing parties. See id. Adding the Ali Plaintiffs as plaintiffs-intervenors at this juncture of the lawsuit will not needlessly increase cost, delay disposition of the litigation, or prejudice the existing parties. The Ali Plaintiffs already have presented their arguments in their motion for preliminary injunctive relief, and the federal Defendants thus have ample time to prepare any additional arguments that may be necessary. Importantly, the participation of the Ali Plaintiffs in this lawsuit will offer evidence and argument from a proposed class of immigrant visa petitioners and beneficiaries who are the direct targets of the EO and who have a direct and personal stake in the outcome of this case. Thus, at a minimum, on behalf of themselves and the proposed class, the Ali Plaintiffs ask the Court to exercise its broad discretion and grant them permissive intervention.
19

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 22 of 23
CONCLUSION For the foregoing reasons, the Proposed Plaintiffs-Intervenors respectfully request that the Court grant their motion to intervene in this action as Plaintiffs on behalf of themselves and the putative class they seek to represent.

Dated: February 11, 2015

Respectfully submitted,

s/Matt Adams Matt Adams Glenda Aldana Madrid Maria Lucia Chavez Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957-8611 (206) 587-4025 (fax)

Trina Realmuto Kristin Macleod-Ball National Immigration Project of the National Lawyers Guild 14 Beacon Street, Suite 602 Boston, MA 02108 (617) 227-9727 (617) 227-5495 (fax)

Mary Kenney Aaron Reichlin-Melnick Melissa Crow American Immigration Council 1331 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 507-7512 (202) 742-5619 (fax)
Attorneys for Proposed Intervenors

20

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-1, Page 23 of 23

CERTIFICATE OF SERVICE
U.S. Court of Appeals Docket No. 17-35105
I, Matt Adams, hereby certify that I electronically filed the foregoing 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 11, 2017.
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Date: February 11, 2017

s/ Matt Adams Matt Adams

21

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-2, Page 1 of 32
EXHIBIT A

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag1eo2f 2o7f 32

1

Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

FOR THE WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2:17-cv-00135-JLR

Khaled DAHMAN; G.E., a minor; Ahmed 11 Mohammed Ahmed ALI; E.A., a minor; on

MOTION FOR TEMPORARY

12 behalf of themselves as individuals and on behalf of others similarly situated,

RESTRAINING ORDER AND PRELIMINARY INJUNCTION

13

Plaintiffs,

14 v.

NOTE ON MOTION CALENDAR: March 3, 2017

15
Donald TRUMP, President of the United States ORAL ARGUMENT REQUESTED

16 of America; U.S. DEPARTMENT OF STATE;

Rex W. TILLERSON, Secretary of State; U.S. 17 DEPARTMENT OF HOMELAND

18 SECURITY; John F. KELLY, Secretary of Homeland Security; U.S. CITIZENSHIP AND

19 IMMIGRATION SERVICES; Lori

SCIALABBA, Acting Director of USCIS; 20 OFFICE OF THE DIRECTOR OF NATIONAL

21 INTELLIGENCE; Michael DEMPSEY, Acting Director of National Intelligence,1

22

Defendants.

23

24

25

26

27

28 1

Defendant Rex W. Tillerson is substituted for Defendant Tom Shannon pursuant to Federal Rule of Civil

Procedure 25(d).

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No. 2:17-cv-00135-JLR

- 0

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag2eo3f 2o7f 32

1

I. INTRODUCTION

2

On February 3, 2017, this Court issued a nationwide temporary restraining order (TRO)

3 in Washington v. Trump, No. 2:17-cv-141-JLR (W.D. Wash.), enjoining and restraining

4 President Trump, the Department of State (DOS), and the Department of Homeland Security
5 (DHS) from, inter alia, enforcing Section 3(c) of Executive Order 13769 (EO), entitled
6 “Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977.2 7
Section 3 of the EO suspends entry into the United States of citizens or nationals of Iran, Iraq, 8
Libya, Somalia, Sudan, Syria, and Yemen—all predominantly Muslim countries—for a 9
minimum of 90 days, allegedly for national security reasons. 3 Plaintiffs file this motion for 10
preliminary injunctive relief on behalf of themselves and the proposed class, see Dkt. 3, to ensure 11
that they are not subject to ongoing and future harm as a result of the unlawful EO, similar to the 12 13 harm many of them experienced over the last week. They also ask that the Court convert the
14 motion to a TRO should the Ninth Circuit Court of Appeals dissolve the existing TRO in
15 Washington on a procedural basis, or for a reason other than a determination with respect to the

16 merits of the challenge.

17

During the week prior to this Court’s order in Washington, Defendants revoked the visas

18 of thousands—if not tens of thousands—of purported class members pursuant to Section 3(c) of

19 the EO. Also during the past week, Defendants suspended all immigrant visa processing,

20 cancelling consular interviews and suspending adjudication of immigrant visa applications for

21

22 2

At least eight district courts already have issued temporary restraining orders enjoining Section 3(c) of the

23 E.O. See Darweesh v. Trump, No. 1:17-cv-00480 (E.D. NY Jan. 28, 2017); Doe v. Trump, No. C17-126 (W.D.
Wash. Jan. 28, 2017); Aziz v. Trump, No. 1:17-cv-116 (E.D. Va. Jan. 28, 2017); Vayeghan v. Kelly, No. CV 17-0702

24 (C.D. Cal. Jan. 29, 2017); Mohammed v. United States, No. CV 17-00786 AB (PLAx) (C.D. Cal. Jan. 31, 2017);
Arab American Civil Rights League v. Trump, No. 17-cv-10310-VAR-SDD (E.D. Mich. Feb. 2, 2017); State of

25 Washington v. Trump, No. 17-cv-00141-JLR (W.D. Wash. Feb. 3, 2017). One court initially issued a TRO, but
declined to extend it. See Loughalam v. Trump, No. 17-cv-10154-NMG, Dkt. 6 (D. Mass. Jan. 29, 2017) & Dkt. 69

26 (D. Mass. Feb. 3, 2017).

3

None of the individuals who committed the attack on September 11, 2001 were from these seven listed

27 countries, and the Trump Administration has provided no evidence suggesting that the longstanding, uniform, and
rigorous vetting process at U.S. embassies and consulates serving nationals from these seven countries is even

28 remotely less secure than elsewhere.

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 1

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag3eo4f 2o7f 32

1 thousands of proposed class members from the seven countries, leaving them stranded abroad

2 and indefinitely separated from their families and employment. Plaintiffs and proposed class

3 members are suffering both emotionally and financially from these separations and from the

4 existing lack of certainty and transparency in the immigrant visa process caused by Section 3 of

5 the EO. Pursuant to Rule 65(b) of the Federal Rules of Civil Procedure and Local Rule 65(b),

6 Plaintiffs ask this Court to enjoin Section 3 and order Defendants to resume lawful processing

7 and issuance of immigrant visas and to allow individuals approved for immigrant visas to be
8 reunited with their family and employer petitioners in the United States.
9 Plaintiffs and proposed class members4 have standing to challenge Section 3 of the EO
10 and can overwhelmingly demonstrate a likelihood of success on the merits, a likelihood of
11
irreparable harm in the absence of preliminary injunctive relief, that the balance of equities tips 12

13 in their favor, and that an injunction is in the public interest.

14

Plaintiffs ask this Court to issue a preliminary injunction which:

15

1. Enjoins and restrains Defendants from enforcing Section 3 of Executive Order 13769 (EO), in so far as it precludes persons approved for immigrant visas from

16

boarding flights to the United States and entering the country as lawful permanent

residents;

17

2. Enjoins and restrains Defendants from applying Section 3 of the EO to suspend

18

the processing and/or issuance of immigrant visas to Plaintiffs Juweiya Abdiaziz Ali and A.F.A., Reema Khaled Dahman and G.E., and all other proposed class

19

members who have filed visa petitions and the beneficiaries of those visa petitions

who are applying for immigrant visas;

20

3. Enjoins and restrains Defendants from revoking immigrant visas based on Section

21

3 of the EO; 4. Orders Defendants to reinstate and, where necessary, reissue, the immigrant visas

22

of all nationals from the seven countries that were revoked pursuant to the

issuance of the EO, without the need for the foreign national to reapply for a visa;

23

5. Orders Defendants to issue transportation letters, where necessary, to all nationals

24

from the seven countries with validly issued immigrant visas, including all

individuals whose visas are reinstated pursuant to #4 above; and

25

6. Orders Defendants to advise immigrant visa petitioners, through electronic mail

or otherwise, of the status of immigrant visa applications submitted by 26

27 4

To the extent the Court deems it necessary, Plaintiffs and proposed class members meet the standards for

28 provisional class certification. Plaintiffs’ motion for class certification, Dkt. 3, is incorporated herein.

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 2

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag4eo5f 2o7f 32

1

beneficiaries of their petitions.

2

Moreover, should the Ninth Circuit Court of Appeals dissolve the existing TRO in

3 Washington on a procedural or other non-merits basis, Plaintiffs respectfully ask this Court issue

4 an emergency temporary restraining order immediately providing the same relief listed above.

5

Notice to Defendants: On February 5, 2017, undersigned counsel notified Defendants

6 that Plaintiffs would file a motion for preliminary injunctive relief with a protective motion for

7 temporary restraining order on February 6, 2017. See Dkt. 10, Adams Decl. ¶¶3-5.5

8

II. ARGUMENT

9

A. STANDARD FOR OBTAINING PRELIMINARY RELIEF

10

To obtain a preliminary injunction, the moving party must show that: (1) she “is likely to

11 succeed on the merits,” (2) she “is likely to suffer irreparable harm in the absence of preliminary

12 relief,” (3) “the balance of equities tips in [her] favor,” and (4) that “an injunction is in the public

13 interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). The Ninth
14 Circuit uses a balancing, or “sliding scale,” approach to evaluate requests for preliminary
15 injunctions, clarifying that, where the balance of hardships tips strongly in her favor, the moving
16 party may prevail as long as she shows that her claims raise serious legal questions. See, e.g.,
17 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011). “Under this
18 approach, the elements of the preliminary injunction test are balanced, so that a stronger showing
19 of one element may offset a weaker showing of another.” Id. at 1131-32. Under any test,
20 Plaintiffs and the proposed class merit relief.6
21

22

B. PLAINTIFFS AND PROPOSED CLASS MEMBERS MERIT PRELIMINARY

INJUNCTIVE RELIEF

23

1. Plaintiffs Have Standing to Raise Their Claims. 24

25

26

27 5 6

All declarations cited herein are being submitted concurrently with this motion. The standards for a TRO and a preliminary injunction are substantially the same. See, e.g., Stuhlbarg Int’l

28 Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001).

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 3

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag5eo6f 2o7f 32

1

Plaintiffs satisfy all requirements necessary to demonstrate standing with respect to their

2 statutory and constitutional claims. Under Article III of the U.S. Constitution, a plaintiff

3 bringing suit must first show that:

4

(1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b)

5

actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed

6

to merely speculative, that the injury will be redressed by a favorable decision.

7 Friends of the Earth, Inc. v. Laidlaw Envlt. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).

8 The Administrative Procedure Act (APA) authorizes suit if a plaintiff is “suffering legal wrong

9 because of agency action, or [was] adversely affected or aggrieved by agency action within the

10 meaning of a relevant statute.” 5 U.S.C. § 702. Plaintiffs must show that the interests they seek

11 to protect are “arguably within the zone of interests to be protected or regulated by the statute or

12 constitutional guarantee in question.” Association of Data Processing Serv. Orgs., Inc. v. Camp,

13 397 U.S. 150, 153 (1970).7

14

In a case challenging visa denials, the D.C. Circuit stated:

15

The Executive has broad discretion over the admission and exclusion of aliens, but

16

that discretion is not boundless. It extends only as far as the statutory authority conferred by Congress and may not transgress constitutional limitations. It is the

17

duty of the courts, in cases properly before them, to say where those statutory and

constitutional boundaries lie. 18
Abourezk v. Regan, 785 F.2d 1043, 1061 (D.C. Cir. 1986), aff’d by an equally divided court, 484 19

U.S. 1 (1987). Here, Plaintiffs seek non-discriminatory and constitutional application of the 20

21 immigration laws. They, therefore, fall squarely within the zone of interests protected by the

22 Immigration and Nationality Act (INA). See 8 U.S.C. §§ 1152(a)(1) (nondiscrimination); 1153

23 (allocation of immigrant visas); 1154 (procedure for granting immigrant status). See infra

24 Section II.B.2.a.8

25

26 7

The test “is not meant to be especially demanding,” and “there need be no indication of congressional

purpose to benefit the would-be plaintiff.” Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 399- 400 (1987).

27 8

The Ninth Circuit also recognizes standing “when [a]suit challenges the authority of [a] consul to take or

fail to take an action” in a mandamus action. Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997) (suit by U.S. citizen

28 and his wife, in India, challenging failure to adjudicate visa application); see also Rivas v. Napolitano, 714 F.3d

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 4

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag6eo7f 2o7f 32

1

Plaintiffs have standing to raise their statutory and constitutional claims irrespective of

2 their location inside or outside the United States. The Supreme Court has held that nothing in its

3 case law “categorically excludes” noncitizens in military custody outside the United States “from

4 the privilege of litigation in U.S. courts.” Rasul v. Bush, 542 U.S. 466, 484 (2004) (internal

5 quotation marks omitted).9 In Rasul, the noncitizens were captured by U.S. military officers
6 while abroad in connection with hostilities. Even though they had no ties to the United States,
7 the Court found they had standing to seek review. Here, Plaintiffs and proposed class members
8 have significant ties to the United States, see Section II.B.3, infra, similarly entitling them to this
9 Court’s review. Moreover, to the extent that the Executive has plenary power over national
10 security and military affairs, Rasul stands for the proposition that the Constitution nevertheless
11 protects noncitizens outside the United States against any abuse of that plenary power by giving
12 13 them access to the courts. Indeed, Rasul suggests that any tension between the plenary power
14 doctrine and fundamental constitutional protections be resolved in favor of the latter; Rasul thus
15 reinforces Plaintiffs’ standing to raise, and be heard on, their claims that the EO on its face, and

16 as applied, unconstitutionally discriminates on the basis of nationality and religion.

17

To the extent that only Plaintiffs Ahmed Ali, Reema Khaled Dahman, Juweiya Abdiaziz,

18 and other U.S. citizen or lawful permanent resident (LPR) visa petitioner class members are

19 raising a due process claim, they have standing. As an initial matter, U.S. citizens and LPRs

20 have a constitutionally protected interest in marriage, family life, and child-rearing. See, e.g.,

21 Loving v. Virginia, 388 U.S. 1, 12 (1967); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-

22 40 (1974); Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality op.). The Ninth Circuit has 23

24 1108, 1110 (9th Cir. 2013) (suit by immigrant visa petitioner and beneficiary challenging failure to adjudicate
motion to reconsider visa denial). Courts also recognize standing in challenges to denials of visa petitions brought

25 by petitioners and visa beneficiaries. See, e.g., Hoosier Care, Inc. v. Chertoff, 482 F.3d 987 (7th Cir. 2007) (suit by
U.S. employer to challenge denial of employment-based visa petition); Pinho v. Gonzales, 432 F.3d 193 (3d Cir.

26 2005) (suit by U.S. citizen and her husband challenging denial of adjustment of status); Grace Korean United
Methodist Church v. Chertoff, 437 F. Supp. 2d 1174 (D. Or. 2005) (suit by employer and potential employee).

27 9

See also Rasul, 542 U.S. at 484-85 (“The courts of the United States have traditionally been open to

nonresident aliens.”); id. at 481 (“[T]here is little reason to think that Congress intended the geographical coverage

28 of the [habeas] statute to vary depending on the detainee’s citizenship.”).

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 5

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag7eo8f 2o7f 32

1 confirmed that a U.S. citizen or LPR spouse has the right to bring a due process challenge to the

2 denial of a family member’s immigrant visa, rooted in the legal doctrine that “[f]reedom of
3 personal choice in matters of marriage and family life is, of course, one of the liberties protected
4 by the Due Process Clause.” Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008).10
5 Proposed class members that are U.S. based-employers similarly have constitutionally protected 6 interests.11 7
The Supreme Court’s decision in Kerry v. Din further illustrates the Court’s refusal to 8
close the courtroom doors to review of executive decisions affecting the constitutional rights of 9
citizens. In Din, a U.S. citizen wife challenged the State Department’s denial of an immigrant 10
visa to her husband. 135 S. Ct. 2128 (2015). The Court issued a plurality opinion in which 11
Justice Kennedy’s concurrence controls.12 Justice Kennedy assumed that the visa denial 12 13 implicated Ms. Din’s constitutionally protected interests, and considered whether it was “facially 14 legitimate and bonafide.”13 In so doing, Justice Kennedy made two key holdings. First, he
15 found that the admission that Ms. Din’s husband worked as a secretary for the Taliban “even if
16 itself insufficient to support exclusion,” was enough of an individualized articulated facial
17 connection to terrorist activity to support a finding of inadmissibility. 135 S. Ct. at 1241

18 (Kennedy, J, concurring). Second, he found that Ms. Din had “not plausibly alleged with

19 sufficient particularity” bad faith on the part of the government. Id.

20

21 10

Furthermore, “the foremost policy underlying the granting of [immigrant preference] visas under our

22 immigration laws …[is] the reunification of families.” Lau v. Kiley, 563 F.2d 543, 547 (2d Cir. 1977); see also
Kaliski v. Dist. Dir. of Immigration & Naturalization Serv., 620 F.2d 214, 217 (9th Cir. 1980) (“[T]he humane

23 purpose [of the INA] is to reunite families.”).

11

See Citizens United v. FEC, 558 U.S. 310, 342 (2010) (First Amendment protection extends to

24 corporations); Minneapolis & S. L. R. Co. v. Beckwith, 129 U.S. 26, 28 (1889) (“[C]orporations can invoke the
benefits of provisions of the Constitution and laws which guarantee to persons the enjoyment of property, or afford

25 to them the means for its protection, or prohibit legislation injuriously affecting it.”).

12

See Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir. 2016) (discussing plurality opinion in Din).

26 13

The Supreme Court has previously established this standard for reviewing visa petition denials. Kleindienst

v. Mandel, 408 U.S. 753, 770 (1972) (reviewing inadmissibility determination and waiver denial under facially

27 legitimate and bona fide standard). The Ninth Circuit has held “that the ‘facially legitimate and bona fide reason’
test is equivalent to the rational basis test typically applied in equal protection cases.” Ablang v. Reno, 52 F.3d 801,

28 804 (9th Cir. 1995) (citations and quotation marks omitted).

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 6

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag8eo9f 2o7f 32

1

Neither of the distinctions Justice Kennedy found critical in Din are present here. The

2 EO at issue in this case is not individualized with respect to any immigrant visa beneficiary or

3 petitioner; rather, it constitutes a generalized blanket denial of entries and immigrant visa
4 issuance. Such a categorical exclusion that lacks any facial connection to an immigrant visa
5 petitioner or beneficiary is sufficient to establish standing. In addition, unlike the petitioner in
6 Din, Plaintiffs have alleged that the EO is, at least in part, motivated by animus against a religion 7
and nationalities, which constitutes bad faith by the government. Thus, at a minimum, Plaintiffs 8
meet Justice Kennedy’s threshold test and, as such, have standing to seek this Court’s review of 9
their due process claim under a rational basis test (see supra n.13). 10
2. Plaintiffs Are Likely to Prevail on Their Claims. 11
Plaintiffs and proposed class members can show a strong probability of success on the 12 13 merits of their claims. However, they need only show “serious questions going to the merits,” 14 which abound in this case because the balance of equities and public interest weigh heavily in
15 their favor and they show a likelihood of success of irreparable harm. Alliance for the Wild
16 Rockies, 632 F.3d at 1135. Under either inquiry, Plaintiffs and proposed class members can
17 demonstrate that Defendants’ EO and their subsequent application and enforcement of it fly

18 squarely in the face of the Constitution, the INA, and the APA.

19

a. Likelihood of Success on INA, APA, and Mandamus Claims

20

Plaintiffs are likely to prevail on their claim that the EO—on its face and in its

21 application—violates 8 U.S.C. § 1152(a)(1)(A) and the APA, and warrants mandamus relief.

22 First, Plaintiffs are likely to prevail on their claim that the EO violates § 1152(a)(1)(A), which
23 bars discrimination in visa issuance based on, inter alia, “nationality, place of birth, or place of
24 residence.” Section 3(c) of the EO violates the plain language of Section 1152(a)(1) because it 25 discriminates on the basis of nationality. See Consumer Product Safety Comm’n v. GTE 26
Sylvania, Inc., 447 U.S. 102, 108 (1980) (“[T]he starting point for interpreting a statute is the 27
language of the statute itself.”). The EO abruptly, and without process, suspended entry of all 28

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 7

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t3943F, iDlekdtE0n2t/r0y6: /11470-2P,aPgaeg9e o1f02o7f 32

1 immigrant visa holders from seven nations. Defendants additionally revoked the visas of all or

2 many of these visa holders. Finally, Defendants applied this provision to immigrant visa

3 applicants from these seven countries to justify suspending processing and issuance of immigrant
4 visas. See Adams Decl., Ex. A. The EO, and Defendants’ application of it, violates 8 U.S.C.
5 § 1152(a)(1)(A) because it cuts off entry, adjudication, and issuance of immigrant visas using a
6 nationality-based classification that Congress forbade. See Almero v. INS, 18 F.3d 757, 763 (9th 7
Cir. 1994) (“[T]he INS may not restrict eligibility to a smaller group of beneficiaries than 8
provided for by Congress”). 9
The EO also violates the congressional intent and the object and policy behind 10
§ 1152(a)(1)(A)’s enactment. See Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991) (“In 11
determining the meaning of the statute, we look not only to the particular statutory language, but 12 13 to the design of the statute as a whole and to its object and policy.”) (internal quotation marks 14 omitted). In 1965, through the Immigration and Nationality Act of 1965, Pub. L. No. 89–236,
15 79 Stat. 911 (1965), Congress enacted § 1152(a)(1) to root out the discriminatory national origins
16 quota system—in place between 1924 and 1965—that previously had restricted immigration on
17 the basis of national origin.14 See S. REP. 89-748, 1965 U.S.C.C.A.N. 3328, 3329 (1965)

18 (noting that the “primary objective” of the 1965 Act was “the abolishment of the national origins

19 quota system”); Fei Mei Li v. Renaud, 654 F.3d 376, 377 (2d Cir. 2011) (summarizing the

20 history of the national origins quota system). In his signing statement, President Lyndon B.

21 Johnson wrote that the 1965 Act “abolished” the national origin system, which “violated the

22 basic principle of American democracy—the principle that values and rewards each man on the
23 basis of his merit as a man.” Lyndon B. Johnson, Remarks at the Signing of the Imm. Bill, 24 Remarks (Oct. 3, 1965), available at http://www.lbjlibrary.org/lyndon-baines25 johnson/timeline/lbj-on-immigration. 26

27

28 14

Section 1152(a)(1) is the predecessor statute to current § 1152(a)(1)(A) and contains identical language.

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 8

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag1e0 1o1f 2o7f 32

1

In 1995, the D.C. Circuit held that a State Department policy excluding Vietnamese

2 nationals from applying for visas in Hong Kong violated 8 U.S.C. § 1152(a)(1)’s prohibition

3 against nation origin discrimination, reasoning:

4

Appellants assert this statute compels this court to invalidate any attempt to draw

5

a distinction based on nationality in the issuance of visas. In contrast, appellees urge us to adopt the position that so long as they possess a rational basis for

6

making the distinction, they are not in violation of the statute. . . . We agree with

appellants’ interpretation of the statute. Congress could hardly have chosen more

7

explicit language. . . . We cannot rewrite a statutory provision which by its own

8

terms provides no exceptions or qualifications . . . . Congress has unambiguously

directed that no nationality-based discrimination shall occur.

9 Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs,

10 45 F.3d 469, 473 (D.C. Cir. 1995) abrogated on other grounds, Legal Assistance for Vietnamese

11 Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 104 F.3d 1349 (D.C. Cir. 1997).
12 Accord Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442, 453 (S.D. Fla. 1980) (“[8 U.S.C.
13
§ 1152(a)(1)(A)] manifested Congressional recognition that the maturing attitudes of our nation 14

made discrimination on [the listed] bases improper.”). Subsequently, Congress amended 15

16 § 1152(a)(1); it retained the existing non-discrimination mandate and moved it to newly-created

17 subsection (A), and it enacted new subsection (B) which states that nothing in paragraph (A)

18 limits the authority of the Secretary of State to determine the procedures or location of immigrant

19 visa processing. 8 U.S.C. § 1152(a)(1). Consequently, the D.C. Circuit, in light of

20 § 1152(a)(1)(B), upheld the State Department’s policy as it applied only to the location of visa

21 processing. Legal Assistance for Vietnamese Asylum Seekers, 104 F.3d at 1352-53.

22

Here, Plaintiffs demonstrate a likelihood of success on the merits of their claim. The

23 plain language of the EO violates § 1152(a)(1)(A) by immediately banning the entry of

24 immigrants from the seven targeted countries based upon their nationality. A ban on entry is

25 equally a ban on visa issuance (as evidenced by Defendants’ interpretation and application of

26 Section 3 of the EO). An immigrant visa issues only after the State Department, acting in

27 concert with the Department of Homeland Security and other security offices of the U.S.

28

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 9

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag1e1 1o2f 2o7f 32

1 government, determines that an eligible individual is admissible under 8 U.S.C. § 1182. 8

2 U.S.C. § 1201(g)(3) (providing that no visa shall be issued if “the consular officer knows or has

3 reason to believe that such [noncitizen] is ineligible to receive a visa […] under [§ 1182], or any

4 other provision of law”). Upon entry into the United States, an immigrant visa holder is

5 inspected and admitted by U.S. Customs and Border Protection, and then becomes a lawful

6 permanent resident. See 8 U.S.C. § 1101(a)(13)(A) (defining “admission” and “admitted”); 8

7 U.S.C. § 1101(a)(20) (defining “lawfully admitted for permanent residence”).

8

Moreover, because the wholesale suspension of visa processing based upon the

9 nationality of the applicant results in the suspension of visa issuance, it too runs afoul of
10 § 1152(a)(1)(A). The suspension of visa processing based upon nationality is not permitted
11 under § 1152(a)(1)(B), both because the EO represents the President’s policy (not the State
12 Department’s, although the latter is implementing it), and because a blanket suspension of visa 13 processing for all nationals of these countries is not a “determ[ination about] the procedures” to 14
be followed or the location of visa processing. 15
Defendant Trump issued the EO purportedly pursuant to 8 U.S.C. § 1182(f), which grants 16
the Executive broad authority to suspend the entry of either “any [individual] aliens” or “any 17
class of aliens” into the United States. However, the President’s authority under § 1182(f) is 18
confined by statutory and constitutional limits. Cardinal rules of statutory construction 19 20 demonstrate that § 1182(f) cannot supersede the limitations created by Congress in 8 U.S.C. 21 § 1152(a)(1)(A). First, the plain language of the statute cannot be construed to authorize a
22 categorical suspension of all “aliens” or “nationals” covered by the nondiscrimination provision
23 in § 1152(a)(1)(A); rather, in limiting that authority to “any alien” in the singular or “any class of
24 aliens,” the statute distinguishes between individuals or a subset of individuals, as compared to
25 all individuals of a particular nationality.15 Second, at the time Congress enacted § 1152(a), it is

26 presumed to have been aware of the authority conferred to the President in § 1182(f). See

27

28 15

See Consumer Product Safety Commission, 447 U.S. at 108.

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 10

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag1e2 1o3f 2o7f 32

1 Lorillard v. Pons, 434 U.S. 575, 581 (1978) (“Congress normally can be presumed to have had

2 knowledge of the interpretation given to the incorporated law, at least insofar as it affects the
3 new statute.”). Thus, as it was aware of the President’s authority under § 1182(f), Congress
4 presumably intended § 1152(a)(1)(A) to act as a limit on that authority. Third, § 1152(a)(1)(A)
5 is narrower in scope than § 1182(f), and the more specific provision must be given effect. See 6 Green v. Bock Laundry Mach. Co., 490 U.S. 504, 524 (1989) (“A general statutory rule usually 7
does not govern unless there is no more specific rule.”). Pursuant to § 1152(a)(1)(A), the 8
President can no more suspend entry of immigrant visas for individuals from the targeted seven 9
countries than he can suspend issuance of immigrant visas to all female or all non-Caucasian 10
applicants.16 11
In addition, the plain language of, and congressional intent in enacting, 8 U.S.C. 12 13 § 1187(a)(12) do not sanction discrimination in issuing immigrant visas based on national origin. 14 That statute focuses on which countries may qualify for the “visa waiver” program, a program
15 that allows nationals of certain countries to enter the United States without a nonimmigrant visa.
16 By its very terms, that section is limited to nonimmigrant (i.e., temporary) visas, not immigrant
17 (i.e., permanent) visas, which are at issue here. Thus, there is no inconsistency between

18 § 1152(a)(1)(A) and § 1187(a)(12). Moreover, nationals who benefit from the visa waiver

19 program do not submit any visa application and, accordingly, are not screened and vetted before

20 admission to the United States. This contrasts sharply with immigrant visas for which all

21

22 16

Notably, not a single President has invoked § 1182(f) to authorize such a broad and discriminatory

23 nationality-based suspension of entry. The closest analogue to the EO was President Reagan’s 1986 temporary
suspension of Cuban immigration in response to a diplomatic dispute with the Cuban government. Proclamation

24 5517, 51 Fed. Reg. 30470 (1986). That proclamation, however, was never challenged as violating § 1152(a)(1)(A)
and it included, inter alia, a carve out for immediate relative visa petitions. Moreover, although previous presidents

25 have invoked § 1182(f) in over forty instances, these proclamations have been narrowly tailored to address specific
individuals whose entry would be inconsistent with U.S. foreign policy interests. See, e.g., Proclamation 5887, 53

26 Fed. Reg. 43184 (1988) (suspending the entry of officers of the Nicaraguan government or the Sandinista National
Liberation Front); Executive Order 13694, 80 Fed. Reg. 18077 (2015) (suspending the entry of persons determined

27 to have engaged in “significant malicious cyber-enabled activities”); see also 9 Foreign Affairs Manual 302.14-
3(B)(1) (noting that presidents have invoked § 1182(f) to “bar entry based on affiliation” or to “suspend the entry of

28 persons based on objectionable conduct”).

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 11

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag1e3 1o4f 2o7f 32

1 applicants are thoroughly screened and passed through several security and medical clearance

2 processes before being approved to seek entry.

3

Second, Plaintiffs are likely to prevail on their claim that nationality-based

4 classifications, interpretations, and actions violate the APA’s prohibition against unlawful and

5 unconstitutional government conduct. See 5 U.S.C. §§ 706(2)(A)-(D). Defendants’ failure to

6 comply with the law creates a “legal wrong” and an agency action that “adversely affected or

7 aggrieved” Plaintiffs and proposed class members, which entitles them to relief under the APA.

8 5 U.S.C. § 702. Not only is Defendants’ ongoing flouting of § 1152(a)(1)(A) “not in accordance
9 with law,” “in excess of statutory jurisdiction,” and “without observance of procedure required
10
by law,” it is “contrary to constitutional right.” 5 U.S.C. § 706(2)(A)-(D); see infra Sections 11

II.B.2.b and c. 12

13

Third, Plaintiffs are likely to succeed on their request for mandamus relief under 28

14 U.S.C. § 1361. Mandamus relief is warranted if “(1) the individual’s claim is clear and certain;

15 (2) the official’s duty is nondiscretionary, ministerial, and so plainly proscribed as to be free

16 from doubt; and (3) no other adequate remedy is available.” Patel, 134 F.3d at 931. Plaintiffs

17 have a clear claim to nondiscriminatory adjudication and issuance of their immigrant visas;

18 Defendants’ duties to adjudicate, issue, and honor immigrant visas are plainly set forth

19 throughout the INA and implementing regulations, and absent intervention by a federal court,

20 Plaintiffs and class members will remain in legal limbo, for 90 days at a minimum, and

21 potentially indefinitely. See 82 Fed. Reg. 8977, 8978.

22

The Ninth Circuit has held that “[m]andamus may not be used to instruct an official how

23 to exercise discretion unless that official has ignored or violated ‘statutory or regulatory

24 standards delimiting the scope or manner in which such discretion can be exercised.’” Silveyra
25 v. Moschorack, 989 F.2d 1012, 1015 (9th Cir. 1993) (quoting Carpet Linoleum and Resilent Tile 26
Layers v. Brown, 656 F.2d 564, 566 (10th Cir. 1981)). In such an event, “mandamus is 27
appropriate.” Id. at 1014. As discussed above, Defendants have clearly exceeded the scope of 28

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 12

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag1e4 1o5f 2o7f 32

1 their discretionary authority to determine procedures and locations for the processing of

2 immigrant visas under 8 U.S.C. § 1152(a)(1)(B) and to suspend entry under 8 U.S.C. § 1182(f).

3

Thus, Plaintiffs and proposed class members are likely to succeed in their INA, APA, and

4 mandamus claims.

5

b. Likelihood of Success on The Equal Protection Claim

6

Plaintiffs also are likely to succeed on their claim that the EO violates the guarantee of

7 equal protection under the Due Process Clause of the Fifth Amendment. Executive orders, like
8 other governmental actions, are subject to constitutional limits. See, e.g., Youngstown Sheet and
9 Tube Co. v. Sawyer, 343 U.S. 579, 587-89 (1952) (holding that the President acted without
10 constitutional power when he issued an order directing the Secretary of Commerce to take
11
possession of and operate most of the nation’s steel mills); Cornelius v. NAACP Legal Def. & 12
13 Educ. Fund, Inc., 473 U.S. 788 (1985) (analyzing whether an executive order violated plaintiffs’

14 First Amendment rights); United States v. Nixon, 418 U.S. 683 (1974) (President, as head of the

15 executive branch of government, is not above the law). Noncitizens, including those who are

16 unlawfully present in the United States, “com[e] within the ambit of the equal protection

17 component of the Due Process Clause.” Kwai Fun Wong v. United States, 373 F.3d 952, 974

18 (9th Cir. 2004). Plaintiff and proposed class member petitioners consist of U.S. citizens and

19 LPRs, all who are entitled to the full panoply of the Fifth Amendment’s protections. Similarly,

20 proposed class members that are U.S. based-employers similarly have constitutionally protected

21 interests. See supra n. 11.

22

Moreover, even Plaintiffs and proposed class members who are outside of the United

23 States may challenge an order that blatantly discriminates against them on the basis of national

24 origin and religion. Although both Congress and the Executive have plenary power over
25 immigration, neither branch may execute this power in violation of the Constitution. See, e.g., 26
Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (“[The] ‘plenary power’ to create immigration law 27
… is subject to important constitutional limitations”); INS v. Chadha, 462 U.S. 919, 941 (1983) 28

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 13

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag1e5 1o6f 2o7f 32

1 (plenary authority may not be exercised in a way that “offend[s] some other constitutional

2 restriction”) (quoting Buckley v. Valeo, 424 U.S. 1, 132 (1976)). Thus, the plenary power does

3 not support the assertion that noncitizens outside of the United States have no constitutional
4 rights, nor does it eliminate the ability to bring a challenge against the government for
5 discrimination on the basis of, inter alia, religion and national origin, where such a policy would
6 clearly be unconstitutional if applied to persons within the United States. 7
Accordingly, this Court should apply strict scrutiny to Section 3(c) of the EO, which 8
discriminates on the basis of both national origin and religion. See, e.g., Ball v. Massanari, 254 9
F.3d 817, 823 (9th Cir. 2001) (noting that discrimination based on a suspect class, such as 10
national origin or religion, is subject to strict scrutiny); Christian Sci. Reading Room Jointly 11
Maintained v. City of San Francisco, 784 F.2d 1010, 1012 (9th Cir. 1986) (noting that “an 12 13 individual religion meets the requirements for treatment as a suspect class”); see also Hassan v. 14 City of New York, 804 F.3d 277, 301 (3d Cir. 2015) (“intentional discrimination based on
15 religious affiliation must survive heightened equal protection review”). To prevail, Plaintiffs
16 must show that the challenged action is either discriminatory on its face or that discriminatory
17 animus against a protected class was a “motivating factor.” Arce v. Douglas, 793 F.3d 968, 977

18 (9th Cir. 2015) (internal citation omitted).

19

On its face, the EO targets visa applicants and visa holders on the basis of their

20 nationality. Moreover, President Trump’s animus towards Muslims is made clear by his own

21 statements, and those of his advisor, with regard to imposing a “Muslim ban.” See Dkt. 1 ¶¶ 48-

22 50. Although the EO does not mention Muslims explicitly, advisors to the President have
23 confirmed it was intended to ban Muslims. Dkt. 1 ¶49 (noting the statement of Rudolph Giuliani
24 that President-Elect Trump asked him to write a “legal” ban on Muslims). Indeed, President 25 Trump admitted that the EO was intended to prioritize Christian refugees. Daniel Burke, Trump 26
says US will prioritize Christian refugees, CNN (Jan. 30, 2017), available at 27
http://www.cnn.com/2017/01/27/politics/trump-christian-refugees/; Dkt. 1 ¶50. President 28

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 14

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag1e6 1o7f 2o7f 32

1 Trump’s animus towards countries included in the ban is similarly well-documented.17 Because

2 no compelling government interest is served by such discriminatory motives, Plaintiffs are likely

3 to succeed on the merits of their equal protection claim. Further, religious discrimination or
4 discrimination on the basis of national origin, even in the name of national security, is an equal
5 protection violation. Hassan, 804 F.3d at 298 (blanket surveillance of Muslims violates equal
6 protection even if the NYPD was subjectively motivated by “a legitimate law-enforcement 7
purpose”). 8
Even if the Court were to apply a rational basis analysis, Plaintiffs are likely to prevail. 9
See, e.g., Ram v. INS, 243 F.3d 510, 517 (9th Cir. 2001) (evaluating whether “‘[l]ine-drawing’ 10
decisions made by . . . the President in the context of immigration and naturalization . . . are 11
rationally related to a legitimate government purpose”). Where a government’s proposed 12 13 solution to a problem is discrimination against a disfavored class and all evidence shows that 14 such a solution is “ludicrously ineffectual,” the government has not acted rationally. Plyer v.
15 Doe, 457 U.S. 202, 228 (1982) (“[W]e think it clear that ‘[charging] tuition to undocumented
16 children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration’”)
17 (internal citation omitted).

18

In this case, the EO’s discriminatory response to the alleged problem of terrorist entry to

19 the United States is “ludicrously ineffectual.” In the last 30 years, no individual from the seven

20 affected countries has killed an American in a terrorist attack in the United States. Alex

21 Nowsrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security”

22
23 17 See, e.g., Donald Trump (@realDonaldTrump), Twitter (Mar. 24, 2016, 10:55 AM),
https://twitter.com/realdonaldtrump/status/713031504415338497 (“Europe and the U.S. must immediately stop
24 taking in people from Syria. This will be the destruction of civilization as we know it! So sad!”); Donald Trump
(@realDonaldTrump), Twitter (Oct. 24, 2016, 7:00 AM),
25 https://twitter.com/realdonaldtrump/status/790523240351498241 (“...Crooked Hillary wants to take in as many
Syrians as possible. We cannot let this happen - ISIS!”); Ben Kamisar, Trump: I would shoot confrontational
26 Iranian ships, THE HILL (Sept. 9, 2016), http://thehill.com/blogs/ballot-box/presidential-races/295273-trump-i-
would-shoot-at-confrontational-iranian-ships (“With Iran, when they circle our beautiful destroyers with their little
27 boats and they make gestures at our people that they shouldn’t be allowed to make, they will be shot out of the
water”); Ben Jacobs & Alan Yuhas, Somali migrants are 'disaster' for Minnesota, says Donald Trump, THE
28 GUARDIAN (Nov. 7, 2016).

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 15

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag1e7 1o8f 2o7f 32

1 Reasons, CATO INSTITUTE (Jan. 26, 2017), https://www.cato.org/blog/guide-trumps-executive-

2 order-limit-migration-national-security-reasons. The EO’s blanket ban on all immigration by

3 nationals of these seven predominantly Muslim nations, including children of U.S. citizen and
4 lawful permanent residents who already reside in the United States, in the name of baring “those
5 who engage in acts of bigotry or hatred” or “would oppress Americans,” EO § 1, 82 Fed. Reg.
6 8977, is so over-inclusive as to be incoherent. See also, e.g., Omar Decl. ¶3, 7 (ban affects U.S. 7
citizen’s son who is a Somali national by law but has never lived in Somalia). Because any 8
justification for the EO is not rationally related to a legitimate government purpose, Plaintiffs are 9
likely to prevail. 10
c. Likelihood of Success on Due Process Claim 11
Plaintiffs also are likely to succeed on their claims that Defendants’ unlawful actions 12 13 deprive Plaintiffs Juweiya Ali, Reema Dahman, and Ahmed Ali and other U.S. citizen and LPR 14 visa petitioners of their constitutionally protected liberty interests. See supra Section II.A.1. The
15 Fifth Amendment protects people from deprivations of liberty interests absent due process of
16 law. U.S. Const. amend. V. At a minimum, it protects against arbitrary government action,
17 including actions that do not adhere to the constraints that Congress has imposed, that would

18 infringe upon the exercise of protected liberty interests. See, e.g., Del Monte Dunes v. Monterey,

19 920 F.2d 1496, 1508 (9th Cir. 1990) (“We cannot say at this stage of the proceeding that the

20 actions of the city council, . . . were not arbitrary and irrational and, thus, a violation of

21 appellants’ substantive due process rights.”). Indeed, the Ninth Circuit has confirmed that a U.S.

22 citizen or LPR spouse has the right to bring a due process challenge to the denial of a family

23 member’s visa. See, e.g., Bustamante, 531 F.3d at 1062 (“Freedom of personal choice in matters

24 of marriage and family life is, of course, one of the liberties protected by the Due Process

25 Clause.”).

26

Moreover, Congress has made clear that Plaintiff and proposed class member

27 beneficiaries outside the country are entitled to have their visas adjudicated and issued in a

28

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 16

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag1e8 1o9f 2o7f 32

1 manner that does not discriminate based upon national origin or country of birth. 8 U.S.C.

2 § 1152(a)(1)(A). While the Supreme Court emphasized that persons denied entry into the United

3 States are entitled only to limited review, such actions must still comport with the Constitution

4 and whatever procedural due process Congress has provided. See Knauff v. Shaughnessy, 338

5 U.S. 537, 544 (1950) (“Whatever the procedure authorized by Congress is, it is due process as

6 far as an alien denied entry is concerned.”). In the instant case, Congress has established an

7 elaborate system for issuing visas, and explicitly barred the Executive from discriminating based

8 on national origin or country of birth when administering that system. Cf. Din, 135 S. Ct. at

9 2136 (J. Scalia, announcing judgment of the court in a plurality opinion) (recognizing that at a

10 minimum “procedural due process rights attach to liberty interests that either are (1) created by

11 nonconstitutional law, such as a statute”).

12

Here, Defendants’ actions in suspending the processing of immigrant visas and in

13 denying the validity of existing immigrant visas, taken pursuant to the EO, deprive U.S. citizens

14 and lawful permanent resident visa petitioners of protected liberty interests in their family lives,
15 marriages, and ability to raise their children, without due process. Defendants’ abrupt change of
16 course, without any notice to affected individuals or evidence of the need to categorically bar all
17 visa applicants from the designated countries, including young children whose parents are 18
already living in the United States, were completely arbitrary. See, e.g., A. Ali Decl. ¶¶19-21 19
(describing Plaintiff E.A. receiving a validly issued immigrant visa on January 26, 2017 and 20
arriving at the airport on January 28, 2017 to discover, with no notice, that E.A. “was not 21
permitted [to] board the flight due to the U.S. President’s Executive Order”); Farahani Decl. ¶¶822
11 (parents were en route to U.S. when EO took effect and were sent back without adequate 23 24 explanation at their connection); Elias Decl. ¶¶4-5 (U.S. citizen’s wife was issued visa on 25 January 20 but not allowed to board flight for U.S. on January 29, without prior notice); Edward
26 Decl. ¶¶6-8 (U.S. citizen’s husband arrived at airport only to be denied admission and was not
27 even allowed to contact his counsel or wife). Such actions fly in the face of due process. Shanks

28

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 17

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag1e9 2o0f 2o7f 32

1 v. Dressel, 540 F.3d 1082, 1089 (9th Cir. 2008) (suggesting that conduct may be

2 “constitutionally arbitrary” where there is evidence “of a sudden change in course, malice, bias,

3 [or] pretext”).18

4

3. Plaintiffs and Proposed Class Members Have Suffered, and Will Continue to

5

Suffer, Irreparable Harm Absent This Court’s Intervention.

6

Plaintiffs and proposed class members face more than simply the “possibility of

7 irreparable harm.” Winter, 555 U.S. at 22. Rather, they are able to demonstrate the likelihood of

8 immediate, concrete, irreparable harm absent this Court’s intervention. See Leiva-Perez v.

9 Holder, 640 F.3d 962, 969-70 (9th Cir. 2011) (holding that “separation from family members,

10 medical needs, and potential economic hardship” are important irreparable harm factors)

11 (internal quotation marks omitted); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)

12 (stating that “the deprivation of constitutional rights unquestionably constitutes irreparable

13 injury.”) (quotation marks omitted); see also 11A Charles Alan Wright, Arthur R. Miller & Mary

14 Kay Kane, Federal Practice & Procedures § 2948.1 (2d ed. 1995) (“When an alleged deprivation

15 of a constitutional right is involved most courts hold that no further showing of irreparable injury

16 is necessary.”).19

17

Plaintiffs and proposed class members are mothers and fathers eager to bring their

18 children to live with them in the United States. See, e.g., Omar Decl. ¶12; Niknejad Decl. ¶¶7-9;
19 Abdi Decl. ¶3; A. Ali Decl. ¶2; Dahman Decl. ¶¶17-18; Uysal-Ferre Decl. ¶14. They are
20

21 18

For the same reasons set forth in this section, Plaintiffs Dahman, G.E., Ms. Ali, and A.F.A, and proposed

22 class members with immigrant visa applications merit a preliminary injunction to prevent Defendants from again
suspending processing and/or issuance of immigrant visas pursuant to the EO. For example, Defendant DOS

23 explicitly had rejected the possibility of scheduling immigrant visa interviews for class members, even in emergency
situations, shortly after the EO was issued. See Adams Decl., Ex. A at 1 (stating, in a DOS announcement removed

24 after the TRO in Washington issued, “Q: I have an emergency. Can I request an expedited appointment? A: No. The
Department of State may not conduct immigrant visa interviews for any persons who are nationals of Syria, Iraq,

25 Iran, Libya, Somalia, Sudan, and Yemen at this time.”). Absent a preliminary injunction on this aspect of
Defendants’ possible implementation of the EO, there is nothing to prevent Defendants from engaging in this

26 unlawful behavior again.

19

Since this Court issued the Washington TRO, some Plaintiffs, proposed class members, and declarants have

27 been able to enter the United States with their valid immigrant visas. However, should an appellate court dissolve
the existing TRO in Washington or should this Court fail to extend that TRO, the EO will again slam a door shut on

28 remaining Plaintiffs and proposed class members, who will continue to face the irreparable harm outlined here.

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 18

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag2e0 2o1f 2o7f 32

1 employers in competitive environment and professionals sought by U.S. companies. See

2 Updahye Decl. ¶¶4, 8; Siskind Decl. ¶¶11-12. See also, e.g., Washington, 2:17-cv-141-JLR, Dkt.

3 6 ¶11; id. Dkt. 7 ¶21; id. Dkt. 17-5 ¶8. They are sons and daughters worried about the well-

4 being of their elderly parents. See, e.g., Safari Decl. ¶2; Tahhan Decl. ¶¶3-5; Farahani Decl. ¶2.

5 They are spouses impatient to start living together as a family after having put their lives on hold

6 while waiting for years to be reunited. See, e.g., Adam Decl. ¶3; Edward Decl. ¶2; Hussain Decl.

7 ¶3; Abdi Decl. ¶3; Sobhani Decl. ¶¶7, 11. Many of these plaintiffs and putative class members

8 have already been apart for many years. See, e.g., Dahman Decl. ¶6 (mother who has not seen
9 her son in more than four years); Farahani Decl. ¶2 (son who has only seen his parents twice
10
since 2010). And some class members have never had the opportunity to meet each other. See 11

Abdi Decl. ¶3 (father has yet to meet his second son). 12

13

Many of these proposed class members have already been greatly harmed by the EO.

14 They have incurred significant expenses attempting to rebook travel or secure lodging after being

15 left stranded in unfamiliar countries. See, e.g., Safari Decl. ¶¶11-12; Tahhan Decl. ¶6; Abdi

16 Decl. ¶7; cf. Updahye Decl. ¶7. Named Plaintiff Ahmed Ali found himself having to extend his

17 leave of absence from work in order to remain with his 12-year-old daughter, who was not

18 permitted to board the plane, in Djibouti until they determined what to do—putting the financial

19 stability of his whole family at risk, as he is the sole breadwinner. A. Ali Decl. ¶23-24.

20 Plaintiffs and proposed class members have also suffered tremendous stress and emotional

21 trauma arising not only from disappointment and uncertainty in the wake of the EO, but also

22 from their concerns for the well-being and safety of their family members. See, e.g., Niknejad
23 Decl. ¶7 (describing feeling “devastated”); Adam Decl. ¶8 (detailing inability to focus and
24 “trouble sleeping”); Edward Decl. ¶7 (reporting “great distress”); Abdi Decl. ¶7 (characterizing 25 the situation as “heartbreaking”); Ali ¶25 (noting that “[t]he uncertainty of our situation is very 26
stressful”); Farahani Decl. ¶11 (remarking the day his father was not allowed to board his 27
connecting flight and was detained for about 18 hours was “the worst day of [his father’s] life” 28

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 19

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag2e1 2o2f 2o7f 32

1 and “one of my worst days too”); Sobhani Decl. ¶¶7-9 (declaring he felt “completely helpless

2 with no recourse for relief”). Many more have been shaken and offended to their core by the

3 discriminatory treatment they and their family members experienced. See, e.g., Farahani Decl.
4 ¶13 (“I feel . . . like a second class citizen”); Niknejad Decl. ¶10 (“I . . . cannot understand why
5 this country I love is doing this to me and my family.”); Adam Decl. ¶8 (“[A]s a citizen, I am
6 concern[ed] about my constitutional rights. . .”); Abdi Decl. ¶9 (“Asking why I want my family 7
with me is very silly and shameful.”); Uysal-Ferre Decl. ¶13 (“How do you tell a 7-year-old little 8
boy that, ‘no, you cannot come to live with your father, little sister and mother because you have 9
a passport of a certain country?’”). 10
Absent a grant of preliminary relief, the irreparable harm putative class members have 11
experienced will only increase. The financial burden on many class members will increase as 12 13 they are forced to continue to maintain multiple households. See, e.g., Omar Decl. ¶11; Adam 14 Decl. ¶9. Others will be deprived of academic and professional opportunities to which they
15 would have access in the United States. See Omar Decl. ¶10 (noting that delay “would interfere
16 with his [son’s] ability to attend a school in the United States and build a career”). See also, e.g.,
17 Niknejad Decl. ¶8; Hussain Decl. ¶7; Upadhye Decl. ¶8; Dahman Decl. ¶10. Meanwhile, delay

18 resulting from the EO would cause others to have to start the immigrant visa petition process

19 again. The son of class member Mohamed Omar, for example, would have to start the visa

20 application process anew as a member of a different visa category if his currently issued

21 immigrant visa is revoked or not accepted pursuant to the EO. It would “likely take over six

22 years before he would be able to obtain a new immigrant visa”—on top of the more than four

23 years he has already waited to be reunited with his father. Omar Decl. ¶¶5, 10.

24

Others are being deprived of needed medical care or other assistance to which they would

25 have access in the United States. See, e.g., Tahhan Decl. ¶5 (concerned because his 76 and 70-

26 year-old parents are in Syria alone without any of their children to care for them); Farahani Decl.
27 ¶¶2-3 (elderly parents are both sick, and in Los Angeles they would have the care of two of their
28

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 20

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag2e2 2o3f 2o7f 32

1 children). Many others will be forced to return to, or continue living in, areas plagued by civil

2 strife, war, and similar dangers. See, e.g., Tahhan Decl. ¶¶5,7 (noting that even clean drinking

3 water is hard to come by in Syria); Omar Decl. ¶ 7-9 (explaining that his son, a Somali national

4 who has never lived in Somalia, has no safe place to go); Adam Decl. ¶8 (expressing concern for

5 his wife, who lives alone in Sudan); Edward Decl. ¶4 (highlighting “serious and life threatening
6 problems” client would face in Somalia); A. Ali Decl. ¶25 (describing the situation in Yemen as
7 “extraordinarily dangerous”); Dahman Decl. ¶¶10, 15 (expressing concern for her son’s safety
8 the longer he remains in Syria, because the “situation in Syria is so unstable that my son has even
9 been kidnapped”). As one class member—a Pakistani citizen who is an LPR and petitioned for
10 his Iranian wife—explained, the United States is the only place where his family can live safely.
11 He “could not own property or hold civil rights of any kind in Iran,” because he is not an Iranian
12 13 citizen, and living in Pakistan presents significant risks, as members of his family have been
14 threatened there due to their religion. Hussain Decl. ¶7. The stress and consternation Plaintiffs
15 and putative class members are experiencing because their family members are in harms’ way

16 also constitute concrete irreparable harm. See, e.g., Farahani Decl. ¶12; Dahman Decl. ¶¶16-17.

17

Finally, absent preliminary relief, plaintiffs and prospective class members will suffer

18 certain irreparable harm in the form of family separation. Many class members face the prospect

19 of a prolonged, potentially indefinite separation, with all its attendant challenges. See, e.g.,

20 Omar Decl. ¶¶11-12; Niknejad Decl. ¶10; Adam Decl. ¶¶3, 10; Hussain Decl. ¶¶ 3-4, 7. Such

21 separation takes an emotional toll on these putative class members, all the more so when there

22 are no clear answers as to when it will end. See, e.g., Safari Decl. ¶13 (stating that grandparents
23 will miss the birth of their grandchild); Adam Decl. ¶8 (expressing hope that his “wife could
24 attend th[e] lifetime opportunity” of his upcoming graduation); Farahani Decl. ¶6 (explaining he 25 had planned to “celebrate Nowruz, the Persian New Year, together as a family”); Abdi Decl. ¶3 26
(explaining that he missed birth of his son). For those with elderly parents or family members in 27
dangerous locations, there looms the specter of a permanent, final separation. See, e.g., Tahhan 28

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 21

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag2e3 2o4f 2o7f 32

1 Decl. ¶7 (“I am afraid that this Executive Order will prevent me from seeing my [Syrian] parents

2 for the rest of my life.”); Farahani Decl. ¶10 (“I had thought I was going to be reunited with my

3 parents. Instead, I wasn’t sure we would be together again.”); Dahman Decl. ¶ 16 (explaining

4 that “everyday” she lives with the fear of “not knowing if [she] will ever see [her] child again”).

5

It is well recognized that the types of harm Plaintiffs and putative class members are

6 experiencing and will continue to experience are of an irreparable nature so as to warrant a grant
7 of preliminary injunctive relief. See, e.g., Chalk v. U.S. Dist. Court Cent. Dist. of California, 840
8 F.2d 701, 709-10 (9th Cir. 1988) (holding that “emotional and psychological” injury, including
9 injury arising from discriminatory treatment, can constitute irreparable harm); Arizona Dream
10 Act Coalition v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014) (holding that “intangible injuries
11 . . . [which] generally lack an adequate legal remedy” and loss of opportunity to pursue
12
13 professional advancement can constitute irreparable harm). This Court has already recognized

14 that adverse effects on “employment, education, business, family relations, and freedom of

15 travel” are factors relevant to the question of whether “immediate and irreparable injury” is

16 probable. Washington, 2:17-cv-141-JLR, Dkt. 52 at 4 (TRO). Preliminary injunctive relief is 17 thus appropriate.20

18

4. The Public Interest and Balance of Equities Weigh Heavily in Favor of

19

Granting Injunctive Relief.

20

The public interest and balance of equities factors “merge” when, as in this case, the

21 government is a party. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).

22 Regardless, both factors strongly favor Plaintiffs and proposed class members. If the Court does

23

24 20

Plaintiffs Dahman, G.E., Ms. Ali, and A.F.A, and proposed class members with immigrant visa

applications similarly would face irreparable harm due to Defendants’ decision to suspend the processing and/or

25 issuance of immigrant visas absent preliminary relief. See, e.g., Niknejad Decl. ¶ 9 (61-year-old LPR father facing
potentially indefinite separation from his daughter); Adam Decl. ¶6 (U.S. citizen facing additional delays in

26 adjudication of his wife’s immigrant visa after two and a half years of waiting); Hussain Decl. ¶6 (LPR being
prevented from reuniting with his wife and seven-month-old baby); Abdi Decl. ¶6 (U.S. citizen facing additional

27 delays in being reunited with his two-year-old son due to delays in the scheduling of consular interviews; Dahman
Decl. ¶¶16-18 (LPR mother facing potentially indefinite separation from son in war-torn Syria); Uysal-Ferre Decl.

28 ¶13-14 (U.S. citizen facing uncertain separation from seven-year-old son in Somalia).

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag2e4 2o5f 2o7f 32

1 not provide immediate injunctive relief, Plaintiffs and the proposed class will continue to suffer

2 irreparable harm, including the ongoing violation of their statutory and constitutional rights,

3 separation from their families, emotional trauma, untenable financial burdens, and deprivation of
4 medical and familial care. See supra Section II.B.3. Furthermore, the EO includes provisions
5 that would extend the unlawful visa processing and issuance ban under certain circumstances,
6 potentially prolonging the separation of these families indefinitely. 82 Fed. Reg. 8977, 8978 7
§ 3(e) (permitting indefinite extension if the Secretary determines that an affected country does 8
not share sufficient data with the United States).21 9
What Plaintiffs and class members seek—that Defendants follow the lawful visa 10
adjudication and issuance process and permit entry into the United States for those with validly 11
approved for immigrant visas—would cause no countervailing harm whatsoever; indeed, it 12 13 would be in the public interest. Defendants already have put immigrant visa holders in the 14 proposed class through extensive security screening and found each to be admissible to the
15 United States. See, e.g., Dkt. 1 ¶33-34; Edward Decl. ¶¶4-5; Niknejad Decl. ¶4. As discussed
16 supra at Section II.B.2.b, the ban on entry impacting Plaintiffs and class members has no
17 legitimate purpose; there is simply no evidence that it has any bearing on national security.

18

Instead of protecting the United States, the EO led Defendants to unlawfully separate

19 families and unconstitutionally discriminate on the basis of religion and national origin. See

20 supra Section II.B.2.b. The Ninth Circuit “agree[s] . . . that it is always in the public interest to

21 prevent the violation of a party’s constitutional rights.” Melendres, 695 F.3d at 1002 (quotation

22 omitted); see also Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1197 (9th Cir. 2011) (“[T]he 23 public interest favors applying federal law correctly.”); Rodriguez v. Robbins, 715 F.3d 1127, 24 1146 (9th Cir. 2013) (“[T]he public interest . . . benefits from a preliminary injunction that 25

26 21

See also Adams Decl., Ex. A at 1 (evidencing that, in an announcement removed after the TRO in

27 Washington issued, DOS cancelled all visa interviews and advised individuals not to schedule medical
examinations, which have a 6-month expiration date, because “we cannot predict when your visa interview will be

28 rescheduled”).

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 23

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag2e5 2o6f 2o7f 32

1 ensures that federal statutes are construed and implemented in a manner that avoids serious

2 constitutional concerns.”).

3

Thus, Plaintiffs and the proposed class respectfully submit that the balance of equities

4 and public interest tip sharply in their favor. As such, they meet the standard for obtaining a

5 preliminary injunctive relief.22

6

III. CONCLUSION

7 Plaintiffs and members of the proposed class have demonstrated that they satisfy the

8 required criteria for injunctive relief. Accordingly, the Court should grant this motion.
9

10 Dated this 6th day of February, 2017.

11 s/Matt Adams Matt Adams, WSBA No. 28287
12

Mary Kenney, pro hac vice admission forthcoming

13 s/Glenda Aldana Glenda M. Aldana Madrid, WSBA No.

Aaron Reichlin-Melnick, pro hac vice admission forthcoming

14 46987

15 Maria Lucia Chavez, WSBA No. 43826,

Melissa Crow, pro hac vice admission forthcoming

16 application for admission pending

AMERICAN IMMIGRATION COUNCIL

17 NORTHWEST IMMIGRANT RIGHTS PROJECT 1331 G Street, NW, Suite 200

615 2nd Avenue, Suite 400 Seattle, WA 18 98104 (206) 957-8611

Washington, D.C. 20005 (202) 507-7512

19 (206) 587-4025 (fax)

(202) 742-5619 (fax)

20 Trina Realmuto, 21 pro hac vice admission forthcoming

22 Kristin Macleod-Ball, pro hac vice admission forthcoming
23

24

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD

25 14 Beacon Street, Suite 602 Boston, MA 02108
26

27 22

For the same reasons discussed in this section, the public interest and balance of equities factors strongly

28 favor Plaintiffs Dahman, G.E., Ms. Ali, and A.F.A, and proposed class members with immigrant visa applications.

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 24

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag2e6 2o7f 2o7f 32

1

(617) 227-9727 (617) 227-5495 (fax)

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

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 25

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t69343F,ilDedktE02n/t0ry6:/1740-P2a, gPeag2e7 2o8f 2o7f 32

1

CERTIFICATE OF SERVICE

2

I Matt Adams, hereby certify that on February 6, 2017, I arranged for electronic filing of

3 the foregoing motion and all supporting declarations with the Clerk of the Court using the

4 CM/ECF system. I also emailed these documents to Defendants’ counsel, Stacey I. Young, at

5 Stacey.Young@usdoj.gov. Lastly, I arranged for mailing of these documents by U.S. first class

6 mail, postage prepaid, to:

7 Donald TRUMP, President of the United States U.S. CITIZENSHIP AND IMMIGRATION

of America 8 United States Attorney’s Office

SERVICES Office of the General Counsel

9

700 Stewart Street, Suite 5220 Seattle, WA 98101-1271

United States Department of Homeland Security

10

Washington, DC 20528

11 U.S. DEPARTMENT OF STATE The Executive Office
12 Office of the Legal Adviser, Suite 5.600 600 19th Street NW
13 Washington, DC 20522
14
15 Rex W. TILLERSON, Secretary of State The Executive Office
16 Office of the Legal Adviser, Suite 5.600 600 19th Street NW
17 Washington, DC 20522
18 U.S. DEPARTMENT OF HOMELAND 19 SECURITY
Office of the General Counsel 20 Washington, DC 20528
21

Lori SCIALABBA, Acting Director of USCIS Office of the General Counsel United States Department of Homeland Security Washington, DC 20528
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE Office of General Counsel Washington, DC 20511
Michael DEMPSEY, Acting Director of National Intelligence Office of the Director of National Intelligence Office of General Counsel Washington, DC 20511

22 John F. KELLY, Secretary of Homeland Security 23 Office of the General Counsel
United States Department of Homeland Security 24 Washington, DC 20528

25 Executed in Seattle, Washington, on February 6, 2017.
26 s/ Matt Adams
27 Matt Adams, WSBA No. 28287

28

PLS.’ MOT. FOR TRO AND PRELIM. INJ.

Case No 2:17-cv-00135-JLR

- 26

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

CaCsaes:e127:-1375-1c0v5-0, 0123/151-J/2L0R17,DIoDc:u1m03e1n6t 394-13, DFikletEdn0tr2y/:0164/107-2,PPaaggee129ofo4f 32

1

Honorable James L. Robart

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2:17-cv-00135-JLR 11 Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf of themselves as individuals and on
13 behalf of others similarly situated,

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR

14

Plaintiffs,

TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

15 v.

16
Donald TRUMP, President of the United States 17 of America; U.S. DEPARTMENT OF STATE;
Rex W. TILLERSON, Secretary of State; U.S. 18 DEPARTMENT OF HOMELAND 19 SECURITY; John F. KELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND 20 IMMIGRATION SERVICES; Lori
SCIALABBA, Acting Director of USCIS; 21 OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY, Acting
Director of National Intelligence,
23
Defendants.
24
Upon consideration of Plaintiffs’ Motion for Preliminary Injunctive Relief, the parties’
25
briefing, and oral argument, this Court finds that Plaintiffs have demonstrated a need for
26
preliminary injunctive relief in this case. See Winter v. Natural Resources Defense Council,
27

28

[PROPOSED] ORDER GRANTING PLS.’

MOT. FOR TRO AND PRELIM. INJ.

Case No. 2:17-cv-00135-JLR

- 1

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CaCsaes:e127:-1375-1c0v5-0, 0123/151-J/2L0R17,DIoDc:u1m03e1n6t 394-13, DFikletEdn0tr2y/:0164/107-2,PPaaggee230ofo4f 32

1
Inc., 555 U.S. 7, 20 (2008); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35
2
(9th Cir. 2011).
3
Accordingly, it is hereby ORDERED that, pending a trial on the merits, Defendants and
4
all their respective officers, agents, servants, employees, attorneys, and persons acting in concert
5
of participation with them are:
6

7

1. Enjoined and restrained from enforcing Section 3 of Executive Order 13769 (EO),

in so far as it precludes persons approved for immigrant visas from boarding

8

flights to the United States and entering the country as lawful permanent

residents;

9

2. Enjoined and restrained from applying Section 3 of the EO to suspend the

10

processing and/or issuance of immigrant visas to Plaintiffs Juweiya Abdiaziz Ali

and A.F.A., Reema Khaled Dahman and G.E., and all other proposed class

11

members who have filed visa petitions and the beneficiaries of those visa petitions

who are applying for immigrant visas;

12

3. Enjoined and restrained from revoking immigrant visas based on Section 3 of the

13

EO;

4. Ordered to reinstate and, where necessary, reissue, the immigrant visas of all

14

nationals from the seven countries that were revoked pursuant to the issuance of

the EO, without the need for the foreign national to reapply for a visa;

15

5. Ordered to issue transportation letters, where necessary, to all nationals from the

16

seven countries with validly issued immigrant visas, including all individuals

whose visas are reinstated pursuant to #4 above; and

17

6. Ordered to advise immigrant visa petitioners, through electronic mail or

otherwise, of the status of immigrant visa applications submitted by beneficiaries

18

of their petitions.

19
This preliminary injunction is granted on a nationwide basis.
20
This Court has exercised its discretion to determine that no bond shall be required and
21
that this Order shall be effective immediately.
22

23
Upon consideration of Plaintiffs’ Motion for a Temporary Restraining Order, the parties’
24
briefing, and oral argument, if any, this Court finds that Plaintiffs have demonstrated a need for
25
preliminary injunctive relief in this case. See Winter v. Natural Resources Defense Council,
26
27 Inc., 555 U.S. 7, 20 (2008); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35
28 (9th Cir. 2011). The standard for issuing a TRO is the same as the standard for issuing a

[PROPOSED] ORDER GRANTING PLS.’

MOT. FOR TRO AND PRELIM. INJ.

Case No. 2:17-cv-00135-JLR

- 2

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CaCsaes:e127:-1375-1c0v5-0, 0123/151-J/2L0R17,DIoDc:u1m03e1n6t 394-13, DFikletEdn0tr2y/:0164/107-2,PPaaggee331ofo4f 32

1
preliminary injunction. See New Motor Vehicle Bd. Of Cal. v. Orrin W. Fox Co., 434 U.S. 1345,
2
1347 n.2 (1977); Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7
3
(9th Cir. 2001).
4
Accordingly, if prior to adjudication of the motion for preliminary injunctive relief, the
5
temporary restraining order this Court entered on February 3, 2017 in the related case of
6
Washington v. Trump, 2:17-cv-141-JLR, Dkt. 52, is dissolved for a reason other than a
7
determination with respect to the merits of the challenge, this Court hereby ORDERS a
8
9 TEMPORARY RESTRAINING ORDER providing that Defendants and all their respective
10 officers, agents, servants, employees, attorneys, and persons acting in concert of participation
11 with them are immediately:

12

1. Enjoined and restrained from enforcing Section 3 of Executive Order 13769 (EO),

in so far as it precludes persons approved for immigrant visas from boarding

13

flights to the United States and entering the country as lawful permanent

14

residents;

2. Enjoined and restrained from applying Section 3 of the EO to suspend the

15

processing and/or issuance of immigrant visas to Plaintiffs Juweiya Abdiaziz Ali

and A.F.A., Reema Khaled Dahman and G.E., and all other proposed class

16

members who have filed visa petitions and the beneficiaries of those visa petitions

17

who are applying for immigrant visas;

3. Enjoined and restrained from revoking immigrant visas based on Section 3 of the

18

EO;

4. Ordered to reinstate and, where necessary, reissue, the immigrant visas of all

19

nationals from the seven countries that were revoked pursuant to the issuance of

20

the EO, without the need for the foreign national to reapply for a visa;

5. Ordered to issue transportation letters, where necessary, to all nationals from the

21

seven countries with validly issued immigrant visas, including all individuals

whose visas are reinstated pursuant to #4 above; and

22

6. Ordered to advise immigrant visa petitioners, through electronic mail or

23

otherwise, of the status of immigrant visa applications submitted by beneficiaries

of their petitions.

24

This temporary restraining order is granted on a nationwide basis.
25

This Court has exercised its discretion to determine that no bond shall be required and
26

27 that this Order shall be effective immediately.

28

IT IS SO ORDERED.

[PROPOSED] ORDER GRANTING PLS.’

MOT. FOR TRO AND PRELIM. INJ.

Case No. 2:17-cv-00135-JLR

- 3

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CaCsaes:e127:-1375-1c0v5-0, 0123/151-J/2L0R17,DIoDc:u1m03e1n6t 394-13, DFikletEdn0tr2y/:0164/107-2,PPaaggee432ofo4f 32

1

2

DATED this ___________ day of ______________________, 2017.

3

4

JAMES L. ROBART

UNITED STATES DISTRICT JUDGE

5

6

7
Presented this 6th day of February, 2017, by:
8

9 s/Matt Adams 10 Matt Adams, WSBA No. 28287
Northwest Immigrant Rights Project 11 Counsel for Plaintiffs

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

[PROPOSED] ORDER GRANTING PLS.’

MOT. FOR TRO AND PRELIM. INJ.

Case No. 2:17-cv-00135-JLR

- 4

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

Case: 17-35105, 02/11/2017, ID: 10316343, DktEntry: 140-3, Page 1 of 68
EXHIBIT B

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t613043,FDilektdE0n2tr/y0:61/1470-3P, aPgaege1 2ofo4f 68

1

Honorable James L. Robart

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2:17-cv-00135-JLR 11 Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf of themselves as individuals and on
13 behalf of others similarly situated,

DECLARATION OF MATT ADAMS IN SUPPORT OF PLAINTIFFS’ MOTION

14

Plaintiffs,

FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY

15 v.

INJUNCTION

16
Donald TRUMP, President of the United States 17 of America; U.S. DEPARTMENT OF STATE;
Rex W. TILLERSON, Secretary of State; U.S. 18 DEPARTMENT OF HOMELAND 19 SECURITY; John F. KELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND 20 IMMIGRATION SERVICES; Lori
SCIALABBA, Acting Director of USCIS; 21 OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY, Acting
Director of National Intelligence,
23
Defendants.
24

25

26

27

28

ADAMS DECL. ISO PLS.’ MOT. FOR TRO AND PRELIM. INJ. Case No. 2:17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t613043,FDilektdE0n2tr/y0:61/1470-3P, aPgaege2 3ofo4f 68

1

2
I, Matt Adams, declare as follows:
3

1) I am counsel of record for Plaintiffs in this case. I submit this declaration in
4

5 support of Plaintiffs’ Motion for a Preliminary Injunction.

6

2) I have personal knowledge of the facts set forth herein, and, if called as a witness,

7 I could and would testify completely as set forth below.

8

Notice to Defendants of Motion for Preliminary and Possible Emergency Relief

9

3) On February 4, 2017, Stacey I. Young of the Office of Immigration Litigation,

10 Civil Division, of the U.S. Department of Justice, called me on my office number and left a

11 message advising that she was assigned to this case to represent Defendants. She also reached

12 out to me via email and asked that I call her. I called her that same day, February 4, 2017, and we

13 discussed the current status of the named Plaintiffs in the complaint. I advised that we were

14 planning on filing a motion for preliminary injunctive relief on Monday, February 6, 2017, and

15 were evaluating whether any emergency motion for a Temporary Restraining Order (“TRO”)

16 would also be required. I advised that in light of this Court’s order granting a TRO in

17 Washington v. Trump, 2:17-cv-141-JLR (W.D. Wash.), we did not believe we would need to file

18 a TRO.

19

4) On February 5, 2017, I contacted Defendants’ counsel, Stacey I. Young via email.

20
I advised that due to the unusual development of the appeal of the TRO in Washington, and the

21
Ninth Circuit’s order setting a briefing schedule in that case, on Monday, February 6, 2017, we

22
would file a motion for preliminary injunctive relief that would include a request for a temporary
23
restraining order in the event that the TRO entered by this Court in Washington v. Trump, 2:17-
24
cv-141-JLR (W.D. Wash.), is reversed on a procedural basis or a reason other than a
25
determination with respect to the merits of the challenge.
26

5) Later that day, on February 5, 2017, I spoke with Ms. Young over the phone, and
27

reiterated Plaintiffs’ plans to file a motion for a preliminary injunction and a request for a TRO
28

ADAMS DECL. ISO PLS.’ MOT. FOR

TRO AND PRELIM. INJ.

Case No. 2:17-cv-00135-JLR

- 1

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t613043,FDilektdE0n2tr/y0:61/1470-3P, aPgaege3 4ofo4f 68

1
in the event that the TRO entered by this Court in Washington v. Trump, 2:17-cv-141-JLR (W.D.
2
Wash.), is reversed on a procedural basis or a reason other than a determination with respect to
3
the merits of the challenge.
4
Evidence in Support of Plaintiffs’ Motion
5
6) Attached as Exhibit A is a true and correct copy of a page that previously
6
appeared on the Department of State’s website at
7
https://travel.state.gov/content/visas/en/immigrate/Immigrate-Announcement.html. Plaintiffs’
8
9 counsel accessed that document on February 1, 2017. Currently, the page as it appeared on
10 February 1, 2017 is archived on the website of the American Immigration Lawyers Association,
11 AILA Doc. No. 17020134, at http://www.aila.org/infonet/nvc-provides-guidance-cancellation-iv-
12 interviews.

13

14

I declare under penalty of perjury of the laws of the state of Washington and the United

15 States that the foregoing is true and correct to the best of my knowledge and belief.

16

Executed in Seattle, WA on the 6th day of February, 2017.

17

By:

18

s/Matt Adams

19

Matt Adams

20

21

22

23

24

25

26

27

28

ADAMS DECL. ISO PLS.’ MOT. FOR

TRO AND PRELIM. INJ.

Case No. 2:17-cv-00135-JLR

- 2

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CCasaes:e127:-1375-1c0v5-0,00123/151-J/2L0R17D, IoDc:u1m0e3n1t613043,FDilektdE0n2tr/y0:61/1470-3P, aPgaege4 5ofo4f 68

1

CERTIFICATE OF SERVICE

2

I, Matt Adams, hereby certify that on February 6, 2017, I arranged for electronic filing of

3
the foregoing declaration with the Clerk of the Court using the CM/ECF system. I also emailed

4
Defendants’ counsel, Stacey I. Young, this filing at Stacey.Young@usdoj.gov. Lastly, I

5
arranged for mailing of these documents by U.S. first class mail, postage prepaid, to each of the

6
following:

7
Donald TRUMP, President of the United

U.S. CITIZENSHIP AND IMMIGRATION

8 States of America

SERVICES

United States Attorney’s Office 9 700 Stewart Street, Suite 5220

Office of the General Counsel United States Department of Homeland

10 Seattle, WA 98101-1271

Security Washington, DC 20528

11
U.S. DEPARTMENT OF STATE

Lori SCIALABBA, Acting Director of

12 The Executive Office

USCIS

Office of the Legal Adviser, Suite 5.600 13 600 19th Street NW

Office of the General Counsel United States Department of Homeland

14 Washington, DC 20522

Security Washington, DC 20528

15

Tom SHANNON, Acting Secretary of State OFFICE OF THE DIRECTOR OF

16 The Executive Office

NATIONAL INTELLIGENCE

17 Office of the Legal Adviser, Suite 5.600 600 19th Street NW

Office of General Counsel Washington, DC 20511

18 Washington, DC 20522

19 U.S. DEPARTMENT OF HOMELAND 20 SECURITY
Office of the General Counsel 21 Washington, DC 20528
22

Michael DEMPSEY, Acting Director of National Intelligence Office of the Director of National Intelligence Office of General Counsel Washington, DC 20511

23
John F. KELLY, Secretary of Homeland Security
24 Office of the General Counsel
United States Department of Homeland Security 25 Washington, DC 20528

26
Executed in Seattle, Washington, on February 6, 2017.
27
s/ Matt Adams 28 Matt Adams, WSBA No. 28287

ADAMS DECL. ISO PLS.’ MOT. FOR

TRO AND PRELIM. INJ.

Case No. 2:17-cv-00135-JLR

- 3

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CCaassee: 21:71-73-5c1v0-050, 10325/1-J1L/2R017D,oIcDu:m10e3n1t 61304-13, DFikletEdn0tr2y/:0164/107-3,PPaaggee16ooff468
EXHIBIT A

2/1/2017

CCaassee: 21:71-73-5c1v0-050, 10325/1-J1L/2R017D,oIcDuI:mm1po0ert3nan1tt A61n30no4-u13nc,emDFeiknlettEdn0tr2y/:0164/107-3,PPaaggee27ooff468

travel.state.gov

U.S. Passports & International Travel

Students Abroad U.S. Visa

Intercountry Adoption

International Parental Child Abduction

|

Contact Us

Find U.S. Embassies & Consulates

travel.state.gov > Visas > Immigrate > Important Announcement
Important Announcement

Print Email

Pursuant to the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals signed on January 27, 2017, the Department of State has temporarily stopped scheduling appointments and halted processing of immigrant visa applications for individuals who are nationals or dual nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen.

The National Visa Center has cancelled all scheduled immigrant visa interviews for these applicants scheduled in February 2017. This includes all visa categories, whether they are family­ or employment­based. Applicants for fiancé visas (“K” visas) are included. We apologize for any inconvenience this causes. Once it is appropriate, the National Visa Center or a U.S. Embassy or Consulate abroad will notify you of a new interview date and time.

If you received an interview appointment in February and have not yet attended the required medical exam, please cancel your medical examination appointment. Medical exam results are only valid for six (6) months and we cannot predict when your visa interview will be rescheduled. When the National Visa Center or U.S. Embassy is able to reschedule your interview, they will contact you.

The National Visa Center will continue to work on in­process cases for these applicants up to the point of the interview. You should continue to pay fees, complete your Form DS­260 immigrant visa application, and submit your financial and civil supporting documents to NVC. NVC will review your case file and can qualify your case for an appointment. However, you will not receive a visa interview until further notice.

Please review the below Frequently Asked Questions for more information.

Collapse All

What if I have a visa interview scheduled in February?
Your interview has been cancelled. You do not need to take any action at this time. The National Visa Center will contact you with a new appointment date at the appropriate time. However, we cannot predict when that will be. Please do not call NVC to ask about an appointment; they have no information on the possible timing of future interviews.

I have an emergency. Can I request an expedited appointment?
No. The Department of State may not conduct immigrant visa interviews for any persons who are nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen at this time.

Will my case move to the back of the line for a rescheduled appointment?
No. The National Visa Center schedules appointments in the order by which they became documentarily qualified. When NVC is able to reschedule your visa interview, you will receive an appointment before cases that completed their paperwork and processing after yours.

I have a visa interview in February and I already paid for my medical exam. Can I get a refund?
That is up to the physician and/or clinic that conducted your examination. Medical exam results are valid for U.S. immigration purposes for six (6) months. If your interview is rescheduled and you enter the United States as an immigrant before your medical exam results expire, you will not need another medical exam.

What visa categories does this affect?

Ex. A to Adams Declaration

NORTHWEST IMMIGRANT RIGHTS PROJECT

Case No. 2:17-cv-00135-JLR 1

AILA Doc. No. 17020134. (Posted 2/1/17)

615 Second Ave., Ste. 400

https://travel.state.gov/content/visas/en/immigrate/Immigrate­Announcement.html

Seattle, WA 98104 1/3

206-957-8611

2/1/2017

CCaassee: 21:71-73-5c1v0-050, 10325/1-J1L/2R017D,oIcDuI:mm1po0ert3nan1tt A61n30no4-u13nc,emDFeiknlettEdn0tr2y/:0164/107-3,PPaaggee38ooff468

This affects all immigrant visa categories, including immediate relatives; family­based and employment­based preference

categories; follow­to­join family members of refugees and asylees (Form I­730); fiancé visas (Form 1­129F); and

international adoptees (Form I­600A).

I am currently working on my case with NVC. Can I continue?
Yes. You should continue to pay fees, complete your Form DS­260 immigrant visa application, and submit your financial and civil supporting documents to NVC. NVC will continue reviewing your case file and can qualify your case for an appointment. However, you will not receive a visa interview until further notice.

Español

More Information

A­Z Index Latest News What is a U.S. Visa? Diversity Visa Program Visa Waiver Program Fraud Warning Find a U.S. Embassy or Consulate Straight Facts on U.S. Visas

In the United States
VisitTheUSA

FAQs: About Visas ­ The Basics

A Guide for New Immigrants

About Us Visa Newsroom Reports and Statistics Law and Policy

Find a U.S. Embassy or Consulate
Contact Us
Careers
Consular Notification and Access

STAY CONNECTED
Dipnote Blog Facebook Flickr

@travelgov Youtube RSS

travel.state.gov

U.S. Passports & International Travel

Students Abroad

U.S. Visa

Intercountry Adoption

International Parental Child Abduction

Ex. A to Adams Declaration

NORTHWEST IMMIGRANT RIGHTS PROJECT

Case No. 2:17-cv-00135-JLR 2

AILA Doc. No. 17020134. (Posted 2/1/17)

https://travel.state.gov/cPornivtaecnyt/visCaosp/yering/himt &mDiigscrlaatime/eImr mFigOrIaAte­ANnonFoEuAnRceAmct eDnatt.ahtmOl ffice of the Inspector General USA.gov

GobiernoUSA.gov 615 Second Ave., Ste. 400 Seattle, WA 98104

2/3

206-957-8611

2/1/2017

CCaassee: 21:71-73-5c1v0-050, 10325/1-J1L/2R017D,oIcDuI:mm1po0ert3nan1tt A61n30no4-u13nc,emDFeiknlettEdn0tr2y/:0164/107-3,PPaaggee49ooff468
Privacy Copyright & Disclaimer FOIA No FEAR Act Data Office of the Inspector General USA.gov GobiernoUSA.gov
This site is managed by the Bureau of Consular Affairs, U.S. Department of State.

Ex. A to Adams Declaration

NORTHWEST IMMIGRANT RIGHTS PROJECT

Case No. 2:17-cv-00135-JLR 3

AILA Doc. No. 17020134. (Posted 2/1/17)

615 Second Ave., Ste. 400

https://travel.state.gov/content/visas/en/immigrate/Immigrate­Announcement.html

Seattle, WA 98104 3/3

206-957-8611

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31413, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee11o0f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31413, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee21o1f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31413, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee31o2f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31413, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee41o3f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31423, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee11o4f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31423, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee21o5f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31423, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee31o6f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31433, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee11o7f o6f 68

1

Honorable James L. Robart

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2:17-cv-00135-JLR 11 Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf of themselves as individuals and on
13 behalf of others similarly situated,

DECLARATION OF AHMED MOHAMMED AHMED ALI

14

Plaintiffs-Petitioners,

IN SUPPORT OF PLAINTIFFS

15 v.
16
Donald TRUMP, President of the United States 17 of America; U.S. DEPARTMENT OF STATE;
Tom SHANNON, Acting Secretary of State; 18 U.S. DEPARTMENT OF HOMELAND 19 SECURITY; John F. KELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND 20 IMMIGRATION SERVICES; Lori
SCIALABBA, Acting Director of USCIS; 21 OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY, Acting
Director of National Intelligence,
23
Defendants-Respondents.
24

25

26

27

28

DECLARATION OF

AHMED MOHAMMAD AHMED ALI

Case No. 2:17-cv-00135-JLR

- 0

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31433, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee21o8f o6f 68

1
I, Ahmed Mohammad Ahmed ALI, declare under penalty of perjury as follows:

2
1.

I was born on May 1, 1978 in Alshear, Ibb, Yemen. I currently reside at 724 Gamay

3
Court, Los Banos, CA, 93635. I make this declaration in support of a temporary restraining order
4
to help effectuate my daughter, E.A.’s entry to the United States.
5
2. I am married to a U.S. citizen and have 2 U.S. citizen children and one child with a valid
6
immigrant visa, but who has been denied the ability to board a plane due to the January 27, 2017
7
executive order, merely because she is a citizen of Yemen.
8

3.
9

My wife and I have been trying for so many years to have our whole immediate family

united safely in the United States. My wife Intikhab Mohamed Saleh (“Intikhab”) and I own a
10

home in Los Banos, California where we live with our two U.S. citizen children, and where we
11

have been hoping that our daughter E.A. would also be residing. We have a monthly mortgage
12

payment of approximately $950. My wife has been helping to raise our daughters. We are a very
13

close family. Our family is Muslim.
14

15 4. I am the sole breadwinner for my family of five. I am the manager at the Buy N Save

16 Market in Los Banos that is in a local shopping market and part-owner of Los Amigos. I have

17 worked at Buy N Save since 2004. I work long hours so that I can provide for my family. I make

18 approximately $35,000 a year. I pay my U.S. taxes.

19 5. I married my wife, Intikhab on May 3, 2001. My eldest daughter, S.A.M.A. was born

20 within one year of our marriage – on February 24, 2002. Both my wife Intikhab and my daughter

21 S.A.M.A. are U.S. citizens.

22 6. I first entered the United States with my wife and daughter S.A.M.A. on January 27,

23 2004, and became a lawful permanent resident that date, based on a visa petition my U.S. citizen

24 wife had filed on my behalf. I became a naturalized U.S. citizen on July 19, 2010.

25 7. Approximately 6 months after my family and I entered the United States in 2004, we

26 received news that Intikhab’s mother had fallen ill and required caretaking assistance. As a

27 result, Intikhab decided she would temporarily return to Yemen (with S.A.M.A.) to care for her

28 mother. However, the length of Intikhab’s trip increased because my mother-in-law’s health

DECLARATION OF

AHMED MOHAMMAD AHMED ALI

Case No. 2:17-cv-00135-JLR

- 1

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31433, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee31o9f o6f 68

1
improved slowly. By the time Intikhab left for Yemen, she was already pregnant with my second

2
daughter, E.A.A. E.A.A. was born while my wife was still in Yemen, on December 3, 2004

3
8.

I remained in the United States where I was working to financially support the family.

4
When my wife left for Yemen, we planned for her to return to the United States as soon as her

5
mother’s health improved. At no point did we intend for my wife to live in Yemen permanently.
6
With my second child on the way, I knew it was best that I remain in the United States, although
7
I knew the separation would be difficult.
8

9.
9

When I learned that my mother-in-law’s health had improved to the point that she no

longer required my wife’s caretaking assistance, I immediately began making arrangements for
10

my family to join me in the United States. By 2010, I had saved enough money to cover the
11

travel expenses for my entire family (Intikhab, S.A.M.A., and E.A.A.).
12

10. Around 2010, when my wife and daughters was considering joining me in the United
13

States, we thought our daughter E.A.A. was a U.S. citizen since both me and my wife were
14

citizens. However, we didn’t know the technicality of the law, and only later learned that in fact
15

16 she was not a U.S. citizen because my wife had not physically resided in the United States for 5

17 years before E.A.A.’s birth. Thus, we learned we needed to have her go through the immigrant

18 visa consular process.

19 11. Thus, on April 25, 2011, I filed a family-based immigrant visa petition (Form I-130) for

20 my daughter E.A.A. with United States Citizenship and Immigration Services (“USCIS”) along

21 with the requisite $420 filing fee. USCIS approved the immediate relative I-130 petition for

22 E.A.A. on June 10, 2013.

23 12. On August 11, 2014, E.A.A., with the assistance of counsel, filed the Form DS-260,

24 Immigrant Visa Electronic Application. On August 12, 2014, counsel for E.A.A. emailed the

25 National Visa Center all of the civil documents.

26 13. Meanwhile, my wife had continued to stay with our older daughter S.A.M.A. and E.A.A.

27 in Yemen so that they travel to the United States together. However, while the immigrant visa

28 application was pending, the situation in Yemen deteriorated and became increasingly

DECLARATION OF

AHMED MOHAMMAD AHMED ALI

Case No. 2:17-cv-00135-JLR

- 2

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31433, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee42o0f o6f 68

1
dangerous. Frustrated that the immigrant visa process was taking so long, and worried about the
2
security situation in Yemen, my wife and I made the difficult decision sometime in 2013 that she
3
and S.A.M.A. would come to the United States, and E.A.A. would remain in Sana’a with my
4
parents, her grandparents. We were hopeful the immigrant visa would be approved soon.
5
14. My wife and I have had another daughter, S., who was born on February 4, 2015 in the
6
United States and is a U.S. citizen.
7

8 15. Meanwhile, the consular services in Yemen shut down so we learned the immigrant visa

9 interview would be scheduled at a different consulate. Finally, on December 15, 2016, the

10 National Visa Center sent an email that an immigrant visa interview was scheduled for January

11 22, 2017.

12 16. I then made arrangements for my daughter to be able to appear at this interview. E.A.A.’s 13 uncle helped her to travel by bus for over fifteen hours through a very dangerous part of Yemen, 14 and then took a flight from Aden, Yemen to Jordan. I meanwhile flew from the United States to 15 Jordan to meet my daughter. We then obtained a visitor visa for my daughter to travel from 16 Jordan to Djibouti. My Djibouti visa and my daughter’s Djibouti visa were issued on January 15,
17
2017 and are valid for one entry for 14 days. We then flew from Jordan to Djibouti on January
18
17, 2017.
19
17. We arrived in Djibouti with enough time that my daughter could get her medical
20
examination that was required for the immigrant visa interview.
21
22 18. On January 22, 2017, I accompanied my daughter E.A.A. to the immigrant visa interview
23 at the U.S. Embassy in Djibouti, and we were notified that the immigrant visa was approved. We
24 were required to give the Embassy E.A.A.’s passport so that the visa could be issued. We were
25 instructed to check a website to see when visa would be ready to pick up.

26 19. We checked the website and learned the visa was issued on January 25, 2017, and went to

27 pick up the visa at the next available time that was permissible, which was on Thursday, January

28 26, 2017. The visa is valid until July 21, 2017.

DECLARATION OF

AHMED MOHAMMAD AHMED ALI

Case No. 2:17-cv-00135-JLR

- 3

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31433, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee52o1f o6f 68

1
2 20. We quickly attempted to make flight arrangements to the United States. We first arranged 3 a flight that departed on Friday, January 27, 2017, but flight flew through Canada, and the airline 4 called and said we would have to cancel the flight because my daughter didn’t have a visa to 5 Canada. We therefore quickly booked the next flight we could, which left on Saturday, January 6 28, 2017.

7
21. Our Ethiopian Airlines flight was scheduled to depart Djibouti on Saturday, January 28,
8
2017 at 7:00 pm local time (which was 6am pacific time). The flight had multiple layovers, but
9
final destination was San Francisco International Airport. However, after we had gone through
10
security and were getting ready to board our flight, we were told by airline officials that my
11
daughter was not permitted board the flight due to the U.S President’s Executive Order that was
12
issued on January 27, 2017. I immediately called my attorney to inform her of the situation.
13

14 22. On January 28, 2017, my attorney sent a letter to the U.S. Embassy in Djibouti requesting

15 that my daughter E.A.A. be issued a travel letter because she should qualify for a case-by-case

16 exemption to the executive order because it would in the national interest to permit her to come

17 to the United States with our family. She spoke to a consular officer in Djibouti on January 30,

18 2017, but was informed that the embassy did not have guidance yet on how the waivers to the

19 executive action would be reviewed or issued.
20
23. We have thus been extending our stay at a hotel in Djibouti, which is quite expensive. We
21
had been paying approximately $115 a night, although recently moved to a smaller and more
22
23 affordable room for $80 a night.

24 24. I was able to take a leave of absence from my work to travel to help my daughter E.A.A.

25 come to the United States. But now, I do not know when I will be able to return to the United

26 States and do not know when I will be able to earn money for my family.

27
25.
28

The uncertainty of our situation is very stressful. We have no idea when we will be able

DECLARATION OF

AHMED MOHAMMAD AHMED ALI

Case No. 2:17-cv-00135-JLR

- 4

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31433, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee62o2f o6f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31443, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee12o3f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31443, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee22o4f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31443, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee32o5f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31443, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee42o6f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31443, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee52o7f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31453, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee12o8f o3f 68

1

Honorable James L. Robart

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2:17-cv-00135-JLR 11 Khaled DAHMAN; G.E., a minor; Ahmed

12 Mohammed Ahmed ALI; E.A., a minor; on behalf of themselves as individuals and on
13 behalf of others similarly situated,

DECLARATION OF CAROL E. EDWARDS IN SUPPORT OF PLAINTIFFS

14

Plaintiffs-Petitioners,

15 v.
16
Donald TRUMP, President of the United States 17 of America; U.S. DEPARTMENT OF STATE;
Tom SHANNON, Acting Secretary of State; 18 U.S. DEPARTMENT OF HOMELAND 19 SECURITY; John F. KELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND 20 IMMIGRATION SERVICES; Lori
SCIALABBA, Acting Director of USCIS; 21 OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY, Acting
Director of National Intelligence,
23
Defendants-Respondents.
24

25

26

27

28

DECLARATION OF CAROL E. EDWARD Case No. 2:17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 206-957-8611

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31453, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee22o9f o3f 68

DECLARATION OF CAROL E. EDWARD Case No. 2:17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 206-957-8611

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31453, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee33o0f o3f 68

DECLARATION OF CAROL E. EDWARD Case No. 2:17-cv-00135-JLR

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 206-957-8611

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31463, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee13o1f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31463, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee23o2f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31463, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee33o3f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31463, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee43o4f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31463, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee53o5f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31473, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee13o6f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31473, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee23o7f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31473, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee33o8f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31473, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee43o9f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31483, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee14o0f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31483, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee24o1f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31483, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee34o2f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31493, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee14o3f o4f 68 Honorable James L. Robart

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Juweiya Abdiaziz ALI; A.F.A., a minor; Reema Case No.: 2: 1 7-cv-00 I 35-JLR

Khaled DAHMAN; G.8., a minor; Ahmed

Mohammed Ahmed ALI; E.A., a minor; on

behalf of themselves as individuals and on

DECLARATION OF MOHAMED BARRE

behalf of others similarly situated'

OMAR

IN SUPPORT OF PLAINTIFFS

t4

Plaintiffs-Petitioners,

l5

l6 Donald TRUMP, President of the United States

l7 of America; U.S. DEPARTMENT OF STATE;

Tom SHANNON, Acting Secretary of State;

l8 U.S. DEPARTMENT OF HOMELAND

t9

SECURITY; John F. I(ELLY, Secretary of
Homeland Security; U.S. CITIZENSHIP AND

20 IMMIGRATION SERVICES; LOTi

SCIALABBA, Acting Director of USCIS; 2l OFFICE OF THE DIRECTOR OF NATIONAL 22 INTELLIGENCE; Michael DEMPSEY, Acting
Director of National Intelligence,

23
Defendants-

24

25

26

2',1

28
DECLARATION OF MOHAMED BARRE OMAR Case No. 2: t 7-cv-00135-JLR

NoRTHwEsr IMMIGRANT RIGHTS PRoJEcr

615 S€cond Ave , Ste 400

-0

Seattle, WA 98104 206-957-861I

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31493, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee24o4f o4f 68

I

follows: I, MOHAMED BARRE OMAR, declare under penalty of perjury as

I

l.

I am a United States citizen. I live in Tukwila, Washington. I own a small eroceV stor. ir,l

Schools. Seattle, Washington, and I am an instructional assistant for Seattle Public

2. I was born in Somalia. I came to the United States as a refugee when I was 61 Vears old I
:l I
Washington. from Kenya. I became a U.S. Citizen on March 13,2012 in Seattle,

3. in 6 My biological son is Ahmed Mohamed Barre. He was bom on October 5, 1992

I

7

I

Mombasa, Kenya. He is a citizen of Somalia by birth, because my wife and I were refueees. He

8
I
and his mother moved to Ethiopia shortly after he was bom. His mother died in Kenva on ARril
9
r0 20,2012. He grew up in Addis Ababa, Ethiopia and has not left it since moving there. He has I

ll never physically been in Somalia

I

12 4.

I

last

saw

Ahmed

in

2012,

before

his

mother

died.

She

had

been

in

Kenya,

so

I

visited

I I

l3 her and then went to Ethiopia to visit him. After visiting him, I decided to apply to brine him to I

l4 the United States to live with me. He is my only child that does not live in the United States'

5. The I

l5

I filed my Form I-130, Petition for Alien Relative, for him on october 25, 2012.

was I
l6 preference classification for the case is 201 B INA Minor child of USC. The petition I

an l'l lupp.ou.a and transferred to the National Visa Center in 2015. My son was interviewed for

I

l8 ,,'._,*run, visa ar the U.S. Embassy in Addis Ababa. Ethiopia on January 23,2017 at 07:a5 nM.

2017' |
l9 1",..ur. was approved and his immigranl visa was issued on January 25'

I
I

20 lU

then Upon receipt of his immigrant visa' we had planned to have him pack up and

I

2l nur.t,ur. a plane ticket to the U.S. The executive order was issued before he could buV a ticket'

to I

I

22 lH" hu, utt.*pt.d to buy a tickel. but no airline will sell one to him because theY do not want

I

rllr*. varid 23

rr,. risk that the U.S. will not apow hirn to immigrate despite the issuance of a

I

visa.

limmigrant

I

25 lt.

Mv son has never lived in Somalia. has no experience with his country ofcitizenship' andl

ro 26 I an". no, know how to navigate the risks of living lhere. lt is unsafe and impossible for him

I

lll so,nutiu 2'7 ll tiu. in
28
llogcaennrtoNoo
llllvcoars-renuNe2oo.:2B1A:17RR7-E-ccovvM--0A00R01315r-5Jl-RrlR -l|

I
NoRrHwEsr lMMlcn'qut RlcHTs protpcr I 6|5SecondAve Ste 400 |
seanle' wA 98104 | uoo-ssr-rorr

ll.*.*"

I

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31493, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee34o5f o4f 68

;l 8.

My son cannot retum to Kenya. The Kenyan government is actively refusing entry for

Somalian citizens and is refusing to take additional refugees. He no longer holds refugee status

;l in Kenya.

5l 9.

I fear for my son's safety in Ethiopia due to the state of emergency related to protests

.l violence in Addis Ababa and throughout Oromia. My son has little opportunity in Ethiopia,

because he is not a citizen there, and is present only at the permission of the government.
'7

10. I fear that my son's immigrant visa will expire before he the travel ban in the executive
8

order is lifted for citizens of Somalia. I would then lose his priority date of October 23,2012'
9

l0 which allows him to be the immediate relative, minor child of a U.S. Citizen for visa preference

purposes under the Child Status Protection Act. I would be required to file a new petition for

t2 him as the adult child of a U.s. citizen, family-sponsored first preference category, which has a
l3 cunent priority date of January 1, 201 1 . It would most likely take over six years before he
t4 be able to obtain a new immigrant visa to the united States, which would mean he would be o l5 the age of 30 by the time he arrived. That delay would directly intelfere with his ability to l6 a school in the United States and build a career. It would have a permanent, negative impact on t'7 his eaming abilities and his ability to marry and grow a family. It is not reasonable nor rational

l8 topreventmyson,whoisaSomaliancitizenonlyasaresultofhisbeingbomtorefugeeparents

t9 in Kenya, from coming to the U'S.

. 20 1 1

It is too expensive for me to travel to Ethiopia regularly' It has been nearly five years

21 since the last time I visited Ethiopia. My son lives over 8,000 miles from me. His time zone is

22 11 hours ahead of mine. When I go to bed, he is waking up; when he is going to bed' I am

23 wakingup.ItiSdifficultforustotalkonthephonebecauseofthetimedifference,butwetryto

24 make time for each other every week. I have to send him money to suppoft in Ethiopia, because

25 he does not have ajob. It is an enorrnous financial and emotional hardship to my son, myself,
26
andmyfamilyforhimtoliveinEthiopiawhileeveryoneelselivesintheUnitedStates.
2'7

28
DECLARATTON OF MOHAMED BARRE OMAR Case No. 2: l7-cv-00135-JLR

NORTHWEST IMMICRANT RIGHTS PROJECT

615 Second Ave.. Ste 400

-2

Seattle. WA 98104 206-951 -861 |

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t31493, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee44o6f o4f 68

12. I want to bring my whole family togetler by having all of us live in the United States.
My son is the only person left outside of the United States. I want him to be able to go to a good
university, to have a career, and to be able to live the American Dream' Moments before
27 , 2017 , I believed that dream was a reality and that we would be reunited. Now, because of
5
the executive order, I no longer know ifthat dream is possible.
6
13. Please reunite my family by allowing my son to come to the United States as quickly as
7
possible.
8

9

l0

I declare under penalty of perjury under the laws of the United States that the foregoing

ll true and correct to the best ofmy inforrnation, knowledge' belief.

l2

l3

Executed on this lst day of February ,2017, in Seattle, Washington'

t4

l5

l6

14S39 Military Rd S, #108

t7

Tukwila, WA 98168
(206) s66-4338

l8

l9

20
2l

22

23

24

25

26

27

28
DECLARATION OF MOHAMED BARRE OMAR Case No. 2: l7-cv-00135-JLR

NoRTHWEST IMMIGMNT RIGHTS PROJECT

615 Second Ave., Stc. 400

-3

S€attle, WA 98104

206-957-861I

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32403, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee14o7f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32403, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee24o8f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32403, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee34o9f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32403, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee45o0f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32413, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee15o1f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32413, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee25o2f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32413, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee35o3f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32413, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee45o4f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32413, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee55o5f o5f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32423, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee15o6f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32423, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee25o7f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32423, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee35o8f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32423, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee45o9f o4f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32433, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee16o0f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32433, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee26o1f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32433, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee36o2f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32443, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee16o3f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32443, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee26o4f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32443, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee36o5f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32453, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee16o6f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32453, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee26o7f o3f 68

CaCsaes: e172-:31571-c0v5-,0021/3151-/J2L0R17,DIDoc: u1m03e1n6t32453, FDikletEdn0t2ry/0: 61/4107-3,PPaaggee36o8f o3f 68

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 STATE OF WASHINGTON, et al.,
10 Plaintiffs,
11 v.
12 DONALD J. TRUMP, et al.,
13 Defendants.

CASE NO. C17-0141JLR ORDER

14 I. INTRODUCTION
15 On February 10, 2017, the court issued a minute order directing the parties to
16 submit simultaneous memoranda concerning how this matter should proceed in the
17 district court during the pendency of Defendants’ appeal of this court’s February 3, 2017,
18 order to the Ninth Circuit Court of Appeals. (2/10/17 Order (Dkt. # 74).) The parties
19 timely submitted memoranda in response to the court’s February 10, 2017, minute order.
20 (States Mem. (Dkt. # 75); Def. Mem. (Dkt. # 76).) In addition, the court heard the
21

22

ORDER - 1

1 argument of counsel in a telephonic hearing on February 13, 2017. The court now

2 considers this issue.

3

II. BACKGROUND

4

On February 3, 2017, the court entered what it considered a temporary restraining

5 order (“TRO”) with the intention of holding a subsequent hearing and issuing a

6 subsequent more detailed order on Plaintiff State of Washington and State of Minnesota’s

7 (“the States”) anticipated motion for a preliminary injunction. (See TRO (Dkt. # 52).)

8 On February 4, 2017, Defendants appealed the court’s TRO. (Notice of App. (Dkt.

9 # 53).)

10

On February 6, 2017, in response to the court’s TRO, the parties filed a joint status

11 report (“JSR”) setting forth a proposed schedule for briefing on the States’ motion for

12 preliminary injunction. (JSR (Dkt. # 56).) In the JSR, Defendants stated that it was their

13 “position that the Court lacks jurisdiction to decide Plaintiff’s forthcoming motion for

14 preliminary injunction until the Ninth Circuit resolves Defendants’ pending appeal of this

15 Court’s February 3, 2017[,] Order.” (Id. at 2.) Nevertheless, Defendants agreed that was

16 “appropriate for the parties to proceed with briefing on [P]laintiffs’ motion for

17 preliminary injunction despite Defendants’ pending appeal.” (Id.) On February 7, 2017,

18 the court entered a scheduling order granting the parties’ joint request regarding a

19 briefing schedule on Plaintiffs’ motion for a preliminary injunction. (2/7/17 Order (Dkt.

20 # 57).)

21

On February 9, 2017, the Ninth Circuit denied Defendants’ emergency motion for

22 a stay of this court’s February 3, 2017, order. (See 1st 9th Cir. Order (Dkt. # 68).) In so

ORDER - 2

1 ruling, the Ninth Circuit characterized the court’s order as an order “possessing the

2 qualities of an appealable preliminary injunction.” (Id. at 7; see also id. at 8 (“[W]e

3 believe that . . . the TRO should be considered to have the qualities of a reviewable

4 preliminary injunction.”).) On the same day, the Ninth Circuit issued a separate order

5 setting forth a briefing schedule on the merits of Defendants’ appeal of the court’s

6 February 3, 2017, order. (2d 9th Cir. Order (Dkt. # 69) at 2.)

7

On February 9, 2017, the State of Washington filed a letter with the court stating

8 that, because the Ninth Circuit held that the court’s TRO “possesses the qualities of an

9 appealable preliminary injunction,” “the States assume the district court briefing schedule

10 is no longer applicable.” (Letter (Dkt. # 70).) Accordingly, the States did not file a

11 motion for a preliminary injunction, which under the court’s scheduling order was due

12 that day. (See id.; see generally Dkt.)

13

On February 10, 2017, in response to the States’ letter, the court issued a minute

14 order directing the parties to file a JSR concerning how this matter should proceed in the

15 district court while Defendants’ appeal of the TRO is pending. (Ord. re: Letter (Dkt.

16 # 71).) Later that day, the court revised the schedule and ordered the parties to submit

17 simultaneous memoranda on the same issue by 12:00 p.m., Pacific Standard Time, on

18 February 13, 2017. (See 2/10/17 Order.) The court is now in receipt of those

19 memoranda. (States Mem.; Def. Mem.) In addition, the court heard the argument of

20 counsel on that topic during a telephonic hearing on February 13, 2017.

21 // 22 //

ORDER - 3

1

III. ANALYSIS

2

The parties agree that no further briefing is required in this court on a motion for a

3 preliminary injunction, and that the court’s February 3, 2017, TRO is now on appeal as a

4 preliminary injunction; however, the parties disagree about what further proceedings

5 should take place in the district court at this time. (See States Mem. at 5-6; Def. Mem. at

6 3.) Defendants would like to “postpone any further proceedings in the district court”

7 pending further direction from the Ninth Circuit. (Def. Mem. at 3.) The States would

8 like to “[p]roceed directly to discovery, including a prompt Rule 26(f) conference by the

9 parties.” (States Mem. at 6.)

10

Based on its interpretation of the Ninth Circuit’s order, the court agrees that the

11 Ninth Circuit has construed the TRO as a preliminary injunction and that further briefing

12 in this court on a motion for a preliminary injunction is not warranted or appropriate

13 while the present appeal is pending. However, the court does not see a basis for

14 postponing other aspects of the litigation and agrees with the States that the case should

15 otherwise proceed. Indeed, “it is firmly established that an appeal from an interlocutory

16 order does not divest the trial court of jurisdiction to continue with other phases of the

17 case.” Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982). Thus, the

18 Ninth Circuit’s jurisdiction “extends only to the ‘matters inextricably bound up with the

19 injunctive order from which the appeal is taken.’” Paige v. State of Cal., 102 F.3d 1035,

20 1039 (9th Cir. 1996) (quoting Self-Realization Fellowship Church v. Ananda, 59 F.3d

21 902, 905 (9th Cir. 1995)). If an issue or motion arises during the course of this litigation

22 that is “inextricably bound up with the injunctive order from which the appeal [was]

ORDER - 4

1 taken,” see id., the court can address any such issue at the time it arises in accordance

2 with the case law discussed above. In the meantime, the court directs the parties to

3 proceed with this litigation in accordance with the Federal Rules of Civil Procedure and

4 this court’s Local Civil Rules.

5

IV. CONCLUSION

6

The court concludes that the Ninth Circuit has construed the court’s TRO (Dkt.

7 # 52) as an appealable preliminary injunction and that further briefing or the submission

8 of evidence concerning a preliminary injunction would not be appropriate in this court

9 during the pendency of Defendants’ appeal. However, the court ORDERS the parties to

10 continue with other aspects of this litigation in accordance with the Federal Rules of Civil

11 Procedure and this court’s Local Civil Rules. If issues or motions subsequently arise that

12 either party believes are “inextricably bound up with the injunctive order,” the court will

13 address those motions or issues on a case-by-case basis in accordance with the case law

14 set forth above. Finally, the court VACATES the briefing schedule set forth in its

15 February 7, 2017, order (Dkt. # 57).

16

Dated this 14th day of February, 2017.

17

18

A

19

JAMES L. ROBART

United States District Judge

20

21

22

ORDER - 5

 
 Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 1 of 15 RMUOE .SL.LCYOC CU.RTE 0AV CLED RK

No. 17-35105

FEB 1 4 2017

FILED DOCKETED

,,TE

~N TIAL

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al., Plaintiffs-Appelles
V.
DONALD TRUMP, President of the United States, et al., Defendant-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
BRIEF OF AMICUS CURIAE KIM BLANDINO, PRO SE IN SUPPORT OF DEFENDANT-APPELLANTS URGING IMMEDIATE ACTION TO VACATE THE TRO OR IN THE ALTERNATIVE TO TREAT THIS SUBMISSION AS AN EXTRAORDINARY WRIT OF MANDAMUS, PROHIBITION OR ANY OTHER EXTRAORDINARY WRIT AS KIM IS AN AFFECTED PERSON THAT IS EXPOSED TO DANGER BY THE TRO
ISSUED BY THE DISTRICT COURT

1

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 2 of 15
Kim Blandino Pro Se C/O 441 N. 16th St. Las Vegas Nv. 89101 Tele: (702) 219-5657 Fax Call before sending Email: kiin43792@earthlink.net
TABLE OF CONTENTS
RELEVANTFACTS .....................................................................................................1 ARGUMENT..............................................................................................................1 CONCLUSION...........................................................................................................10 CERTIFICATE OF COMPLIANCE ...........................................................................11 CERTIFICATEOF SERVICE ....................................................................................12
TABLE OF AUTHORITIES U.S. Federal Cases
Dames and Moore v Regan 453 U.S. 654 (1981) .............................................3,8 Muscarello v U.S. 524 U.S. 125 (1998) .................................................................5 Neder v U.S. 527 U.S. 1 (1999) ..........................................................................1 Nken v Holder, 566 U.S. 418, 433 (2009) ........................................................2,3,4 Planned Parenthood v Abbott 134 S.Ct 506 (2013) ...................................... . . Turner Brodcasting System , Inc. v. FCC 507 U.S. 1301, 113 S.Ct. 1806..........4
11

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 3 of 15
U.S. v. Chemical Foundation 272 U.S. 1 (1926) ....................................................8,9
Title 8 of the United State Code (Immigration and Nationality Act)
8 U.S.0 . ..................................................................................................................5 8 U.S.C. and 8 U.S.C. 1182 ......................................................................................3 8 U.S.C. 1182 section 212(f) ..................................................................................4
Federal Regulations
28 C.F.R. 17 ...........................................................................................................10 28 C.F.R.17.17(a) .....................................................................................................7 28 C.F.R. 17.17 (c) ...................................................................................................6
Secondary Sources
Amicus brief filed by Daniel Escamilla .............................................................. 4 The original Magnificent Seven Movie, Steve Mcqueen ......................................5,6
iii

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 4 of 15
RELEVANT FACTS The facts have been reiterated numerous times in this case, so Kim will not repeat A updated summary is all that bis required that a restraining Order was granted in the district court against the Executive Order 13769 "Order". The defendants appealed to this court. A three judge panel denied relief. On Feb. 10, 2017 an en banc call was made by unknown "Judge Doe" on this court and briefing was was ordered to be completed by Feb. 16, 2017
ARGUMENT BOTH THE DISTRICT COURT AND THIS CIRCUIT COMMITTED STRUCTURAL ERROR THAT REQUIRE THE EXECUTIVE ORDER TO BE PUT BACK INTO FULL FORCE AND EFFECT IMMEDIATELY in Neder v U.S. 527 U.S. 1 (1999) the supreme court established that there are classes of errors that do not lend themselves to harmless error analysis, that require reversal. These structural errors in numerous cases it has been held, cannot have been waived for failure to raise them in the lower courts. The structural error that both the district court and this court made revolves around presumptions, which are absolutely essential in law Also, what is the status quo? It is with this status quo issue that the late and great Justice Scalia (may God rest his soul!) speaks to us clearly and precisely as though he were still here in person.
1

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 5 of 15
In Planned Parenthood v Abbott 134 S.Ct 506 (2013):
"The Court of Appeals concluded that the fourth factor also favored the stay, reasoning that the State's interest in enforcing a valid law merges with the public interest. See Nken, supra, at 435. The dissent declines to criticize that reasoning, though we are presumably meant to infer from its disapproving comments about the stay's "seriou[s] disrupt[ion of the] status quo," post, at 3, that the dissent believes preservation of the status quo—in which the law at issue is not enforced—is in the public interest. Many citizens of Texas, whose elected representatives voted for the law, surely feel otherwise. But their views go unacknowledged by the dissent, which again fails to cite any "accepted standar[d] " requiring a court to delay enforcement of a state law that the court has determined is likely constitutional on the ground that the law threatens disruption of the status quo. "at 507 (emphasis added)
Here, Scalia is absolutely correct the statute that was passed IS THE STATUS
QUO! In this case the Executive Order "Order" as well, IS THE STATUS QUO!
Despite what this court or the lower court state. The TRO issued by the lower court
admits on page 2-3 lines 16 — 1 that the purpose of a TRO is to preserve the status
quo. This ultimately means that the lower court presumed the Order to be legal
garbage and gave the Order no effect, just as the dissent in Abbott above wanted to
do with the statute at issue in that case.
Because of the above wrongful presumption, the entire theory of this case is
upside down. In point of fact the plaintiffs in the district court were asking fora
STAY OF THE ORDER by the president and thus the plaintiffs should be subject
to Nken v Holder, 566 U.S. 418, 433 (2009) "a stay is not a matter of right, even if
2

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 6 of 15
irreparable injury might result" (emphasis added) See per curiam order of this court page 18 3m! paragraph. This reversed position is like "Alice through the looking glass" and just as Scalia saw things in Abbott vs. the dissenters.
Before, President Trump issued the order pursuant to 8 U.S.C. and 8 U.S.C. 1182 the status quo was one thing, then Trump "altered the status quo" with the order which became the new status quo. Because it must be presumed by law that the executive order, or proclamation is regular and lawful See Dames and Moore v Regan 453 U.S. 654 (1981) "Long continued executive practice ...... raises a presumption that the President's action has been taken pursuant to Congree' consent." id. At 657 Also, "President's action ...... taken pursuant to specific congressional authorization it is supported by the strongest presumptions and the widest latitude of judicial interpretation" id at 656 (emphasis added) The district court nor this court treated the order with this respect as required in Dames. It must be pointed out that that in Dames there was only financial ramifications. President Trump's order involves matters of life or death thus Kim argues the presumption must be even stronger.
With the above being said, the President "altered the status quo" with his order which became the, new status quo. So the plaintiffs in point of fact wanted to "suspend the [presidential] alteration of the status quo" This foregoing language should be familiar to the court, because in Nken at 429 "A stay "simply suspends]
9

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 7 of 15
judicial alteration of the status quo." Also, "( By seeking an injunction, applicants request that I issue an order altering the legal status quo") Nken at 429 citing Turner Brodcasting System, Inc. v. FCC 507 U.S. 1301, 113 S.Ct. 1806
It is of no small importance that the president gets a daily Presidential briefing. See Amicus brief filed by Daniel Escamilla page 3-4 lines 15- 22. The 8 U.S.C. 1182 section 212(f) requires a finding by the President. It therefore, must be presumed that the President bases his findings in part on classified information that was not available to the lower court or this court when the order was examined. It cannot be overstated either that section 212(f) does not even require a written order The President can merely proclaim suspension for such period as he deems necessary.
It must be judicially noticed by this court that the lower court stated: "the court is mindful of the considerable impact its order may have
on the parties before it, the executive branch of our government, and the country's citizens and residents. The court concludes....... that it must intervene to fulfill its constitutional role in our tripart government." TRO at pg 7 lines 7-12
With all due respect to Judge Robart the foregoing statement is ridiculous and foolish unless Judge Robart gathered all of the intelligence data that the President has been made aware of since the President first started being briefed by intelligence agencies. The statement is an absolute insult to all of the men and women that risk
2

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 8 of 15
their lives in many cases gathering necessary information about threats to America and its allies around the world!!
If Kim can be allowed to "channel" Justice Scalia for a moment, (and Kim can because Kim's last name also ends in a vowel). Justice Scalia in response to Judge Robart would ask this, "Suppose that President Trump was briefed by intelligence agencies by corrborated information that, within days weeks or months from one of the countries at issue in the Order there was a high probability that individuals from said countries were going to detonate "dirty" nuclear bombs in several major cities including Seattle and that the President should suspend travel under 8 U.S.C.?" Can there be any doubt in light of Scalia's reasoning in Abbott above that Scalia would not give proper deference to the President and be astounded By Judge Robart's presumption that he is "mindful" of the impact of ignoring classified information.
The lower court nor this court can satisfy themselves with the fact that since Judge Robart's TRO no terrorists attacks have happened in America so far. Justice Scalia's fast friend Justice Ginsburg herself in Muscarello v U.S. 524 U.S. 125 (1998) cited the original movie The Magnificent Seven. So Kim will do so here to prove the point. Steve Mcqueen playing Vin says in response to the questions "Are you ready for him [refers to Calvera played by Eli Wallach]? What if he comes now huh?" :
"McQueen says: Reminds me of that fellow back home that fell off a ten story building. .... Well, as he was falling people on each floor kept hearing him say, "So far, so good." Tch...so far so good!"

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 9 of 15
The lower court and this court have "fallen off a judicial cliff' so to anyone that says, "so far so good" gives no comfort whatsoever. Kim requests this court take judicial notice that .for days after 911, the airspace above Canada and the U.S. was restricted to military aircraft just by proclamation, obviously for safety reasons. It should go without saying that had the air flight restriction been on September 10, 2001, for days thousands of lives would have been spared. President Trump is presumptively trying to save lives from a demonstrable threat to people and property that is ever present. Neither the lower court nor this court have knowledge of the classified information , nor does Kim. In fact, Kim doubts that the Justice department lawyers that briefed and argued the case had such classified information. This court states in its order:
"The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States." at page 26-27 (emphasis added)
Again, Justice Scalia would be saying in response: "the Order is based on classified intelligence that a future threat exists not what has been done, before December 7, 1941 there was no evidence of a japanese attack before September 11 2001 there was no evidence of an attack by Saudis ........
This court wants to hang its hat on 28 C.F.R. 17.17 (c) which reads in pertitnent
0

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 10 of 15
(c) In judicial proceedings other than Federal criminal cases where CIPA is used, the Department, through its attorneys, shall seek appropriate security safeguards to protect classified information from unauthorized disclosure, including, but not limited to, consideration of the following: (emphasis added)
In other words the Department is given almost unlimited power to determine what
safeguards the Department needs in order to protect the classified info. Moreover this
court ignores 17.17(a) which states:
"(1)Any Department official or organization receiving an order or subpoena from a federal or state court to produce classified information, required to submit classified information for official Department litigative purposes, or receiving classified information from another organization for production of such in litigation, shall immediately determine from the agency originating the classified information whether the information can be declassified. If declassification is not possible, the Department official or organization and the assigned Department attorney in the case shall take all appropriate action to protect such information pursuant to the provisions of this section. (2) If a determination is made to produce classified information in a judicial proceeding in any manner, the assigned Department attorney shall take all steps necessary to ensure the cooperation of the court and, where appropriate, opposing counsel in safeguarding and retrieving the information pursuant to the provisions of this regulation." (emphasis added)
Sec.17.17 therefore requires an order or subpoena from a federal or state court to
produce the classified information. Moreover, as seen above, sec 17.17(a)
contemplates that it is possible that the information cannot be declassified. This court
seems to take the subject of classified information very casually, which is very very
7

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 11 of 15
disturbing. This court must know, that often if classified information is leaked it can directly cause deaths of hundreds of people that were the source of such classified information as the information itself can lead to the source.
Had the Department without a subpoena or an order and/or sufficient safeguards given over classified information the supplying party could well have been prosecuted criminally. Further, the plaintiffs were the parties that should have sought a subpoena or order. The plaintiffs by all appearances were not interested in seeking a subpoena or order for the classified information. By all appearances the parties opposing President Trump were "forum shopping". And successful the opponents to the President have been. "so far so good"! Kim is certain that the infamous Bernie Madoff right up to before he was arrested, was saying "so far so good":
As stated above as to presumptions, this court is clearly not giving the President the presumption under Dames that the President properly relied on classified information to make his decision. In fact it appears that the lower court and this court presumed that the- President had no support in the classified information for the Order. In U.S. v. Chemical Foundation 272 U.S. 1 (1926) the court said:
The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. Confiscation Cases, 20 Wall. 92, 108, 22 L. Ed. 32OUnited States v. Page, 137 U. S. 673, 679-680, 11 S. Ct. 219, 34 L. Ed. 828; United States v. Nix, 189 U. S. 199, 205, 23 S. Ct. 495, 47 L. Ed. 775. Under that presumption, it will be taken that Mr. Polk acted upon knowledge of the

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 12 of 15
material facts. The validity of the reasons stated in the orders, or the basis of fact on which they rest will not be reviewed by the courts. Chemical at 14-15 (emphasis added) Therefore the lower court and this court are obligated by law, by case law to presume that the Presdident acted on the basis of valid facts and reasons and intelligence information to protect the safety of all persons within America in suspending some travel. The burden must be on the plaintiffs all around. It is therefore irresponsible and reckless to basically pronounce the President as guilty without any evidence or even requiring the plaintiffs to meet their burden of at least presenting evidence. To again channel Scalia he would ask: "If President Trump had intelligence that demonstrated a high probability of the deaths of hundreds or thousands within the U.S. if a temporary suspension was not instituted ? Are you seriously stating that the balance of hardships and the public interest tips toward the plaintiffs?" If this situation regarding the Order were a movie by an ironic screen writer Seattle and San Francisco would see a terrorist attack that kills thousands or more in each city from persons from the countries listed, who came in after the TRO in the Order.In the aftermath the actor plating Judge Robart would read how the court "is mindful of the considerable impact its order may have on the parties......" Please, God do not let that scenario occur in real life. "So far so good" is not good enough. This circuit has granted stronger presumption toward criminal defendants than to

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 13 of 15
President Trump. In Mclean v. Moran 963 F.2d 1306 (1992) "Mandatory presumptions, however, pose greater potential for constitutional problems because they may affect not only the strength of the "beyond a reasonable doubt" burden but also the placement of that burden." Moran at 1309.
Under Dames the president is entitled to the strongest of presumptions that the Order was proper and necessary to protect against terrorism and the safetl and lives of those within the U.S.
CONCLUSION Kim believes that President Trump sincerely is very concerned with the safety of all persons within America's borders and that the President is acting in accord with information gathered from intelligence agencies and that there is a real threat from entities within the listed countries. That Kim believes his sons lives, and his life are in greater danger because of the TRO. That if the plaintiffs want to actually examine the classified information that the President relied on for his order let the plaintiffs ask for a subpoena or an order to try and examine that classified information under 28 C.F.R. 17 and have Robart rule. For the foregoing reasons this court must immediately vacate the TRO issued in the court below immediately and modify or vacate the denial filed on Feb, 9, 2017. In the altenative grant an extraordinary writ or grant such other relief as returns full force and effect to the Order until a full hearing can be made in the District Court
10

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 14 of 15
DATED this 13th day of February, 2017.
2LI 1 z
KIM BLANDINO PRO SE C/O 441 N. 16`, Street Las Vegas, Nevada 89101 (702 )219-5657 kim43792@earthlink.net
CERTIFICATE OF COMPLIANCE
Pursuant to FRAP 32(a)(7)(C)(i) the undersigned individual, appearing pro se, certifies that this submission:
(i) Complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6). It has been prepared using OpenOffice Writer and is set in Times New Roman with a font size of 14-point,
(ii) Complies with the length requirement of Rule 29(a)(5) because it is 11 pages absent the exclusions and Kim has filed a motion for leave to file in accord with the FRAP
DATED this 13th day of February, 2017.
KIM BLANDINO PRO SE C/O 441 N. 16' Street Las Vegas, Nevada 89101 (702 )219-5657 kim43 792@earthlink.net
11

Case: 17-35105, 02/14/2017, ID: 10319489, DktEntry: 143, Page 15 of 15
CERTIFICATE OF SERVICE I hereby certify that on February 13, 2017, a true and correct copy of the foregoing: BRIEF OF AMICUS CURIAE KIM BLANDINO, PRO SE IN SUPPORT OF DEFENDANT-APPELLANTS with first class postage prepaid has been deposited in the U.S. Mail in Santa Ana, California, and properly addressed to the persons whose names and addresses are listed below. Noah G. Purcell Washington Attorney General's Office 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (Courtesy copy e-mailed to NoahP@atg.wa.gov) Noel J. Francisco Acting Solicitor General, U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (Courtesy copy e-mailed to Noel Francisco@USDOJ.GOV)
DATED: February 13, 2017
KIM BLANDINO PRO SE C/O 441 N. 16th Street Las Vegas, Nevada 89101 (702 )219-5657 kim43792@earthlink.net
12

 
 Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-1, Page 1 of 8

No. 17-35105
In the United States Court of Appeals for the Ninth Circuit
State of Washington; State of Minnesota, Plaintiffs-Appellees,
v. Donald J. Trump, President of the United States; U.S. Department of Homeland Security; Rex W. Tillerson, Secretary of State; John F. Kelly, Secretary of the Department of Homeland Security; United States of America,
Defendants-Appellants.
On Appeal from the United States District Court for the Western District of Washington
MOTION FOR LEAVE TO FILE BRIEF FOR THE STATE OF TEXAS AS AMICUS CURIAE
IN SUPPORT OF REHEARING EN BANC

Ken Paxton Attorney General of Texas
Jeffrey C. Mateer First Assistant Attorney General
Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697 scott.keller@oag.texas.gov

Scott A. Keller Solicitor General
J. Campbell Barker Deputy Solicitor General
Ari Cuenin Assistant Solicitor General

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-1, Page 2 of 8
Motion for Leave to File Brief
Amicus curiae the State of Texas respectfully moves for leave to file a brief of 8,965 words as amicus curiae in support of rehearing en banc. This motion is unopposed and is accompanied by the proposed brief and Form 8 certification.
1. On January 27, 2017, the President issued Executive Order 13,769, determining that “[d]eteriorating 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” and taking additional steps “to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” 82 Fed. Reg. 8977, 8977 (Feb. 1, 2017). On February 3, 2017, the district court temporarily enjoined the Executive Order in its entirety. On February 9, 2017, a panel of this Court denied the Executive Branch’s motion for a stay pending appeal of that injunctive relief.
2. On February 10, 2017, this Court noted that it was considering whether the request for a stay pending appeal should be reheard en banc. This Court directed the parties to file simultaneous briefs of up to 14,000 words on that issue by Thursday, February 16, 2017.
3. Federal Rule of Appellate Procedure 29 permits a State to file an amicus brief without the parties’ consent or leave of court “during a court’s consideration of whether to grant panel rehearing on rehearing en banc, unless a local rule or order in a case provides otherwise.” Fed. R. App. P. 29(b)(1), (2). That rule appears to govern here because no circuit rule provides otherwise. Circuit Rule 29-2 provides that a State may file an amicus brief without the parties’ consent or leave of court
1

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-1, Page 3 of 8
“when the Court is considering a petition for panel or en banc rehearing,” and that “any other amicus curiae” may file only by leave of court or if all parties consent. Neither clause applies here: the Court does not have a “petition” for en banc rehearing (because the Court raised the issue sua sponte), yet movant is not an “other amicus curiae” than those listed in the first clause of the second sentence of Circuit Rule 29-2(a) (because movant is a State).
4. Nonetheless, in an abundance of caution given potential confusion, amicus respectfully moves for any necessary leave to file an amicus brief at this stage, in support of the rehearing en banc currently being considered by the Court. Even if Circuit Rule 29-2 does not expressly address sua sponte consideration of en banc review, an amicus brief by a State at this stage is allowed by Federal Rule of Appellate Procedure 29(b). And the attached proposed brief includes material that is “desirable” and “relevant to the disposition of the case.” Fed. R. App. P. 29(a)(3); see 9th Cir. R. 29-2(b). The amicus brief provides an overview of the federal immigration laws against which plaintiffs’ statutory and constitutional claims should be evaluated; explains that the Executive Order reflects a policy decision delegated to the Executive Branch expressly by Congress, and was issued after multiple federal officials drew public attention to serious flaws in the preexisting vetting scheme for aliens residing abroad who wish to enter this country under visas or as refugees; and draws the Court’s attention to authorities relevant to the extension of constitutional rights that plaintiffs advocate here. The attached amicus brief is filed before the February 16, 2017 deadline for the parties’ simultaneous briefs on whether the Court should grant rehearing en banc.
2

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-1, Page 4 of 8
5. Amicus also requests leave to exceed the word limit by filing the attached brief of 8,965 words. See 9th Cir. R. 29-2(c), 32-1(a). This is a case of national interest with important and far-reaching foreign-affairs and national-security implications. Every State has a substantial interest in the health and welfare of their citizens, but the States must rely on the federal Executive to determine when the entry of aliens should be suspended for public-safety reasons under a regime crafted by the States’ elected representatives in Congress. See generally Arizona v. United States, 132 S. Ct. 2492, 2507 (2012). The State of Texas thus has a substantial interest in the federal government having the latitude to make policy judgments reserved to it by statute, and inherent in this country’s nature as a sovereign, regarding the terms and conditions for whether aliens may enter the country.
6. Amicus has endeavored to assist the Court in resolving the weighty issues in this case in as few words as possible. Critical to that effort is an understanding of the structure of our nation’s immigration laws, which the attached brief provides, as well as key precedents bearing on the sweeping constitutional theories that plaintiffs argue. The attached amicus brief supporting rehearing en banc uses fewer than twothirds of the 14,000 words that this Court has allowed for the parties’ supplemental en banc briefs and is fewer than the total words allowed if amicus had filed briefs at
3

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-1, Page 5 of 8
both the panel stage and this stage.1 Amicus submits that granting the request to exceed the word limit is particularly appropriate in light of the fact that over fifteen amicus briefs were submitted in support of appellees at the panel-hearing stage.
7. Appellants consent to the relief requested in this motion, and appellees take no position on it.
Conclusion
The State of Texas respectfully requests leave to file the attached brief as amicus curiae supporting rehearing en banc.
1 “[A]micus filings during a court’s initial consideration of a case on the merits,” Fed. R. App. P. 29(a)(1), have a word limit of 7,000 words, as one-half of the partybrief limit. Fed. R. App. P. 29(a)(5); 9th Cir. R. 32-1(a). A second brief “during a court’s consideration of whether to grant panel rehearing or rehearing en banc,” Fed. R. App. P. 29(b)(1), then has either a word limit of 2,600 words, Fed. R. App. P. 29(b)(4), or an alternative 4,200-word limit for briefs while a “petition for rehearing” is pending, 9th Cir. R. 29-2(c)(2). The total words permitted for amicus briefs at the initial and en-banc-consideration stages is thus either 9,600 or 11,200.
4

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-1, Page 6 of 8
Respectfully submitted. Ken Paxton Attorney General of Texas Jeffrey C. Mateer First Assistant Attorney General s/ Scott A. Keller Scott A. Keller Solicitor General J. Campbell Barker Deputy Solicitor General Ari Cuenin Assistant Solicitor General Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697 scott.keller@oag.texas.gov
5

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-1, Page 7 of 8
Certificate of Conference
This motion has been conferenced with counsel for the parties, and neither will oppose the relief requested in this motion. Appellants consent to that relief, and appellees take no position on it.
s/ Scott A. Keller Scott A. Keller
Certificate of Service
On February 15, 2017, this motion was served by CM/ECF on the following counsel for the parties: Counsel for Plaintiffs-Appellees: Noah G. Purcell Office of the Washington Attorney General P.O. Box 40100 1125 Washington St., SE Olympia, WA 98504 Noahp@atg.Wa.Gov
Counsel for Defendants-Appellants: Edwin S. Kneedler United States Department of Justice 950 Pennsylvania Ave., N.W. Room 5139 Washington, DC 20530 Edwin.S.Kneedler@usdoj.gov
s/ Scott A. Keller Scott A. Keller
6

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-1, Page 8 of 8
Circuit Rule 32-2(a) Declaration
Pursuant to Circuit Rule 32-2(a), I declare that the State of Texas’s motion for its amicus brief to exceed the type-volume limit is supported by substantial need. This is a case of national interest with important and far-reaching foreign-affairs and national-security implications. The State of Texas has a substantial interest in the health and welfare of its citizens, and the States rely on the federal Executive to restrict the entry of aliens for public-safety reasons under a regime crafted by the States’ elected representatives in Congress. See Arizona, 132 S. Ct. at 2507. The State of Texas thus has a substantial interest in the federal government having the latitude to make the policy judgments reserved to it by statute, and inherent in this country’s nature as a sovereign, regarding the terms and conditions for whether aliens may enter the country.
I further declare that amicus has been diligent in endeavoring to assist the Court in resolving the weighty issues in this case in as few words as possible. Critical to that effort is an understanding of the structure of our nation’s immigration laws, which the attached brief provides, as well as key precedents bearing on the sweeping constitutional theories that plaintiffs argue. The attached amicus brief supporting rehearing en banc uses fewer than 9,000 words to achieve these ends.
s/ Scott A. Keller Scott A. Keller
7

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 1 of 45

No. 17-35105
In the United States Court of Appeals for the Ninth Circuit
State of Washington; State of Minnesota, Plaintiffs-Appellees,
v. Donald J. Trump, President of the United States; U.S. Department of Homeland Security; Rex W. Tillerson, Secretary of State; John F. Kelly, Secretary of the Department of Homeland Security; United States of America,
Defendants-Appellants.
On Appeal from the United States District Court for the Western District of Washington
BRIEF FOR THE STATE OF TEXAS AS AMICUS CURIAE IN SUPPORT OF
REHEARING EN BANC

Ken Paxton Attorney General of Texas
Jeffrey C. Mateer First Assistant Attorney General
Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697 scott.keller@oag.texas.gov

Scott A. Keller Solicitor General
J. Campbell Barker Deputy Solicitor General
Ari Cuenin Assistant Solicitor General

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 2 of 45
Table of Contents
Page Interest of amicus curiae .......................................................................................... 1 Statement ................................................................................................................. 1
A. Statutory background........................................................................... 1 B. The challenged Executive Order ......................................................... 3
1. Suspension of entry ....................................................................... 4 2. Refugee-program directives .......................................................... 5 C. Procedural history................................................................................ 6 Summary of the argument........................................................................................ 7 Argument ............................................................................................................... 10 I. The Executive Order falls well within the powers Congress delegated to the Executive, so plaintiffs’ claim that the Order violates the INA is baseless....................................................................... 10 A. The Order’s suspension of entry conforms with 8 U.S.C. § 1182(f) and does not violate the INA. .............................................. 11 B. The Order’s directives on refugee admission conform with 8 U.S.C. § 1182(f) and do not violate the INA. ...................................13 II. Plaintiffs’ arguments that the Executive Order violates the Constitution are equally meritless. ........................................................... 14 A. The Executive acted in an area of maximum authority: Youngstown’s first category of Executive action pursuant to congressionally delegated power........................................................ 14 B. The due-process claim fails because nonresident aliens abroad have no constitutionally protected right to seek entry into the United States. ........................................................................16 C. Equal-protection rights are neither implicated nor violated by the Executive Order. .......................................................................... 23 D. The Executive Order neither triggers nor violates the Establishment Clause......................................................................... 34 Conclusion ............................................................................................................. 35 Certificate of service .............................................................................................. 36 Certificate of compliance ....................................................................................... 37
i

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 3 of 45

Cases:

Table of Authorities

Page(s)

Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) ..............................................................................16
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999)........................................................................................... 18
Arizona v. United States, 132 S. Ct. 2492 (2012) .................................................................................. 1, 15
Azizi v. Thornburgh, 908 F.2d 1130 (2d Cir. 1990) ........................................................................... 18
Boumediene v. Bush, 553 U.S. 723 (2008).....................................................................8, 17, 18, 25, 26
City of New Orleans v. Dukes, 427 U.S. 297 (1976) ......................................................................................... 33
Cutter v. Wilkinson, 544 U.S. 709 (2005) ........................................................................................ 34
Dames & Moore v. Regan, 453 U.S. 654 (1981) ......................................................................................... 14
De Avilia v. Civiletti, 643 F.2d 471 (7th Cir. 1981) ............................................................................ 18
Demore v. Kim, 538 U.S. 510 (2003)..........................................................................................19
Graham v. Richardson, 403 U.S. 365 (1971).......................................................................................... 32
Haitian Refugee Ctr. v. Smith, 676 F.2d 1023 (5th Cir. 1982) .......................................................................... 22
Heller v. Doe, 509 U.S. 312 (1993) ......................................................................................... 33
Johnson v. Eisentrager, 339 U.S. 763 (1950) .................................................................................... 17, 23
Kerry v. Din, 135 S. Ct. 2128 (2015)................................................................................ 22, 23
Kleindienst v. Mandel, 408 U.S. 753 (1972) .............................................................................. 15, 17, 22

ii

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 4 of 45
Knauff v. Shaughnessy, 338 U.S. 537 (1950) ..........................................................................................15
Knoetze v. U.S. Dep’t of State, 634 F.2d 207 (5th Cir. 1981).............................................................................19
Lamont v. Woods, 948 F.2d 825 (2d Cir. 1991) ............................................................................. 34
Landon v. Plasencia, 459 U.S. 21 (1982) ...........................................................................17, 18, 20, 21
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State: 45 F.3d 469 (D.C. Cir. 1995) ............................................................................13 104 F.3d 1349 (D.C. Cir. 1997) ........................................................................ 18
Louhghalam v. Trump, No. 1:17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017) ................. 7, 18, 34
Malek-Marzban v. INS, 653 F.2d 113 (4th Cir. 1981)............................................................................. 32
Mathews v. Diaz, 426 U.S. 67 (1976) ...................................................................................... 16, 32
McCleskey v. Kemp, 481 U.S. 279 (1987) ......................................................................................... 25
Nademi v. INS, 679 F.2d 811 (10th Cir. 1982) .......................................................................... 32
Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) .......................................................................... 32
Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979) ..............................................................................24, 25, 26
Plyler v. Doe, 457 U.S. 202 (1982)......................................................................................... 26
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) ............................................................................ 32
Republican Party of Minn. v. White, 536 U.S. 765 (2002)......................................................................................... 26
Rodriguez-Silva v. INS, 242 F.3d 243 (5th Cir. 2001) ........................................................................... 33
Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993)...........................................................................................11
iii

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 5 of 45
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) ..................................................................................1, 2, 20
Soskin v. Reinertson, 353 F.3d 1242 (10th Cir. 2004)........................................................................ 32
Swarthout v. Cooke, 562 U.S. 216 (2011) (per curiam)..................................................................... 18
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) .............................................................................15
United States v. Salerno, 481 U.S. 739 (1987) ..........................................................................................16
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).................................................................................... 17, 23
Yick Wo v. Hopkins, 118 U.S. 356 (1886).......................................................................................... 23
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) .......................................................................... 8, 14, 15, 25
Zadvydas v. Davis, 533 U.S. 678 (2001) ........................................................................ 19, 20, 23, 33
Constitutional provisions, statutes, and rules:
U.S. Const.: art. I ................................................................................................................... 8 amend. I................................................................................... 6, 8, 15, 23, 34, 35 amend. V ................................................................................. 6, 8, 17, 19, 23, 33 amend. X ........................................................................................................... 6 amend. XIV ..................................................................................................... 24
8 U.S.C. § 1735(a) .................................................................................................. 28 50 U.S.C. § 1541 note............................................................................................. 25 Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq.:.............................. passim
§ 1101(a)(4) ....................................................................................................... 2 § 1101(a)(13)(A) ....................................................................................... 2, 3, 12 § 1101(a)(15) .................................................................................................... 12 § 1101(a)(15)(A)-(V).......................................................................................... 2 § 1101(a)(15)-(16) ............................................................................................. 11 § 1101(a)(20) ................................................................................................. 2, 5 § 1101(a)(42) ................................................................................................... 22
iv

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 6 of 45
§ 1151 ................................................................................................................. 2 § 1151(a)-(b) ..................................................................................................... 11 § 1152(a) .......................................................................................................... 12 § 1152(a)(1)(A) ................................................................................ 11, 12, 13, 14 § 1152(a)(1)(B) ................................................................................................ 12 § 1153................................................................................................................. 2 § 1153(c) .......................................................................................................... 32 § 1157................................................................................................................. 2 § 1157(a) .......................................................................................................... 22 § 1157(a)(2) ......................................................................................................13 § 1157(a)(3)...................................................................................................... 35 § 1157 note....................................................................................................... 35 § 1158 .......................................................................................................... 2, 22 § 1158(a) .......................................................................................................... 22 § 1158(c)(1)...................................................................................................... 22 § 1159................................................................................................................. 2 § 1181................................................................................................................. 2 § 1181(a) ..................................................................................................... 11, 12 § 1181(c) .....................................................................................................14, 22 § 1182(a).......................................................................................................2, 12 § 1182(a)(9)(B) ................................................................................................ 20 § 1182(f) ...................................................3, 7, 8, 10, 11, 12, 13, 14, 15, 20, 21, 22 § 1184 ................................................................................................................ 2 § 1184(b).......................................................................................................... 12 § 1187(a)(12).............................................................................................4, 5, 25 § 1187(a)(12)(A) ................................................................................................ 4 § 1187(a)(12)(A)(i)(I) ........................................................................................ 4 § 1187(a)(12)(A)(i)(II) ....................................................................................... 4 § 1187(a)(12)(A)(ii)(I) ....................................................................................... 4 § 1187(a)(12)(A)(ii)(II) ...................................................................................... 4 § 1187(a)(12)(D)(ii) ........................................................................................... 5 § 1201(e)-(f) .................................................................................................... 12 § 1201(h) ......................................................................................................3, 12 § 1201(h)-(i) .....................................................................................................19 § 1201(i) ................................................................................3, 7, 8, 9, 12, 20, 21 § 1225(a)(1) ....................................................................................................... 2 § 1225(a)(3) ..................................................................................................... 12 § 1225(b)(1)(A)(i)............................................................................................ 12
v

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 7 of 45
§ 1225(b)(2)..................................................................................................... 12 § 1225(b)(2)(A) ............................................................................................2, 19 § 1231 note....................................................................................................... 21 § 1254a(a)(1) ................................................................................................... 32 § 1255 note ...................................................................................................... 32 Administrative Procedure Act, 5 U.S.C. §§ 551 et seq......................................................................................... 6 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 .................................................................... 25 Haitian Refugee Immigration Fairness Act of 1998, Pub. L. No. 105-277, div. A, § 101(h), tit. IX, 112 Stat. 2681–538.................... 32 Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 ................................................................. 27 Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638................................................................. 21 National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, 129 Stat. 726 (2015) .................................................... 25-26 Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2160 (1997) ............................................ 32 Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq............................. 6 22 C.F.R. § 41.122.................................................................................................. 12 22 C.F.R. § 42.82................................................................................................... 12
Miscellaneous:
161 Cong. Rec. H9054 (daily ed. Dec. 8, 2015) .......................................................31 Exec. Order 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017) ..................................... passim H. Comm. on Homeland Sec., 114th Cong., Terror Threat Snapshot: The
Islamist Terrorist Threat (Nov. 2015) ............................................................... 30 H. Comm. on Homeland Sec., 114th Cong., Final Report of the Task Force
on Combating Terrorist and Foreign Fighter Travel (Sept. 2015)................... 27, 31 H. Comm. on Homeland Sec., 114th Cong., Nation’s Top Security
Officials’ Concerns on Refugee Vetting (Nov. 19, 2015) ............................... 29, 30 H. Comm. on Homeland Sec., 114th Cong., Syrian Refugee Flows: Security
Risks and Counterterrorism Challenges (Nov. 2015) .......................................... 30 H.R. 5203, 114th Cong. (2016) ............................................................................... 29
vi

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 8 of 45
Jack Moore & Conor Gaffey, What’s Behind Donald Trump’s Decision to Include Some Muslim-Majority Countries in the Travel Ban—and Not Others?, Newsweek, Jan. 31, 2017.................................................................... 24
Letter of Bob Goodlatte, Chairman, H. Comm. on the Judiciary, to Barack Obama, President of the United States of America (Oct. 27, 2015) ................ 30
Letter of Edward J. Ramotowski, Deputy Assistant Sec’y, Bureau of Consular Affairs, Dep’t of State (Jan. 27, 2017) ................................................ 5
Overturning 30 Years of Precedent: Is the Administration Ignoring the Dangers of Training Libyan Pilots and Nuclear Scientists?: Joint Hearing Before the Subcomm. on Immigration & Border Sec. of the H. Comm. on the Judiciary and the Subcomm. on Nat’l Sec. of the H. Comm. on Oversight & Gov’t Reform, 113th Cong. (2014) ................................................................ 28
Pew Research Ctr., World’s Muslim Population More Widespread Than You Might Think (Jan. 31, 2017) .............................................................................. 24
Press Release, Forbes, Goodlatte, and Gowdy Introduce Bill to Strengthen Visa Security (May 12, 2016) .......................................................................... 29
The Outer Ring of Border Security: DHS’s International Security Programs: Hearing Before the Subcomm. on Border & Maritime Sec. of the H. Comm. on Homeland Sec., 114th Cong. (2015) ............................................................. 27
The White House, Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (Dec. 2016) .................................................................................... 26
U.S. Dep’t of Homeland Sec., DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016)....................................................... 5
U.S. Dep’t of State, State Sponsors of Terrorism ....................................................... 4 U.S. Gov’t Accountability Off., GAO-16-50, Asylum: Additional Actions
Needed to Assess and Address Fraud Risks (Dec. 2015) ...................................... 29
vii

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 9 of 45
Interest of Amicus Curiae
Amicus curiae is the State of Texas.1 Like every other State in the Union, amicus has a significant interest in protecting its residents’ safety. But the State itself possesses no authority to set the terms and conditions of entry for aliens seeking to enter the United States, or to restrict the entry of such aliens for foreign-affairs, public-safety, or national-security reasons. Instead, the State relies on the federal Executive Branch to carry out that function, pursuant to the laws of Congress. See Arizona v. United States, 132 S. Ct. 2492, 2507 (2012). Congress has delegated to the Executive Branch significant authority to prohibit aliens from entering the country, and the challenged Executive Order is a lawful exercise of that authority. Plaintiffs’ lawsuit presents no basis to enjoin the Executive’s exercise of the power delegated to it by Congress.
Statement A. Statutory background
1. “Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953). Towards that end, Congress has enacted “extensive and complex” statutes governing “immigration and alien status,” Arizona, 132 S. Ct. at 2499—namely, the Immigration and Nationality Act (“INA”), 8 U.S.C.
1 By separate motion, amicus requests leave to file this brief.

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 10 of 45
§§ 1101 et seq. The INA creates two primary categories of aliens who can be lawfully present in the country:
 Aliens admitted as “nonimmigrant” aliens, who receive temporary permission to be lawfully present in the country according to one of several visa categories. 8 U.S.C. § 1101(a)(15)(A)-(V).
 Aliens admitted for lawful permanent residence, i.e., LPRs, who lawfully entered the country with an “immigrant” visa. Id. §§ 1101(a)(20), 1151, 1153, 1181.
Congress also created other avenues to lawful presence, such as admission as a refugee, id. §§ 1157, 1159, and asylum, id. § 1158.
2. Alien “[a]dmission” means “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Id. § 1101(a)(13)(A). Mere physical presence on U.S. soil is not enough: “an alien present in the United States who has not been admitted or who arrives in the United States” is considered only an “applicant for admission.” Id. § 1225(a)(1); see Mezei, 345 U.S. at 215 (noting that an alien at a port of entry “is treated as if stopped at the border”). If an alien “is not clearly and beyond a doubt entitled to be admitted,” he must generally be placed in removal proceedings. 8 U.S.C. § 1225(b)(2)(A).
Admission and visa-possession are distinct concepts. The INA provides that aliens generally must first obtain a visa before they are allowed to apply for admission. Id. §§ 1101(a)(4), 1181, 1184. Obtaining a visa requires avoiding numerous grounds that make aliens “ineligible to receive visas and ineligible to be admitted to the United States.” Id. § 1182(a). But even if an alien possesses a visa, that does not guarantee an alien’s admission into the country: the INA does not “entitle any
2

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 11 of 45
alien, to whom a visa or other documentation has been issued, to be admitted [to] the United States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible under this chapter, or any other provision of law.” Id. § 1201(h).
Besides the minimum prerequisites for admission, the INA separately and specifically vests the President with broad discretion to suspend the entry of aliens:
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). Because aliens covered by such a proclamation—even if they hold a previously issued visa, see id. § 1201(h)—are barred from “entry . . . into the United States,” id. § 1182(f), they are thus ineligible to be “admi[tted],” id. §  1101(a)(13)(A). In addition to the President’s delegated power to suspend the entry of aliens in § 1182(f), Congress further provided that the Executive Branch “may at any time, in [its] discretion,” revoke a visa. Id. § 1201(i). And Congress barred judicial review of the Executive’s discretionary visa revocations, except in one narrow circumstance: in a removal proceeding, if the “revocation provides the sole ground for removal.” Id.
B. The challenged Executive Order
On January 27, 2017, the President issued an Executive Order “to protect the American people from terrorist attacks by foreign nationals admitted to the United
3

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 12 of 45
States.” Exec. Order 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017) (“EO”); see id. § 2. The Order directs several national-security measures, including that the Secretary of Homeland Security conduct an immediate review to identify the “information needed from any country . . . to determine that [an] individual seeking [an immigration-related] benefit is who the individual claims to be and is not a security or public-safety threat.” Id. § 3(a).
1. Suspension of entry While that review is pending, the Executive Order suspends, for 90 days, the entry of aliens “from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. [§] 1187(a)(12).” EO § 3(c). That statutory cross-reference ultimately covers seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Congress itself identified Iraq, Iran, Sudan, and Syria as countries whose nationals or recent visitors would be barred from the visa-waiver program under 8 U.S.C. § 1187(a)(12)(A). See id. § 1187(a)(12)(A)(i)(I), (ii)(I) (Iraq and Syria); id. § 1187(a)(12)(A)(i)(II), (ii)(II) (including countries designated by the Secretary of State as sponsors of terrorism—Iran, Sudan, and Syria2). In addition, Congress authorized the Executive to designate, as likewise triggering exclusion from the visawaiver program, additional “[c]ountries or areas of concern” based on “whether the 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,” “whether a for-
2 See U.S. Dep’t of State, State Sponsors of Terrorism, https://www.state. gov/j/ct/list/c14151.htm.
4

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 13 of 45
eign terrorist organization has a significant presence in the country or area,” and “whether the country or area is a safe haven for terrorists.” Id. § 1187(a)(12)(D)(ii). In February 2016, the Obama Administration exercised that authority to add Libya, Somalia, and Yemen as additional “countries of concern” triggering the waiver-program bar under 8 U.S.C. § 1187(a)(12).3
The Executive Order provides for case-by-case exceptions to the suspension of entry by aliens from the seven identified countries. EO § 3(g). And the Executive has clarified that “the suspension of entry does not apply to lawful permanent residents of the United States (i.e., an immigrant admitted with the privilege of residing permanently in the United States, 8 U.S.C. § 1101(a)(20)).” C.A. Stay Mot. 6 (citing Feb. 1, 2017 Memorandum (Exhibit D)).
Pursuant to the Executive Order, and on the same day, the State Department provisionally revoked “all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen,” subject to certain exceptions not at issue here.4
2. Refugee-program directives The Executive Order also generally suspends the refugee program for 120 days. EO § 5(a), (e). Once that suspension ends, the Executive Order directs the
3 U.S. Dep’t of Homeland Sec., DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016), https://www.dhs.gov/news/2016/02/18/ dhs-announces-further-travel-restrictions-visa-waiver-program.
4 Letter of Edward J. Ramotowski, Deputy Assistant Sec’y, Bureau of Consular Affairs, Dep’t of State (Jan. 27, 2017).
5

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 14 of 45
Secretary of State to prioritize applicants on the basis of whether they are seeking refuge from religious persecution, “provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Id. § 5(b). Finally, the Executive Order suspends entry of Syrian nationals as refugees until the President determines that sufficient changes have been made to the refugee program “that admission of Syrian refugees is consistent with the national interest.” Id. § 5(c).
The Executive Order never mentions Islam or conditions any of its provisions on whether aliens are Muslim.
C. Procedural history
The State of Washington sued the United States, the President, the Secretary of State, and the Secretary of Homeland Security, asserting statutory and constitutional challenges to the Executive Order. Washington amended its complaint to add the State of Minnesota as a plaintiff and moved for a temporary restraining order. TRO Mot. (D.E.3); Am. Compl. (D.E.18). Plaintiffs’ motion mounted a facial challenge to the Executive Order—arguing that it violates the INA, the Fifth Amendment’s Due Process Clause, Fifth Amendment equal-protection jurisprudence, and the First Amendment’s Establishment Clause. TRO Mot. (D.E.3) 5-21.5
The district court held a hearing and entered an order enjoining the Executive Order on a nationwide basis and in all its applications. TRO (D.E.52). Another district court, however, has rejected a similar challenge to the Order, finding that the
5 Plaintiffs’ amended complaint also raised claims that the Executive Order violated the Religious Freedom Restoration Act, the Administrative Procedure Act, and the Tenth Amendment. Am. Compl. (D.E.18) 15-18.
6

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 15 of 45
plaintiffs in that case were unlikely to prevail. Louhghalam v. Trump, No. 1:17-cv10154, 2017 WL 479779, at *3-8 (D. Mass. Feb. 3, 2017) (slip op. 6-21).
On February 4, 2017, defendants moved for an emergency stay in this Court. A three-judge panel denied the motion on February 9, 2017. The panel found that defendants had not shown a likelihood of success on the merits of the appeal or that failure to enter a stay would cause irreparable injury. Panel Op. 3. Specifically, the panel ruled that plaintiffs would prevail on their due-process claim. Panel Op. 2023. Strikingly, the panel never mentioned either the Executive Branch’s statutory authority to prohibit the entry of aliens under 8 U.S.C. § 1182(f) or the Executive’s virtually unreviewable discretion to revoke visas under § 1201(i).
On February 10, 2017, this Court noted its sua sponte consideration of whether to grant rehearing en banc.
Summary of the Argument
After multiple federal officials drew public attention to serious flaws in the preexisting vetting scheme for aliens residing abroad who wish to enter this country under visas or as refugees, the Executive Branch made a policy decision entrusted to it expressly by Congress: the Executive temporarily suspended the admission of specified classes of aliens pursuant to its broad delegated authority under 8 U.S.C. § 1182(f). That Executive Order identified a heightened national-security risk attendant to seven “countries of concerns” that Congress and the Obama Administration had previously identified under national-security-risk criteria.
The district court’s facial injunction of that Executive Order, and the threejudge panel’s refusal to grant a stay, is remarkable. The Order falls within the Ex-
7

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 16 of 45
ecutive Branch’s strongest area of authority—Youngstown’s first zone of executive action—because it draws support from not only the President’s own foreign-affairs and national-security powers, but also from Congress’s delegated authorization pursuant to its Article I powers over the admission of aliens into the country. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-36 (1952) (Jackson, J., concurring). The Executive Order, especially given its national-security context, should thus enjoy “the strongest of presumptions and the widest latitude of judicial interpretation.” Id. at 637. After all, “[u]nlike the President and some designated Members of Congress, neither the Members of [the Supreme] Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.” Boumediene v. Bush, 553 U.S. 723, 797 (2008).
The panel, however, did not even mention the President’s statutorily delegated power to suspend the entry of aliens (8 U.S.C. § 1182(f)) or to revoke visas (§ 1201(i)). It therefore failed to recognize that the Executive Order falls within Youngstown’s first zone of executive action and should be accorded the strongest presumption of validity.
Rather than accord the Executive’s delegated national-security decision the strongest presumption of validity, the panel found an extraordinary extension of constitutional rights to nonresident aliens who are outside this country and attempting to enter the country. Amicus is aware of no case that extends constitutional rights in anything close to the degree that plaintiffs advocate. The Supreme Court has never held that the Fifth Amendment’s Due Process Clause or the First Amendment’s Establishment Clause confer rights on nonresident aliens who are in foreign
8

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 17 of 45
territory clearly not under the sovereign control of the United States. Nonresident aliens abroad have no constitutional right to seek admission into the country; therefore, no constitutional claims accrue from a suspension of those aliens’ ability to enter. And statutorily created visas—generally a threshold requirement for being able simply to apply for admission to the country—are inherently not an entitlement. Rather, they are granted and held on a permissive, discretionary basis. Congress expressly designed visas to be revocable by the Executive without even judicial review in all but one instance. 8 U.S.C. § 1201(i). Thus, entry into the country—or revocation of a visa—does not implicate a constitutionally protected interest in receiving due process or equal “protection” of visa laws that themselves provide for discretionary revocation.
Regardless, even assuming for sake of analysis that these constitutional provisions apply to nonresident aliens abroad seeking entry, the Executive Order triggers only rational-basis review because it classifies aliens according to nationality, not religion. The Order is grounded in national-security concerns, a point with which plaintiffs’ pretext argument cannot be squared. The seven countries crossreferenced in the Executive Order were previously identified by Congress and the Obama Administration, under the visa-waiver program, as national-security “countries of concern.” Until this lawsuit, amicus is aware of no suggestion that the federal government’s selection of those seven countries could be explained only as pretext for religious discrimination and not based on a determination of heightened national-security risks.
9

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 18 of 45
In fact, before the current presidential Administration took office, multiple federal officials expressed concerns with deficiencies in the country’s ability to vet the entrance of aliens under the refugee program. See infra pp. 28-32. Those officials include, for example, the FBI Director, the former Assistant Director of the FBI’s Counterterrorism Division, and the former Director of National Intelligence. And it is well-known that terror attacks tied to radical Islam have recently occurred around the world and within the United States.
The district court’s facial injunction and the panel’s stay decision are an intrusion into the national-security, foreign-affairs, and immigration powers possessed by the Executive and delegated by Congress. The injunction is contrary to law, and it threatens amicus’s interests by keeping the federal government—under a statutory regime crafted by the States’ elected representatives in Congress—from having the latitude necessary to make policy judgments inherent in this country’s nature as a sovereign. En banc rehearing should be granted, and the application for a stay of the district court’s injunction should be granted.
Argument I. The Executive Order Falls Well Within the Powers Congress
Delegated to the Executive, So Plaintiffs’ Claim that the Order Violates the INA Is Baseless.
In restricting the entry of aliens into this country, the President acted pursuant to an express delegation of power by Congress, which the three-judge panel failed to even mention: 8 U.S.C. § 1182(f). Plaintiffs do not contest the Executive Order’s congressional authorization as to aliens with a nonimmigrant visa. See TRO
10

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 19 of 45
Mot. (D.E.3) 19-21. Nor can plaintiffs claim that the INA compels the President to permit admission of a minimum number of refugees each year. See id. Plaintiffs present a statutory argument only as to aliens seeking an immigrant visa. Id. That argument relies on a single, inapposite provision about visa issuance (8 U.S.C. § 1152(a)(1)(A))—a provision that does not address the President’s separate, expressly delegated authority under § 1182(f) to suspend the entry of aliens into the country.
A. The Order’s suspension of entry conforms with 8 U.S.C. § 1182(f) and does not violate the INA.
The President has ordered the temporary suspension of the entry of aliens from a list of seven countries. EO § 3(c). That suspension is authorized by 8 U.S.C. § 1182(f), which gives the President broad discretion to control the entry of aliens:
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. (emphases added); see Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993) (noting no judicial remedy to challenge President’s use of § 1182(f) entry-denial power). To overcome this unmistakable delegation of authority to the President, plaintiffs cite only a single, inapposite statutory provision: 8 U.S.C. § 1152(a)(1)(A). TRO Mot. (D.E.3) 19-21. That provision provides that immigrant visas—visas issued to aliens who seek lawful admission for permanent residence in the United States, see 8 U.S.C. §§ 1101(a)(15)-(16), 1151(a)-(b), 1181(a)—may not issue on cer-
11

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 20 of 45
tain prohibited discriminatory bases, id. § 1152(a)(1)(A). But an alien’s lawful entry into this country is a different and much more consequential event than the preliminary step of the alien’s receipt of a visa. An alien generally must have a visa for travel simply to apply for admission to the country. See id. §§ 1101(a)(15), 1181(a), 1184(b), 1201(e)-(f), 1225(a)(3), (b)(1)(A)(i), (b)(2). Visa possession does not control or guarantee an alien’s entry into the country; the INA provides several ways in which visa-holding aliens can be denied entry. See supra pp. 2-3; see, e.g., 8 U.S.C. §§ 1101(a)(13)(A), 1182(a), (f), 1201(h), (i); 22 C.F.R. §§ 41.122, 42.82. One of them is the President’s express authority under § 1182(f) to suspend the entry of classes of aliens. Section 1152(a)(1)(A) does not require consular officials to issue visas to aliens who will ultimately be denied entry. To the contrary, the INA provides that nothing in § 1152(a) “shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications.” Id. § 1152(a)(1)(B).
Plaintiffs thus compare apples and oranges: entry and visa-possession are not the same thing, and the INA treats them differently. Plaintiffs cite a statutory provision about the preliminary step of receiving an immigrant visa, §  1152(a), as somehow limiting the President’s § 1182(f) authority concerning the entry of aliens—despite § 1152(a)’s complete silence as to the President’s separately delegated authority to suspend alien entry. That novel argument flouts the INA’s text and design, and plaintiffs cite no case accepting it. See TRO Mot. (D.E.3) 20 (citing one decision on § 1152(a) visa issuance, which the Supreme Court vacated and which
12

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 21 of 45
did not concern § 1182(f)); Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469 (D.C. Cir. 1995), vacated by 519 U.S. 1 (1996) (per curiam).
Even bypassing this threshold defect in plaintiffs’ claim, § 1152(a)(1)(A) still could not support the district court’s facial injunction because it addresses only “immigrant visa” issuance. It does not apply to the issuance of nonimmigrant visas—temporary visas issued to aliens who do not intend to remain in the United States indefinitely. Thus, § 1152(a)(1)(A)—even assuming counterfactually that it addresses entry into the country and not visa issuance—could not possibly show that the Executive Order as applied to nonimmigrant aliens violates the INA. Plaintiffs conceded this point during the stay oral argument in this Court. Stay Mot. Oral Arg. Rec. 56:19-56:43.
B. The Order’s directives on refugee admission conform with 8 U.S.C. § 1182(f) and do not violate the INA.
The President’s ability to direct the extent of refugee admission is also wellgrounded in the INA. The INA provides that the number of refugees admitted per year is in the President’s discretion, set as “such number as the President determines,” after certain congressional consultation, “is justified by humanitarian concerns or is otherwise in the national interest.” 8 U.S.C. § 1157(a)(2) (emphasis added). In short, Congress expressly authorized the President to cap the number of refugee admissions.
Moreover, nothing in those statutory provisions regarding refugees negates the President’s separate authority under 8 U.S.C. § 1182(f) to temporarily restrict the entry of aliens, regardless of whether the aliens are refugees. Again, plaintiffs’ only
13

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 22 of 45
statutory attack on the Executive Order’s refugee-program directive relies on the § 1152(a)(1)(A) immigrant-visa-issuance provision discussed above. TRO Mot. (D.E.3) 19-21. But that provision makes no reference to refugee admission (or to alien admission generally). See supra pp. 11-13. Plus, seeking admission to the country as a refugee does not require securing an immigrant visa. See 8 U.S.C. § 1181(c). So refugee admission is outside § 1152(a)(1)(A)’s “immigrant visa” sweep.
II. Plaintiffs’ Arguments that the Executive Order Violates the Constitution Are Equally Meritless. A. The Executive acted in an area of maximum authority: Youngstown’s first category of Executive action pursuant to congressionally delegated power.
Plaintiffs seek a remarkable use of the judicial power to interfere with the President’s national-security decisions in an area of strongest executive authority. Because the Executive Order implements power expressly delegated by Congress, see supra Part I, the President’s authority is at its maximum and “includes all that he possesses in his own right plus all that Congress can delegate,” Youngstown, 343 U.S. at 635 (Jackson, J., concurring). Plaintiffs’ constitutional claims thus implicitly argue that “the Federal Government as an undivided whole” lacks the authority to proceed as the Executive Order here directs. Id. at 636-37.
Executive action in this first Youngstown zone is “supported by the strongest of presumptions and the widest latitude of judicial interpretation.” Id. at 636, quoted in Dames & Moore v. Regan, 453 U.S. 654, 674 (1981). That respect attaches here because of not only the explicit congressional grant of authority to deny entry, see 8 U.S.C. §  1182(f), but also the INA’s complementary approach to allowing entry.
14

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 23 of 45
Specifically, Congress enacted detailed provisions for over forty classes of nonimmigrants, refugees, and other aliens governing how they can attain lawful presence in the country. See supra pp. 1-2; Arizona, 132 S. Ct. at 2499; Texas v. United States, 809 F.3d 134, 179 (5th Cir. 2015), aff’d by an equally divided court, 136 S. Ct. 2271 (2016) (per curiam). But while Congress provided these detailed criteria to significantly restrict the Executive’s ability to unilaterally allow aliens to be lawfully present in the country, Congress simultaneously delegated the Executive broad discretionary authority to exclude aliens from the country, under §  1182(f). Congress knows how to limit executive power in this area, yet the broad delegation of executive power in § 1182(f) underscores the Executive’s unique role in protecting the Nation.
The exclusion of aliens is also a core federal prerogative: a power “inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government.” Kleindienst v. Mandel, 408 U.S. 753, 765 (1972) (quotation marks omitted); accord Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). The burden of persuasion should thus “rest heavily upon” any party who might attack the Executive’s congressionally-authorized action on such a fundamental aspect of sovereignty. Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
Plaintiffs level sweeping constitutional challenges in response. Essentially, plaintiffs argue that the United States Constitution grants nonresident aliens located abroad due-process, equal-protection, and Establishment-Clause rights regard-
15

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 24 of 45
ing admission into the United States. Amicus is aware of no case extending those rights anywhere close to the extent that plaintiffs assert.
Extending those constitutional rights as envisioned by plaintiffs would have grave implications, such as imposing delay, cost, and risk while courts scrutinize federal officials’ concerns with existing procedures for vetting aliens seeking entry into the country. When it comes to deciding the best way to use a sovereign’s power over its borders to manage risk, courts have long recognized that the political branches are uniquely well situated. E.g., Mathews v. Diaz, 426 U.S. 67, 81 (1976); Al Bahlul v. United States, 767 F.3d 1, 75 (D.C. Cir. 2014). In fact, the Executive Order here heeds warnings from federal officials, see infra pp. 27-32, and seeks to give the Executive—less than a month into an administration change—additional time to evaluate carefully the Nation’s current capabilities to vet aliens entering the country. Plaintiffs’ calls for interference with this core executive power should thus be analyzed with intense skepticism. At a minimum, a facial injunction cannot issue unless “no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).
B. The due-process claim fails because nonresident aliens abroad have no constitutionally protected right to seek entry into the United States.
Plaintiffs’ due-process challenge rests on the flawed premise that nonresident aliens abroad possess due-process rights under the United States Constitution when seeking admission to the country.
16

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 25 of 45
1. It is “clear” that “an unadmitted and nonresident alien” “ha[s] no constitutional right of entry to this country as a nonimmigrant or otherwise.” Mandel, 408 U.S. at 762. The “power to admit or exclude aliens is a sovereign prerogative” and aliens seeking admission to the United States request a “privilege.” Landon v. Plasencia, 459 U.S. 21, 32 (1982).
Plaintiffs assert that the Fifth Amendment applies to nonresident aliens not within United States territory, even to aliens abroad who have never been admitted to this country. Amicus is aware of no instance in which the Supreme Court has interpreted the Due Process Clause to extend that far. That view would conflict with the Court’s rejection of aliens’ claims to “Fifth Amendment rights outside the sovereign territory of the United States.” United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (citing Johnson v. Eisentrager, 339 U.S. 763, 770 (1950)).
Boumediene, 553 U.S. at 732-33, is not to the contrary. That case involved the lengthy detention of alien enemy-combatants at the U.S. Naval Station at Guantanamo Bay and, therefore, implicated habeas corpus and the Suspension Clause, the history of which the Court detailed. See id. at 739-52. The federal government here is merely denying entry into the country, not engaging in lengthy detention. Cf. id. at 797 (“[F]ew exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person”). And unlike Guantanamo Bay, the United States lacks “plenary control, or practical sovereignty” over the seven countries in the Executive Order’s travel restriction—or from the various countries where the refugee directive would apply.
17

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 26 of 45
Id. at 754; cf. id. at 764 (“The United States has maintained complete and uninterrupted control of the bay for over 100 years.”).
Even assuming arguendo that due-process rights extend extraterritorially to nonresident aliens abroad, plaintiffs’ claim would still fail. As the Supreme Court has recognized, no process is due if one is not deprived of a constitutionally protected interest in life, liberty, or property. E.g., Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam); Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). And nonresident aliens abroad have no constitutionally protected interest in entering the United States.6 Even apart from the issue of entry into the United States, “[t]here is no constitutionally protected interest in either obtaining or continuing to possess a visa.” Louhghalam, 2017 WL 479779, at *5 (slip op. 13). Similarly, multiple courts of appeals have rejected due-process claims regarding visa issuance or processing. See, e.g., Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 104 F.3d 1349, 1354 (D.C. Cir. 1997); Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990); De Avilia v. Civiletti, 643 F.2d 471, 477 (7th Cir. 1981).
2. Plaintiffs’ due-process arguments rest on a fundamental misunderstanding of the INA. Congress chose to establish an immigration system that, as a baseline,
6 The analysis could be different for certain lawful permanent residents who are returning to the country from abroad, see Landon, 459 U.S. at 33-34, but the Executive Order does not apply to LPRs, see supra p. 5. Even if the Order did apply to LPRs, analysis of this issue as applied to LPRs could not possibly justify a facial injunction that also applies to non-LPRs.
18

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 27 of 45
excludes aliens, and only then creates narrow, targeted exceptions under which the federal government may permit certain aliens to enter the country. See, e.g., 8 U.S.C. §  1225(b)(2)(A). The burden is on the alien to convince the government that he is “clearly and beyond a doubt entitled to be admitted.” Id. And the Executive has numerous grants of authority to deny aliens entry into the country. See supra pp. 2-3. This statutory scheme does not suggest that Congress conferred upon nonresident aliens a protected constitutional interest in the ability to obtain process before being denied entry into the country.
Plaintiffs’ travel-restriction argument falls short. The INA provides that visas issued to aliens seeking admission to the country confer no entitlement to be admitted, and that visas can be revoked at any time in the Executive’s discretion. 8 U.S.C. §  1201(h)-(i). Even as to an alien who was admitted into the country under a visa, “revocation of an entry visa issued to an alien already within our country has no effect upon the alien’s liberty or property interests,” and thus cannot support a due-process challenge. Knoetze v. U.S. Dep’t of State, 634 F.2d 207, 212 (5th Cir. 1981).
If removal proceedings—which involve the distinct situation of potential detention and forcible removal—were instituted against an alien who is in this country and whose visa was revoked, that alien would enjoy certain due-process protections under the Fifth Amendment. See Demore v. Kim, 538 U.S. 510, 523 (2003) (noting that it is “well established” that aliens have due-process rights in deportation hearings); see also Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (alien entitled to Fifth Amendment protections once alien is within the country). Accordingly, the INA
19

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 28 of 45
provides for judicial review of visa revocations only in the limited context of deportation proceedings. 8 U.S.C. § 1201(i). But this case is not about deportation—it is about preventing nonresident aliens abroad from entering the country in the first place (or, at most, a case challenging nonresident alien visa holders’ right to return to the United States after traveling internationally). See TRO Mot. (D.E.3) 16-17. The Supreme Court has never held that the Fifth Amendment extends to nonresident aliens abroad seeking to enter the country. Cf. Landon, 459 U.S. at 32. And because visas can be revoked unilaterally and often without judicial review, see 8 U.S.C. § 1201(i), it does not follow that the Constitution requires “‘proceedings conforming to . . . due process of law’” for aliens seeking to leave and then re-enter the country. TRO Mot. (D.E.3) 16 (quoting Mezei, 345 U.S. at 212).
Thus, the panel erred in holding that plaintiffs “would continue to have potential claims” as to aliens other than LPRs—for at least four reasons. Panel Op. 22. First, the panel referenced aliens “in the United States . . . unlawfully.” Id. Even if unlawfully-present aliens have due-process rights in removal proceedings, see id. (citing Zadvydas, 533 U.S. at 693), that does not mean that an unlawfully-present alien who leaves the country has a right to process to be admitted to the country upon return. See, e.g., 8 U.S.C. § 1182(a)(9)(B) (inadmissibility based on prior unlawful presence), (f).
Second, Landon does not establish that “non-immigrant visaholders” have due-process rights when seeking to return from abroad. See Panel Op. 22 (citing 459 U.S. at 33-34). Landon involved a resident alien, and suggested that any process due must account for the circumstances of an alien’s ties to this country. See 459
20

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 29 of 45
U.S. at 32-34 (“[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional [due-process] status changes accordingly . . . . The constitutional sufficiency of procedures provided in any situation, of course, varies with the circumstances.”). Those ties are significantly less in the case of a nonresident alien who was temporarily admitted on a nonimmigrant visa. In any event, Landon was decided before Congress changed the nature of an alien’s interest in visa possession by amending the INA, in 2004, to provide that “[t]here shall be no means of judicial review . . . of a revocation” of a visa, “except in the context of a removal proceeding if such revocation provides the sole ground for removal under” the INA. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 5304(a), 118 Stat. 3638, 3736 (codified at 8 U.S.C. § 1201(i)).
Third, the panel erred in recognizing due-process rights as to “refugees,” who would also be nonresident aliens abroad. Panel Op. 22 (citing “8 U.S.C. § 1231 note [ ]”). The United Nations Convention Against Torture (“CAT”) provisions located in the notes to §  1231 merely provide that certain aliens may not be returned to a country in which they fear torture, “regardless of whether the person is physically present in the United States.” 8 U.S.C. § 1231 note. The CAT provisions, however, say nothing about overriding the President’s statutory authority to restrict alien entry into the United States, even if aliens cannot be returned to a certain other country. See id. § 1182(f).
Plaintiffs’ other due-process arguments, based on the purported denial of refugees’ rights to apply for relief, also fail. See TRO Mot. (D.E.3) 18-19. Plaintiffs con-
21

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 30 of 45
tend that the INA and other provisions confer statutory rights to seek asylum, see 8 U.S.C. § 1158, and that this “created, at a minimum, a constitutionally protected right to petition our government for political asylum,” Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038 (5th Cir. 1982). But asylum and refugee admission are not the same thing. The INA’s asylum protection can be sought by individuals who are already “physically present in the United States or who arrive[] in the United States.” 8 U.S.C. § 1158(a). Only an alien outside the United States may apply to be admitted as a refugee. See id. §§ 1101(a)(42), 1157(a), 1158(a), (c)(1), 1181(c). Hence, § 1182(f) independently permits the Executive to deny refugee applicants entry into the United States..
Fourth, the panel incorrectly concluded that plaintiffs had viable due-process arguments based on visa “applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” Panel Op. 22 (citing Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Mandel, 408 U.S. at 762-65). Din did not hold that such due-process rights exist. To the contrary, the narrowest opinion concurring in the judgment in Din expressly did not decide whether a U.S. citizen has a protected liberty interest in the visa application of her alien spouse, such that she was entitled to notice of the reason for the application’s denial. See 135 S. Ct. at 2139-41 (Kennedy, J., concurring in the judgment). In fact, the concurrence reasoned that, even if due process applied in this context, the only process possibly required was that the Executive give a “facially legitimate and bona fide reason” for denying a visa to an alien abroad—a standard plainly met here. Id. at 2141; see also
22

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 31 of 45
id. at 2131 (plurality op.) (“[A]n unadmitted and nonresident alien . . . has no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission.”). Regardless, the existence of occasional scenarios like that in Din could not support a facial injunction.
3. Lastly, the Fifth Amendment could not possibly extend to those aliens abroad who have never entered the country. That point alone is fatal to plaintiffs’ facial challenge.
C. Equal-protection rights are neither implicated nor violated by the Executive Order.
1. As a threshold matter, the nonresident aliens covered by the Executive Order have no constitutional equal-protection rights against the federal government. The equal-protection principle recognized by courts under the Fifth Amendment’s Due Process Clause applies to “person[s],” U.S. Const. amend V, “within the territorial jurisdiction,” Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). But the Supreme Court has recognized a key distinction between aliens inside versus outside the United States. See Zadvydas, 533 U.S. at 693. And the Court has “rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.” Verdugo-Urquidez, 494 U.S. at 269 (citing Eisentrager, 339 U.S. at 770).
2. Even assuming arguendo that some form of equal-protection rights applied to the aliens covered by the Executive Order, plaintiffs’ equal-protection argument would fail. Plaintiffs’ main equal-protection argument tracks their Establishment Clause argument, but it cannot succeed because it rests on the flawed premise that
23

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 32 of 45
the “Executive Order is motivated by discriminatory animus and cannot survive any level of review.” C.A. Stay Response 20.
The Executive Order classifies aliens by nationality, not religion, and plaintiffs’ pretext argument is wrong. The Executive Order’s temporary pause in travel from seven countries and in the refugee program is religion-neutral. It does not mention any religion, and its provisions do not depend on whether affected aliens are Muslim. See EO §§ 3(c), 5(a)-(b). These provisions distinguish among aliens only by nationality. Id. Thus, the Executive Order is emphatically not a “Muslim ban.” Indeed, numerous Muslim-majority countries in the world are not covered by the seven-country list used in the Executive Order.7 And the Pew Research Center estimates that the Executive Order “would affect only about 12% of the world’s Muslims.”8
a. Plaintiffs cannot establish that the Order’s country-based criteria are an “obvious pretext” for religious discrimination. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979) (addressing Fourteenth Amendment equal protection). On no view can the use of those seven countries “plausibly be explained only as a [reli-
7 Jack Moore & Conor Gaffey, What’s Behind Donald Trump’s Decision to Include Some Muslim-Majority Countries in the Travel Ban—and Not Others?, Newsweek, Jan. 31, 2017, http://www.newsweek.com/muslim-majority-countriesnot-included-trump-travel-ban-550141 (listing Muslim-majority countries not covered by the Order’s travel restrictions).
8 Pew Research Ctr., World’s Muslim Population More Widespread Than You Might Think (Jan. 31, 2017), http://www.pewresearch.org/fact-tank/2017/01/31/ worlds-muslim-population-more-widespread-than-you-might-think/.
24

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 33 of 45
gious]-based classification.” Id. at 275. When there are “legitimate reasons” for governmental action, courts “will not infer a discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 298-99 (1987) (rejecting equal-protection claims). This is especially true here given that the Order is within Youngstown’s first zone and should be accorded “the strongest of presumptions and the widest latitude of judicial interpretation.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). The Executive Order’s nationality-based restrictions have a manifest rational basis, and this forecloses the conclusion that the Order is merely a pretext for imposing entry restrictions because of aliens’ religion.
The Executive Order explains its animating national-security goals: 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.” EO § 3(c). The Order then finds detriment to national interests from permitting “aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. [§] 1187(a)(12),” to enter the country. Id. Those seven countries were previously identified by Congress and the Obama Administration, in administering the visa-waiver program, as national-security “countries of concern.” See supra pp. 4-5.
The Executive Order thus reflects national-security interests implicated by the ongoing War on Terror against radical Islamic terrorists. These national-security interests were recognized in the 2001 Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (codified at 50 U.S.C. §  1541 note). See, e.g., Boumediene, 553 U.S. at 733; see also, e.g., National Defense Authorization
25

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 34 of 45
Act for Fiscal Year 2016, Pub. L. No. 114-92, § 1035(a), 129 Stat. 726, 971 (2015) (codified at 10 U.S.C. § 801 note); The White House, Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations 4-7 (Dec. 2016), https://www.justsecurity.org/wp-content/ uploads/2016/12/framework.Report_Final.pdf.
Plaintiffs’ challenge cannot be sustained based on comments the President made during his campaign for office or statements made by non-governmental officials. The Supreme Court has recognized the limited significance of campaign statements. See Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002). And comments made by nongovernmental officials are irrelevant for determining whether the decision-makers for the Executive Order held a discriminatory, pretextual purpose. See Feeney, 442 U.S. at 279. Moreover, the Executive Order’s country-based criteria do not even cover a large percentage of Muslims in the world; its application does not by any measure show a ban based on religion rather than nationality. See supra p. 24.
Ample reason exists for courts to leave undisturbed the “delicate policy judgment” inherent in the Executive Order about when a factor indicating a heightened national-security risk warrants a particular course of action regarding the Nation’s borders. Plyler v. Doe, 457 U.S. 202, 225 (1982). Courts are not comparatively well situated to evaluate competing experts’ views about particular national-securityrisk-management measures. See Boumediene, 553 U.S. at 797.
b. Yet even were courts tempted to second-guess the Executive’s nationalsecurity assessments, the Executive Order’s travel ban and refugee-program limita-
26

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 35 of 45
tions do not lack a national-security rational basis. These provisions may be debated, as a policy matter, but recent governmental sources, including many that predate the current presidential Administration, confirm a rational basis for the Executive to believe that there could be national-security issues with the vetting of aliens entering the country.
The House Homeland Security Committee’s Task Force on Combating Terrorist and Foreign Fighter Travel has noted that the “visa issuance process represents a critical stage for law enforcement to detect individuals with terrorist ties and prevent them from entering the United States.”9 Former ICE Homeland Security Investigations International Operations Assistant Director Lev Kubiak similarly explained that “[t]he visa adjudication process often presents the first opportunity to assess whether a potential visitor or immigrant poses a threat to the United States,” and that visa-security measures “protect[] the United States against terrorists and criminal organizations by preventing foreign nationals who pose a threat to national security from entering the United States.”10 Congress, too, has provid-
9 H. Comm. on Homeland Sec., 114th Cong., Final Report of the Task Force on Combating Terrorist and Foreign Fighter Travel 39 (Sept. 2015), http://homeland.house.gov/wp-content/uploads/2015/09/TaskForceFinalReport. pdf.
10 The Outer Ring of Border Security: DHS’s International Security Programs: Hearing Before the Subcomm. on Border & Maritime Sec. of the H. Comm. on Homeland Sec., 114th Cong. 24 (2015) (written statement of Lev J. Kubiak, Assistant Director, International Operations, Homeland Security Investigations, U.S. ICE, U.S. DHS); id. (“[T]he Homeland Security Act [of 2002] directs DHS to assist in the identification of visa applicants who seek to enter the United States for illegitimate purposes, including criminal offenses and terrorism-related activities.”).
27

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 36 of 45
ed that nonimmigrant visas shall not issue “to any alien from a country that is a state sponsor of international terrorism unless the Secretary of State determines, in consultation with the Attorney General and the heads of other appropriate United States agencies, that such alien does not pose a threat to the safety or national security of the United States.” 8 U.S.C. § 1735(a).
Multiple Members of Congress have voiced concerns regarding the Nation’s current ability to vet information about aliens from the countries at issue in the Executive Order. Representative Chaffetz explained, for example, “When we go to give somebody a visa, we rely on the host nation to help us identify that person and understand their background. That does not happen in Libya. Let’s be realistic. Muammar Qadhafi was ruling there for 40-plus years. They don’t have the infrastructure and the ability to deal with this. . . . I want to sponsor a bill that says if you are coming from . . . a state sponsor of terrorists, then you shouldn’t be able to get a visa here in the United States.”11
Accordingly, Representatives Forbes, Goodlatte, and Gowdy introduced legislation in 2016 that would have imposed additional requirements on visa issuance “as part of the comprehensive security check process for nationals from certain countries of concern, including Iran, Iraq, Libya, Somalia, Syria, Sudan, and Yem-
11 Overturning 30 Years of Precedent: Is the Administration Ignoring the Dangers of Training Libyan Pilots and Nuclear Scientists?: Joint Hearing Before the Subcomm. on Immigration & Border Sec. of the H. Comm. on the Judiciary and the Subcomm. on Nat’l Sec. of the H. Comm. on Oversight & Gov’t Reform, 113th Cong. 33 (2014) (statement of Rep. Chaffetz, Member, H. Comm. on the Judiciary; Chairman, Subcomm. on Nat’l Sec. of the H. Comm. on Oversight & Gov’t Reform).
28

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 37 of 45
en.” Press Release, Forbes, Goodlatte, and Gowdy Introduce Bill to Strengthen Visa Security (May 12, 2016). Under that legislation, Congress would have prevented the Executive from issuing visas to nationals of these seven countries—the same seven countries covered by the Executive Order—without a “Security Advisory Opinion.” H.R. 5203, 114th Cong. § 211B(b)(1)(A)(i) (2016).
As to the Executive Order’s refugee-program provisions, numerous governmental sources confirm unique national-security challenges posed by prior refugee admissions:
 The Government Accountability Office has expressed concern about the fraud risks associated with screening asylum applicants, a process similar to that for refugees: “Both DHS and DOJ have established dedicated antifraud entities—an important leading practice for managing fraud risks— but these agencies have limited capability to detect and prevent asylum fraud and both agencies’ efforts to date have focused on case-by-case fraud detection rather than more strategic, risk-based approaches.”12
 FBI Director James Comey told Congress that gathering information on Syrian migrants posed particular concerns, testifying that “we can query our databases until the cows come home but nothing will show up because we have no record of that person.”13
12 U.S. Gov’t Accountability Off., GAO-16-50, Asylum: Additional Actions Needed to Assess and Address Fraud Risks 74 (Dec. 2015), http://www.gao.gov/ assets/680/673941.pdf.
13 H. Comm. on Homeland Sec., 114th Cong., Nation’s Top Security Officials’ Concerns on Refugee Vetting (Nov. 19, 2015), https://homeland.house.gov/press/ nations-top-security-officials-concerns-on-refugee-vetting/.
29

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 38 of 45
 The former Director of National Intelligence explained, “We don’t obviously put it past the likes of ISIL to infiltrate operatives among these [Syrian] refugees.”14
 The former Assistant Director of the FBI’s Counterterrorism Division explained his concern about “the lack of our footprint on the ground in Syria,” and “that the databases won’t have information we need. So it is not that we have a lack of process, it is that there is a lack of information.”15
 According to a November 2015 House Homeland Security Committee report, a Department of Homeland Security’s U.S. Citizenship and Immigration Services official disclosed that the government lacked “access to any database in Syria that can be used to check the backgrounds of incoming refugees against criminal and terrorist records.”16 The report also noted that ISIS and other terrorists “are determined” to abuse refugee programs and “focused on deploying operatives to the West.”17 The House Homeland Security Committee has elsewhere noted that “Islamist terrorists have infiltrated the West in the past through refugee programs and groups like ISIS may seek to exploit the current refugee flows.”18
 Likewise, the House Homeland Security Committee’s Task Force on Combating Terrorist and Foreign Fighter Travel found that “[a]gencies
14 Id. 15 Letter of Bob Goodlatte, Chairman, H. Comm. on the Judiciary, to Barack Obama, President of the United States of America (Oct. 27, 2015), http://judiciary. house.gov/_cache/files/20315137-5e84-4948-9f90-344db69d318d/102715-letter-topresident-obama.pdf. 16 H. Comm. on Homeland Sec., 114th Cong., Syrian Refugee Flows: Security Risks and Counterterrorism Challenges 4 (Nov. 2015), https://homeland.house. gov/wp-content/uploads/2015/11/HomelandSecurityCommittee_Syrian_Refugee _Report.pdf. 17 Id. at 2-3. 18 H. Comm. on Homeland Sec., 114th Cong., Terror Threat Snapshot: The Islamist Terrorist Threat (Nov. 2015), https://homeland.house.gov/wp-content/ uploads/2015/11/November-Terror-Threat-Snapshot.pdf.
30

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 39 of 45
have made improvements to the refugee security screening process, but more must be done to mitigate potential vulnerabilities.”19 Specifically: o “Members of terrorist groups like ISIS have publicly bragged they are
working to sneak operatives into the West posing as refugees, and European officials are worried this is already the case.”20 o “[M]ore than four million people have fled the conflict zone in Syria, offering extremists ample opportunity to blend into migrant groups.”21 o “Fighters belonging to ISIS’s predecessor, al Qaeda in Iraq, successfully slipped into the United States through the refugee resettlement program in 2009, when two terrorist[s] responsible for killing U.S. troops in Iraq were granted entry and settled in Kentucky,” but “[o]nly later did the FBI and DHS discover this error and arrest the suspects after finding their fingerprints matched those found on IEDs in Iraq.”22
 The Chairman of the House Homeland Security Committee said on the House floor “that serious intelligence gaps preclude us from conducting comprehensive screening to detect all Syrian refugees with terrorist ties, and as a result I have proposed adding additional national security checks to the process before the United States approves any further admissions.” 161 Cong. Rec. H9054 (daily ed. Dec. 8, 2015) (statement of Rep. McCaul).
In short, numerous federal government officials have expressed concerns about the
country’s current capacity for vetting refugees. In light of this reality, the challenge
to the Executive Order’s refugee provisions cannot withstand plaintiffs’ facial at-
tack as a pretext for religious discrimination.
19 Final Report of the Task Force on Combating Terrorist and Foreign Fighter Travel, supra, at 42 (alteration omitted).
20 Id. at 43 (emphasis added and footnote omitted). 21 Id. 22 Id. (footnote omitted).
31

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 40 of 45
3. Because the Executive Order classifies aliens by nationality, and not religion, any applicable equal-protection analysis subjects the Order to no more than rational-basis review. The rational-basis standard, not strict scrutiny, is how equalprotection law analyzes nationality-based classifications. See, e.g., Mathews, 426 U.S. at 83; Nademi v. INS, 679 F.2d 811, 814 (10th Cir. 1982); Malek-Marzban v. INS, 653 F.2d 113, 116 (4th Cir. 1981); Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979).
Plaintiffs have previously suggested that immigration restrictions classifying aliens by nationality may be subject to strict scrutiny. See, e.g., TRO Mot. (D.E.3) 5 (citing Graham v. Richardson, 403 U.S. 365, 372 (1971) (involving state-law alienage classifications)). In federal immigration law, however, “the very concept of ‘alien’ is a nationality-based classification.” Rajah v. Mukasey, 544 F.3d 427, 435 (2d Cir. 2008). “This discrimination among subclassifications of aliens is not based on a suspect classification.” Soskin v. Reinertson, 353 F.3d 1242, 1256 (10th Cir. 2004). In fact, nationality-based classifications are found throughout the INA and have existed for decades.23
23 For example, Congress has authorized Temporary Protected Status for an “alien who is a national of a foreign state” specified by the Executive. 8 U.S.C. § 1254a(a)(1). Congress has also conferred certain benefits on aliens from particular countries who are applying for LPR status. See, e.g., 8 U.S.C. § 1255 note (listing immigration provisions under the Haitian Refugee Immigration Fairness Act of 1998 and the Nicaraguan Adjustment and Central American Relief Act, among others). And Congress created a special program for “diversity immigrants,” which provides a limited number of immigrant visas for aliens from countries with historically low rates of immigration to the United States. See 8 U.S.C. § 1153(c).
32

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 41 of 45
To be sure, if the Executive Order were hypothetically changed expressly to target “Muslims” for different restrictions, then plaintiffs’ argument for strict scrutiny based on a suspect classification would be stronger. See, e.g., City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (religion is an “inherently suspect distinction”). But the Executive Order does not do that.
This Court should decline plaintiff’s invitation to extend Fifth Amendment equal-protection principles to this immigration context at all, as explained above. See supra pp. 16-23; see also Rodriguez-Silva v. INS, 242 F.3d 243, 248 (5th Cir. 2001) (determining that Congress was not required to establish a rational basis for nationality-based classifications because its power to regulate immigration is plenary).24 But assuming arguendo that equal-protection jurisprudence applies, the Executive Order’s nationality-based classification should be reviewed for a rational basis, and there is an easily identifiable “conceivable state of facts that could provide a rational basis” for this Order. Heller v. Doe, 509 U.S. 312, 319-20 (1993) (citation and quotation marks omitted). The same national-security grounds indicating that the Executive Order is not a pretext masking a religious classification confirm the rational basis for the Order’s nationality-based classifications. See supra pp. 27-32.
24 Plaintiffs themselves concede that “courts generally give more latitude to the political branches in the immigration context.” TRO Mot. (D.E.3) 5 (citing Zadvydas, 533 U.S. at 695).
33

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 42 of 45
D. The Executive Order neither triggers nor violates the Establishment Clause.
Plaintiffs’ Establishment Clause argument fails because the Clause does not vest rights extraterritorially in nonresident aliens abroad—for many of the same reasons that due-process or equal-protection rights would not apply to such aliens. See supra p. 23. Amicus is aware of only one court of appeals case to apply Establishment Clause protections extraterritorially in some fashion: Lamont v. Woods, 948 F.2d 825, 843 (2d Cir. 1991). But that case dealt with U.S. citizens’ ability to raise an Establishment Clause challenge to “the appropriation and expenditure of public funds by the United States for the construction, maintenance and operation of foreign religious schools.” Id. at 827.
Even if the Establishment Clause were so broad as to afford its protections to nonresident aliens abroad, there is no Establishment Clause violation here. The Executive Order is religion-neutral, and the Order is not a pretext for religious discrimination as explained above. See supra pp. 24-32. On its face, section 5(b) of the Order regarding refugee admission does not “give preference to Christian refugees while disadvantaging Muslim refugees.” TRO Mot. (D.E.3) 7. The Order’s directives on the refugee program after it resumes, for instance, “could be invoked to give preferred refugee status to a Muslim individual in a country that is predominantly Christian.” Louhghalam, 2017 WL 479779, at *5 (slip op. 13).
Nor does the Constitution prohibit government accommodation of religion. See Cutter v. Wilkinson, 544 U.S. 709, 713 (2005). The INA provides for allocating admissions among refugees of “special humanitarian concern to the United States,”
34

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 43 of 45
8 U.S.C. § 1157(a)(3), a category of aliens that Congress itself has continuously updated to include particular religious groups, such as Soviet Jews, Evangelical Christians, and the Ukrainian Orthodox Church. Id. §  1157 note. Plaintiffs’ Establishment Clause argument, if accepted, would jeopardize those practices and the government’s ability to recognize and respond to religious persecution.
Conclusion
Rehearing en banc, and the application for a stay, should be granted.
Respectfully submitted.
Ken Paxton Attorney General of Texas
Jeffrey C. Mateer First Assistant Attorney General
s/ Scott A. Keller Scott A. Keller Solicitor General
J. Campbell Barker Deputy Solicitor General
Ari Cuenin Assistant Solicitor General
Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697 scott.keller@oag.texas.gov
35

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 44 of 45
Certificate of Service
On February 15, 2017, this brief was served by CM/ECF on the following counsel for the parties: Counsel for Plaintiffs-Appellees: Noah G. Purcell Office of the Washington Attorney General P.O. Box 40100 1125 Washington St., SE Olympia, WA 98504 Noahp@atg.Wa.Gov Counsel for Defendants-Appellants: Edwin S. Kneedler United States Department of Justice 950 Pennsylvania Ave., N.W. Room 5139 Washington, DC 20530 Edwin.S.Kneedler@usdoj.gov
s/ Scott A. Keller Scott A. Keller
36

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-2, Page 45 of 45
Certificate of Compliance
This brief complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it is prepared in a proportionally spaced, 14-point typeface. Consistent with Circuit Rule 32-2(a), a separate motion for leave to file this brief of 8,965 words has been filed.
s/ Scott A. Keller Scott A. Keller
37

Case: 17-35105, 02/15/2017, ID: 10320027, DktEntry: 146-3, Page 1 of 1

Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28-1.1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 17-35105
Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief. I certify that (check appropriate option):

This brief complies with the length limits permitted by Ninth Circuit Rule 28-1.1.

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-1.

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a

single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a

longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P.

32(a)(5) and (6).

This brief complies with the longer length limit authorized by court order dated

The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2

(a) and is

words or

pages, excluding the portions exempted by Fed. R. App. P. 32

(f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2

(c)(2) or (3) and is 8965

words or

pages, excluding the portions exempted by Fed. R.

App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and

(6).

This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or s/ Scott A. Keller
Unrepresented Litigant
("s/" plus typed name is acceptable for electronically-filed documents)

Date 2/15/2017
(Rev.12/1/16)

 
 Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 1 of 46
CASE NO. 17-35105 IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Appellants v.
DONALD J. TRUMP, PRESIDENT, et al., Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, CASE NO. 2:17-cv-00141-JLR

BRIEF OF AMICUS CURIAE FREEDOM WATCH, INC., IN SUPPORT OF EN BANC REVIEW OF APPELLANTS-DEFENDANTS
EMERGENCY MOTION FOR STAY PENDING APPEAL
ORAL ARGUMENT REQUESTED

Attorney for Amicus Curiae February 15, 2017

Larry Klayman, Esq. FREEDOM WATCH, INC. 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Telephone: (561) 997-9956 Email: leklayman@gmail.com

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 2 of 46

TABLE OF CONTENTS

TABLE OF CONTENTS

ii

TABLE OF AUTHORITIES

iii

FRAP RULE 26.1 AND FRAP 29(a)(4)(E) DISCLOSURE STATEMENT v

STATEMENT OF INTEREST OF AMICUS CURIAE

vi

I. SUMMARY OF ARGUMENT

1

II. ARGUMENT

5

A. Appellee States Will Not Prevail on the Merits

5

B. Standing

6

C. President's Power To Regulate Entry Into The United States

is Clear And Almost Unlimited

8

D. Courts May Not Look "Behind" The Clear Text

at Campaign Statements

9

E. Straw-Man Argument Of Religious Discrimination

10

F. Court Usurping Presidential Role: Executive Order Targets

"Failed states" Plus Terrorist Sponsor, Hostile Iran, Not Islam 12

G. Non-Justiciable Political Question

14

H. Severability of the Executive Order

16

I. 8 U.S.C. § 1152(a)(1)(A) Did Not Repeal 8 U.S.C. § 1182(f) 17

J. Appellees Reliance on 8 U.S.C. § 1152(A)(1)(A) Misplaced 19

K. Irreparable Harm Supports The Executive Order,

Not The Appellees

19

L. Court Should Consolidate Multi-District Litigation: Forum

Non Conveniens And Judge Shopping

22

III. CONCLUSION

22

ii

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 3 of 46
TABLE OF AUTHORITIES
Cases Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 687-686 (9th Cir., 2006) ................... 18 Alaska Airlines, Inc v. Brock, 480 U.S. 678, 684-685, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987).. 17 Alexander v. Americans United Inc., 416 U.S. 752, 761-762, 94 S.Ct. 2053, 40 L.Ed.2d 518
(1974) ........................................................................................................................................ 20 Beacon Theaters, Inc v. Westover, 359 U.S. 500, 507, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) ....... 20 Cannon v. Univ. of Chicago., 441 U.S. 677, 696-97, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)...... 18 Commonwealth of Massachusetts v. Laird, 400 U.S. 886, 887, 91 S.Ct. 128, 27 L.Ed.2d 140
(1970) .......................................................................................................................................... 6 Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952)................................................................... 9 Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)........................................................................... 9 L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982) ............................... 7 Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923) ................................................................. 7 Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 182 L.Ed.2d 720 (2012) .................................. 19 Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892) ........................................................ 10 Powell v. Cormack, 395 U.S. 486, 518-519, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) ................... 15 Pulliam v. Allen, 466 U.S. 522, 537, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) ............................. 20 Rodriguez v. United States, 480 U.S. 522, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) .................... 18 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953) .... 7 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001)........... 5 Texas v. United States of America, 809 F.3d 134 (5th Cir. November 9, 2015)
(Appeal No. 15-40238) ..................................................................................................... 7 U.S. v. Alvarez-Hernandez, 478 F.3d 1060, 1065-1066 (9th Cir. 2007). ..................................... 18 United States v. LeCoe, 936 F.2d 398, 403 (9th Cir.1991)........................................................... 18 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 24, 129 S.Ct. 365,
172 L.Ed.2d 249, 555 U.S. 7, 77 USLW 4001 (2008)................................................. 5, 6 Zadvydas v. Davis Et Al., 533 U.S. 678 (2001) .............................................................................. 7 Zivotofsky v. Kerry, 576 U.S. ___, 135 S. Ct. 2076, 2083-84 (2015) ............................................. 8 Statutes 28 U.S. Code § 1391 ..................................................................................................................... 23 8 U.S. Code § 1182(f) ............................................................................................................... 9, 19 8 U.S.C. § 1152(a)(1)(A) .............................................................................................. ii, 18, 19, 20
iii

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 4 of 46 8 U.S.C. § 1182(f)................................................................................................................... 18, 20 8 U.S.C. § 1187(a)(12).................................................................................................................. 12 Article II........................................................................................................................................ 23 Section 212(f) of the Immigration and Naturalization Act ............................................................. 9 Rules Fed. R. Civ. P. 65(b)(1)................................................................................................................... 6 FRAP Rule 29(a)(4)(E)................................................................................................................... v FRAP Rule 26.1 .............................................................................................................................. v
iv

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 5 of 46
FRAP RULE 26.1 AND FRAP 29(a)(4)(E)) DISCLOSURE STATEMENT Freedom Watch, Inc. is a 501(c)(3) not-for-profit organization, with no
parent corporation and no publicly traded stock. In compliance with Federal Rules of Appellate Procedure ("FRAP") Rule
29(a)(4)(E), Freedom Watch, Inc. further states that this brief was authored by counsel for Freedom Watch, without the involvement of counsel for any party in this matter. No party or counsel for such party contributed money that was intended to fund preparing or submitting this brief. No person other than the Amicus or its counsel contributed money that was intended to fund preparing or submitting this brief.

Dated: February 15, 2017

/s/ Larry Klayman Larry Klayman Counsel for Amicus Curiae FREEDOM WATCH, INC.

v

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 6 of 46
STATEMENT OF INTEREST OF AMICUS CURIAE
Amicus Curiae Freedom Watch, Inc. hereby respectfully submits this brief to assist the Court and the ends of justice pursuant to the FRAP Rule 29. 1 Counsel for the Appellants and Appellees have graciously offered their consent to this filing and therefore pursuant to FRAP Rule 29 and Circuit Rule 29, on the direction of said rules, a separate motion for leave to file this brief is not required.
Freedom Watch is a public interest group dedicated to preserving freedom, pursuing individual rights and civil liberties, preserving the rule of law and public confidence in the courts, and fighting for ethics in government and the judicial system, as well as investigating and prosecuting government corruption and abuse. As part of its goal to remain constant to the principles of the Founding Fathers, Freedom Watch is dedicated to ensuring the rights of all citizens through action, frequently with legal cases and other means.
Previously, Freedom Watch filed an Amicus Curiae brief before the U.S. Supreme Court in a related case, Arizona v. United States, 567 U.S. __, 132 S.Ct. 2492 (2012) which addressed some of the legal issues and considerations implicated here. Similarly, Freedom Watch filed Amicus Curiae briefs before the U.S. Supreme Court and the U.S. District Court for the Southern District of Texas
1 The brief was amended and shortened somewhat on the Clerk's direction as to format and a new Section D has been added ahead of approval being granted.
vi

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 7 of 46
in Texas v. United States, 787 F.3d 733 (5th Cir. 2015), and brought a parallel case Arpaio v. Obama , in a petition before the U.S. Supreme Court as Case No. 15-643, including a petition for writ of certiorari in the U.S. Supreme Court concerning somewhat similar issues regarding President Barack Obama's authority to disregard federal law on immigration by Executive Order.
With the majority of the country's citizens demanding the integrity of the rule of law, enforcement of our nation's immigration laws, protection of the country's borders, and defense of their families, communities, and nation against terrorist threats, Freedom Watch is required to speak on behalf of those unable to do so. As such, consistent with its mission, Freedom Watch seeks to provide the means and mechanism to protect American citizens’ rights in this matter of great public interest and to uphold our constitutional system of separation of powers and the rule of law.
vii

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 8 of 46
I. SUMMARY OF ARGUMENT
"[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 83 S.Ct. 554, 563, 9 L.Ed.2d 644 (1963). The Constitution's due process guarantees call for no more than what has been accorded here: a statement of reasons and an opportunity for a prompt postrevocation hearing.
Haig v. Agee, 453 U.S. 280, 310, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (emphases added); Accord, Kennedy v. Rusk v. Cort, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).
This Court and the nation have been dragged into a constitutional crisis at
break-neck speed, while leaving the nation unprotected from infiltration by
terrorists. On January 27, 2017, President Donald Trump issued an Executive
Order "Protecting the Nation from Foreign Terrorist Entry into the United
States," ("Executive Order"), 82 Fed. Reg. 8,977, attached as Exhibit A.
"We want to ensure that we are not admitting into our country the very threats our soldiers are fighting overseas."
-- Verbal statement by the President Trump, upon signing the Executive Order officially announcing its purpose.2
Amicus Curiae Freedom Watch respectfully offers its analysis for the benefit
2 Ken Thomas, "Trump Orders Strict New Refugee Screening, Citing Terrorists," Associated Press, January 27, 2017, accessible at: http://bigstory.ap.org/article/889887c9c328423b955920f4d7465e54/trumpexpected-sign-directive-halting-refugee-flows-us

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 9 of 46
of this Court pursuant to FRAP Rule 29. Now before the Court is Appellants' motion for a stay of the Temporary
Restraining Order ("TRO") from the U.S. District Court for the District of Washington ("District Court.") Appellants seek a stay of a stay. But defects in the TRO demonstrate that the TRO should be stayed, being deficient on the merits.
En Banc review is warranted of the Per Curiam Order on February 9, 2017, of a three-judge panel ("Panel") of the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"). The Panel has restrained the core, constitutionally-established role of the President of the United States as head of the nation's foreign policy, international relations, national security, national defense, commander-in-chief, and head of the executive branch.
First, the Appellees do not have standing under parens patriae. Despite claiming that public universities are agencies of their States, the universities are actually claiming temporary inconvenience by others, not themselves. Further, as the Panel admits, the Executive Order provides for a waiver. Anyone affected who is not a threat to the country may receive a waiver. According to news reports, everyone detained in transit has already received such a waiver.
Also, in this constitutional crisis, unfolding at astonishing and dangerous speed, the courts have substituted their own national security judgments and factual analyses in place of the President's and the Congress' unique authority
2

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 10 of 46
under the Constitution. Specifically, to balance the harms for the TRO, the Honorable James L. Robart and the Panel decided for themselves that seven failed states -- hot beds of terrorism and lacking trustworthy records -- do not represent any real danger to U.S. families and communities. Such military, foreign policy, and national security analysis is not within the capabilities of the courts. The President is briefed by an extensive system of intelligence agencies.3 This Court does not have regular access to those intelligence resources.
Moreover, the District Court and Panel were in error: Judge Robart inaccurately argued in the hearing that no terrorist attack had -- so far -- resulted from aliens entering from the seven failed states and Iran.4 First, this demonstrates the lack of expertise of the courts. Aliens from the world's seven most dangerous countries may recruit for, train, incite, finance, organize, support, plan, and help implement terrorist attacks regardless of whether they personally deliver the bomb. The Panel erroneously assumed that terrorist threats are presented only by those who push the button. 5
3 Justin Fishel and John Santucci, "Trump Receives 1st Presidential Daily Brief," ABC News, November 15, 2016, accessible at: http://abcnews.go.com/Politics/trump-receives-presidentialdaily/story?id=43554271 4 Regrettably, Appellants' counsel stated he was unprepared to address the question on short notice. A slower, more-circumspect examination of these issues is necessary. 5 Jessica Vaughn, "Study Reveals 72 Terrorists Came From Countries Covered by Trump Vetting Order," Center for Immigration Studies, February 11,
3

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 11 of 46
Second, the claim is false:
Since 9/11, 72 individuals from the seven mostly Muslim countries covered by President Trump's "extreme vetting" executive order have been convicted of terrorism, bolstering the administration's immigration ban. According to a report out Saturday, at least 17 claimed to be refugees from those nations, three came in as "students," and 25 eventually became U.S. citizens.6
Thus, the balance of the equities and harms cannot sustain a TRO.
Moreover, the Ninth Circuit en banc should dismiss the case by the
Appellees as a non-justiciable "political question." The District Court lacks Article
III jurisdiction, and dismissal is mandatory. The question is textually committed to
the President and the Congress, and there are no legally-cognizable standards
available for a court to apply in substituting a court's judgment on national security
threats in place of the Commander-in-Chief's judgment.
Moreover, neither the Appellees nor the foreign college students they
complain for will suffer irreparable harm. Financial loss is, by definition,
recoverable. However, loss of life from a terrorist attack is the very essence of
irreparable harm. The Panel ignored the irreparable harm from terrorist attacks and
erroneously found irreparable harm that is compensable by money damages.
2017, accessible at: http://cis.org/vaughan/study-reveals-72-terrorists-camecountries-covered-trump-vetting-order 6 Paul Bedard, "Report: 72 convicted of terrorism from 'Trump 7' mostly Muslim countries," The Washington Examiner, February 11, 2017, accessible at: http://www.washingtonexaminer.com/report-72-terrorists-came-from-7-muslimcountries-trump-targeted/article/2614582
4

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 12 of 46
II. ARGUMENT A. APPELLEE STATES WILL NOT PREVAIL ON THE MERITS Appellants seek a stay of a stay (TRO). Appellants' request for a stay of the
TRO must meet the requirements for an injunction, stay, or TRO. Appellants must show that they have a substantial likelihood of success in vacating the TRO.
But where the February 3, 2017, TRO is fatally flawed, which it is, the Appellants are likely to prevail in vacating it, because of its flaws. Flaws in the TRO establish that the Appellants are entitled to a stay of the deficient TRO.
The TRO is fatally flawed because it does not even attempt to show that the Plaintiff States have any chance of succeeding in their lawsuit in the end. To obtain a TRO, the Appellees must have established (1) a likelihood of success on the merits; (2) that irreparable harm is likely in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and 4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008); Fed. R. Civ. P. 65(b)(1); Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001).
A preliminary injunction is an extraordinary remedy never awarded as of right. Munaf, 553 U.S., at 689-690, 128 S.Ct., at 2218–2219. In each case, courts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Production Co., 480 U.S., at 542, 107 S.Ct. 1396. “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Romero–Barcelo, 456 U.S.,
5

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 13 of 46
at 312, 102 S.Ct. 1798; see also Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
Winter v. Natural Res. Def. Council, Inc., 555 U.S. at 24.
B. STANDING
As the Panel stated in its Per Curiam Order page 8:
We have an independent obligation to ascertain our jurisdiction, Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006), and we consider the Government’s argument de novo, see, e.g., Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1098 (9th Cir. 2016). We conclude that the States have made a sufficient showing to support standing, at least at this preliminary stage of the proceedings.
First, even though the Appellees argue that public universities are agencies
of the Plaintiff States, nevertheless they are still claiming the interests of others
inconvenienced in traveling to the universities.
In Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, the Court held a State lacked standing to challenge, as parens patriae, a federal grant-in-aid program under which the Federal Government was allegedly usurping powers reserved to the States. It was said in Mellon:
'[T]he citizens of Massachusetts are also citizens of the United States. It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the State, under some circumstances, may sue in that capacity for the protection of its citizens (Missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct. 331, 45 L.Ed. 497), it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government.
Commonwealth of Massachusetts v. Laird, 400 U.S. 886, 887, 91 S.Ct. 128, 27 L.Ed.2d 140 (1970) (dissenting opinion) (emphasis added).
6

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 14 of 46
A “State does not have standing as parens patriae to bring an action against the Federal Government” on behalf of its citizens. Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982) (emphasis added); Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923). Also, Massachusetts v. EPA, 549 U.S. 497 (2007), involved allegations that Massachusetts was losing land along its coastline to rising oceans. 549 U.S. at 522. The Court deemed it “of critical importance” that Congress had authorized the exact type of challenge the State brought. Id. at 516.
Those affected are the United States' citizens as well as the States'. Even a noted case on amnesty for illegal aliens, Texas v. United States, agrees:
The court also considered but ultimately did not accept the notions that Texas could sue as parens patriae on behalf of citizens facing economic competition from DAPA beneficiaries and that the state had standing based on the losses it suffers generally from illegal immigration. Texas v. United States of America, 809 F.3d 134 (5th Cir. November 9, 2015) (Appeal No. 15-40238). Second, aliens cannot have standing in U.S. courts for the denial of rights they do not have. Since no one has a right to enter the United States who is not a U.S. citizen, Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953); Zadvydas v. Davis Et Al., 533 U.S. 678 (2001), aliens kept out have suffered no legal damages because they have no right of entry. Third, any alien who is not a terrorist threat is eligible for a waiver. As the
7

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 15 of 46
Per Curiam Order admits on page 4:
Sections 3(g) and 5(e) of the Executive Order allow the Secretaries of State and Homeland Security to make case-by-case exceptions to these provisions “when in the national interest.” 82 Fed. Reg. 8,97880. Section 5(e) states that situations that would be in the national interest include “when the person is a religious minority in his country of nationality facing religious persecution.” 82 Fed. Reg. 8,979. The Executive Order requires the Secretaries of State and Homeland Security and the Director of National Intelligence to evaluate the United States’ visa, admission, and refugee programs during the periods in which entry is suspended. 82 Fed. Reg. 8,977-80.
Anyone who is not a threat is not harmed because they can receive a waiver.
Note that the waiver provides due process: notice and a hearing.
C. PRESIDENT'S POWER TO REGULATE ENTRY INTO THE UNITED STATES IS CLEAR AND ALMOST UNLIMITED
As is now well-known, we start with the congressional legislation that
confirms the President’s authority in 8 U.S. Code § 1182(f), Section 212(f) of the
Immigration and Naturalization Act:
(f) 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.
And, of course, even without the benefit of legislation, the President has
inherent constitutional authority over foreign policy. See, e.g., Zivotofsky v. Kerry,
576 U.S. ___, 135 S. Ct. 2076, 2083-84 (2015). Of course that power is at its
8

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 16 of 46
zenith when Congress by statute has agreed by legislation, as is true here. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). see also, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952) (recognizing that control over immigration is an integral part of Article II authorities “in regard to the conduct of foreign relations [and] the war power”).
Yet the Panel completely ignored the statute that gives the President the clear and unfettered authority to issue the Executive Order under 8 U.S.C. § 1182(f). In fact, the Panel was effectively trying to enjoin the statute, not the Executive Order.
D. COURTS MAY NOT LOOK "BEHIND" THE CLEAR TEXT AT CAMPAIGN STATEMENTS The Appellees claims are foreclosed by Kleindienst v. Mandel, 408 U.S.
753, 762 (1972), which is logically identical. Like the universities here, plaintiffs invited an avowed communist so that they could hear his lectures:
We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. Kleindienst, 408 U.S. at 769-770 (emphasis added). And furthermore: The case, therefore, comes down to the narrow issue whether the First Amendment confers upon the appellee professors, because they wish to hear, speak, and debate with Mandel in person, the ability to determine that Mandel should be permitted to enter the country or, in
9

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 17 of 46
other words, to compel the Attorney General to allow Mandel's admission.
Id.
It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise. United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950); Galvan v. Press, 347 U.S. 522, 530—532, 74 S.Ct. 737, 742—743, 98 L.Ed. 911 (1954); see Harisiades v. Shaughnessy, 342 U.S. 580, 592, 72 S.Ct. 512, 520, 96 L.Ed. 586 (1952).”
408 U.S. at 762. Moreover:
“It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.”12 (emphasis added).
Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892) (emphasis in original).
Thus, although the Appellees have ripped President Trump's campaign
statements out of context, only the clear text of the Executive Order may be
considered. The President has presented "facially legitimate and bona fide
reason" within his core authority of national security. That is conclusive.
E. STRAW-MAN ARGUMENT OF RELIGIOUS DISCRIMINATION
Appellees would have us believe that the Trump Administration seeks to
10

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 18 of 46
discriminate against Muslims -- but only for 90 days -- and then only from the
world's seven most dangerous countries in terms of terrorism. Of the world's 49
Muslim-majority countries,7 the Executive Order leaves 42 unaffected. 8
The Muslim nation of Kuwait has also banned entry into Kuwait from five
(5) of the same seven (7) countries.9 The issue is the risk of terrorism, not religion.
Most Muslim-majority countries in the Middle East have accepted zero --
none -- of these affected refugees.10 Even fabulously-wealthy Muslim-majority
nations like Saudi Arabia and the United Arab Emirates refuse to trust these
Muslim refugees into their own countries,11 where they share common languages,
7 "Muslim-Majority Countries Comprising the Islamic World," Center for the Education of Women, University of Michigan, accessible at: http://www.cew.umich.edu/muslim_majority ; The Pew Research Center identifies 49 countries: "The Future of the Global Muslim Population: Muslim-Majority Countries," Pew Research Center, January 27, 2011, accessible at: http://www.pewforum.org/2011/01/27/future-of-the-global-muslim-populationmuslim-majority/ 8 Counts vary as 49 to 51 or 52 Muslim-majority nations by various reports. 9 "After Trump, Now Kuwait Bans 5 Muslim-Majority Countries, Including Pakistan," NDTV, February 2, 2017, accessible at: http://www.ndtv.com/worldnews/kuwait-bans-5-muslim-majority-countries-including-pakistan-1655311 10 Richard Pollock, "Persian Gulf Muslim States Have Accepted No Syrian Refugees," Daily Caller, November 24, 2015, accessible at: http://dailycaller.com/2015/11/24/persian-gulf-muslim-states-have-accepted-nosyrian-refugees/ 11 Ishaan Tharoor, "The Arab World’s Wealthiest Nations Are Doing Next to Nothing for Syria’s Refugees," The Washington Post, September 4, 2015, accessible at: https://www.washingtonpost.com/news/worldviews/wp/2015/09/04/the-arabworlds-wealthiest-nations-are-doing-next-to-nothing-for-syriasrefugees/?utm_term=.b13685bd30b6
11

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 19 of 46

cultures, social structures, familiar social support institutions, food, methods, and religions, because of the risk of letting terrorists into their countries.
As now-President Trump stated on the campaign trail, as reported by CNN: "I LOVE THE MUSLIMS. I THINK THEY'RE GREAT PEOPLE," 12 proclaimed candidate Donald Trump. Further: "They [townhall attendees] asked whether the billionaire businessman would consider putting a Muslim in his Cabinet or on his ticket. 'Oh, absolutely, no problem with that.' Trump responded. 'Would I consider putting a Muslim-American in my Cabinet? Absolutely no problem with that.'"13
Appellees ripped Trump's campaign statements out of context. Clearly, Trump was referring, if very loosely, to Syrian refugees, which was the topic.
F. COURT USURPING PRESIDENTIAL ROLE: EXECUTIVE ORDER TARGETS "FAILED STATES" PLUS TERRORIST SPONSOR, HOSTILE IRAN, NOT ISLAM The Executive Order suspended entry into the country of aliens from Iran,
Libya, Somalia, Sudan, Yemen, Iraq, and Syria. Of course, terrorist ISIS stands for "the Islamic State of Iraq and Syria." Thus, 2 of the 7 are nations in which the United States is actively in a hot war with ISIS right now. As the Panel admits at

12 MJ Lee and Noah Gray, "Trump to CNN: 'I love the Muslims,'" CNN,

September 20, 2015, accessible at:

http://www.cnn.com/2015/09/19/politics/donald-trump-muslims-

controversy/index.html

13

Id.

12

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 20 of 46
pages 3-4 of its Per Curiam Order:
It asserts, “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.” Id.
The Executive Order covers only those countries identified, during the
Obama Administration, pursuant to 8 U.S.C. § 1187(a)(12). Trump ordered
(emphasis added):
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 Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
The Appellees misrepresent this case as being about religion, and even if it
were this is irrelevant, as there is not right for foreign aliens of any race, religion,
ethnicity, national origin or sexual preference to enter the United States, if he or
she is not a citizen or permanent resident.
The seven countries are selected not because they are Muslim, but because
those "failed states" are in chaos (and Iran is implacably hostile and a state sponsor
of terrorism), such that documents and records related to a person seeking entry
13

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 21 of 46
into the United States cannot be trusted. Records about potential entrants
necessary to investigate and screen entrants for national security purposes are
either non-existent or incomplete or worse commonly forged or falsified due to
rampant corruption of officials, poverty-stricken bureaucrats, threats of violence or
intimidation against bureaucrats, or terrorist infiltration of governments. 14
Governmental records, police reports, identity papers, etc., from the seven
nations are easily forged or official governmental records falsified.15 Even the
starting point of a refugee's actual identity is unreliable.16
14 Testimony of Secretary of Homeland Security John Kelly, Homeland Security Committee, U.S. House of Representatives, April 7, 2017, accessible on C-SPAN at: https://www.c-span.org/video/?423321-1/homeland-securitysecretary-john-kelly-testifies-us-border-security&live 15 Chuck Ross, " FBI Director Admits US Can’t Vet All Syrian Refugees For Terror Ties [VIDEO]," The Daily Caller, accessible at: http://dailycaller.com/2015/10/21/fbi-director-admits-us-cant-vet-all-syrianrefugees-for-terror-ties-video/; Jerry Markon, "Senior Obama officials have warned of challenges in screening refugees from Syria," The Washington Post, November 17, 2015, accessible at: https://www.washingtonpost.com/news/federaleye/wp/2015/11/17/senior-obama-officials-have-warned-of-challenges-inscreening-refugees-from-syria/?utm_term=.bc0746040762 16 Id.; Director of the Federal Bureau of Investigation James Comey stated: “We can query our databases until the cows come home, but nothing will show up because we have no record of that person…You can only query what you have collected.” And: FBI Assistant Director Michael Steinbach said that “the concern in Syria is that we don’t have the systems in places on the ground to collect the information… All of the data sets, the police, the intel services that normally you would go and seek that information [from], don’t exist.” Kelly Riddell, "FBI director warns of coming “terrorist diaspora,” as Democrats push for more Syrian refugees," The Washington Times, September 28, 2016, accessible at: http://www.washingtontimes.com/news/2016/sep/28/james-comey-warns-comingterrorist-diaspora-democr/
14

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 22 of 46
G. NONJUSTICIABLE POLITICAL QUESTION
Several ingredients necessary to the TRO analysis are political questions
which are non-justiciable: Whether there is irreparable harm, the balance of
equities (harm), the supposed motivation, and whether the threats of terrorism
justify inconvenience to aliens depend upon whether the courts should usurp the
authority of the President and the Congress over international relations, foreign
policy, national security, and the President's role as Commander-in-Chief.
It is well established that the federal courts will not adjudicate political questions. See, e.g., Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939); Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726 (1918). In Baker v. Carr, supra, we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government. After reviewing our decisions in this area, we concluded that on the surface of any case held to involve a political question was at least one of the following formulations:
'a textually demonstrable constitutional commitment of the issue to a co-ordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.' 369 U.S., at 217, 82 S.Ct., at 710.
Powell v. Cormack, 395 U.S. 486, 518-519, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)
15

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 23 of 46
Under the political question doctrine, the District Court lacks Article III jurisdiction, and dismissal is mandatory. The question is textually committed under our nation's Constitution to the President and the Congress, and there are no legally-cognizable standards available for a court to apply in substituting a court's judgment on national security threats in place of the Commander-in-Chief's judgment. The courts are not a forum in which competing litigants can present their preferred excerpts from classified intelligence briefings and the court can render a decision on whether a threat of terrorism does or does not rise to the level of constituting irreparable harm by entrants from this or that country.
The TRO directly cripples the President's core constitutional roles in areas and in ways that courts are not qualified to second guess by courtroom debates over classified intelligence reports.
H. SEVERABILITY OF THE EXECUTIVE ORDER The Panel was concerned about the role of the Judiciary in rewriting
the Executive Order. Arguably, as the Appellants contend, the Executive Order does not
apply on its terms to so-called green card owners or lawful permanent residents. Since it is doubtful that the Executive Order was ever intended to apply to those persons at all, it is possible to sever consideration of those persons from the rest of the Executive Order.
16

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 24 of 46
Similarly, can holders of existing visas be severed from the remainder?
By way of analogy to statutes, where there are few precedents on executive
orders, this Executive Order is severable when:
"[A] court should refrain from invalidating more of the statute than is necessary. . . . '[W]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid.' " Regan v. Time, Inc., 468 U.S. 641, 652, 104 S.Ct. 3262 3268, 82 L.Ed.2d 487 (1984) (plurality opinion), quoting El Paso & Northeastern R. Co. v. Gutierrez, 215 U.S. 87, 96, 30 S.Ct. 21, 24, 54 L.Ed. 106 (1909). The standard for determining the severability of an unconstitutional provision is well established: " 'Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.' " Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976) (per curiam ), quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062 (1932). Accord: Regan v. Time, Inc., 468 U.S., at 653, 104 S.Ct., at 3269; INS v. Chadha, 462 U.S., at 931-932, 103 S.Ct., at 2773-2774; United States v. Jackson, 390 U.S. 570, 585, 88 S.Ct. 1209 1218, 20 L.Ed.2d 138 (1968).
Alaska Airlines, Inc v. Brock, 480 U.S. 678, 684-685, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987).
I. 8 U.S.C. § 1152(a)(1)(A) DID NOT REPEAL 8 U.S.C. § 1182(f)
The Appellees hang their case on seeking to undercut 8 U.S.C. § 1182(f) by
setting up a conflict with 8 U.S.C. § 1152(a)(1)(A), as tying the President's
hands.17 Whereas 8 U.S.C. § 1182(f) explicitly names the President as having
17 Amicus Curiae has not found appellate precedents interpreting 18 U.S.C. § 1182(f) -- only unrelated cases involving § 1182(a).
17

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 25 of 46
authority, 8 U.S.C. § 1152(a)(1)(A) does not address the President's authority.
However, a repeal or partial repeal should not be lightly assumed.
It is well settled, however, that repeals by implication are not favored, see, e.g., TVA v. Hill, 437 U.S. 153, 189, 98 S.Ct. 2279 2299, 57 L.Ed.2d 117 (1978), and will not be found unless an intent to repeal is " 'clear and manifest.' " United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939) (quoting Red Rock v. Henry, 106 U.S. 596, 602, 1 S.Ct. 434, 439, 27 L.Ed. 251 (1883)). Nothing in the language of these two provisions suggests the existence of the " ' "irreconcilable conflict," ' " Kremer v. Chemical Construction Corp., 456 U.S. 461, 468, 102 S.Ct. 1883 1890, 72 L.Ed.2d 262 (1982) (citations omitted), from which an intent to repeal may be inferred.
Rodriguez v. United States, 480 U.S. 522, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987)
Moreover, the federal courts recognize well-established rules harmonizing
interpretation of amendments or subsequent enactments.
[W]e presume that Congress is aware of the legal context in which it is legislating. See Cannon v. Univ. of Chicago., 441 U.S. 677, 696-97, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) ("It is always appropriate to assume that our elected representatives, like other citizens, know the law. . . ."); United States v. LeCoe, 936 F.2d 398, 403 (9th Cir.1991) ("Congress is, of course, presumed to know existing law pertinent to any new legislation it enacts.").
Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 687-686 (9th Cir., 2006)
"We also 'presume that when Congress amends a statute, it is knowledgeable about judicial decisions interpreting the prior legislation,' Porter v. Bd. of Trs. of Manhattan Beach Unified Sch. Dist., 307 F.3d 1064, 1072 (9th Cir. 2002) ....
U.S. v. Alvarez-Hernandez, 478 F.3d 1060, 1065-1066 (9th Cir. 2007).
18

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 26 of 46
Therefore, we must interpret the later-enacted 8 U.S.C. § 1152(a)(1)(A) as consistent with the President's authority under 8 U.S. Code § 1182(f). Congress did not intend to retract any authority from the President to conduct foreign policy. At least we must presume so under rules of statutory construction.
J. APPELLEES' RELIANCE ON 8 U.S.C. § 1152(a)(1)(A) MISPLACED Or perhaps, as was the case in Clinton v. City of New York, 524 U.S. 417, 429, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998), the statutory context makes that intention clear, because any other reading of “individual” would lead to an “ ‘absurd’ ” result Congress could not plausibly have intended.
Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 182 L.Ed.2d 720 (2012) 8 U.S.C. § 1152(a)(1)(A) places both national origin and religion on the
same footing. It would lead to an absurd result -- which must be avoided -- to interpret 8 U.S.C. § 1152(a)(1)(A) as prohibiting the President from basing his actions under 8 U.S.C. § 1182(f) on national origin (like religion). So, it would produce an "absurd result" to interpret 8 U.S.C. § 1152(a)(1)(A) as limiting the President's 8 U.S.C. § 1182(f) authority.
Moreover, subparagraph § 1152(a)(1)(A) concerns the allocation of immigration among various countries, not the power of the President.
K. IRREPARABLE HARM SUPPORTS THE EXECUTIVE ORDER, NOT THE APPELLEES The Appellees cannot show irreparable harm or even any legally-cognizable
19

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 27 of 46
harm, including because the Executive Order and surrounding law allows each potential visitor, entrant, or immigrant to obtain an individual, case-by-case waiver (quoted in Section B, supra). Apparently 100% of all affected travelers have in fact received waivers.18
As the Panel admits on Page 10 of the Per Curiam Order: "The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted." The loss of an "investment" or "costs" are not irreparable harm. Therefore, the TRO must fail.
The definition of irreparable harm is that there is no adequate remedy at law. See, generally, Black's Law Dictionary Free Online Legal Dictionary 2nd Ed ("Irreparable Damage"); Alexander v. Americans United Inc., 416 U.S. 752, 761762, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974); Beacon Theaters, Inc v. Westover, 359 U.S. 500, 507, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Pulliam v. Allen, 466 U.S. 522, 537, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) (rendered obsolete on a different issue not relevant here). Irreparable harm must be an injury that cannot be compensated by money damages.
On the other side of the balance of harm, there is irreparable harm to the national security of the United States. The presidential finding in the Executive
18 "Travelers Detained Due To Trump Travel Ban Released, Attorneys Say," January 28, 2017, CBS News Chicago Channel 2, accessible at: http://chicago.cbslocal.com/2017/01/28/travelers-detained-due-to-trump-travelban-released-attorneys-say/
20

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 28 of 46
Order is that the recent status quo of lax foreign policy, lax enforcement and a
careless lack of concern for the safety of the American people has increasingly
spawned death, violence, and destruction on U.S. soil in recent years. Actual recent terrorist attacks in San Bernadino, California,19 Boston, Massachusetts,20 Orlando, Florida, and Garland, Texas, 21 and Ft. Lauderdale International Airport22
in addition to earlier incidents such as the first and second terrorist attacks at the
World Trade Center on February 26, 1993 and September, 11, 2001.
Thus, the danger to the national security clearly outweighs temporary delays
in travel by persons from the world's seven most dangerous countries in terms of
terrorist activity directed against the United States.
19 Michael S. Schmidt and Richard Perez-Pena, "F.B.I. Treating San Bernardino Attack as Terrorism Case," New York Times, December 4, 2015, accessible at: https://www.nytimes.com/2015/12/05/us/tashfeen-malik-islamicstate.html 20 "Russia warned U.S. about Boston Marathon bomb suspect Tsarnaev: report," Reuters, March 25, 2014, accessible at: http://www.reuters.com/article/ususa-explosions-boston-congress-idUSBREA2P02Q20140326 21 Jim Sciutto, Pamela Brown, Paul Cruic, "ISIS claims responsibility for Texas shooting but offers no proof," CNN, May 5, 2015, accessible at: http://www.cnn.com/2015/05/05/us/garland-texas-prophet-mohammed-contestshooting/; Jim Sciutto, Pamela Brown, Paul Cruic, CNN, May 5, 2015, accessible at: http://www.cnn.com/2015/05/05/politics/texas-attack-terror-tweets/index.html 22 Greg Pallone, "FBI: Airport gunman traveled to Florida for massacre," Fox News Channel 13 of Orlando, Florida, January 7, 2017, accessible at: http://www.mynews13.com/content/news/cfnews13/news/article.html/content/new s/articles/cfn/2017/1/7/fort_lauderdale_airp.html
21

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 29 of 46
L. COURT SHOULD CONSOLIDATE MULTI-DISTRICT LITIGATION: FORUM NON CONVENIENS AND JUDGE SHOPPING According to news reports, lawsuits have been filed on this exact same topic
in many federal circuits. 23 Under the doctrines of forum non conveniens and venue under 28 U.S. Code § 1391, the Appellees' case should be dismissed and transferred to the District of Columbia. Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). The Defendants are all in the District of Columbia, along with most of the evidence and witnesses. All of the events at issue occurred or are occurring in the District of Columbia. All cases should be consolidated under 28 U.S. Code § 1407. III. CONCLUSION
The Appellees, Plaintiff States, have set up a constitutional crisis, crippling the President of the United States as Commander in Chief and head of international relations, from carrying out his Constitutional duties under Article II. The U.S. Constitution was developed and ratified largely due to our Founders' realization that in international relations and national defense a single national leader must be free to act for the nation. This is obviously true for the presidency.
Emergency treatment and prompt action on these matters is appropriate. Increasingly-frequent terrorist attacks have been occurring on U.S. soil in response to the spread of radical Islamic terrorism and the rise of the Islamic State of Iraq
23 Matt Pearce, "Trump has been sued more than 60 times since becoming president: A partial survey," The New York Times, February 11, 2017, accessible at: http://www.latimes.com/nation/la-na-trump-lawsuits-20170210-story.html
22

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 30 of 46
and Syria (ISIS) styling itself as the re-establishment of an Islamic Caliphate dedicated, in the minds of ISIS, to conquer the entire Earth without exception.
The people who live and work in this circuit, no less than any other large U.S. city as an inviting "soft target," primarily Jews and Christians, are in imminent danger of sworn enemies of the United States of America, enemies who believe in their own minds -- however much we might view things differently ourselves -- that their eternal destiny is contingent upon their murder of Americans to further their religious beliefs. In the case of Islam, this, according to the Quran, is the elimination of “infidels” in the name of Allah.
The U.S. Government, of course, cares not why people want to kill us, only that they do. The question is not religion but threats to the nation.
Even if the government focused on areas of high-risk concentrated in Islamic affiliation based upon actual facts on the ground, this would obviously be constitutional and legal. Some decades ago, Catholic versus Protestant violence and actual terrorism in Northern Ireland presented a genuine danger.24 Many would rightly say that the violence and terrorism did not represent either Catholic or Protestant religious traditions, yet the violence was real all the same.
Now, wishing away the actual, fact-based high concentration of violence and
24 Bryan Coll, "Terror Returns to Northern Ireland," TIME Magazine, March 8, 2009, accessible at: http://content.time.com/time/world/article/0,8599,1883723,00.html?iid=sr-link1
23

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 31 of 46

terrorism directed against the United States, Christians, and Jews does not

transform defending our families and our country against attacks into religious

discrimination. Discriminating between visitors who represent threats of violence

from those who are benign is one of the core duties of the President and the entire

U.S. Government. Terrorists attacking Americans keep insisting that they are

doing so in the name of Islam, and our hapless officials keep pretending otherwise.

Addressing threats where they are actually found is not religious discrimination.

Terrorist supporters and agents from the seven dangerous countries may not

be the gunmen or bombers who end up in the news. They may also be the ones

who train, recruit, equip, and finance others. Agent provocateurs who radicalize

home-grown terrorists are flooding into our country. All need to be thoroughly

vetted before they are permitted entry into the United States. The President’s

Executive Order merely places a temporary 90 day moratorium on immigration as

the new administration develops a truly functional means of this required vetting,

in the interests of national security.

Dated: February 15, 2017

Respectfully submitted,

/s/ Larry Klayman, Esq. Larry Klayman, Esq. FREEDOM WATCH, INC. 2020 Pennsylvania Avenue N.W.,
Suite 345 Washington, D.C. 20006 Telephone: (561) 997-9956 leklayman@gmail.com

24

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 32 of 46
25

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 33 of 46
CERTIFICATE OF SERVICE
I hereby certify that service of the foregoing motion and proposed brief will be delivered electronically on February 15, 2017, to counsel for Plaintiffs and Defendants through the District’s Electronic Case Filing system.
/s/ Larry Klayman, Esq. Larry Klayman, Esq. FREEDOM WATCH, INC.
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is in Times New Roman in 14 point font size, and totals 6,478 words, including the Statement of Interest of Amicus Curiae, in keeping with FRAP 29 and Circuit Rules.
Pursuant to the Court's Supplemental Briefing Order of February 10, 2017, the briefing on en banc review was set at 14,000 words, higher than the normal 4,200 words permitted by the rules typically. Following the rules' direction that an Amicus Curiae brief be one-half of the number of words of a principal brief, the Amicus Curiae understands that 7,000 words are available for its brief.
/s/ Larry Klayman, Esq. Larry Klayman, Esq. FREEDOM WATCH, INC.
CERTIFICATE OF FILING BY CONSENT
I hereby certify that counsel for the Appellees and Appellants have given their consent in writing (by email) to the filing of this Amicus Curiae brief.
/s/ Larry Klayman, Esq. Larry Klayman, Esq. FREEDOM WATCH, INC.
26

Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 34 of 46
EXHIBIT A

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-for...
Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 35 of 46

Speeches & Remarks Press Briefings Statements & Releases Presidential Actions
Executive Orders Presidential Memoranda Proclamations Related OMB Material
Budgetary Impact Analysis Memorandum Statements of Administration Policy Legislation Nominations & Appointments Disclosures
1 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-for...
Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 36 of 46

2 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-for...
Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 37 of 46

3 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-for...
Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 38 of 46

4 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-for...
Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 39 of 46

5 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-for...
Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 40 of 46

6 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-for...
Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 41 of 46

7 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-for...
Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 42 of 46

8 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-for...
Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 43 of 46

9 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-for...
Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 44 of 46

10 of 12

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-for...
Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 45 of 46

HOME BRIEFING ROOM From the News Room Latest News From the Press Office Speeches & Remarks Press Briefings Statements & Releases Presidential Actions Legislation Nominations & Appointments Disclosures
11 of 12

ISSUES Top Issues America First Energy Plan America First Foreign Policy Bringing Back Jobs And Growth Making Our Military Strong Again Standing Up For Our Law Enforcement Community Trade Deals That Work For All Americans

THE ADMINISTRATION People President Donald J. Trump Vice President Mike Pence First Lady Melania Trump Mrs. Karen Pence The Cabinet Special Events The 58th Presidential Inauguration

PARTICIPATE Join Us Tours & Events Jobs with the Administration Internships White House Fellows Share Your Thoughts We the People Petitions Contact the White House

1600 PENN History & Grounds Presidents First Ladies The Vice President's Residence & Office Eisenhower Executive Office Building Camp David Air Force One Our Government The Executive Branch The Legislative Branch The Judicial Branch The Constitution Federal Agencies &

2/5/2017 4:00 PM

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENT... https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-for...
Case: 17-35105, 02/15/2017, ID: 10320156, DktEntry: 149, Page 46 of 46
Commissions Elections & Voting State & Local Government
USA.gov Privacy Policy Copyright Policy

12 of 12

2/5/2017 4:00 PM

 
 Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 1 of 26
I

1 James J. O'Hagan 2 2298 Cranberry Rd. 3 Grayland WA 98547 4 (360) 267-7911 5 Wayoutwestl@hotmail.com
6-

RECEIVED
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FEB 1 4 2017

=ICED JACKETED

DATE

1N17

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF TEXAS

10 WASHINGTON STATE Et All

)

TEXAS NO.

11

Plaintiff( s)

)

Washington State No. 17-cv-00141-JLR

12

VS

)

9th Circuit No. 17-35105

13 PRESIDENT DONALD TRUMP Et All

14

Defendant (s)

)

MEMORANDUM OF INTERVENER BY

15

DECLARATION OF JAMES J. O'HAGAN

16 JAMES J. O'HAGAN, (Et All)

17

Co- Defendant(s)

18

19

COMES NOW JAMES J. O'HAGAN an intervener with standing and swears under the

20 penalty of perjury the following is true and correct to the best of my knowledge.

21

Since the Department of Justice Attorneys defending President Donald Trump are

22 actually his adversaries that was appointed by the former President Barrack Obama, they failed

23 to identify significant legal issues, and important facts that should not be ignored. Since their

24 omissions or negligence affects my personal interests and damages me, I'll get right down to

25 identifying their omissions, and strategies of sabotage.

26

"I stipulate" the plaintiff Washington State Attorney General ( AGO) Robert Ferguson

27 lacks standing to bring the matters he is attempting to prosecute whereas he is not a damaged

28 party, and a complaining party has not came to him and hired him for relief. Washington State

29 Attorney General Robert Ferguson filed this lawsuit in a political attempt to maintain

30 democratic power in Washington State, and continue to allow dead people and illegal aliens to

31 vote for the social programs they are using to bribe their voter supporters with.

32

I stipulate everything that AGO Robert Ferguson is doing with this case is politically

33 motivated, fraud and a fraudulent use of taxpayers' funds as his actions directly violate Article II

1

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 2 of 26

n

0

1 section 41 of our United States Constitution that guarantees us our Republican form of

2 government shall not be infringed upon in Washington State.

3

AGO Robert Ferguson is using taxpayer funds collected ultimately only from the

4 producers of our products developed in Washington State to prosecute this case for his and his

5 accomplices personal political agenda, and infringe upon the legislative and executive branches

6 of our republican form of government.

7

The producers of Washington State's products, the ultimate taxpayers (where all taxes

8 are derived from) have been plagued by decades of social programs that have been created by

9 socialists and communists to bribed voters to vote for people that support their social

10 programs. The people of Washington State, like most of the States in the Ninth Circuit have

11 been denied access to the "Equal Footing Doctrine" that has caused us numerous problems that

12 most states in the United States have not had to deal with. Our "problems" started with a

13 notorious statehood that is largely ignored by the beneficiaries of ignoring the deceptions

14 involving our statehood. We should not continue to ignore the problems out of habitude.

15

The deceptions started when our 1878 Washington State Constitution, that was ratified

16 by the United States 50th Congress, second session in Senate miscellaneous documents,

17 Number 55 on January 28th 1889 was switched at the last hour with our fictitious 1889

18 Washington State Constitution. As far as I can tell, and other individuals that have investigated

19 the situation in depthrour 1889 Washington State Constitution was never ratified by the United

20 States congress. This is significant as the 1889 Washington State Constitution had very

21 significant changes that violated the States of the United States "Equal Footing Doctrine".

22

Even though several other individuals have pointed out several other valid violations of

23 the "States Equal Footing Doctrine" to me the most significant violation of the "Equal Footing

24 Doctrine" that I have personally been damaged by, and all other economically vulnerable

25 individuals have been damaged by, is identified in Article III of our original 1878 Washington

26 State Constitution that states "Article III Distribution of Power Section 1. The Government of

27 this State shall be divided into three separate distinct departments, to wit, the legislative, the

1 USC Article II section 4 Guarantee of republican Government. The united States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion: and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.
2

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 3 of 26

1 executive, and the judicial. Section 2. No person, or collection of persons, holding any

2 position in or exercising any authority under, one of these departments shall hold any office

3 in, or exercise any authority whatever under, either of the others, except such as may be

4 expressly provided for in this constitution".

5

Here in Washington State we have been continually plagued by violations to the

6 separation of powers where officers of the courts (attorneys) have infiltrated our legislative and

7 executive branches and created laws that provide their fellow judicial branch members

8 (attorneys) pecuniary benefits (untold riches) special privileges and immunities, that has led to

9 them obtaining "nobility" and complete control over all three branches of our Washington

10 State Government. It is described in "Black Law Dictionary" as a tyranny. It should be noted the

11 thirteen original states all have articles in their state constitutions that prohibit the violations of

12 the separations of powers, thus if the equal footing doctrine is applied equally the people of

13 Washington State would be protected from members of the judiciary infiltrating our legislative

14 and executive branches to completely take over the State of Washington for the benefit of their

15 fellow attorneys, which has happened.

16

This tyranny that we live in here in Washington State has converted most beneficial

17 parasites that are surviving off of the lives of our producers into detrimental parasites and

18 predators that are preying on all of our producers. Our "Prosperity" and "Domestic Tranquility"

19 has suffered from the lack of balance between the producers, beneficial parasites, detrimental

20 parasites and predators. Our dependency on debt is evidence of how far out of balance these

21 entities of our society are. In order to rein in our debt and regain our Domestic Tranquility these

22 entities need to be brought back into balance. It is impossible to bring these entities into

23 balance without ending the violations of the separations of powers.

24

This lawsuit is the cause and effect of the tyranny that has been created by generations

25 of judicial branch members continually violating the separation of powers and infiltrating our

26 legislative and executive branches.

27

I stipulate this lawsuit is about the corruption involved in the judicial branch of

28 Washington State doing what it needs to do to retain its tyranny in Washington State, and

3

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 4 of 26

1 nothing else. In accordance with RCW 2.48.220 (6)2 it is grounds for disbarment of Robert 2 Fergusons Washington State Bar license.

3

In accordance with "RCW 2.44.020 Appearance without authority—Procedure.

4

If it be alleged by a party for whom an attorney appears, that he or she does so without

5 authority, the court may, at any stage of the proceedings, relieve the party for whom the

6 attorney has assumed to appear from the consequences of his or her act; it may also

7 summarily, upon motion, compel the attorney to repair the injury to either party consequent

8 upon his or her assumption of authority".

9

I am a damaged party of AGO Robert Ferguson who has not granted him any authority to

10 appear for me in this case, and as such he has embezzled my tax revenue and has used and is

11 using it for his personal political gains.

12 I am ordering the court to cease and desist all of AGO Robert Ferguson's actions in this case

13 until Washington State Attorney General proves to the court the following:

14

1. Standing: Where a damaged complaining party (a voter of Washington State) came to

15

him and asked him to prosecute this case and explain to the court why he did not

16

identify the complaining party in the caption of the case and him as their attorney.

17

2. Embezzlement of my taxes: AGO Robert Ferguson needs to prove to this court he is not

18

using my tax dollars to promote his and his colleagues in the democratic party personal

19

political interests.

20

3. Fraud by Deception: AGO Robert Ferguson needs to prove to this court that he has not

21

brought this case forward fraudulently to maintain and protect the tyranny the Judicial

22

branch of Washington State has created with the judicial branch of Washington State

23

infiltrating and controlling the executive branch and legislative branch of Washington

24

State .

25

4. Subversive activities: Washington State Attorney General Robert Ferguson needs to

26

prove to the court that he is not the puppet master of Washington State and his deputy

2 RCW 2.48.220 Grounds of disbarment or suspension. An attorney or counselor may be disbarred or suspended for any of the following causes arising after his admission to practice: (6) 6) For the commission of any act involving moral turpitude, dishonesty, or corruption, whether the same be committed in the course of his or her relations as an attorney or counselor at law, or otherwise, and whether the same constitute a felony or misdemeanor or not; and if the act constitute a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition precedent to disbarment or suspension from practice therefor.
4

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 5 of 26

1

AGO's are not instructing the legislators of Washington State how to act, doing what he

2

personally desires to do and telling them what they can and cannot do.

3

5. Election crimes: AGO Robert Ferguson needs to prove to this court that he is not using

4

this case to engage in or conceal election crimes and promote his political career.

5

TESTIMONEY OF INTERVENER UNDER PENALITY OF PERJURY

6

I am a "Next Friend" of several economically vulnerable individuals and an economically

7 vulnerable litigant, that has appeared before more than 50 State and Federal judges in

8 Washington, Oregon and Montana over the last 25 years. As such I am a historical witness as to

9 the quality of our judges, the integrity of the people's courts and the problems the judicial

10 branches have created for themselves and the people of these states.

11

I can honestly say I have been before the best judges these states have to offer and the

12 worst judges these states have to offer. The best judges are being harassed, threatened and

13 intimidated by the judicial fraud industry and the State Supreme Court Justices they practice in,

14 the U.S. District Court Judges and the Justices of the Ninth Circuit Court of Appeals. The worst

15 judges are the most dishonest disrespectable, deceiving unlawful people I have ever met in my

16 entire life, that regularly engage in inhumane treatment of economically vulnerable individuals.

17 They are obsessed with power and the State Supreme Court Justices encourage their inhumane

18 obsession with power, because they too understand the Ninth circuit Court of Appeals justices

19 have their back and share their obsession to power. The powers these individuals have

20 obtained through generations of violating the separations of powers, with their fellow judicial

21 branch members infiltrating our state's legislative and executive branches was never intended

22 to subject the people to.

23

The desire to obtain total and complete power has developed the judicial branches of

24 Washington and Oregon into nothing more than powerful organized crime families that have

25 overthrown the people's courts and are using the people's courts to steal the lives, liberties and

26 properties of every economically vulnerable individual in Washington and Oregon. The Judicial

27 branches in Washington and Oregon are attacking our prosperity and domestic tranquility for

28 profits.

9

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 6 of 26

1

On request of Pacific County Sherriff Scott Johnson the Washington State Patrol

2 conducted a white collar criminal fraud investigation into the criminal fraud of several

3 Washington State attorneys and state and federal judges in Washington State. After completing

4 their criminal fraud investigation the Washington State Patrol submitted a charging document

5 to my Washington State Attorney General Robert Ferguson's office. Not only did Washington

6 State Attorney General Robert Ferguson engage in the criminal act of omission to the fraud

7 crimes of his fellow judicial branch members he and his assistants became accomplices when

8 they directly interfered with my attempts to adjudicate the fraud crimes. Please see exhibit 1.

9

On requests of several of my Next Friends" I decided to run for Washington State

10 Representative of my district to address the judicial crime family in Washington state and end

11 the violations of the separation of powers members of the judicial branch are engaging in that

12 has resulted in their tyrannical hold over all of the people of Washington State. As my political

13 campaign to expose and break up the organized crime family of the judicial branch of

14 Washington State grew, members of the judicial branch of Washington State slanderously, and

15 maliciously attacked me, my family and my political supporters with a vengeance. Days before

16 Election Day members of the judicial branch conspired and collaborated with local fake and

17 phony news media to ruin my political campaign and efforts. Please review Pacific County cause

18 no. 16-1-00207-1 State of Washington vs James J. O'Hagan, and contact attorney Harold

19 Karlsvik at Hkarlsvik@comcast.net.

20

Pleased also review U. S. District Court for the Western District of Washington at

21 Tacoma no. 3:16-mc-05038-BHS that was sandbagged by an inhumane federal judge that has

22 continually catered to his own personal political agenda instead of justice regarding civil right

23 violations here in Washington State. Please note that I filed several affidavits of prejudice on

24 Judge Benjamin H. Settle and have filed numerous complaints to have him removed as

25 described in 28 USC section 372( c)(1) & (2)3 and he still assumed jurisdiction over my attempt

26 to remove Pacific County cause no. 16-1-00207-1 to federal jurisdiction to address civil rights

3 28 USC section 372 ( c) (1) Any person alleging that a circuit district, or bankruptcy judge, or magistrate, has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such a judge or magistrate is unable to discharge the duties of the office by reason of mental or physical disability, may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct.....

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 7 of 26

1 violations involving election crimes. Please also review Ninth Circuit Court of Appeals No 17-

2 35060, that is currently before the Ninth Circuit Court of Appeals documenting the election

3 crimes I was submitted to by the judicial branch of Washington State.

4

Please review my Washington State Supreme Court Brief I submitted to the Washington

5 State Supreme Court justices and all of my state representatives on January 25, 2017. Please

6 note all of these Judges have engaged in the criminal act of omission to the election crimes that

7 I was subjected to by members of the judicial branch, that are motivated by their desire to

8 maintain power they we never intended to hold, yet through stealthy continual subversive

9 tactics managed to obtain.

10

ARGUMENT

11

Washington State Courts' have a long soiled, filthy history of using the U.S. Federal

12 Courts and the Ninth Circuit Justices to support Washington State Judges' patterns of falsities

13 and willful disregards and disrespects for truth and justice. Washington State Judges have

14 disregarded the instructions the National Center for State Courts provided in their 1999 Anti-

15 Government Movement Guidebook, to wit: "Decency, security and liberty alike demand that

16 government officials shall be subject to the same rules of conduct that are commands to the

17 citizen. In a government of laws, existence of the government will be imperiled if it fails to

18 observe the law scrupulously. Our government is the potent, the omnipresent teacher. For

19 good or for ill it teaches the whole people by its example."

20

President Donald Trump stated it honestly and clearly to the world, the judge acted

21 politically with disrespect of the law. If the President of the United States cannot receive

22 lawful treatment from our judges then no economically vulnerable individual has a shadows

23 chance in hell of receiving justice. President Donald Trump has verified my testimony that

24 no-one in the Ninth Circuit has received justice for the last 20 years, and now the world

25 knows it. Now the question for President Donald Trump, our representatives and our military

26 Is; Are the victims of the injustice of the Ninth Circuit entitled to justice, or will the

27 government continue to fail to observe the law scrupulously, and thus fail the people.

28

The Judges of the U.S. Federal Courts in Washington and Oregon and the Ninth Circuit

29 Justices have ignored the advice and instructions of the National Center for State Courts and

7

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 8 of 26

1 not held the State Judges accountable for their patterns of falsities and willful disregards and

2 disrespects for truth and justice. All of the willful patterns of falsities and willful disregards and

3 disrespects for the truth and justice have resulted in subversive attacks on individual's rights,

4 and preying on economically vulnerable individuals. Their combined actions are organized

5 criminal attacks on our constitutions, and our constitutional form of government, that was

6 designed specifically to protect individual rights of economically vulnerable individuals from

7 oppressive governmental practices of our governments. Essentially the State and Federal

8 Judges in the Ninth Circuit have became rogue4 and are operating outside of the law and are

9 using the people's courts to attack every individual's life, liberty and property.

10

The State and Federal Judges in Washington have ignored RCW 2.44.020 Production of

11 Authority to Act and have allowed attorneys that were fraudulently before the court to commit

12 fraud, extortion and embezzlement please see Ninth Circuit Court of Appeals No. 13-35324,

13 James J. O'Hagan vs Northwest Farm Credit Services.

14

Attorneys and state and federal Judges in Washington have routinely wrongfully used

15 their powers to defraud economically vulnerable individuals in Washington State, and the Ninth

16 Circuit Court of Appeals, has continually supported these injustices. The United States Supreme

17 Court- has been overwhelmed by the patterns of falsities and willful disrespect and disregards of

18 truth and justice the Ninth circuit Court of Appeals Justices engaged in. Please see Order from

19 United States Supreme Court Re: James J. O'Hagan vs Northwest Farm Credit Services no.13-

20 35324.

21

When the judicial branch controls the legislative and executive branches of the state

22 and controls public elections they have successfully converted the constitutional form of

23 government to a communist or monarchy or oligarchy tyranny that holds total and complete

24 power, and the people of the state are defenseless against the whims of the judges holding

25 power they were not intended to hold.

26

The problem is clearly described in the 1999 Anti-Government Movement Guidebook

27 produced by the National Center for State Courts and no-one needs to pretend the problem

28 does not exist or need repairing. The problem is state and federal judges use their judicial

' Rogue: A dishonest or unprincipled person; scoundrel; fraudster 8

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 9 of 26

1 positions to ignore our laws and create law of which they were not intended to be allowed to

2 do. Essentially it is allowing judges to use the peoples courts for unlawful purposes or political

3 purposes, either of which are the highest forms of crimes of our society whereas using our

4 courts for unlawful purposes undermines the foundation of our governments and using our

5 courts to execute political gains or politics also undermines the foundation of our governments.

6

It essentially all boils down to this; if the judicial branch is going to continue be allowed

7 to ignore the laws we have, create any law or procedure they desire by judicial decisions, then

8 why do we even have the burden of the legislative and executive branches. Are the legislative

9 and executive branches only smoke and mirrors and tools of deception to assist the members

10 of the judicial branches to enslave the people with their quest for " Nobility"

11

In order for the three separate branches of government to operate successfully without

12 corrupt influence they need to be separate and distinct with enforceable checks and balances in

13 place. In order for this to occur the people need to have an enforceable method of removing

14 the top ranking judicial members if they become rogue and overstep the laws or disregard their

15 duties.

16

Currently the law professors and political science professors of our state and federally

17 funded universities are instigating student protests because they are afraid President Donald

18 Trump will acknowledge they are the root of the problems that the producers of our gross

19 national products are facing. The problem is these law professors and political science

20 professors are not beneficial parasites of our society they are detrimental parasites of our

21 society and predators and are educating their students to become detrimental parasites and

22 predators to prey on the lives, liberties and properties of our producers and this insanity needs

23 to end, in order to restore our prosperity and domestic tranquility.

24

Instead of bringing these law professors to justice and prosecuting them for instigating

25 riots AGO Robert Ferguson filed this case to encourage these professors and students to

26 support his political career. Washington State Attorney General Robert Ferguson is as criminal

27 as criminal gets and each and every judge that goes along with him and his accomplices desire

28 to overthrow our government destroy our Domestic Tranquility and interfere with our

29 prosperity as described in 18 USC section 1951 Interference with Commerce should be

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 10 of 26

1 prosecuted with him for their felony subversive attacks on our republican form of government.

2 It is a fine line all beneficial parasites need to walk to keep themselves from becoming

3 detrimental parasites and predators.

4

PRAYER FOR RELIEF

5

I am instructing the Judges involved in this case to cease and desist using the people's

6 courts and their official positions to execute their personal political agendas, and follow the law

7 scrupulously.

8

I am instructing the justices to identify without delay the "injured party" that hired

9 Washington State Attorney General Robert Ferguson as their attorney to bring this case

10 forward and prosecute this case, and determine if AGO Robert Ferguson can use the taxpayer's

11 funds for his personal political career to damage taxpayers.

12

I am instructing the Judges involved to correctly identify the names of the "individual

13 damaged persons", and explain to me how I am not a damaged person from Robert Ferguson's

14 actions herein.

15

The ethical Judges involved, and those of us who are not members of the judicial branch

16 (attorneys) should closely examine the preamble to our United States Constitution and the last

17 sentence in Article I section 6 Compensation, Privileges, Disabilities regarding a disability to

18 hold office in our U.S. Senate and House of Representatives to wit: and no person holding any

19 office under the United States, shall be a member of either house during his continuance in

20 office. This clause in our United States Constitution was implemented to insure us that we

21 would be protected from officers of the courts violating the separation of powers and

22 infiltrating our legislative branches to be in a position to create laws to attack our domestic

23 tranquility for profits and power.

24

The problem comes out of habitudes and the fact that no member of the judicial

25 branches of our States and United States will ever enforce this section of our United States

26 constitution because members of the judicial branch have derived untold amounts of wealth

27 and power from continually violating it, while sacrificing our nation's domestic tranquility and

5 in re Benny, 29 B.R. 754, 762 (N.D. Cal. 1983 "an unlawful or unauthorized exercise of power does not become legitimated or authorized by reason of habitude"

10

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 11 of 26

1 prosperity. Every time any individual attempts to address it or enforce it they become the arch

2 enemy of the judicial branches and are harassed, threatened and intimidated to death or

3 silenced by the judiciary incarcerating them.

4

The violations of the separation of powers by members of the judiciary (attorneys)

5 infiltrating our legislative and executive branches attacks every economically vulnerable

6 individual's freedom. The lives of untold amounts of our patriots have been wrongfully

7 sacrificed by the members of the judiciary that have engaged in stealthy tactics to steal the

8 people's freedoms.

9

In accordance with 18 USC section 4 Misprision of Felony6 I am personally asking

10 President Donald Trump to work with the members of our legislative and executive branches

11 that are not members of the judiciary, our United States Military, our law enforcement, and

12 our militias across our country to take back our House and Senate, and remove every Judicial

13 Branch member from office that has violated the separation of powers and infiltrated our

14 legislative and executive branches or supported judicial members that have violated the

15 separations of powers. The prosperity and domestic tranquility of our nation depends on it.

16

If President Donald Trump decides not to totally drain the swamp of the corruption our

17 nation is drowning in, all he has to do to rid himself (and the rest of our nation) of the problem

18 Washington State Attorney General Robert Ferguson is causing, is appoint a DOJ official to

19 investigate the fraud crimes and election crimes Robert Ferguson executed against me, my

20 family, my friends and political supporters.

21

If any United States Judge has any ethical integrity the size of a grain of salt, and does

22 not want to become an Accessory After the Fact as described in 18 USC section 37, he would

6 18 USC section 4 Misprision of Felony. Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
18 USC section 3 Accessory After the Fact. Whoever, Knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact. Except as otherwise expressly provided by any act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years.
11

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 12 of 26

1 personally bring Robert Ferguson before him and require him to answer directly to his political 2 motivations, the misuse of public funds, the fraud and election crimes I have addressed herein.

3

It is for these reasons that I have demanded a Jury in this case, to allow the jury to

4 examine the stealthy encroachments of the judiciary by continually violating the separation of

5 powers, creating laws that attack our domestic tranquility for profits, providing their fellow 6 judicial branch members pecuniary benefits, special privileges and immunities and engaging in 7 felony subversive attacks on our constitutional Republican form of Government.

8

God Bless President Donald Trump to have the courage to expose the problems the

9 people are having with the members of the judicial branches of the United States, he is our

10 Hero, for being honest to us and starting discussions abo, improvi g the quality of justice so

11 our oaths of office and pledge of allegiance have meani g nd m

12

Dated this day of February 2017,

By

13

James J. O'Hagan, ro se II is & Protections Reserved

14

CERTIFICATE OF ERICE

15

I the undersigned placed true and correct copies of the foregoing in the U.S. mail

16 postage prepaid via certified mail and / or via first class mail and / or via email.

17 U.S. District Court Clerk

U.S. District Court Clerk

Robert W. Ferguson

18 655 Cesar Chavez Blvd. Rm G65

700 Stewart St. Suite 2301 P.O. Box 40100

19 San Antonio Texas 78206

Seattle WA 98101

Olympia WA 98504-0100

20

21 Colleen M. Melody

USDOJ Civil Division

michelle.bennett@USDOJ.GOV

22 800 5th Ave. Ste 2000

20 Massachusetts Ave. NW arjun.garg@usdoj.gov

23 Seattle WA 98104

Washington DC 20530

24

25 President Donald Trump 26 1600 Pennsylvania Ave NW 27 Washington D.C. 20500

My Political Supporters

My Legislators

My Next Friends

Washington State Supreme Court

28 General James Mattis 29 1400 Defense Pentagon 30 Washington DC 20301-1400 31

9Th Circuit Court of Appeals P.O. Box 193939 San Francisco, CA 94119-3939

32 I asked DOJ attorneys Michelle and Arjun to e

33 Dated this day of February 2017.

8

12

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 13 of 26

STATE OF WASHINGTON
WASHINGTON STATE PATROL
-, ,t*, I Werner Road • Bremerton, Washington 48312-3333 - (360) 3;8-446
S O { bctdb6r 24, 2013

Mr. James J. O'Hagan 2298 Cranberry Road Grayland WA 98547

The Washington State Patrol (WSP) Criminal Investigation Division has completed the

Investigation of your case. The case number associated with this investigation is

08-13-006659. The case officer is Scott Marlow of the Attorney General's Office. The

attorney may be reached at (206) 389-2098 during normal business hours. If the attorney is

not available when you call, please leave a message and the attorney will call you back as

soon as possible.

W

You are receiving this letter because you are either a victim in this case or becauseyou have been identified to us as a point of contact for the affected person(s).

The investigation has been completed and referred to the Attorney General'sOffice for a charging decision. The Attorney General makes the decision regarding whether or not to charge a suspect with a crime and what those charge(s) should be. Although the active investigation is complete,the case is not closed until it is adjudicated. The attorney assigned to this case will continue to work closely with the Attorney General's Office until the case is adjudicated by thecourt.

Now that the case has been referred to the Attorney General's Office, further inquiries regarding this case should be directed to the attorney's office for updates and case status inquiries.

Sincerely,

r!_
Captain Charles Leblanc Criminal Investigation Division
CL:rg cc: Captain Christopher D Old, Bremerton

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 14 of 26
JZ £V rr t

Washington State Supreme Court

2

3

4

5

Pacific County Superior Court Case no. 16-1-00207-1

6

7

James J. O'Hagan,

8

Appellant

9

Vs.

10

State of Washington

11

Respondents

12

13

14

Opening Brief of Appellant

15

James J. O'Hagan

16

17

18

19

20

21

1

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 15 of 26

1

BRIEF OF APPALANT JAMES J. O'HAGAN

2

Comes now appellant James J. O'Hagan and appeals the decisions of the lower courts to

3 deny him assistance of legal counsel, engage in election fraud and subject him to the judicial

4 fraud industry that was accomplished by subjecting him to unfair biased and prejudiced judges

5 that made dishonest findings of fact and unlawful conclusions of law.

6

Appellant James J. O'Hagan asserts he is constitutionally entitled to the same equal

7 protections of law that other litigants in state and federal courts receive.

n

lSXXC1t.1UhIE

9

Appellant James J. O'Hagan is a victim of the judicial fraud industry (fraud upon the

10 courts by officers of the courts). The judicial fraud industry makes profits for attorneys and

11 others by preying off of economically vulnerable individuals. Judges involved in supporting the

12 judicial fraud industry penalize every pro se litigant that comes before them for not

13 participating in their judicial fraud industry. Judges participating in the judicial fraud industry

14 ignores pro se litigant's evidence and testimony and engages in patterns of falsities with willful

15 disregard and disrespects for the truths.

16

The judicial fraud industry is not a unique problem with appellant James O'Hagan it is a

17 national problem that is well documented in the National Center for State Courts Ant-

18 Government Movement Guidebook and has grown out of members of the judiciary violating

19 the separation of powers and entering into legislative and executive branches of government to

20 create pecuniary benefits, special privileges and immunities for themselves and fellow

21 members of the judiciary.

22

As a victim of the judicial fraud industry appellant James O'Hagan studied how and why

23 the judicial fraud industry (and corruption involved in it) thrives and expands. As a victim of the

24 judicial fraud industry appellant James O'Hagan developed a political strategy to address and

25 end the judicial fraud industry and restore justice to all economically vulnerable individuals.

2

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 16 of 26

1

The strategy appellant James O'Hagan developed causes the least amount of damages

2 to judicial branch members in restoring justice to economically vulnerable individuals and

3 restores our nation's domestic tranquility.

4

The criminal charges filed against me were an action of voter fraud to prevent me from

5 getting elected and addressing the corruption involved in the judicial branch of Washington

6 State.

7

FACTS

8

The facts are fairly well documented in the court records of this case. The court record

9 shows that the Judges involved already made a considerable amount on fraudulent findings of

10 facts that are supporting unlawful interpretations of our laws.

11

The uncontested facts in the court or records, court record are:

12

1. The accused ran for Washington State Representative, for District No. 19 position no. 2.

13

2. The accused campaigned to clean up the corruption involved in the judicial branch

14

specifically the judicial fraud industry that is made up of predators that are profiting_

15

from preying off of economically vulnerable individuals.

16

3. The accused is a victim of the judicial fraud industry.

17

4. The defendant's temporary public defender stated clearly on the record that the case

18

was a special case that was a politically motivated, toxic case for Pacific County.

19

5. There was no investigating officer that filed an affidavit of probable cause, it was only

20

judicial members that brought the charges against the accused.

21

6. The filing of the criminal charges by the prosecutor violates the duties of the prosecutor,

22

and leaves the prosecutor without immunity, as described in Kalina Vs. Fletcher

23

Supreme Court No. 96-792 (1997).

24

7. The criminal charges were brought on top of an ongoing civil action that created a lis

25

pendens action in common law.

26

8. The filing of criminal charges on top of an ongoing civil action creates a common law

27

action that leaves the prosecutor with limited qualified immunity only, and responsible

3

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 17 of 26

1

for any and all damages that occurred if the personal matter and subject matter is

2

involved in the civil lawsuit.

3

9. In accordance with RCW 36.27.030 Disability of Prosecuting Attorney and RCW

4

36 27 040 Appointment of Deputies- Special and Temporary Deputies, the Lewis

5

County Prosecutor was not lawfully authorized to act as a Pacific County Prosecutor, and

6

as such he / they were engaging in the criminal act of impersonating a public officer, as

7

identified in RCW 9A.60.040 Criminal impersonation In The First Degree.

8

10. The unauthorized and illegal acts of the Lewis County Prosecutors, leaves them without

9

any immunity and responsible for all damages the accuser and his supporters suffered

10

as described in RCW 2.44.020. Appearance Without Authority- Procedure.

11

11. Local newspaper writer Natalie St. John conspired with Pacific County and Lewis County

12

prosecutors and instigated the criminal charges for pecuniary benefits, special privileges

13

and immunities.

14

12. The Pacific County Prosecutor and Lewis County Prosecutor conspired with Newspaper

15

reporter Natalie St John in a civil conspiracy with the intent to violate election laws, as

16

described in RCW 29A.84.620 Hindering or bribing voter, RCW 29A.84.630

17

Influencing voter to withhold vote and RCW 29A.84.720 Officers—Violations

18

generally.

19

13. The criminal charges and everything involved in them was an attempt by members of

20

the judicial branch of Washington State to use the people's courts to overthrow their

21

Republican and constitutional form of government as described USC Article II section 4.

22

Guarantee of Republican Government.

23

14. The members of the judicial branch believe it is acceptable to violate individuals' rights

24

and protections of law under the guise it is in the public's interests to do so, and as such

25

they regularly engage in subversive activities as described in RCW 9.81.020 Subversive

26

activities made felony—Penalty.

27

15. Judge pro tern William Faubion violated my right to assistance of counsel because he did

28

not want any attorney present in the courtroom witnessing and documenting the

29

judicial fraud crimes he was engaging in from the bench.

4

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 18 of 26

1

16. As a judge pro tem, and not an elected Superior Court Judge, William Faubion had a

2

duty to obtain consent from the parties before making any judicial decisions as

3

described in WSC Article IV section 7 Exchange of Judges — Judge Pro Tempore.

4

17. Judge pro tem William Faubion made a fraudulent finding of fact regarding the Lewis

5

County prosecutors, unlawful impersonation of a Pacific County prosecutor.

6

18. Judge pro tem William Faubion ignored the evidence and made a fraudulent finding of

7

facts regarding the fact the case is a special politically motivated, toxic case for Pacific

8

County

9

19. Judge pro tem William Faubion fraudulently determined the accused did not have the

10

right to assistance of counsel.

11

20. Judge pro tem William Faubion is a supporter of the judicial fraud industry and as a

12

supporter of the judicial fraud industry, Judge Faubion had a conflict of interest and was

13

motivated to deny the accused, all lawful protections of law and rights of accused

14

persons.

15

21. As a supporter of the judicial fraud industry Judge Pro tem William Faubion was highly

16

motivated to assist the prosecutors in doing everything they could to ruin the political

17

career of the accused James O'Hagan.

18

22. In an effort to conceal and protect their involvement in the judicial fraud industry Pacific

19

County Superior Court personnel violated the lawful protections the accused has in

20

connection with Court commissioners review challenges.

21

23. The entire judicial branch of Washington State has obtained pecuniary benefits, special

22

privileges and immunities from allowing judicial officers to violate the separation of

23

powers and infiltrate the legislative and executive branches of Washington state

24

government.

25

24. The entire judicial branch of Washington State is motivated to do everything in their

26

power to ruin the political efforts and political career of the accused James O'Hagan.

27

25. Since the accused lost the election by less than 10%, we presume adverse publicity that

28

subjected the accused to public ridicule, humiliation, contempt and hatred that

29

stemmed from the slanderous, malicious and vindictive criminal charges interfered with

5

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 19 of 26

1

his ability to be elected, and clean up the corruption involved in the judicial branch of

2

Washington State.

3

/_TIRRIM illII

4

The accused relies on the court record, transcripts and the laws attached hereto in

5 appendix A.

6

The judicial fraud industry exists by allowing judges to make fraudulent findings of facts

7 and using those findings of facts to make unlawful conclusions of law. The appellate courts are

8 the backbone of the judicial fraud industry as they inspire fraud and instigate fraud by

9 continually condoning fraud upon the courts by officers of the courts. The appellate Judges use

10 word smithing and creative writing skills to conceal, deceive and cover-up the fraudulent

11 findings of facts and unlawful conclusions of law, the lower judges determine.

12

The sole reason I ran for state office and petitioned for this appeal is to expose to the

13 people that the judicial fraud industry is operating from the top of the judicial branch down the

14 chain of command to the lower court judges.

15

I will not move to dismiss this case without accurate findings of facts tied to lawful

16 conclusions of law, and I will present each and every contested finding of fact to the jury in this

17 case with this appeal and the judges decisions thereof, to expose to the people how the judicial

18 fraud industry operates and why.

19

I am requiring the appellate court judges to cease and desist their judicial fraud industry

20 and refrain from using word smiting and creative writing skills to conceal the fraudulent finding

21 of facts the lower court judges determined. As such I am requiring that each appellate court

22 judge involved in this appeal either agrees or disagrees with the findings of facts I have

23 proposed. I am requiring the judges to make accurate findings of facts, as such their answer to

24 this appeal needs to be free of deceit and deception and I command them to word their

25 findings of facts as follows:

26

FINDINGS OF FACTS

X

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 20 of 26

1

1. The accused ran for Washington State Representative, for District No. 19 position

2

no. 2.

Agree (initials of appellate judges)

,

3

Disagree (Initials of appellate judge)

, (cite reason in record or evidence used

4

in contesting facts)

5

Disagreeing Judge's Initials

, reason

6

2. The accused campaigned to clean up the corruption involved in the judicial branch

7

specifically the judicial fraud industry that is made up of predators that are profiting

8

from preying off of stealing economically vulnerable individual's life, liberty and

9

property. Agree (initials of appellate judges)

,

10

Disagree (Initials of appellate judge)

, cite reason in record for contesting

11

facts

12

Disagree (Initials of appellate judge)

, cite reason in record for contesting

13

facts

14

3. The accused is a victim of the judicial fraud industry. Agree (initials of appellate

15

judges)

,

, Disagree (Initials of appellate judge)

16

, cite reason in record for contesting

17

facts

18

Disagree (Initials of appellate judge)

, cite reason in record for contesting

19

facts

20

4. The defendant's temporary public defender stated clearly on the record that the

21

case was a special case that was a politically motivated, toxic case for Pacific County.

22

Agree (initials of appellate judges)

, Disagree

23

(Initials of appellate judge)

, cite reason in record for contesting

24

facts

25

Disagree (Initials of appellate judge)

, cite reason in record for contesting

26

facts

27

5. There was no investigating officer that filed an affidavit of probable cause, it was

28

only judicial members that brought the charges against the accused. Agree (initials

29

of appellate judges)

, Disagree (Initials of

7

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 21 of 26

1

appellate judge)

, cite reason in record for contesting

2

facts

Disagree (Initials of appellate judge)

, cite reason in record for contesting

facts

6. The filing of the criminal charges by the prosecutor violates the duties of the

prosecutor, and leaves the prosecutor without immunity, as described in Kalina Vs.

7

Fletcher. Agree (initials of appellate judges)

,

8

Disagree (Initials of appellate judge)

, cite reason in record for contesting

9

facts

10

Disagree (Initials of appellate judge)

, cite reason in record for contesting

11

facts

12

7. The criminal charges were brought on top of an ongoing civil action that created a lis

13

pendens action in common law. Agree (initials of appellate judges)

14

Disagree (Initials of appellate judge)

, (cite reason in

15

record or evidence used in contesting

16

facts)

Disagreeing

17

Judge's Initials

, reason

18

8. The filing of criminal charges on top of an ongoing civil action creates a common law

19

action that leaves the prosecutor with limited qualified immunity only, and

20

responsible for any and all damages that occurred if the personal matter and subject

21

matter is involved in the civil lawsuit. Agree (initials of appellate judges)

,

22

Disagree (Initials of appellate judge)

, (cite

23

reason in record or evidence used in contesting

24

facts)

Disagreeing

25

Judge's Initials

, reason

26

9. In accordance with RCW 36.27.030 Disability of Prosecuting Attorney and RCW

27

36.27.040 Appointment of Deputies- Special and Temporary Deputies, the Lewis

28

County Prosecutor was not lawfully authorized to act as a Pacific County Prosecutor,

29

and as such he / they were engaging in the criminal act of impersonating a public

8

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 22 of 26

1

officer, as identified in RCW 9A.60.040 Criminal impersonation In The First Degree.

2

Agree (initials of appellate judges)

, Disagree

3

(Initials of appellate judge)

, (cite reason in record or evidence used in

4

contesting facts)

5

Disagreeing Judge's Initials

, reason

6

10. The unauthorized and illegal acts of the Lewis County Prosecutors, leaves them

7

without any immunity and responsible for all damages the accuser and his

8

supporters suffered as described in RCW 2.44.020. Appearance Without Authority-

9

Procedure. Agree (initials of appellate judges)

,

,

10

Disagree (Initials of appellate judge)

, (cite reason in record or evidence used

11

in contesting facts)

12

Disagreeing Judge's Initials

, reason

13

11. Local newspaper writer Natalie St. John conspired with Pacific County and Lewis

14

County prosecutors and instigated the criminal charges for pecuniary benefits,

15

special privileges and immunities. Agree (initials of appellate judges)

16

, Disagree (Initials of appellate judge)

, (cite reason in

17

record or evidence used in contesting

18

facts)

Disagreeing

19

Judge's Initials

, reason

20

12. The Pacific County Prosecutor and Lewis County Prosecutor conspired with

21

Newspaper reporter Natalie St John in a civil conspiracy with the intent to violate

22

election laws, as described in RCW 29A.84.620, RCW 29A.84.630 and RCW

23

29A.84.720. Agree (initials of appellate judges)

,

24

Disagree (Initials of appellate judge)

, (cite reason in record or evidence used

25

in contesting facts)

26

Disagreeing Judge's Initials

, reason

27

13. The criminal charges and everything involved in them was an attempt by members

28

of the judicial branch of Washington State to use the people's courts to overthrow

29

their Republican and constitutional form of government. Agree (initials of appellate

9

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 23 of 26

1

judges)

,

, Disagree (Initials of appellate judge)

2

, (cite reason in record or evidence used in contesting

3

facts)

Disagreeing

4

Judge's Initials

, reason

5

14. The members of the judicial branch believe it is acceptable to violate individuals'

6

rights and protections of law under the guise it is in the public's interests to do so,

7

an d as such they regularly engage in subversive activities as described in RCW

8

9.81.020. Agree (initials of appellate judges)

,

9

Disagree (Initials of appellate judge)

, (cite reason in record or evidence used

10

in contesting facts)

11

Disagreeing Judge's Initials

, reason

12

15. Judge pro tern William Faubion violated my right to assistance of counsel because he

13

did not want any attorney present in the courtroom witnessing and documenting

14

the judicial fraud crimes he was engaging in from the bench. Agree (initials of

15

appellate judges)

, Disagree (Initials of

16

appellate judge)

, (cite reason in record or evidence used in contesting

17

facts)

Disagreeing

18

Judge's Initials

, reason

19

16. As a judge pro tem, and not an elected Superior Court Judge, William Faubion had a

20

duty to obtain consent from the parties before making any judicial decisions as

21

described in WSC Article IV section 7. Agree (initials of appellate judges)

,

22

, Disagree (Initials of appellate judge)

, (cite

23

reason in record or evidence used in contesting

24

facts)

Disagreeing

25

Judge's Initials

, reason

26

17. Judge pro tem William Faubion violated my right to assistance of counsel because he

27

did not want any attorney present in the courtroom witnessing and documenting

28

the judicial fraud crimes he was engaging in from the bench. Agree (initials of

29

appellate judges)

, Disagree (Initials of

10

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 24 of 26

1

appellate judge)

, (cite reason in record or evidence used in contesting

2

facts)

Disagreeing

3

Judge's Initials

, reason

4

18. Judge pro tern William Faubion ignored the evidence and made a fraudulent finding

5

of fact regarding the fact the case is a special politically motivated toxic case for

6

Pacific County. Agree (initials of appellate judges)

,

,

7

, Disagree (Initials of appellate judge)

, (cite reason in record or

8

evidence used in contesting

9

facts)

Disagreeing

10

Judge's Initials

, reason

11

19. Judge pro tern William Faubion fraudulently determined the accused did not have

12

the right to assistance of counsel. Agree (initials of appellate judges)

13

, Disagree (Initials of appellate judge)

, (cite reason in

14

record or evidence used in contesting

15

facts)

Disagreeing

16

Judge's Initials

, reason

17

20. Judge pro tern William Faubion is a supporter of the judicial fraud industry and as a

18

supporter of the judicial fraud industry, Judge Faubion had a conflict of interest and

19

was motivated to deny the accused all lawful protections of law and rights of

20

accused persons. Agree (initials of appellate judges)

21

, Disagree (Initials of appellate judge)

, (cite reason in record or

22

evidence used in contesting

23

facts)

Disagreeing

24

Judge's Initials

, reason

25

21. As a supporter of the judicial fraud industry Judge Pro tern William Faubion was

26

highly motivated to assist the prosecutors in doing everything they could to ruin the

27

political career of the accused James O'Hagan. Agree (initials of appellate judges)

28

, Disagree (Initials of appellate judge)

29

(cite reason in record or evidence used in contesting

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 25 of 26

1

facts)

Disagreeing

2

Judge's Initials

, reason

3

22. In an effort to conceal and protect their involvement in the judicial fraud industry

4

Pacific County Superior Court personnel violated the lawful protections the accused

5

has in connection with Court commissioners review challenges. . Agree (initials of

6

appellate judges)

, Disagree (Initials of

7

appellate judge)

, (cite reason in record or evidence used in contesting

8

facts)

9

Judge's Initials

, reason

Disagreeing

10

23. The entire judicial branch of Washington State has obtained pecuniary benefits,

11

special privileges and immunities from allowing judicial officers to violate the

12

separation of powers and infiltrate the legislative and executive branches of

13

Washington state government. Agree (initials of appellate judges)

14

, Disagree (Initials of appellate judge)

, (cite reason in

15

record or evidence used in contesting

16

facts)

Disagreeing

17

Judge's Initials

, reason

18

24. The entire judicial branch of Washington State is motivated to do everything in their

19

power to ruin the political efforts and political career of the accused James O'Hagan.

20

Agree (initials of appellate judges)

21

Disagree (Initials of appellate judge)

, (cite reason in record or evidence used

22

in contesting facts)

23

Disagreeing Judge's Initials

, reason

24

25. Since the accused lost the election by less than 10%, we presume adverse publicity

25

that subjected the accused to public ridicule, humiliation, contempt and hatred that

26

stemmed from the slanderous, malicious and vindictive criminal charges interfered

27

with his ability to be elected, and clean up the corruption involved in the judicial

28

branch of Washington State. Agree (initials of appellate judges)

29

, Disagree (Initials of appellate judge)

, (cite reason in

12

Case: 17-35105, 02/14/2017, ID: 10320161, DktEntry: 150, Page 26 of 26

1

record or evidence used in contesting

2

facts)

3

Judge's Initials

, reason

Disagreeing

4

CONCLUSIONS OF LAW

5

After determining these accurate findings of facts the appellate Judges involved should

6 be able to make rational, respectful, responsible lawful pnckJsions of law.

7 Dated this/ /Aay of January,

8

1an*s J. O'Hagan pro se All Rights & Protections Reserved

9

CERTIFICATE OF SERVICE

10 I, James J. O'Hagan certify that I sent copies of this to the following via U.S. mail and emails.

11 Pacific eunty Superior eurt Clerk
12 P.O. Box 67 13 South Bend WA 98586 14
15 Pacific County Sh eriff Scott J oh n son
16 P.O. Box 27 17 South Bend WA 98586

Lewis County Prosecutor Jonathan Meyer
345 West Main Street Chehalis WA 98532
Court Commission er William, J.Faubi„n P.O. Box 157 Cathlamet WA 98612-0116

18

19 Washington State Supreme Court Justices Brian Blake

Jim Walsh

20 supreme@courts.wa.gov

brian.blake@leg.wa.gov

via email

21 22 Cowlitz County Republican Party

My Political Supporters & Next Friends

23 Grays Harbor Republican Party

via emails

24 Lewis County Republican Party

25

.

26 Dated this 2 day of January, 2017.

27

B Y

28

/ amps J. O'Hagan

29

/

2298 Cranberry Rd

30

Grayland WA 98547

31

32

13

 
 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 1 of 7

1

NOAH G. PURCELL, WSBA #43492 2 Solicitor General

3

COLLEEN M. MELODY, WSBA #42275 Civil Rights Unit Chief

4 Office of the Attorney General 800 Fifth Avenue, Suite 2000

5 Seattle, WA 98104

206-464-7744 6 ALAN I. GILBERT, Admitted Pro Hac Vice

7

Solicitor General JACOB CAMPION, Admitted Pro Hac Vice

8

Assistant Attorney General 445 Minnesota Street, Suite 1100

9

St. Paul, Minnesota 55101-2128 (651) 757-1450

10

The Honorable James L. Robart

11

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

12 STATE OF WASHINGTON and
13 STATE OF MINNESOTA,

CIVIL ACTION NO. 2:17-cv-00141-JLR

14

Plaintiffs,

15

v.

16 DONALD TRUMP, in his official capacity as President of the United
17 States; U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F.
18 KELLY, in his official capacity as Secretary of the Department of
19 Homeland Security; REX W. TILLERSON, in his official capacity
20 as Secretary of State; and the UNITED STATES OF AMERICA,
21 Defendants.
22

STATES’ MEMORANDUM ON NINTH CIRCUIT ORDER CONSTRUING TEMPORARY RESTRAINING ORDER AS PRELIMINARY INJUNCTION

23

I. INTRODUCTION

24

The Court ordered the parties to submit memoranda “discuss[ing] whether the Ninth

25 Circuit has construed the court’s temporary restraining order as a preliminary injunction, such that

26 additional briefing and possible evidence on a motion for a preliminary injunction is no longer

STATES’ MEMORANDUM ON NINTH CIRCUIT

1

ORDER CONSTRUING TEMPORARY

RESTRAINING ORDER AS PRELIMINARY

INJUNCTION

Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 2 of 7

1 required in the district court.” Minute Order, ECF 74 at 2. Washington and Minnesota (the States)

2 respectfully submit that the answer is yes. The Ninth Circuit’s ruling treats this Court’s prior order

3 as a preliminary injunction, rendering further preliminary injunction proceedings unnecessary and

4 allowing the parties to proceed directly to discovery.

5

II. RELEVANT PROCEDURAL HISTORY

6

On February 3, the Court granted the States’ motion for a nationwide temporary

7 restraining order enjoining Defendants from enforcing sections 3(c), 5(a)-(c), and 5(e) of

8 Executive Order 13,769. ECF 52 (February 3 Order). On February 4, Defendants filed a notice

9 of appeal and an Emergency Motion Under Circuit Rule 27-3 for Administrative Stay and

10 Motion for Stay Pending Appeal. ECF 53; Washington v. Trump, No. 17-35105 (9th Cir. filed

11 Feb. 4, 2017), ECF 14 (Ninth Circuit Docket). A Ninth Circuit motions panel denied

12 Defendants’ request for an immediate administrative stay of the February 3 Order and set a

13 briefing schedule for the emergency motion for a stay pending appeal. Id., ECF 15.

14

In briefing the emergency stay motion, the parties disagreed about the proper

15 characterization and reviewability of the February 3 Order. Defendants conceded that

16 temporary restraining orders ordinarily are not appealable, but argued that the Ninth Circuit

17 should treat the February 3 Order as “an appealable injunctive order” and exercise jurisdiction

18 under 28 U.S.C. § 1292(a)(1), the statute authorizing interlocutory appellate review of

19 preliminary injunctions. Ninth Circuit Docket, ECF 14 at 8 (citing Serv. Emps. Int’l Union v.

20 Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010)). The States opposed

21 that characterization, arguing that the February 3 Order was just what it purported to be: a

22 temporary restraining order. Ninth Circuit Docket, ECF 28 at 5-6. The States urged the

23 motions panel to allow this Court to rule on the States’ anticipated motion for a preliminary

24 injunction. Ninth Circuit Docket, ECF 28 at 5-6; see also Oral Argument at 30:28, 53:13,

25 Washington v. Trump, No. 17-35105 (9th Cir. Feb. 7, 2017),

26 http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010885 (argument by the

STATES’ MEMORANDUM ON NINTH CIRCUIT

2

ORDER CONSTRUING TEMPORARY

RESTRAINING ORDER AS PRELIMINARY

INJUNCTION

Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 3 of 7

1 States that the February 3 Order is not appealable and may only be reviewed through a writ of

2 mandamus).

3

The Ninth Circuit denied Defendants’ request for a stay pending appeal, leaving in

4 place all of the injunctive provisions contained in the February 3 Order. Ninth Circuit Docket, 5 ECF 134 at 3, 23-24 (Order Denying Stay) (“declin[ing] to modify the scope” of the February 6 3 Order in any respect). In doing so, however, the Ninth Circuit adopted Defendants’ position 7 that the February 3 Order “possesses the qualities of an appealable preliminary injunction.” Id. 8 at 7. The court issued a briefing schedule for the merits of Defendants’ appeal of the February 9 3 Order. Ninth Circuit Docket, ECF 135 at 2; see also Order Denying Stay at 8 n.2 (referring to 10 next step of Ninth Circuit proceedings as “the merits stage of this appeal”).1 The States

11 anticipate that the Ninth Circuit will now review the February 3 Order under the familiar abuse 12 of discretion standard applicable to preliminary injunctions. See Am. Trucking Ass’ns, Inc. v.

13 City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).

14

III. DISCUSSION

15

A. The Ninth Circuit Construed the February 3 Order as a Preliminary Injunction

16

The Ninth Circuit held that the February 3 Order “possesses the qualities of an appealable

17 preliminary injunction.” Order Denying Stay at 7. In reaching that conclusion, the Ninth Circuit

18 relied on a line of cases outlining the limited circumstances under which an appellate court may

19 construe a temporary restraining order as a preliminary injunction. See id. (citing Bennett v.

20 Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002); Serv. Emps. Int’l Union v. Nat’l Union of

21 Healthcare Workers, 598F.3d 1061, 1067 (9th Cir. 2010)). Under these cases, appellate

22 jurisdiction arises under 28 U.S.C. § 1292(a)(1) if a temporary restraining order is “akin to a

23 preliminary injunction.” Bennett, 285 F.3d at 804; see also Sampson v. Murray, 415 U.S. 61, 86-

24

25

1 On February 10, following a sua sponte request that an en banc vote be taken, Ninth Circuit Chief Judge Thomas ordered the parties to submit simultaneous briefs on whether the Order Denying Stay should be

26

reconsidered en banc. Ninth Circuit Docket, ECF 139. The briefing order did not alter the terms of the February 3 Order.

STATES’ MEMORANDUM ON NINTH CIRCUIT

3

ORDER CONSTRUING TEMPORARY

RESTRAINING ORDER AS PRELIMINARY

INJUNCTION

Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 4 of 7

1 89 & n.58 (1974) (“view[ing] the [temporary restraining] order at issue here as a preliminary

2 injunction” where it had “the same practical effect as the issuance of a preliminary injunction”)

3 (emphasis added) (quoting Pan Am. World Airways, Inc. v. Flight Eng’rs’ Int’l Ass’n, 306 F.2d

4 840, 843 (2d Cir. 1962).

5

The Ninth Circuit’s decision that the February 3 Order is an appealable preliminary

6 injunction necessarily implies that it “must be treated as a preliminary injunction” going forward.

7 See Sampson, 415 U.S. at 86. Treating the order as a preliminary injunction is also consistent with

8 the law of the case doctrine, which requires that the appellate court’s ruling on a legal issue be

9 followed in subsequent proceedings in the same case. Herrington v. Cty. of Sonoma, 12 F.3d 901,

10 904 (9th Cir. 1993); Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982) (explaining

11 that district courts are precluded “from reconsidering . . . issues decided explicitly or by necessary

12 implication in [the Ninth Circuit’s] previous disposition”). The alternative approach—treating the

13 February 3 Order as a preliminary injunction for purposes of appeal, but as something else for

14 purposes of the concurrent district court proceedings—would create the type of confusion that the

15 law of the case doctrine is intended to prevent. See Harrington, 12 F.3d at 904. Accordingly, the

16 Ninth Circuit’s ruling that the temporary restraining order is a preliminary injunction applies

17 equally in the appellate and district court.

18

B. A Renewed Preliminary Injunction Motion Is Unnecessary

19

The States’ planned preliminary injunction motion was rendered moot by the Ninth

20 Circuit’s determination that the February 3 Order “possesses the qualities” of a preliminary

21 injunction. See Order Denying Stay at 7. The purpose of a preliminary injunction is to “preserve

22 the status quo and the rights of the parties until a final judgment issues in the cause.” U.S. Philips

23 Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010) (citing Univ. of Tex. v. Camenisch,

24 451 U.S. 390, 395 (1981)). Absent an order from this Court modifying the February 3 Order, or a

25 subsequent decision from the Ninth Circuit or Supreme Court altering it, the February 3 Order

26 will “last[] until the completion of the trial on the merits.” See 11A Charles Alan Wright et al.,

STATES’ MEMORANDUM ON NINTH CIRCUIT

4

ORDER CONSTRUING TEMPORARY

RESTRAINING ORDER AS PRELIMINARY

INJUNCTION

Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 5 of 7

1 Federal Practice & Procedure § 2947, Westlaw (3d ed. & Suppl. Apr. 2016); see also id. (“A

2 preliminary injunction remains in effect until a final judgment is rendered or the complaint is 3 dismissed, unless it expires earlier by its own terms, or is modified, stayed, or reversed.”)

4 (footnote omitted).

5

The February 3 Order granted each of the specific terms of the injunction sought by the

6 States. See ECF 3-1 (proposed temporary restraining order). The Order Denying Stay left the

7 injunctive terms of the February 3 Order untouched. It would thus be unnecessary for the States to

8 file another motion seeking the exact same relief. Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1054

9 (9th Cir. 2013) (en banc) (Kozinski, J., concurring) (warning that “[b]ad things can happen” to

10 litigants who have “the nerve to vex a federal judge with a clone motion”); F.W. Kerr Chem. Co.

11 v. Crandall Assoc., Inc., 815 F.2d 426, 428-49 (6th Cir. 1987) (describing “successive motions for 12 preliminary injunction” as “unwarranted” absent a material change to factual or legal claims).2

13

In short, because the Ninth Circuit has construed the February 3 Order to grant all the

14 preliminary relief the States would have sought through a motion for a preliminary injunction, no

15 additional briefing or evidence is required in the district court on the propriety of preliminary

16 relief.

17

C. The Case on the Merits Should Proceed Promptly

18

The Ninth Circuit’s current appellate jurisdiction is limited to the February 3 Order. See

19 Nat’l Res. Def. Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001) (limiting

20 appellate jurisdiction to “the matters being appealed”). When appeal is made from an order

21 granting preliminary injunction, the appeal “does not divest the district court of jurisdiction to

22 proceed with the action on the merits.” G & M, Inc. v. Newbern, 488 F.2d 742, 746 (9th Cir.

23 1973). “The case, except for the hearing on the appeal from the interlocutory order, is to

24 proceed in the lower court as though no such appeal had been taken, unless otherwise specially

25

26

2 Of course, the States stand ready to file their preliminary injunction motion if the Court determines that it is appropriate.

STATES’ MEMORANDUM ON NINTH CIRCUIT

5

ORDER CONSTRUING TEMPORARY

RESTRAINING ORDER AS PRELIMINARY

INJUNCTION

Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 6 of 7

1 ordered.” Phelan v. Taitano, 233 F.2d 117, 119 (9th Cir. 1956) (quoting Ex parte Nat’l

2 Enameling & Stamping Co., 201 U.S. 156, 162 (1906)).

3

The States favor expeditious proceedings in this Court. Proceeding directly to

4 discovery, including a prompt Rule 26(f) conference by the parties, will not interfere with the

5 case on appeal. To the contrary, it will allow this Court to consider the merits of the case in an

6 efficient manner. Given the gravity of the States’ constitutional allegations, Defendants’ stated

7 national security concerns, and the public interests at stake, the States respectfully submit that

8 discovery should proceed without delay.

9

IV. CONCLUSION

10

As detailed above, the Ninth Circuit has determined that the February 3 Order operates as

11 a preliminary injunction. In light of that conclusion, the parties should now begin discovery so

12 that the Court may determine the merits of the States’ claims.

13 DATED this 13th day of February, 2017.

14

Respectfully submitted,

15 ROBERT W. FERGUSON

16

Attorney General

State of Washington 17

18

/s/ Noah G. Purcell________________ Noah G. Purcell, WSBA #43492

19

Solicitor General

Colleen M. Melody, WSBA #42275

20

Civil Rights Unit Chief

Anne E. Egeler, WSBA #20258

21

Deputy Solicitor

22

Marsha Chien, WSBA #47020 Patricio A. Marquez, WSBA #47693

23

Assistant Attorneys General

Office of the Attorney General

24

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

25

(206) 464-7744

26

Noahp@atg.wa.gov

STATES’ MEMORANDUM ON NINTH CIRCUIT

6

ORDER CONSTRUING TEMPORARY

RESTRAINING ORDER AS PRELIMINARY

INJUNCTION

Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 7 of 7

1

LORI SWANSON

Attorney General

2

State of Minnesota

3 /s/ Alan I. Gilbert

4

ALAN I. GILBERT

Solicitor General

5

Atty. Reg. No. 0034678

6

JACOB CAMPION

7

Assistant Attorney General Atty. Reg. No. 0391274

8

445 Minnesota Street, Suite 1100

9

St. Paul, Minnesota 55101-2128

(651) 757-1450 (Voice)

10

(651) 282-5832 (Fax)

al.gilbert@ag.state.mn.us 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

STATES’ MEMORANDUM ON NINTH CIRCUIT

7

ORDER CONSTRUING TEMPORARY

RESTRAINING ORDER AS PRELIMINARY

INJUNCTION

Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

 
 Case 2:17-cv-00141-JLR Document 76 Filed 02/13/17 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

9

STATE OF WASHINGTON and

STATE OF MINNESOTA, 10

11

Plaintiffs,

No. 2:17-cv-00141 (JLR)

12

v.

DEFENDANTS’ MEMORANDUM IN

RESPONSE TO FEBRUARY 10, 2017

13

DONALD TRUMP, in his official capacity as MINUTE ORDER

14

President of the United States; U.S. DEPARTMENT OF HOMELAND

15

SECURITY; JOHN F. KELLY, in his official

capacity as Secretary of the Department of

16

Homeland Security; REX W. TILLERSON, in

his official capacity as Secretary of State; and

17

the UNITED STATES OF AMERICA,

18 Defendants.
19

20

In a February 10, 2017 Minute Order (ECF No. 74), the Court instructed the parties to

21 file a memorandum discussing “whether the Ninth Circuit has construed the court’s temporary
22 restraining order (“TRO”) (TRO (Dkt. # 52)) as a preliminary injunction, such that additional
23 briefing and possible evidence on a motion for preliminary injunction is no longer required in the
24 25 district court . . . or whether the parties should submit additional briefing and evidence in the
26 district court concerning the issue of a preliminary injunction.” Defendants’ position is set forth

27 below.

28

DEFENDANTS’ MEMORANDUM IN RESPONSE TO FEBRUARY 10, 2017 MINUTE ORDER State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 76 Filed 02/13/17 Page 2 of 4

1

On February 3, 2017, this Court entered a nationwide injunction barring enforcement of

2 sections 3(c), 5(a)-(c), and 5(e) of the Executive Order: Protecting the Nation from Foreign
3 Terrorist Entry into the United States. The injunctive order contained no explicit expiration date.
4 The Court’s order directed the parties to jointly propose a briefing schedule for plaintiffs’ motion
5
6 for preliminary injunction, and after the parties submitted a joint status report, the Court directed

7 that plaintiffs’ forthcoming motion for preliminary injunction be filed no later than February 9,

8 2017.

9

The day after this Court entered its injunctive order, defendants noticed their appeal of

10 the order and also moved the Ninth Circuit to stay the injunctive order pending resolution of the
11

appeal. A panel of the Ninth Circuit denied defendants’ motion for a stay pending appeal on 12

13 February 9, 2017. In doing so, the court determined that it had appellate jurisdiction over the

14 stay motion because “the district court’s order possesses the qualities of an appealable

15 preliminary injunction.” Washington v. Trump, No. 17-35105, slip op. at 7, Dkt. No. 134 (9th
16 Cir. 2017); see id. at 7-8 (“[W]e believe . . . that the TRO should be considered to have the
17 qualities of a reviewable preliminary injunction.”). The court noted, however, that this
18 19 “conclusion . . . does not preclude consideration of appellate jurisdiction at the merits stage of
20 this appeal.” Id. at 8 n.2. The court set a briefing schedule for the merits stage of the appeal,

21 which concludes on March 29, 2017. See Washington, No. 17-35105, Order at 2, Dkt. No. 135

22 (9th Cir. 2017). Later on February 9, plaintiffs declined to file their motion for preliminary
23 injunction.
24 On February 10, 2017, the parties were notified that a Ninth Circuit judge had sua sponte
25
26 requested a vote on whether to reconsider en banc the panel’s order denying defendants’ motion

27 for a stay pending appeal. See Washington, No. 17-35105, Order, Dkt. No. 139 (9th Cir. 2017).

28

DEFENDANTS’ MEMORANDUM IN RESPONSE TO FEBRUARY 10, 2017 MINUTE ORDER - 2 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 76 Filed 02/13/17 Page 3 of 4

1 The parties have been directed to file briefs on whether reconsideration en banc is appropriate

2 by February 16, 2017.
3 Further proceedings in the Ninth Circuit will likely inform what additional proceedings
4 on a preliminary injunction motion are necessary in district court. Accordingly, at this time,
5
6 defendants believe the appropriate course is to postpone any further proceedings in the district

7 court. Defendants respectfully request that they be permitted to file a status report with the Court

8 no later than two business days after the Ninth Circuit decides whether to hear defendants’ stay

9 motion en banc. The status report will update the Court on the Ninth Circuit’s proceedings and
10 advise the Court of any update on defendants’ position regarding preliminary injunction
11
proceedings in light of the Ninth Circuit’s actions. 12

13 DATED: February 13, 2017

Respectfully submitted,

14

CHAD A. READLER

Acting Assistant Attorney General 15

16

JENNIFER RICKETTS

Director, Federal Programs Branch

17

JOHN R. TYLER

18

Assistant Director, Federal Programs Branch

19

/s/ Michelle R. Bennett

20

MICHELLE R. BENNETT

DANIEL SCHWEI

21

ARJUN GARG

Trial Attorneys

22

U.S. Department of Justice

23

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, NW

24

Washington, DC 20530

Tel: (202) 305-8902

25

Fax: (202) 616-8470

26

Email: michelle.bennett@usdoj.gov

arjun.garg@usdoj.gov

27

Attorneys for Defendants

28

DEFENDANTS’ MEMORANDUM IN RESPONSE TO FEBRUARY 10, 2017 MINUTE ORDER - 3 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-00141-JLR Document 76 Filed 02/13/17 Page 4 of 4

1

CERTIFICATE OF SERVICE

2

3

I hereby certify that on February 13, 2017, I electronically filed the foregoing

4 Memorandum in Response to February 10, 2017 Minute Order using the Court’s CM/ECF

5 system, causing a notice of filing to be served upon all counsel of record.

6

7 Dated: February 13, 2017

/s/ Michelle R. Bennett

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ MEMORANDUM IN RESPONSE TO FEBRUARY 10, 2017 MINUTE ORDER State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

 
 Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 1 of 61

No. 17-35105

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, 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

SUPPLEMENTAL BRIEF ON EN BANC CONSIDERATION

NOEL J. FRANCISCO Acting Solicitor General
EDWIN S. KNEEDLER Deputy Solicitor General

CHAD A. READLER Acting Assistant Attorney General
AUGUST E. FLENTJE Special Counsel to the Assistant Attorney General
DOUGLAS N. LETTER SHARON SWINGLE H. THOMAS BYRON III LOWELL V. STURGILL JR. CATHERINE DORSEY
Attorneys, Appellate Staff Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 2 of 61
TABLE OF CONTENTS Page
TABLE OF CONTENTS................................................................................................................i INTRODUCTION........................................................................................................................... 1 STATEMENT OF THE CASE ....................................................................................................5
A. Statutory background ...............................................................................................5 B. The Executive Order................................................................................................9 C. Procedural history .................................................................................................. 12 SUMMARY OF ARGUMENT .................................................................................................. 14 ARGUMENT.................................................................................................................................. 16 I. The Panel’s Decision Rests On A Misconception Of The Order’s Scope ............. 16 A. The Order does not apply to LPRs .................................................................... 16 B. The panel appeared to misapprehend the Order’s application to other
classes of aliens ....................................................................................................... 19 II. The Panel Erred In Concluding That The States Can Likely Bring Their Own
Injunctive Action By Relying On The Asserted Rights Of Individual Aliens........ 20 III. The Panel Erred In Concluding That The Defendants Are Unlikely To
Succeed On The Merits..................................................................................................... 27 A. The Order is a valid exercise of the President’s authority under Section
1182(f) ...................................................................................................................... 27 B. The States’ due process claim lacks merit.......................................................... 29 C. The States’ religious discrimination claims lack merit..................................... 35 IV. The Panel Erred In Its Analysis Of The Other Stay Factors .................................... 41 V. At Minimum, The Panel Erred In Failing To Narrow The Injunction................... 43
i

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 3 of 61
CONCLUSION.............................................................................................................................. 47 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
ii

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 4 of 61

TABLE OF AUTHORITIES

Cases:

Page(s)

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .............................................................................................................45

Abbott v. Abbott, 560 U.S. 1 (2010) .................................................................................................................18

Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986)
aff’d mem., 484 U.S. 1 (1987) .................................................................................................8

Adams v. Freedom Forge Corp., 204 F.3d 475 (3d Cir. 2000) ...............................................................................................42

Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978) ...........................................................................................41

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982) .............................................................................................................20

America Cargo Transp., Inc. v. United States, 625 F.3d 1176 (9th Cir. 2010)............................................................................................18

Arizona v. United States, 132 S. Ct. 2492 (2012).........................................................................................................21

Bd. of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687 (1994) .............................................................................................................36

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972) ................................................................................................30, 31, 32

Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915) ...................................................................................................... 15, 33

Block v. Community Nutrition Inst., 467 U.S. 340 (1984) .............................................................................................................25

iii

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 5 of 61
Bustamante v. Mukasey, 531 F.3d 1059 (2008) ..........................................................................................................32
Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016)...............................................................................23, 24, 32
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S 520 (1993) ..............................................................................................................36
Cmte. For Public Ed. & Religious Liberty v. Nyquist, 413 U.S 756 (1973) ..............................................................................................................36
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013).........................................................................................................26
Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990) ...........................................................................................18
Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) .............................................................................................................32
Corp. of the Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987) .............................................................................................................39
Craig v. Boren, 429 U.S. 190 (1976) .............................................................................................................23
Cutter v. Wilkinson, 544 U.S. 709 (2005) .............................................................................................................39
Epperson v. Arkansas, 393 U.S. 97 (1968) ...............................................................................................................36
Fiallo v. Bell, 430 U.S. 787 (1977) ................................................................................................23, 27, 40
Fleck & Assocs. v. City of Phx., 471 F.3d 1100 (9th Cir. 2006)............................................................................................22
Franklin v. Massachusetts, 505 U.S. 788 (1992) .............................................................................................................46 iv

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 6 of 61
Gallo v. U.S. Dist. Ct. for the Dist of Ariz., 349 F.3d 1169 (9th Cir. 2003)............................................................................................33
Griswold v. Connecticut, 381 U.S. 479 (1965) .............................................................................................................23
Habeas Corpus Res. Ctr. v. U.S. Dep’t of Justice, 816 F.3d 1241 (9th Cir. 2016)............................................................................................26
Hassan v. City of New York, 804 F.3d 277 (3d Cir. 2015) ...............................................................................................36
Heckler v. Lopez, 463 U.S. 1328 (1983)...........................................................................................................41
Hodak v. City of St. Peters, 535 F.3d 899 (8th Cir. 2008)..............................................................................................23
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) .......................................................................................................... 41, 42
INS v. Legalization Assistance Project, 510 U.S. 1301 (1993)...........................................................................................................41
Kerry v. Din, 135 S. Ct. 2128 (2015)............................................................................................24, 32, 33
Kleindienst v. Mandel, 408 U.S. 753 (1972) ................................................................................................24, 31, 45
Knoetze v. U.S. Dep’t of State, 634 F.2d 207 (5th Cir. Unit B 1981) .......................................................................... 31, 32
Kowalski v. Tesmer, 543 U.S. 125 (2004) ................................................................................................21, 22, 23
Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970 (9th Cir. 1991)..............................................................................................43
v

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 7 of 61
Landon v. Plasencia, 459 U.S. 21 (1982) ............................................................................................. 2, 14, 15, 31
Larson v. Valente, 456 U.S. 228 (1982) ...................................................................................................... 37, 38
Lemon v. Kurtzman, 403 U.S. 602 (1971) .............................................................................................................37
Louhghalam v. Trump, 2017 WL 479779 (D. Mass. Feb. 3, 2017) ..........................................................32, 35, 38
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) .............................................................................................................43
Maryland v. King, 133 S. Ct. 1 (2012) ...............................................................................................................42
Massachusetts v. EPA, 549 U.S. 497 (2007) .............................................................................................................26
Massachusetts v. Mellon, 262 U.S. 447 (1923) .............................................................................................................20
McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012)............................................................................................43
Mississippi v. Johnson, 71 U.S. 475 (1866) ...............................................................................................................46
NAACP v. Alabama, 357 U.S. 449 (1958) .............................................................................................................23
Oryszak v. Sullivan, 576 F.3d 522 (D.C. Cir. 2009) ...........................................................................................42
Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480 (9th Cir. 1995)..............................................................................................23
Pierce v. Society of Sisters, 268 U.S. 510 (1925) .............................................................................................................23 vi

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 8 of 61
Powers v. Ohio, 499 U.S. 400 (1991) .............................................................................................................22
Raines v. Byrd, 521 U.S. 811 (1997) .............................................................................................................25
Reno v. Catholic Soc. Servs., 509 U.S. 43 (1993) ...............................................................................................................45
Reno v. Flores, 507 U.S. 292 (1993) .............................................................................................................35
Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) .........................................................................................24
Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993) .............................................................................................................29
Sea-Land Serv., Inc. v. ICC, 738 F.2d 1311 (D.C. Cir. 1984) .........................................................................................18
Secretary of the State of Md. v. Joseph H. Munson Co., 467 U.S. 947 (1984) .............................................................................................................21
Separation of Church & State Comm. v. City of Eugene, 93 F.3d 617 (9th Cir. 1996) ................................................................................................38
Shalala v. Illinois Council on Long Term Care, Inc., 523 U.S. 1 (2000) .................................................................................................................25
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) .............................................................................................................31
Singleton v. Wulff, 428 U.S. 106 (1976) .............................................................................................................23
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009)....................................................................................... 4, 43
vii

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 9 of 61
Summers v. Earth Island Inst., 555 U.S. 488 (2009) .............................................................................................................20
Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) .............................................................................................................32
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) .............................................................................................................31
United States v. Salerno, 481 U.S. 739 (1987) ...................................................................................................... 34, 35
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982) .............................................................................................................27
Voigt v. Savell, 70 F.3d 1552 (9th Cir. 1995)..............................................................................................22
Walz v. Tax Comm’n, 397 U.S. 664 (1970) .............................................................................................................39
Warth v. Seldin, 422 U.S. 490 (1975) .............................................................................................................21
Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) ........................................................................................................ 3, 35
Webster v. Doe, 486 U.S. 592 (1988) .............................................................................................................24
Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56 (9th Cir. 1994) ........................................................................................... 30, 31
William Jefferson & Co. v. Board of Assessment & Appeals, 695 F.3d 960 (9th Cir. 2012)..............................................................................................35
Yassini v. Crosland, 618 F.2d 1356 (1980) ..........................................................................................................34
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) .............................................................................................................46 viii

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 10 of 61
Zadvydas v. Davis, 533 U.S. 678 (2001) ...................................................................................................... 17, 44
Constitution:
Art. I, § 8, cls. 3, 4....................................................................................................................21
Statutes:
Adjustment of Status of Certain Syrian Nationals, Pub. L. No. 106-378, § 2(b)(1)(A), 114 Stat. 1442 (2000) .............................................18
Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129 Stat. 2242 (2015) ......................................................................6
Immigration and Nationality Act: 8 U.S.C. § 1101 et seq.  ............................................................................................................ 5 8 U.S.C. § 1101(a)(13)(A) ............................................................................................... 5, 17 8 U.S.C. § 1101(a)(13)(C) ............................................................................................. 16, 17 8 U.S.C. § 1101(a)(15)..........................................................................................................22 8 U.S.C. § 1101(a)(42)..................................................................................................... 7, 39 8 U.S.C. § 1104(a)(1)............................................................................................................24 8 U.S.C. § 1152(c)(1)(A) ............................................................................................... 28, 29 8 U.S.C. § 1157 ....................................................................................................................... 7 8 U.S.C. § 1157(a).................................................................................................................28 8 U.S.C. § 1157(a)(2)....................................................................................................... 8, 27 8 U.S.C. § 1157(a)(3)....................................................................................................... 8, 27 8 U.S.C. § 1157(c).................................................................................................................20 8 U.S.C. § 1157(c)(1)..............................................................................................................8 8 U.S.C. § 1157(f)(2) ............................................................................................................39 8 U.S.C. § 1158 .....................................................................................................................20 8 U.S.C. § 1181 ....................................................................................................................... 5 8 U.S.C. § 1181(c)...................................................................................................................8 8 U.S.C. § 1182(a)...................................................................................................................5 8 U.S.C. § 1182(a)(7)(A)(i) .................................................................................................... 5 8 U.S.C. § 1182(a)(7)(A)(i)(II) ............................................................................................16 8 U.S.C. § 1182(a)(7)(B)(i)(II)...............................................................................................5 8 U.S.C. § 1182(a)(7)(B)(iv) .................................................................................................. 6 8 U.S.C. § 1182(a)(9)(B)(i)...................................................................................................19 8 U.S.C. § 1182(a)(9)(C) ......................................................................................................19
ix

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 11 of 61
8 U.S.C. § 1182(f)...........................................................................................................passim 8 U.S.C. § 1184 .....................................................................................................................22 8 U.S.C. § 1187 ....................................................................................................................... 2 8 U.S.C. § 1187(a)(12).........................................................................................6, 10, 36, 37 8 U.S.C. § 1187(a)(12)(A)(i)(I) .............................................................................................. 6 8 U.S.C. § 1187(a)(12)(A)(ii)(I).............................................................................................6 8 U.S.C. § 1187(a)(12)(A)(i)(II) ............................................................................................ 6 8 U.S.C. § 1187(a)(12)(A)(ii)(II) ........................................................................................... 6 8 U.S.C. § 1187(a)(12)(A)(i)(III)...........................................................................................7 8 U.S.C. § 1187(a)(12)(A)(ii)(III)..........................................................................................7 8 U.S.C. § 1187(a)(12)(D)(ii).................................................................................................7 8 U.S.C. § 1201(g) ................................................................................................................19 8 U.S.C. § 1201(h) ........................................................................................................... 5, 31 8 U.S.C. § 1201(i) ......................................................................................... 5, 15, 22, 24, 31 8 U.S.C. § 1202 ....................................................................................................................... 5 8 U.S.C. § 1203 .....................................................................................................................16 8 U.S.C. § 1225(b)(1)(B)......................................................................................................20 8 U.S.C. § 1227(a)(1)(B) ......................................................................................................24 8 U.S.C. § 1231(b)(3) ...........................................................................................................20 8 U.S.C. § 1231(b)(3)(A)......................................................................................................39 8 U.S.C. § 1361 ................................................................................................................ 5, 34
5 U.S.C. §§ 701-706.................................................................................................................19
6 U.S.C. § 236(b)(1), (c)(1), (f) ...............................................................................................24
8 U.S.C. § 1157 Note ..............................................................................................................39
22 U.S.C. § 6411 Note ............................................................................................................39
Regulations:
Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (1992)..........................................................8
Exec. Order No. 13,769, 82 Fed. Reg. 8977 (2017)........................................................ 1, 9
8 C.F.R. pt. 211........................................................................................................................16
8 C.F.R. § 217.2(a) .....................................................................................................................6
8 C.F.R. § 1208.16(c)...............................................................................................................20
x

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 12 of 61
8 C.F.R. § 1208.17 ...................................................................................................................20 8 C.F.R. § 1208.18 ...................................................................................................................20 22 C.F.R. § 41.122(a)...............................................................................................................31 22 C.F.R. § 42.1........................................................................................................................31 22 C.F.R. § 42.82(a).................................................................................................................31 Other Authorities: Proclamation No. 4865, 46 Fed. Reg. 48,107 (Sept. 29, 1981)...........................................8 Proclamation No. 5517, 51 Fed. Reg. 30,470 (Aug. 22, 1986) .................................... 8, 29 Proclamation No. 6958, 61 Fed. Reg. 60,007 (Nov. 22, 1996) ..........................................8 Proclamation No. 8342, 74 Fed. Reg. 4093 (Jan. 21, 2009)................................................8 Proclamation No. 8693, 76 Fed. Reg. 44,751 (July 24, 2011).............................................8 Dep’t of Homeland Security, DHS Announces Further Travel Restrictions
for the Visa Waiver Program (Feb. 18, 2016), https://www.dhs.gov/news/2016/02/18/dhs-announces-furthertravel-restrictions-visa-waiver-program .....................................................................................7 Pew-Templeton Global Religious Futures Project, Muslim Population by Country, http://www.globalreligiousfutures.org/religions/muslims................................................ 32 U.S. Dep’t of State, Country Reports on Terrorism 2015 (June 2016), https://www.state.gov/documents/organization/258249.pdf ..........................................6 U.S. Dep’t of State, State Sponsors of Terrorism, https://www.state.gov/j/ct/list/c14151.htm ........................................................................6 3 Charles Gordon et al., Immigration Law and Procedure § 34.01[5][a] (2016) ............................8 U.S. Dep’t of State, Foreign Affairs Manual 302.11-3, available at https://fam.state.gov/default.aspx# ..................................................................................... 14
xi

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 13 of 61
INTRODUCTION The President assumed office on January 20, 2017. Concerned that the Nation’s procedures for screening aliens seeking entry to our country may be insufficient to combat the present and growing threat of international terrorism, he immediately ordered Members of his Cabinet to conduct a comprehensive review of those screening procedures. In the meantime, he ordered a temporary pause in the entry of aliens from seven countries that, in 2015 and 2016, Congress and the Department of Homeland Security (DHS) had determined to pose an increased threat of terrorism relative to other countries in the world—because they had been singled out by Congress as countries of terrorism concern (Iraq and Syria), had been designated by the Department of State as state sponsors of terrorism (Iran, Sudan, and Syria), or had been identified by DHS as presenting terrorism-related concerns that necessitated additional screening for aliens who had traveled there (Libya, Somalia, and Yemen). The Order reflects the President’s judgment that the potential risk of erroneously admitting aliens from these seven terrorismcompromised countries while his new Administration was assessing the Nation’s screening procedures was too high. As the title of the President’s Order makes clear, it had a singular, and singularly important, purpose: “Protecting the Nation from Foreign Terrorist Entry Into the United States.” Executive Order No. 13,769, 82 Fed. Reg. 8977 (2017). The panel’s decision nevertheless preliminarily approved a sweeping injunction of this temporary pause, relying primarily on the Order’s purported suspension of the entry of aliens who are not, in fact, covered by the Order. That injunction bars enforcement of

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 14 of 61
the Order as to aliens who—all agree—have no constitutionally protected right to enter this country. The panel erred in a number of respects in affirming that injunction.
As an initial matter, the panel’s decision is based on a misunderstanding of the scope of the Order. The Order’s principal focus is on aliens who have never entered this country and have no connection to it. The Supreme Court “has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). Neither the States nor the panel disputed that basic proposition. The panel nonetheless concluded that the Order impacts aliens who are lawful permanent residents (LPRs), aliens who are already in the United States and did not seek to depart, and to aliens who have requested asylum from persecution. It does not. And under principles of constitutional avoidance, any ambiguity in the Order is properly construed to avoid what the panel perceived to be constitutional difficulties. Properly construed, the Order falls well within the President’s statutory authority to “suspend the entry of all aliens or any class of aliens,” 8 U.S.C. § 1182(f), and the U.S. Constitution.
The panel’s opinion is erroneous in other respects as well. At the outset, it departed from the established rule against third-party standing to allow the States to assert the purported constitutional rights of aliens, even though the immigration statutes foreclose such claims, and even though there is no impediment to the aliens asserting their own rights—as demonstrated by numerous as-applied challenges brought throughout the country. The panel also speculated that non-LPR aliens might be able to assert procedural
2

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 15 of 61
due process rights with respect to the revocation of a visa—a proposition that no court has adopted, and that the Fifth Circuit has squarely rejected. See Knoetze v. Dep’t of State, 634 F.2d 207, 212 (5th Cir. Unit B Jan. 1981). And while the panel wisely declined to endorse the States’ erroneous claim that the Order discriminates on the basis of religion, it suggested that plaintiffs and courts could plumb the subjective motivations behind a facially neutral and legitimate Executive Order issued under the President’s constitutional and statutory authority to regulate the entry of aliens to protect the Nation’s security—an unprecedented possibility.
Finally, the panel erred in affirming the district court’s injunction categorically barring implementation of the Order’s temporary suspension of entry when there can be no serious dispute that, in the vast majority of its applications, the Order is entirely lawful. As the States have effectively conceded, and as the panel did not dispute, the Order raises no constitutional difficulty, for example, as applied to refugees and other aliens who have never entered the United States—the principal focus of the Order. At the very outset, that should have doomed the States’ facial challenge, which could be sustained only if the relevant provisions of the Order were “unconstitutional in all of [their] applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008). The panel’s conclusion that some narrow categories of application might raise constitutional difficulties would, at most, be grounds for as-applied challenges brought by the individual aliens who are directly affected. At the very least, the panel should have “tailor[ed] the injunction to
3

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 16 of 61
remedy the specific harm alleged by the actual [plaintiffs].” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009).
In short, the panel’s opinion readily meets the normal standards for rehearing en banc. Nevertheless, the United States does not seek en banc review of the merits of the panel’s ruling. Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns. Cf. Op. 24 (declining to narrow the district court’s overbroad injunction because “[t]he political branches are far better equipped to make appropriate distinctions”). In so doing, the President will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation. Under the unusual circumstances presented here—including the extraordinarily expedited proceedings and limited briefing to the panel, the complexity and constitutional magnitude of the issues, the Court’s sua sponte consideration of rehearing en banc, and respect for the President’s constitutional responsibilities—the government respectfully submits that the most appropriate course would be for the Court to hold its consideration of the case until the President issues the new Order and then vacate the panel’s preliminary decision. To facilitate that disposition, the government will notify the Court of the new Order as soon as it is issued.
4

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 17 of 61
STATEMENT OF THE CASE A. Statutory background In the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq., Congress established the framework for determining whether and under what circumstances aliens may enter the United States. In general, an alien cannot lawfully enter the United States without being “admitted,” which consists of the “lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Id. § 1101(a)(13)(A). Admission to the United States generally requires a valid immigrant or nonimmigrant visa or another entry document, such as a refugee travel document. See id. §§ 1181, 1182(a)(7)(A)(i), (B)(i)(II), 1203. LPRs, however, generally may enter without being considered applicants for admission. Id. § 1101(a)(13)(C). 1. To obtain a visa, an alien must undergo a process, usually including an inperson interview, and be found eligible by a State Department consular officer. 8 U.S.C. §§ 1201(a)(1), 1202. Congress has provided, however, that “[n]othing in [the INA] shall be construed to entitle any alien, to whom a visa or other documentation has been issued, to be admitted” into the United States, “if, upon arrival at a port of entry in the United States, he is found to be inadmissible.” Id. § 1201(h); see id. § 1182(a) (identifying grounds of inadmissibility). The alien bears the burden to establish that he “is not inadmissible” and “that he is entitled to the nonimmigrant, immigrant * * * or refugee status claimed.” Id. § 1361. Furthermore, a consular officer or the Secretary of State “may at any time, in his discretion, revoke such visa or other documentation.” Id. § 1201(i).
5

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 18 of 61
Congress has established a visa waiver program (VWP) that enables nationals of participating countries to seek admission to the United States for up to 90 days for tourism or certain business purposes without a visa. 8 U.S.C. §§ 1182(a)(7)(B)(iv), 1187; see 8 C.F.R. § 217.2(a) (listing VWP countries). In 2015, Congress barred VWP travel for individuals who have recently been present in (or, for four countries, are dual nationals of) a “country or area of concern” relating to terrorism. 8 U.S.C. § 1187(a)(12); see Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129 Stat. 2242, 2990. This modification was intended to guard against a heightened risk of terrorism from such individuals by ensuring that they were subject to the individualized visa screening process before being granted authorization to travel to, and being admitted to, the United States.
Congress’s specification of countries of concern expressly included Iraq and Syria, areas where “[t]he Islamic State of Iraq and the Levant (ISIL) * * * maintain[s] a formidable force.”1 See 8 U.S.C. § 1187(a)(12)(A)(i)(I), (ii)(I). Congress also included countries that have been designated by the Secretary of State as state sponsors of international terrorism—currently, Iran, Sudan, and Syria. Id. § 1187(a)(12)(A)(i)(II), (ii)(II).2 And Congress authorized DHS to designate additional countries or areas of concern, based on “whether the 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”; “whether a foreign
1 U.S. Dep’t of State, Country Reports on Terrorism 2015 at 6 (June 2016), https:// www.state.gov/documents/organization/258249.pdf.
2 U.S. Dep’t of State, State Sponsors of Terrorism, https://www.state.gov/j/ct/list/ c14151. htm.
6

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 19 of 61
terrorist organization has a significant presence in the country or area”; and “whether the country or area is a safe haven for terrorists.” Id. § 1187(a)(12)(D)(ii); see id. § 1187(a)(12)(A)(i)(III), (A)(ii)(III). In February 2016, to ensure that the VWP’s “requirements are commensurate with the growing threat from foreign terrorist fighters,” and after consultation with the Secretary of State and the Director of National Intelligence, the Secretary of Homeland Security exercised that authority to exclude from the VWP aliens who have traveled to Libya, Somalia, or Yemen on or after March 1, 2011.3 Accordingly, with limited exceptions, individuals with the requisite connection to one of the seven Section 1187(a)(12) countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—cannot travel or apply for admission to the United States under the VWP.
2. The U.S. Refugee Admissions Program (USRAP) is a separate means for aliens outside the United States to seek admission if they have been persecuted or have a well-founded fear of persecution on account of race, religion, nationality, or other specified grounds, and typically if they have been displaced from their country of nationality. 8 U.S.C. § 1101(a)(42); see id. § 1157. The President, in consultation with Congress, is authorized to determine the number of refugees to be admitted each year and to allocate refugee slots. Id. § 1157(a)(2)-(3). Refugees are screened for eligibility and admissibility abroad, and if a refugee is approved for admission he may be admitted to the United States
3 DHS, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016), https://www.dhs.gov/news/2016/02/18/dhs-announces-furthertravel-restrictions-visa-waiver-program.
7

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 20 of 61
without a visa. Id. §§ 1157(c)(1), 1181(c); see 3 Charles Gordon et al., Immigration Law and Procedure § 34.01[5][a] (2016) (describing the refugee application process).
3. The INA grants the President broad discretionary authority to prohibit the entry of classes of aliens:
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). “The President’s sweeping proclamation power [under Section 1182(f)] provides a safeguard against the danger posed by any particular case or class of cases that is not covered by one of the [inadmissibility] categories in section 1182(a).” Abourezk v. Reagan, 785 F.2d 1043, 1049 n.2 (D.C. Cir. 1986), aff’d mem., 484 U.S. 1 (1987). Section 1182(f) was included in the enactment of the INA in 1952, and numerous Presidents have invoked it since then. For example, President Reagan issued a proclamation that “suspend[ed] entry into the United States as immigrants by all Cuban nationals,” subject to exceptions. Proclamation No. 5517, 51 Fed. Reg. 30,470 (1986).4
4 See also, e.g., Proclamation No. 8693, 76 Fed. Reg. 44,751 (2011); Proclamation No. 8342, 74 Fed. Reg. 4093 (2009); Proclamation No. 6958, 61 Fed. Reg. 60,007 (1996); Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (1992); Proclamation No. 4865, 46 Fed. Reg. 48,107 (1981).
8

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 21 of 61
B. The Executive Order On January 27, 2017, the President invoked his authority under Section 1182(f) to issue Executive Order No. 13,769, entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” 82 Fed. Reg. 8977. The Order reflects the President’s determination that his new Administration has not had an opportunity to assess whether current procedures for vetting aliens from terrorism-compromised parts of the world are adequate and that, absent such an assessment, the risk of admitting a terrorist is unacceptably high. It states that “[d]eteriorating 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.” Order § 1. “The United States must be vigilant during the visa-issuance process,” the Order explains, “to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” Id. The Order directs a number of actions in the interest of national security, id. §§ 2-11, and this case focuses on two of them. 1. The Order directs the Secretary of Homeland Security to conduct an immediate review to “determine the information needed from any country” to assess whether an individual seeking a visa or other immigration benefit “is who the individual claims to be and is not a security or public-safety threat.” Order § 3(a). The Order directs the Secretary to submit a report with the results of that review within 30 days. Id. § 3(b). Once that report is submitted, the Order directs a process for requesting necessary information from foreign governments that do not supply such information, and for
9

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 22 of 61
recommending a list of countries for inclusion on a subsequent Presidential proclamation that would suspend entry of foreign nationals from countries that do not provide the requested information. Id. § 3(d)-(f).
The President, moreover, has determined that while such review is ongoing, the potential risk of admitting nationals from certain terrorism-compromised countries, who may be bent on harming U.S. national security, is too high. While the review ordered in Section 3(a) is ongoing, Section 3(c) of the Order thus suspends for 90 days the entry of certain aliens, as immigrants and nonimmigrants, “from countries referred to in * * * 8 U.S.C. 1187(a)(12)”—the provision under which Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen have been designated as countries of concern due to their particularly strong nexus to terrorism. Order § 3(c). The Order expressly relies upon the President’s authority under Section 1182(f), and explains that the temporary suspension is intended “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.” Id. The Order authorizes the Secretaries of State and Homeland Security to make case-by-case exceptions to the temporary suspension when doing so would be in the national interest. Id. § 3(g).
2. The President made a similar determination with respect to USRAP, again concluding that, while his Administration’s review is ongoing, the potential risk of erroneously admitting aliens bent on harming the United States and its citizens is too high. Section 5 thus addresses the USRAP and its screening procedures: Section 5(a) suspends
10

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 23 of 61
the USRAP for 120 days to allow the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, to “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 to “implement such additional procedures.” Order § 5(a). Section 5(c) also suspends the admission of nationals of Syria as refugees until the President determines “that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.” Id. § 5(c). The Order provides that, notwithstanding the temporary suspension of the refugee program, the Secretaries of State and Homeland Security may admit refugees on a case-by-case basis so long as the admission is in the national interest and would not pose a risk to the security or welfare of the United States. Id. § 5(e).
The Order further specifies that, following the 120-day suspension, “[r]efugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures.” Order § 5(a). The Order contemplates the admission of up to 50,000 refugees during fiscal year 2017. Id. § 5(d). Section 5(b) provides that, once the refugee program resumes, the Secretary of State, in consultation with the Secretary of Homeland Security, shall “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.” Id. § 5(b).
11

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 24 of 61
C. Procedural history 1. On January 30, 2017, the State of Washington brought this action asserting constitutional and statutory challenges to the Order. On the same day, the State moved for a temporary restraining order. The government opposed, and the district court held a hearing on February 3, 2017. In the interim, the State filed an amended complaint adding the State of Minnesota as a plaintiff. D. Ct. Doc. 18. At the conclusion of the hearing, the district court entered a nationwide injunction, effective immediately, barring any enforcement of Sections 3(c) and 5(a), (b), and (c) of the Order. 2/3/17 Transcript (Tr.) 48-49; D. Ct. Order. It also barred enforcement of Section 5(e) “to the extent [it] purports to prioritize refugee claims of certain religious minorities.” D. Ct. Order 5. The court denied the government’s motion to stay the injunction pending appeal. Tr. 50.5 2. On February 4, 2017, the government appealed the district court’s injunction and sought an emergency stay pending appeal. On February 9, following briefing and oral argument, a panel of this Court denied the motion for a stay. The panel concluded that the States have Article III standing by virtue of their operation of state universities. Op. 8-13. The panel reasoned that the Order “prevents nationals of seven countries from entering Washington and Minnesota” and, “as a result,
5 The district court’s order is styled a “temporary restraining order,” D. Ct. Order 1, but the panel concluded that it “possesses the qualities of an appealable preliminary injunction,” Op. 7.
12

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 25 of 61
some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.” Id. at 12. The panel further concluded that “the ‘third party standing’ doctrine” allows the States “to assert the rights of the students, scholars, and faculty affected by” the Order. Id. at 10-11.
On the merits, the panel concluded that the government had “not demonstrated” that the States “lack[ed] viable claims based on the due process rights of persons who will suffer injuries to protected interests due to” the Order. Op. 22-23; see id. at 19-24. The panel focused almost exclusively on asserted procedural due process rights of LPRs, on the theory that the Order might be applied to LPRs notwithstanding guidance from the White House Counsel clarifying that the Order did not apply to LPRs. Id. at 21-22. The panel addressed the viability of claims based on other classes of aliens in a sentence, asserting that the States “have potential claims regarding possible due process rights” of “persons who are in the United States, even if unlawfully,” “non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart,” “refugees,” and “applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” Id. at 22 (citations omitted). Although the panel acknowledged that “[t]here might be persons covered by the [injunction] who do not have viable due process claims,” it declined to narrow the injunction. Id. at 23; see id. at 23-24. The panel stated that “even if the [injunction] might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive
13

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 26 of 61
Order.” Id. at 24. “The political branches are far better equipped,” it observed, “to make appropriate distinctions.” Id.
3. On February 10, 2017, this Court issued an order instructing the parties to file simultaneous briefs on whether this matter should be reconsidered en banc.
SUMMARY OF ARGUMENT The panel opinion is seriously flawed in several important respects. Even in its preliminary and tentative form, it should not remain circuit precedent. First, the panel’s decision rests on a misunderstanding about the scope of the Order. Contrary to the panel’s conclusion, the Order does not apply to LPRs, who remain generally free to travel abroad and to return to the United States. Rather, the Order’s focus is on aliens who are seeking initial entry to the United States and non-LPR aliens who have left the United States and are seeking to return, who have no statutory or constitutional entitlement to enter the United States, see, e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1982). Second, the panel departed from longstanding principles of third-party standing and the structure of the INA in holding that the States’ suit could proceed. The States are not the proper plaintiffs—and this sweeping facial challenge is not the proper case—for adjudicating the validity of the Order as applied to a third-party alien in individual circumstances. Rather, under Article III, the individuals who are actually affected by a concrete application of the Order may bring suit (as many have), and a court could adjudicate such a case while taking into account its particular circumstances and Congress’s express limitations on the scope of judicial review. By contrast, the States here have no
14

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 27 of 61
legally cognizable interest in bringing a challenge on behalf of all aliens affected by the Order, past, present, or future. And the States’ suit challenging the denial or revocation of visas sought or held by third-party aliens is also foreclosed by the express provisions of the INA, 8 U.S.C. § 1201(i), and the longstanding principle of consular nonreviewability.
Third, the panel seriously erred in holding that the Order should be facially enjoined on procedural due process grounds. With the scope of the Order properly understood, the overwhelming majority of its applications give rise to no due process concerns whatsoever. Its focus is aliens seeking initial entry, who have “no constitutional rights regarding [their] application[s],” Plasencia, 459 U.S. at 32, much less any due process rights that can be invoked by the States as plaintiffs. And even if the Order did implicate a protected property interest for some aliens, the panel erred in holding that the Due Process Clause required an individualized hearing. Such hearings are not required where, as here, the government acts through categorical judgments rather than individual adjudications. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 446 (1915). The panel likewise seriously erred in declining to narrow the district court’s sweeping injunction. Any concerns about the potential procedural due process rights of a small subset of aliens cannot justify halting all applications of the relevant provisions of the Order.
Notwithstanding these serious flaws, the government does not seek en banc review on the merits. Instead, the government asks that the Court hold its consideration of the case until a new Order is issued and respectfully requests that the panel opinion be vacated at that time.
15

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 28 of 61
ARGUMENT I. The Panel’s Decision Rests On A Misconception Of The Order’s
Scope The principal basis of the panel’s decision was its conclusion that the Order applies to LPRs. See Op. 21-22 (discussing the due process rights of returning LPRs). The Order is ambiguous in this respect and, at the time it was issued, was reasonably interpreted to encompass LPRs. However, it is also reasonably interpreted to exclude LPRs, and the White House Counsel’s “[a]uthoritative guidance” confirms that narrower interpretation. The panel seriously erred in construing the Order to raise constitutional difficulties when the government instead advanced an interpretation that would avoid those very difficulties. The panel appeared to misconstrue the Order in other respects as well. A. The Order does not apply to LPRs Unlike other classes of aliens, LPRs are generally able to travel abroad and return to the United States without being considered “applicant[s] for admission,” 8 U.S.C. § 1101(a)(13)(C), and without a visa, see, e.g., 8 U.S.C. §§ 1181(a)-(b), 1182(a)(7)(A)(i)(I), 1203; 8 C.F.R. pt. 211, 22 C.F.R. § 42.1(a). Section 3(c) of the Order refers to “immigrant and nonimmigrant entry,” Order § 3(c), which could reasonably be construed to encompass returning LPRs. That phrase also appears, however, among other sections of the Order that focus predominantly on entry into the United States pursuant to a visa. Section 1 states that the Order addresses concerns about the “visa-issuance process,” and
16

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 29 of 61
Section 3 provides for the “Suspension of Issuance of Visas and Other Immigration Benefits,” with a focus on improving visa screening. Improving the visa-issuance process, suspending the issuance of visas, improving visa screening, and assessing the “information needed from any country to adjudicate any visa, admission or other benefit,” Order § 3, do not have any application to visa-free entry by LPRs, which occurs without the LPRs seeking admission. And Section 5 of the Order, which applies only to refugees entering through the USRAP, has no potential application to LPRs. Particularly in the context of judicial review, where principles of constitutional avoidance require that any ambiguity be resolved in a manner that avoids constitutional concerns, the Order is properly interpreted not to extend to LPRs. E.g., Zadvydas v. Davis, 533 U.S. 678, 689 (2001).6
Moreover, the White House Counsel has confirmed that the Order does not apply to LPRs. His “[a]uthoritative guidance” states that “sections 3(c) and 3(e) do not apply” to LPRs and advises the Acting Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security to “immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order.” Stay Mot., Ex. D. Although the panel expressed skepticism about the White House Counsel’s authority to issue “an amended order superseding the Executive Order signed by the President,” Op. 21-22, the guidance here did not constitute a new Executive Order, but instead clarified ambiguous language.
6 Because the Order does not apply to LPRs, the Court need not address the interplay between Section 1182(f) and 8 U.S.C. § 1101(a)(13)(A) and (C).
17

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 30 of 61
The White House Counsel, no less than the counsel of an executive agency, is authorized to provide such a clarification on behalf of his client. When interpreting executive orders, courts construe the text in a manner intended to give effect to the President’s intent. See Sea-Land Serv., Inc. v. ICC, 738 F.2d 1311, 1314 (D.C. Cir. 1984). And courts regularly defer to the views of an Executive Branch agency’s counsel as to the interpretation of agency rules or regulations. See, e.g., Abbott v. Abbott, 560 U.S. 1, 15 (2010) (deferring to an interpretation of a treaty set forth for the first time in an amicus brief signed by the Legal Adviser, not the Secretary of State); Auer v. Robbins, 519 U.S. 452, 462 (1997).
In declining to proceed on the assumption that the government would follow the White House Counsel’s guidance, the panel provided no sound basis for disregarding the “presum[ption]” that the government “act[s] in good faith” when it discontinues a challenged policy or practice. America Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010) (collecting cases); see Clarke v. United States, 915 F.2d 699, 705 (D.C. Cir. 1990) (“[I]t would seem inappropriate for the courts either to impute such manipulative conduct to a coordinate branch of government, or to apply against that branch a doctrine that appears to rest on the likelihood of a manipulative purpose.”). Moreover, the panel’s interpretation doubly upends fundamental principles of judicial restraint: first, by construing the Order to create constitutional concerns (by interpreting it to cover LPRs); and second, by using those concerns as the basis for enjoining key provisions of the Order in all of their applications—including ones that, as explained below, are unquestionably constitutional.
18

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 31 of 61
B. The panel appeared to misapprehend the Order’s application to other classes of aliens
The Order’s application is narrower than the panel believed in other respects as well. First, the panel appeared to assume that, in addition to affecting aliens who are currently outside the United States and aliens who are present in this country but “wish to temporarily depart” and then return, the Order also affects some “other persons who are in the United States, even if unlawfully.” Op. 22. But the Order’s suspension of entry into the United States does not apply to an alien who is present in this country—whether lawfully or unlawfully—unless that alien is not an LPR and “wish[es] to temporarily depart” (id.) and then return. Order § 3(c).7
The panel also appeared to conflate the USRAP overseas refugee process with the process for aliens in the United States or arriving at the border to seek asylum, withholding of removal, or similar protection. See Op. 22 (discussing refugees but citing 8 U.S.C. § 1231 note); see id. at 20. The mistake may have been due to the overlap between asylum and the definition of a “refugee,” see 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A), but the USRAP is a distinct program with distinct statutory authority, see id. § 1157. Section 5 of the Order suspends the USRAP, thereby barring for 120 days (absent a case-specific waiver) the
7 Aliens who have been unlawfully present in the United States for more than 180 days would in any event ordinarily be ineligible to return for three to ten years after departure, even apart from any application of the Order. See 8 U.S.C. § 1182(a)(9)(B)(i); see also id. § 1182(a)(9)(C) (permanent bar applicable in some circumstances). Furthermore, such aliens generally would be ineligible for a visa on those and additional grounds. See id. § 1201(g); see also U.S. Dep’t of State, 9 Foreign Affairs Manual 302.11-3, https:// fam.state.gov/FAM/09FAM/09FAM030211.html.
19

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 32 of 61
admission of refugees from outside the country pursuant to 8 U.S.C. § 1157(c) and 8 C.F.R. Part 207. But Section 5 does not address the existing statutes or regulations for aliens who are physically present or arriving in the United States and are seeking asylum or similar protection. Such aliens are not processed through USRAP, and may obtain relief or protection in the form of asylum, withholding of removal, or protection under regulations implementing the U.S. obligations under the Convention Against Torture. See 8 U.S.C. §§ 1158, 1225(b)(1)(B), 1231(b)(3); 8 C.F.R. §§ 1208.16(c), 1208.17, 1208.18. The Order does not alter those procedures. II. The Panel Erred In Concluding That The States Can Likely Bring
Their Own Injunctive Action By Relying On The Asserted Rights Of Individual Aliens Particularly in light of the proper understanding of the Order, the States have no legal basis to bring this challenge asserting the rights of third parties, and the panel erred in concluding that the States were likely to prevail in that respect. The Order does not require States to do, or refrain from doing, anything. And the States here cannot overcome the many legal impediments to suit by a plaintiff who “is not [it]self the object of the government action or inaction [it] challenges,” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citation omitted). 1. A State has no general authority to sue the United States based on an assertion of legal rights that are not its own. “[I]t is no part of [a State’s] duty or power to enforce [its citizens’] rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae.”
20

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 33 of 61
Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923); see, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982) (“A State does not have standing as parens patriae to bring an action against the Federal Government.”). It follows a fortiori that States cannot sue the federal government as parens patriae on behalf of noncitizen aliens who are temporary residents of (or visitors to) the State. The constitutional structure and comprehensive scope of the INA render the bar to such a suit particularly compelling, because the aliens’ residency (or visitation) status is itself a matter of national immigration law and policy subject to the federal government’s control. See U.S. Const. art. I, § 8, cls. 3 and 4; see also, e.g., Arizona v. United States, 132 S. Ct. 2492, 2498 (2012).
Indeed, even generally applicable principles of third-party standing foreclose this suit. In the absence of affirmative statutory authorization providing otherwise, a plaintiff must comply with “the rule that a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’ ” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). Exceptions to that rule are rare and narrow. See Kowalski, 543 U.S. at 129-30. Outside the context of free-speech rights or the “enforcement of [a] challenged restriction against the litigant”—neither of which is at issue here—an assertion of such “third party standing” is limited to circumstances in which it is “necessary” and the party seeking it can “make two additional showings.” Id. (quotation marks and citation omitted); see Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956-57 (1984) (discussing special chilling concerns in speech context). Specifically, “a party seeking to champion the rights of third
21

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 34 of 61
persons must demonstrate that, ‘first, it has a close relationship with the person who possesses the right and second[,] there is a hindrance to the possessor’s ability to protect his own interests.’ ” Fleck & Assocs. v. City of Phoenix, 471 F.3d 1100, 1105 n.3 (9th Cir. 2006) (quoting Kowalski, 543 U.S. at 130) (quotation marks and alterations omitted).
The States cannot make those showings here. A State does not have the requisite “close relationship” to aliens whose presence in the United States is temporary and expressly contingent on federal law and policy. See 8 U.S.C. § 1101(a)(15) (defining nonimmigrant visa categories, many of which are temporary and require the alien to establish that he has a residence abroad that he has no intention of abandoning); id. § 1184(a)(1) (“The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the [Secretary of DHS] may by regulations prescribe.”); id. § 1201(i) (discretionary authority to revoke visa). The States’ relationship with aliens who have not even traveled to the United States—such as aliens who might at some point in the future seek to visit, enroll in, or work at one of their universities, Op. 10—is even more attenuated. See Voigt v. Savell, 70 F.3d 1552, 1565 (9th Cir. 1995) (no close relationship where plaintiff may “occasionally be in a position to hire a non-resident for a position within the state court system”); see also Kowalski, 543 U.S. at 131 (no close relationship between lawyers and hypothetical future clients).
Moreover, even if the States had the requisite relationship with some aliens, the States cannot show that they are in a superior position to bring suit because of some hindrance to the aliens’ ability to protect their own interests. Rather, the “likelihood and
22

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 35 of 61
ability of” others “to assert their own rights,” Powers v. Ohio, 499 U.S. 400, 414 (1991), is
amply demonstrated by the many individual challenges to the Order that have been filed
nationwide. See Hodak v. City of St. Peters, 535 F.3d 899, 905 (8th Cir. 2008) (noting
agreement among the circuits that “that if a third party actually asserts his own rights, no
hindrance exists, and third-party standing is improper”). Those individual suits would be
a far better vehicle than this abstract facial challenge for litigating the issues of
individualized process in the context of specific claims by identified individuals.8
2. Beyond these general standing principles, the States’ suit is improper because
even individual aliens are generally precluded from challenging the denial or revocation of
a visa. The Supreme Court has “ ‘ long recognized’” a doctrine of “consular
nonreviewability,” under which visa decisions by a State Department consular officer are
“ ‘largely immune from judicial control’ ” and thus cannot be challenged in court, even by
8 The cases the panel relied upon (Op. 10-11) in support of the States’ third-party standing all involved circumstances in which a “challenged restriction against the litigant” provided a basis for recognizing third-party standing, Kowalski, 543 U.S. at 130 (emphasis and quotation marks omitted). Nearly all involved direct regulation of the plaintiffs. See Craig v. Boren, 429 U.S. 190, 191-92 (1976) (plaintiff restricted in selling alcohol); Singleton v. Wulff, 428 U.S. 106, 108, 112-13 (1976) (plaintiff restricted in obtaining Medicaid reimbursement); Griswold v. Connecticut, 381 U.S. 479, 480 (1965) (plaintiff criminally convicted); NAACP v. Alabama, 357 U.S. 449, 451 (1958) (plaintiff held in contempt); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1483 (9th Cir. 1995) (plaintiff terminated from loan-guarantee program). And in Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Supreme Court found that the challenged mandatory public school law was tantamount to a flat ban on the plaintiff private schools’ business model and threatened “destruction of their business and property.” Id. at 536. By contrast, the Order does not regulate the States at all, and they cannot remotely suggest that they face the sort of existential threat present in Pierce.
23

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 36 of 61
the affected aliens. Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792, 794-95 (1977)); see, e.g., Saavedra Bruno v. Albright, 197 F.3d 1153, 1158-62 & n.2 (D.C. Cir. 1999). This Court has identified “a limited exception to the doctrine * * * where the denial of a visa implicates the constitutional rights of American citizens.” Cardenas, 826 F.3d at 1169 (quotation marks and citation omitted); see id. at 116971; cf. Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in the judgment) (assuming without deciding that such an exception existed in a challenge based on U.S.citizen spouse’s due-process rights); Kleindienst v. Mandel, 408 U.S. 753, 760 (1972) (similar for challenge based on U.S. citizens’ First Amendment rights). But there is no basis for the States to rely on any such exception to bring suit based on rights alleged to belong to the aliens themselves.
The INA itself confirms the preclusion of the third-party review that the States seek here. Congress has never authorized judicial review of the denial of a visa. See, e.g., 6 U.S.C. § 236(b)(1), (c)(1), (f); 8 U.S.C. § 1104(a)(1). And 8 U.S.C. § 1201(i) explicitly provides that a “consular officer or the Secretary of State may at any time, in his discretion, revoke [a] visa or other documentation,” and that “[t]here shall be no means of judicial review * * * of a revocation under this subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under” 8 U.S.C. § 1227(a)(1)(B). Even if that provision could be construed not to bar the affected alien himself from challenging a visa revocation if he had a cognizable constitutional claim and no procedure through which to raise it, see Webster v. Doe, 486 U.S. 592, 603 (1988), the textually categorical bar to review
24

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 37 of 61
by anyone would clearly preclude the sort of third-party claims on which the States’ suit here relies. See Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 24 (2000) (concluding that statutory procedure to channel constitutional claims was adequate, even though third-party association could not invoke it on affected institution’s behalf); Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345-48, 351-52 (1984) (finding it “fairly discernible” that only milk producers, and not consumers, could bring statutory claims challenging certain agricultural marketing orders) (quotation marks and citation omitted).
3. The panel’s analysis also fails to establish that the States have themselves suffered the sort of “legally and judicially cognizable” injury, Raines v. Byrd, 521 U.S. 811, 819 (1997), that would give them Article III standing. The panel reasoned that the States had made the necessary showing by “alleg[ing]” that the Order would prevent entry of aliens who might otherwise come to state universities as faculty or students, and would chill aliens currently affiliated with the universities from leaving the country for research or other purposes out of concern that they might be unable to return. Op. 12; see id. at 10. But on that broad theory, a State would suffer an Article III injury whenever any aspect of the immigration statutes and regulations—or any other law—prevented a scholar from speaking at an academic conference sponsored by a State university. And in any event, such incidental consequences of the actions of the President and other federal officials under the INA do not constitute legally and judicially cognizable injuries to a State, because the INA confers no cognizable interest on a State or other third party in the admission of an alien or the revocation of a visa.
25

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 38 of 61
The panel additionally disregarded Article III’s requirement of a “certainly impending” injury, Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013), by failing to consider individual aliens’ opportunity to seek a case-specific waiver under the Order (or even whether they planned to travel during the limited 90-day window). See Order §§ 3(g), 5(e). The panel’s failure to address the Order’s waiver provisions likewise led it to overlook the ripeness problems inherent in adjudicating this all-encompassing facial attack. Its affirmance of the injunction thwarts the government’s “efforts to refine its policies through application” of those provisions and prevents “further factual development” of those provisions’ application to individual aliens that “would significantly advance [a court’s] ability to deal with the legal issues presented.” Habeas Corpus Res. Ctr. v. Dep’t of Justice, 816 F.3d 1241, 1253-54 (9th Cir. 2016) (alteration, quotation marks, and citations omitted).
4. Finally, the panel’s decision that the States may bring this suit cannot be justified on any of the alternative grounds offered by the States. The “special solicitude” for state plaintiffs referenced in Massachusetts v. EPA, 549 U.S. 497, 520 (2007), does not support independent state standing in the absence of a judicially cognizable “quasisovereign interest[]” (there, protecting a State’s territory) protected by a specific “procedural right” (there, a cause of action under the Clean Air Act). See 549 U.S. at 520. Asserted effects of the Order on state taxation or other activities, see D. Ct. Doc. 17, at 2-3—which are no different in kind from the effects of any of a multitude of federal laws and regulations—have never been recognized as valid bases for a State to sue the federal government. That must be especially so with respect to implementation of the INA by the
26

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 39 of 61
President and the Heads of Departments on whom Congress has conferred broad authority, given the Constitution’s vesting of plenary authority over immigration in the national government. And even assuming a State might have rights of its own under the Establishment Clause with respect to the federal government’s denial of entry to aliens outside the United States, it still would have to show “personal injury suffered by them as a consequence of” an alleged violation in order to bring suit. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485 (1982) (emphasis omitted). III. The Panel Erred In Concluding That The Defendants Were Unlikely
To Succeed On The Merits A. The Order is a valid exercise of the President’s authority under
Section 1182(f) The Constitution vests Congress with “exceptionally broad power to determine which classes of aliens may lawfully enter the country.” Fiallo, 430 U.S. at 794. The INA in turn grants substantial authority over that issue to the President. Under 8 U.S.C. § 1182(f), the President “may by proclamation * * * 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,” “for such period as he shall deem necessary,” “[w]henever [he] finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.” And under 8 U.S.C. § 1157(a)(2) and (3), he may determine the number of refugees whose admission “is justified by humanitarian concerns or is otherwise in the national interest,” and may also determine how to allocate admissions among such refugees.
27

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 40 of 61
The Order fits well within those expansive delegations of authority. Section 1182(f) is designed to permit the President to make, and to recalibrate, judgments about whether the degree of risk associated with the entry of particular classes of aliens into the United States is acceptable. In issuing the Order, the President determined that temporary suspension of entry of aliens from seven countries previously determined to pose a special risk of terrorism, and temporary suspension of the U.S. refugee program, is in the national interest to protect against terrorist threats to our Nation during the brief period in which the Administration is reviewing its procedures for screening aliens seeking admission. The Order is thus temporally and geographically limited, but nonetheless serves a national interest of the highest order. Neither the States nor the panel has questioned that 8 U.S.C. §§ 1182(f) and 1157(a) broadly allow the President to suspend the entry of aliens under the visa or refugee programs, if he determines that such entry is detrimental to national security.
Nor is the President’s discretionary authority under Section 1182(f) to suspend entry of classes of aliens limited by 8 U.S.C. § 1152(a)(1)(A), which provides that (with certain exceptions) “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” By its terms, that provision addresses only the process of allocating “immigrant” visas—which are granted to persons seeking admission to the United States for lawful permanent residence. 8 U.S.C. §§ 1101(a)(15), (20), 1201(a)(1)(A). Moreover, although Section 1152(a)(1)(A) establishes a default rule that applies in the absence of any specific proclamation by the President, Congress did not purport to cabin
28

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 41 of 61
the President’s broad preexisting authority under Section 1182(f) to suspend the entry “of any aliens or of any class of aliens” based on his judgment about the national interest.
The States’ contrary view would effect an improper implied partial repeal and would raise serious constitutional questions. Among other things, it would disable the President from suspending the entry of immigrants from a country with which the United States is on the verge of war. Unsurprisingly, therefore, Section 1152(a)(1)(A)’s limitation on nationality-based distinctions in the allocation of immigrant visas has never been understood to constrain the President’s authority under Section 1182(f). To the contrary, President Reagan invoked that authority to “suspend entry into the United States as immigrants by all Cuban nationals,” subject to certain exceptions not relevant here. Proclamation No. 5517, 51 Fed. Reg. 30,470 (1986). And the Supreme Court has deemed it “perfectly clear that 8 U.S.C. § 1182(f) * * * grants the President ample power” to establish a naval blockade “that would simply deny illegal Haitian migrants the ability to disembark on our shores.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187 (1993) (citing 8 U.S.C. § 1182(f) (1988)).9
B. The States’ due process claim lacks merit The panel reasoned that the government was unlikely to prevail on the States’ procedural due process claim. Op. 19-24. That conclusion was seriously mistaken for
9 Even if Section 1152(a)(1)(A) could be construed as a constraint on the President’s authority under Section 1182(f), it would apply only in the context of immigrant visas. It would not justify enjoining the application of Section 5 of the Order to refugees or Section 3 of the Order to non-immigrant aliens.
29

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 42 of 61
three independent reasons. First, as noted above, it rests on a misunderstanding of the scope of the Order. Properly construed, the Order does not deprive any alien of a liberty or property interest protected by the Due Process Clause. Second, even if the Order implicated a protected interest, the Due Process Clause does not require individualized notice and an opportunity to respond where, as here, the government acts through a valid categorical judgment. The States’ claim is at bottom a challenge to the substance of the Order, not to the procedures by which it was implemented. And third, even if the panel were correct that particular applications of the Order might violate the Due Process Clause, the States could not prevail in this facial challenge because—as the States themselves have conceded—the vast majority of the Order’s applications are to aliens with no due process rights at all in seeking admission. The concerns identified by the panel would, at most, provide a basis for narrow as-applied challenges by the affected aliens, not facial invalidation at the behest of a third-party State.
1. “A threshold requirement to a substantive or procedural due process claim is the plaintiff’s showing of a liberty or property interest protected by the Constitution.” Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994); see Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972). The panel’s due process analysis focused on LPRs, who have a protected interest in entering this country when returning from brief trips abroad. Op. 20-22; see Plasencia, 459 U.S. at 33-34. But the Order does not apply to LPRs. See pp. 16-19, supra. And other aliens do not have a liberty or property interest in entering this country. Indeed, the Supreme Court “has long held that an alien seeking
30

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 43 of 61
initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Plasencia, 459 U.S. at 32; see, e.g., Mandel, 408 U.S. at 762; Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).
The panel did not question that long-settled rule. But it suggested that “nonimmigrant visaholders who have been in the United States but temporarily departed” or who are present now but “wish to temporarily depart” might have “potential claims regarding possible due process rights” implicated by the revocation of their visas. Op. 22. That is incorrect. “To have a property interest in a benefit,” a person “must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577. Where a plaintiff asserts a property (or liberty) interest in a statutory benefit like admission upon a visa, the existence of the requisite entitlement “is determined largely by the language of the statute and the extent to which the entitlement is couched in mandatory terms.” Wedges/Ledges, 24 F.3d at 62 (quotation marks and citation omitted). Here, the relevant statute unequivocally instructs that a visa does not “entitle any alien * * * to be admitted [to] the United States.” 8 U.S.C. § 1201(h) (footnote omitted). And Congress further specified that “the Secretary of State may at any time, in his discretion, revoke [a] visa.” Id. § 1201(i); see 22 C.F.R. §§ 41.122(a), 42.82(a) (same).
An alien thus has no “claim of entitlement” to issuance of a visa, to keep a visa, or to be admitted to the United States with a visa. Roth, 408 U.S. at 577. Accordingly, “the revocation of an entry visa issued to an alien already within our country has no effect upon
31

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 44 of 61
the alien’s liberty or property interests.” Knoetze v. Dep’t of State, 634 F.2d 207, 212 (5th Cir. Unit B Jan. 1981). In rejecting a parallel due process challenge to the Order, a district court likewise concluded that “[t]here is no constitutionally protected interest in either obtaining or continuing to possess a visa.” Louhghalam v. Trump, No. 17-cv-10154, 2017 WL 479779, at *5 (D. Mass. Feb. 3, 2017); see Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (“[A] benefit is not a protected entitlement if government officials may grant or deny it in their discretion.”); Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465-67 (1981).
The panel also suggested (Op. 22) that the Order could implicate the Due Process Clause as applied to aliens “who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” Cf. Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008) (stating that a U.S. citizen had a protected interest in her marriage that allows “limited judicial inquiry” with respect to the consular officer’s refusal of her husband’s immigrant visa application). That is wrong. See Din, 135 S. Ct. at 2138 (opinion of Scalia, J.) (concluding that a U.S. citizen “was not deprived of ‘life, liberty, or property’ when the Government denied [her alien spouse] admission to the United States”).10 But even if the panel were correct, the potential for such claims could not support the district court’s sweeping injunction. The States have not even attempted to assert that the States themselves have any such constitutional rights with respect to the admission of an alien seeking an
10 Justice Kennedy’s controlling opinion in Din assumed, but did not decide, that “a citizen has a protected liberty interest in the visa application of her alien spouse.” 135 S. Ct. at 2139 (Kennedy, J., concurring in the judgment); see Cardenas, 826 F.3d at 1169-72.
32

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 45 of 61
immigrant visa, or that they could represent the interests of U.S. citizens who might assert such rights. Instead, the States have focused on the asserted due process rights of the affected aliens. See States’ Resp. to Stay Mot. 14-18; Am. Mot. for TRO 14-18. But, as demonstrated above, the States may not assert the interests of an individual alien under the INA, and the denial or revocation of that alien’s visa “jeopardizes no liberty or property interest entitled to constitutional protection.” Knoetze, 634 F.2d at 212.
2. In any event, there would be no merit to the due process claim even if the Order implicated protected liberty or property interests. The panel assumed that “[t]he Government may not deprive a person of * * * [a] protected interest without providing ‘notice and an opportunity to respond.’” Op. 19 (citation omitted). But those procedures are not required where, as here, the challenged rule reflects a “general determination” rather than one resting on “individual grounds.” Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 446 (1915); see Gallo v. U.S. Dist. Court for the Dist. of Ariz., 349 F.3d 1169, 118182 (9th Cir. 2003) (citing Bi-Metallic and explaining that the requirement of notice and a hearing applies only where “the government action is adjudicative”); see also Din, 135 S. Ct. at 2144 (Breyer, J., dissenting) (same).
This Court applied that principle in an analogous context to reject a due process challenge to a decision by the Immigration and Naturalization Service (INS) “to revoke the deferred departure dates that the INS had previously granted to Iranian nationals” in the United States. Yassini v. Crosland, 618 F.2d 1356, 1358 (9th Cir. 1980) (per curiam). Relying on Bi-Metallic, the Court held that “[w]here an agency action is not based on individual
33

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 46 of 61
grounds, but is a matter of general policy, no hearing is constitutionally required.” Id. at 1363. The same is true here: the Order suspends temporarily the refugee program and the entry of non-LPR aliens from certain countries as a “matter of general policy”; it does not rest on “individual grounds.” Id. Accordingly, the government was not required to provide notice and an opportunity to respond to each alien affected by the Order. It is, moreover, unclear what constitutionally mandated purpose would be served by the individualized hearings that the States demand. The States do not contend that the existing procedures being used by the government to identify those aliens are insufficient, or that they are resulting in the application of the Order to aliens who do not fall within its terms. Nor could they, given the ease of determining whether any particular alien is an LPR or has one or another kind of visa. Rather, those aliens seek to enter notwithstanding the President’s substantive determination to suspend the entry of particular categories of aliens. And in any event, even if some additional process were due, it is provided by the waiver procedure described in Sections 3(g) and 5(e) allowing for individualized consideration of the circumstances of particular aliens. Cf. 8 U.S.C. § 1361 (aliens generally bear burden of proving admissibility).
3. Finally, even if the Order were thought to violate due process as applied to particular aliens or categories of aliens, the States’ claim would still fail. The States brought a facial challenge to the relevant provisions of the Order. But under United States v. Salerno, 481 U.S. 739 (1987), a plaintiff cannot prevail on a facial challenge unless it shows “that the law is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State
34

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 47 of 61
Republican Party, 552 U.S. 442, 449 (2008); see Reno v. Flores, 507 U.S. 292, 300-01 (1993) (applying the Salerno standard to a facial due process challenge); William Jefferson & Co. v. Bd. of Assessment & Appeals No. 3, 695 F.3d 960, 963 (9th Cir. 2012) (same).
The States cannot make that showing. The panel concluded (Op. 22) that the Order may violate the Due Process Clause as applied to “non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart” and to aliens who “have a relationship with a U.S. resident or institution” that would have a liberty or property interest in the alien’s visa application. But even if that were correct, the vast majority of its applications would be entirely consistent with due process. In the district court, for example, the State conceded that the Order does not violate due process as applied to “aliens who are not in the country and have never been here.” Stay Mot., Ex. E, at 15. Those aliens are the central focus of the Order. And because the Order is concededly valid in a wide range of its applications, the States’ “facial challenge necessarily fails.” William Jefferson, 695 F.3d at 963. Instead, at most, the proper course would be for an alien actually impacted by the Order to bring an as-applied challenge, as many have done in cases pending across the country. See, e.g., Louhghalam, 2017 WL 479779, at *1 (seven Iranian nationals); Mohammed v. United States, No. 17-cv-786 (C.D. Cal. filed Jan. 31, 2017) (nationals of Yemen challenging visa revocation).
C. The States’ religious discrimination claims lack merit The panel declined to endorse the States’ religious discrimination claims, and for good reason. As previously noted, the Supreme Court has long held that aliens seeking
35

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 48 of 61
initial admission lack any constitutionally protected interest in entering the country. Plasencia, 459 U.S. at 32. But even assuming that equal protection and Establishment Clause principles applicable in other contexts can be transposed to this one, the States’ claims fail because the Order does not discriminate based on religion.
1. Establishment Clause and equal protection principles both require the government to “‘pursue a course of neutrality toward religion,’ * * * favoring neither one religion over others nor religious adherents collectively over nonadherents.” Bd. of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 696 (1994) (opinion of Souter, J.) (quotation marks omitted) (quoting Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93 (1973), and citing Epperson v. Arkansas, 393 U.S. 97, 104 (1968)); see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993) (opinion of Kennedy, J.) (noting that in the context of the Establishment Clause, “[n]eutrality requires an equal protection mode of analysis”) (alteration in original; quotation marks and citation omitted); Hassan v. City of New York, 804 F.3d 277, 300 (3d Cir. 2015). The Order is fully consistent with those principles.
Section 3(c) of the Order temporarily suspends entry of aliens from seven countries previously identified or designated under 8 U.S.C. § 1187(a)(12) as areas that Congress and DHS have determined to warrant special scrutiny when it comes to the issuance of visas. Each of the seven Section 1187(a)(12) countries was previously identified by Congress or DHS as being associated with a heightened risk of terrorism. See pp. 6-7, supra. It follows that incorporating that statutory determination into an Order designed to “protect the
36

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 49 of 61
American people from terrorist attacks by foreign nationals admitted to the United States,” Order pmbl., is likewise a terrorism-related designation, not a religious one. The same concerns that led to special treatment for those countries under the VWP have led the President to place temporary additional restrictions on the entry of nationals from those countries, pending his evaluation of whether the current visa-screening process creates an unacceptable risk of increased terrorist activity on U.S. soil.
The religious neutrality of the Order’s cross-reference is particularly evident in light of its under- and over-inclusivity with respect to Islam. The seven designated nations comprise only a small fraction of the world’s Muslim population (and a fraction of its Muslim-majority nations).11 Section 3(c) also applies to every national of those seven countries, including individuals who are not Muslim, such as a Yazidi individual in Iraq. Section 3(c) thus is not “targeted” against Islam. See Larson v. Valente, 456 U.S. 228, 246 n.23 (1982) (law improperly targeted religion by making “explicit and deliberate distinctions between different religious organizations”). And for the same reasons, Section 3(c) also has an obvious “secular * * * purpose,” Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)— protecting against a particular risk of terrorism, the same purpose that prompted Congress and DHS to single out the same seven countries in 2015 and 2016—and its principal or primary effect “neither advances nor inhibits religion” and nor “foster[s] ‘an excessive government entanglement with religion.’” Id. at 612-13 (citation omitted).
11 See Pew-Templeton Global Religious Futures Project, Muslim Population by Country, http://www.globalreligiousfutures.org/religions/muslims.
37

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 50 of 61
The States point to Section 5(b) to argue that the Order as a whole discriminates against Muslims. But that argument is backwards. Under Section 5(b), the Secretary of State shall, when the refugee program resumes, “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.” Section 5(b) is not limited to the seven countries identified in Section 3(c); it applies worldwide. Section 5(b) thus “could be invoked to give preferred refugee status to a Muslim individual in a country that is predominately Christian,” Louhghalam, 2017 WL 479779, at *5. It applies equally to all persecuted religious minorities, and is therefore “neutral with respect to religion.” Id. Section 5(b) therefore undercuts the assertion that the Order as a whole targets Muslims.
The States have also argued that the Order should be subject to strict scrutiny under Larson v. Valente. But Larson applies only where a government statute or practice “explicitly discriminates against a certain religious group.” Separation of Church & State Comm. v. City of Eugene, 93 F.3d 617, 623 (9th Cir. 1996) (per curiam) (O’Scannlain, J., concurring in the result); see Larson, 456 U.S. at 246 n.23 (noting that the statute at issue in that case made “explicit and deliberate distinctions between different religious organizations,” favoring “well-established churches” over others) (quotation marks and citation omitted). As set forth above, Section 3 makes no reference to religion at all, and Section 5(b) addresses persecution of religious minorities in general. Affording special immigration protections
38

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 51 of 61
to religious minorities is commonplace in federal immigration law,12 and is fully consistent
with the “benevolent neutrality” toward religion that the Constitution allows. Corp. of the
Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334 (1987)
(quoting Walz v. Tax Comm’n, 397 U.S. 664, 673 (1970)); see Cutter v. Wilkinson, 544 U.S.
709, 719-20 (2005) (accommodating free exercise is a valid secular purpose).
The courts, moreover, must be especially reluctant to impose strict scrutiny on the
administration of the United States’ participation in refugee programs overseas. The INA’s
definition of “refugee” specifically includes persons who have a well-founded fear of
persecution on the basis of “religion,” along with other grounds. 8 U.S.C. § 1101(a)(42);
see also id. § 1231(b)(3)(A). The admission of refugees thus often involves decisions about
the admission of individuals on the basis of threats or fears of persecution because of their
religious views and practices, and those statutory protections against religious persecution
plainly serve a secular purpose.
12 See, e.g., 8 U.S.C. § 1157(f)(2) (providing for training for officials adjudicating refugee cases on, inter alia, “distinctions within a country between the nature of and treatment of various religious practices and believers”); 22 U.S.C. § 6411 note (creating special envoy to promote religious freedom of religious minorities in Asia); id. § 8411(b)(2)(F) (authorizing assistance to Pakistan to support “ethnic or religious minorities”); see also, e.g., 8 U.S.C. § 1157 note (identifying as “categories of aliens” for purposes of refugee determinations “members of a religious minority in Iran” that are targets of persecution, and identifying for refugee purposes “[a]liens who are (or were) nationals of an independent state of the former Soviet Union or of Estonia, Latvia, or Lithuania and who are current members of, and demonstrate public, active, and continuous participation (or attempted participation) in the religious activities of[] the Ukrainian Catholic Church or the Ukrainian Orthodox Church”); Adjustment of Status of Certain Syrian Nationals, Pub. L. No. 106-378, § 2(b)(1)(A), 114 Stat. 1442 (2000) (providing special adjustment of status benefits for certain “Jewish national[s] of Syria”).
39

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 52 of 61
2. Plaintiffs suggest that even if the Order is itself entirely neutral with respect to religion, past statements by the President, including while he was a candidate, should disable him from promulgating it. That suggestion is profoundly misguided and, if accepted, would have serious constitutional implications. It would, among other things, imply that the President’s singular authority to carry out the unique national-security duties entrusted to him by the Constitution and by Congress is contingent upon judicial examination and evaluation of statements he has made outside the four corners of his official actions, including statements made while still a private citizen. That approach, under which the powers of the Presidency would vary based on the identity of the individual duly elected by the people to hold that Office, has no sound basis in precedent and would raise significant separation-of-powers concerns.
Although not endorsing the States’ religious-discrimination claims (Op. 26), the panel nonetheless suggested that Mandel’s “facially legitimate and bona fide” standard would not apply in this case because it is limited to “lawsuits challenging an executive branch official’s decision to issue or deny an individual visa” rather than broad “immigration polic[ies]” like the Order. Id. at 15-16 (quotation marks and citation omitted). But the Supreme Court itself, in Fiallo v. Bell, applied Mandel to reject challenges to an immigration statute, which obviously involved questions of immigration policy rather than individualized executive adjudications. 430 U.S. at 794-95 (“We can see no reason to review the broad congressional policy choice at issue here under a more exacting standard than was applied in * * * Mandel.”).
40

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 53 of 61
IV. The Panel Erred In Its Analysis Of The Other Stay Factors The panel also erred in its assessment of the other stay factors. The district court’s
injunction blocks the implementation of an Executive Order that the President has determined is necessary “to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism,” Order § 1, and in turn permits the entry into the United States of certain aliens whose entry the President found “would be detrimental” to the national interest, 8 U.S.C. § 1182(f). The injunction thereby causes irreparable harm to the Executive Branch and the national interests that it seeks to protect. “[T]he Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010) (HLP), and a stay pending appeal is appropriate where an injunction “is not merely an erroneous adjudication of a lawsuit between private litigants, but an improper intrusion by a federal court into the workings of a coordinate branch of the Government,” INS v. Legalization Assistance Project, 510 U.S. 1301, 1305-06 (1993) (O’Connor, J., in chambers); see Heckler v. Lopez, 463 U.S. 1328, 1330 (1983) (Rehnquist, J., in chambers); see also Adams v. Vance, 570 F.2d 950, 954 (D.C. Cir. 1978) (per curiam).
The panel stated that the government “has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” Op. 26-27. But the interest here is in preventing potential terrorist acts in the future from nationals of seven countries that were previously found to present uniquely high risks of terrorism, during a temporary period to allow the government to reevaluate
41

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 54 of 61
existing screening procedures. “The Government, when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions.” HLP, 561 U.S. at 35; see Oryszak v. Sullivan, 576 F.3d 522, 525-26 (D.C. Cir. 2009) (stating that “review of the breadth of [the margin of error acceptable in assessing the security risk posed by an individual] is outside the authority of a nonexpert body”) (alteration in original; quotation marks and citation omitted)); cf. Maryland v. King, 133 S. Ct. 1, 3 (2012) (crediting Maryland’s assertion that barring enforcement of statute authorizing DNA collection from certain individuals would create “an ongoing and concrete harm to Maryland’s law enforcement and public safety interests”). That is especially so where, as here, the screening procedures that are being evaluated are intended to prevent terrorist attacks before they occur.
By contrast, the States primarily point to an impact on LPRs and other third-party aliens, to whom the Order does not even apply. See Part I.A, supra. Moreover, none of the purported irreparable harms identified by the panel—to aliens affiliated with state universities, aliens with family members abroad, and alien residents currently outside the country—involves an injury to a party before the court. Op. 28; see, e.g., Adams v. Freedom Forge Corp., 204 F.3d 475, 487 (3d Cir. 2000) (“[T]he preliminary injunction device should not be exercised unless the moving party shows that it specifically and personally risks irreparable harm.”) (emphasis added). None outweighs the important national-security interests with which the injunction interferes. And to the extent that the States allege the
42

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 55 of 61
existence of a small number of non-LPR aliens with concrete travel plans, they do not allege that those aliens have sought, let alone been denied, a case-specific waiver. V. At Minimum, The Panel Erred In Failing To Narrow The Injunction
Even apart from the errors identified thus far, which rendered any injunctive relief inappropriate, the injunction swept far too broadly and has improperly constrained the government in ways that go well beyond redressing any constitutional violation and cognizable injury alleged by the States. An injunction should extend no further “than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (quotation marks and citation omitted). Accordingly, this Court has vacated a preliminary injunction where the district court “failed to tailor the injunction to remedy the specific harm alleged by the actual Appellees.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009); see, e.g., McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir. 2012) (“A district court abuses its discretion by issuing an ‘overbroad’ injunction.”); Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (“Injunctive relief * * * must be tailored to remedy the specific harm alleged.”).
The panel erred in failing to follow that restrained course here. The panel concluded that the States were injured based on the asserted inability of aliens to travel to (or return to) state universities. Op. 12. Even if that theory of injury were upheld, it could at most provide a basis for an injunction reasonably tailored to that particular category of aliens— other than LPRs, who are not covered by the Order—who have the asserted connection to the plaintiff States and who seek to travel (or return) for purposes relating to the States’
43

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 56 of 61
universities. Plaintiffs’ alleged injury does not, however, even arguably provide a basis for a sweeping injunction barring all applications of the relevant provisions of the Order, including to individuals who have never been to the United States and who, therefore, have no constitutional interest in entering this country at all.
In any event, even if the States were entitled to relief that extended beyond the theory of injury to the States accepted by the panel, there is no basis for imposing an injunction against every application of the Order. Plaintiffs were seeking to protect LPRs and other nationals from the seven identified countries who were previously admitted to the United States and affiliated with state universities, and were either temporarily abroad or were in the United States and wish to travel outside this country—not aliens who were attempting to enter the country for the first time. See States’ Resp. to Stay Mot. 11-12, 1516; Tr. 7-8, 15-16. Indeed, plaintiffs largely conceded that aliens who have never entered the United States lack any constitutional right to do so, see Tr. 7, 15, and the panel did not suggest otherwise. See Op. 20 (describing plaintiffs’ arguments that certain visa holders have constitutional rights to reenter the United States); id. at 20-21 (Due Process Clause protections “apply to all persons within the United States”) (quoting Zadvydas, 533 U.S. at 693) (quotation marks and alterations omitted); id. at 22 (referring to “due process rights of other persons who are in the United States, even if unlawfully”).
The injunction, however, is far broader than reasonably needed to vindicate the limited claims recognized by the panel. It bars all applications of Section 3(c)—even as to aliens who have never previously visited this country, or even obtained a visa. It also bars
44

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 57 of 61
virtually all applications of Section 5, even though there is no indication that any of the
aliens affected by the temporary suspension of the refugee program have been previously
admitted to this country or have any connection to the States’ universities.13
The injunction’s overreach cannot be supported by the panel’s observation that
challenges to the Order could be brought by “citizens who have an interest in specific non-
citizens’ ability to travel to the United States.” Op. 23. No such citizens are plaintiffs in
this case. Injunctive relief should not have been granted to vindicate the assumed interests
of unidentified hypothetical plaintiffs who are not before the court, and who would not be
injured at all if the affected aliens obtained a waiver, see Order, §§ 3(g), 5(e). Moreover, any
such hypothetical plaintiffs could themselves assert their own rights when and if such a
waiver were denied.14 Contrary to the panel’s reasoning, the difficulty of identifying aliens
who might have connections to the United States that could potentially allow for suit by
different plaintiffs is not a reason for enjoining the Order’s provisions in toto at the States’
behest. It is instead confirmation that the Order is clearly constitutional in the vast majority
13 Indeed, the district court even enjoined enforcement of Section 5(b), which will not go into effect for 120 days; plaintiffs effectively conceded below that their challenge to that provision is not ripe for review. Tr. 15 (Section 5(b) claim “does not necessarily require immediate injunction”).
14 In Mandel, for example, the plaintiffs—United States citizens who asserted a First Amendment right to meet with a Belgian citizen who had been deemed ineligible for entry into the United States—brought suit after a waiver for the alien’s admission had been denied. See 408 U.S. at 759; see also Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967) (noting traditional reluctance to grant injunctive and declaratory relief where an issue is not ripe); Reno v. Catholic Soc. Servs., 509 U.S. 43, 58 (1993) (challenge to alien legalization program regulations not ripe because the regulations merely “limit[ed] access to a benefit” that was not “automatically bestowed on eligible aliens”).
45

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 58 of 61
of its intended applications, as well as good reason to await actual application of the Order to, and a suit by, such a potential plaintiff.
Finally, it was improper to issue an injunction against the President himself. Courts have no jurisdiction “to enjoin the President in the performance of his official duties.” Mississippi v. Johnson, 71 U.S. 475, 501 (1866). Any injunction here—to the extent it is properly limited in scope to reflect the injuries asserted by plaintiffs—must be limited to the federal agencies or officials charged with implementing the Order, and should not include the President. E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (challenge to Executive Order via suit seeking to enjoin the Secretary of Commerce); see also, e.g., Franklin v. Massachusetts, 505 U.S. 788, 826 (1992) (Scalia, J., concurring in part and concurring in the judgment) (explaining separation of powers rationale for this rule).
* * * * * In other circumstances, the panel’s multiple errors in sustaining a substantially overbroad injunction, and thereby prohibiting enforcement of a lawful Executive Order designed to protect the Nation’s security, would warrant en banc review by this Court on the merits. See Fed. R. App. P. 35(a)(2). In light of the forthcoming promulgation of a new superseding Executive Order, however, such review is not called for at this time. Rather, the proper course in these unique circumstances, which have involved highly expedited preliminary consideration and limited briefing of detailed issues concerning an Executive Order whose scope was misapprehended, would be simply to vacate the panel’s opinion when the new Order is promulgated. Cf. Circuit Advisory Committee Note Rules
46

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 59 of 61

35-1 to 35-3 (specifying that panel’s decision is no longer precedential when rehearing en

banc is granted). To facilitate that result, the government will promptly file with the Court

the new Order as soon as it has been issued.

CONCLUSION

For the foregoing reasons, the Court should hold the case until the new Executive

Order is issued, at which point it should vacate the panel’s opinion.

Respectfully submitted,

/s/ Noel J. Francisco NOEL J. FRANCISCO
Acting Solicitor General
EDWIN S. KNEEDLER Deputy Solicitor General

CHAD A. READLER Acting Assistant Attorney General
AUGUST E. FLENTJE Special Counsel to the Assistant Attorney General
DOUGLAS N. LETTER SHARON SWINGLE H. THOMAS BYRON III LOWELL V. STURGILL JR. CATHERINE DORSEY
Attorneys, Appellate Staff Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530

February 2017

47

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 60 of 61
CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-face requirements of Fed. R. App. P. 32(a)(5) and the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) and this Court’s Feb. 10, 2017 Order. This brief contains 13,260 words, excluding the parts of the brief excluded by Fed. R. App. P. 32(a)(7)(iii).
/s/ Sharon Swingle Sharon Swingle

Case: 17-35105, 02/16/2017, ID: 10322287, DktEntry: 154, Page 61 of 61
CERTIFICATE OF SERVICE I hereby certify that on February 16, 2017, I electronically filed the foregoing brief 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/ Sharon Swingle Sharon Swingle

 
 Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 1 of 70

NO. 17-35105
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATES OF WASHINGTON AND MINNESOTA, Plaintiffs-Appellees,
v. DONALD TRUMP, President of the United States, et al.,
Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
No. 2:17-cv-00141 The Honorable James L. Robart United States District Court Judge

STATES’ BRIEF REGARDING REHEARING EN BANC

ROBERT W. FERGUSON, WSBA 26004 Attorney General of Washington
NOAH G. PURCELL, WSBA 43492 Solicitor General
ANNE E. EGELER, WSBA 20258 Deputy Solicitor General
COLLEEN M. MELODY, WSBA 42275 Civil Rights Unit Chief
MARSHA CHIEN, WSBA 47020 PATRICIO A. MARQUEZ, WSBA 47693
Assistant Attorneys General Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744

LORI SWANSON Attorney General of Minnesota
ALAN I. GILBERT, MN #0034678 Solicitor General
JACOB CAMPION, MN #0391274 Assistant Attorney General
Office of the Attorney General 445 Minnesota Street, Suite 1100 St. Paul, MN 55101 (651) 757-1450

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 2 of 70
TABLE OF CONTENTS I. INTRODUCTION ..................................................................................... 1 II. FACTS ....................................................................................................... 1 III. ARGUMENT ........................................................................................... 10
A. The Criteria Justifying En Banc Review Are Missing Here ............. 10 B. The Panel Correctly Described the Standard for Obtaining a
Stay .................................................................................................... 13 C. The Panel Correctly Concluded That the States Have
Standing ............................................................................................. 14 1. The States have proprietary standing .......................................... 15 2. The States have standing as parens patriae................................ 18 D. The Panel Correctly Concluded That Courts Have Power to Review Executive Action, Even When It Relates to National Security or Immigration .................................................................... 21 E. The Panel Correctly Concluded That Defendants Failed To Show a Likelihood of Success on Appeal ......................................... 25 1. Defendants failed to show a likelihood of success on the
Due Process claim ....................................................................... 25 2. Defendants failed to show a likelihood of success on the
States’ religious discrimination claims ....................................... 33 a. The States are likely to prevail on the Establishment
Clause claim ......................................................................... 34 b. The States are likely to prevail on the Equal
Protection claim .................................................................... 39
i

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 3 of 70
3. Defendants failed to show a likelihood of success on the States’ statutory claim................................................................. 43
F. The Panel Correctly Concluded that Defendants Failed to Show That They Would Suffer Irreparable Injury Absent a Stay .................................................................................................... 47
G. The Panel Correctly Concluded that the Balance of Hardships and Public Interest Tip in the States’ Favor..................... 49
H. The Panel Properly Declined to Narrow the Injunction.................... 51 IV. CONCLUSION........................................................................................ 53
ii

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 4 of 70
TABLE OF AUTHORITIES Cases
Acre v. Douglas, 793 F.3d 968 (9th Cir. 2015) ......................................................................... 39
Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982) ................................................................................ 19, 21
Am. Fed’n of Gov’t Emps. Local 1 v. Stone, 502 F.3d 1027 (9th Cir. 2007) ........................................................................ 15
Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999)....................................................................... 29
Aziz v. Trump, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) .................................................. 12
Ball v. Massanari, 254 F.3d 817 (9th Cir. 2001) ......................................................................... 39
Bd. of Nat. Res. of State of Wash. v. Brown, 992 F.2d 937 (9th Cir. 1993) ......................................................................... 31
Bi-Metallic Inv. Co. v. State Bd. Of Equalization, 239 U.S. 441 (1915) ................................................................................ 32, 33
Boumediene v. Bush, 553 U.S. 723 (2008) ...................................................................................... 22
Chae Chan Ping v. U.S., 130 U.S. 581 (1889) ...................................................................................... 46
Chae Chan Ping v. United States, 130 U.S. 581 (1889) ...................................................................................... 24
iii

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 5 of 70
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) ...................................................................... 53
City of New Orleans v. Dukes, 427 U.S. 297 (1976) ...................................................................................... 39
Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000) ......................................................................... 27
Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925 (9th Cir. 2008) ......................................................................... 15
De La Cruz v. Tormey, 582 F.2d 45 (9th Cir. 1978) ........................................................................... 39
Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011)....................................................................... 23
Gallo v. U.S. Dist. Court For Dist. of Arizona, 349 F.3d 1169 (9th Cir. 2003)....................................................................... 32
Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) ...................................................................................... 19
Gila River Indian Cmty. v. United States, 729 F.3d 1139 (9th Cir. 2013)....................................................................... 46
Graham v. Richardson, 403 U.S. 365 (1971) ...................................................................................... 39
Griswold v. Connecticut, 381 U.S. 479 (1965) ....................................................................................... 17
Gutierrez v. Holder, 662 F.3d 1083 (9th Cir. 2011)....................................................................... 27
iv

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 6 of 70
Haitian Refugee Ctr. v. Smith, 676 F.2d 1023 (5th Cir. 1982)....................................................................... 29
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ...................................................................................... 22
Harris v. Cty. of Riverside, 904 F.2d 497 (9th Cir. 1990) ......................................................................... 33
Hassan v. City of New York, 804 F.3d 277 (3d Cir. 2015) .......................................................................... 50
Hilton v. Braunskill, 481 U.S. 770 (1987) ...................................................................................... 14
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) .................................................................................... 22, 48
INS v. Chadha, 462 U.S. 919 (1983) ...................................................................................... 23
INS v. Pangilinan, 486 U.S. 875 (1988) ...................................................................................... 36
Kent v. Dulles, 357 U.S. 116 (1958) ................................................................................ 28, 32
Kerry v. Din, 135 S. Ct. 2128 (2015) .................................................................................. 36
Kleindienst v. Mandel, 408 U.S. 753 (1972) ................................................................................ 23, 24
Korematsu v. United States, 323 U.S. 214 (1944) ...................................................................................... 25
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) ...................................................................................... 27
v

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 7 of 70
Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987 (9th Cir. 2003) ......................................................................... 13
Landon v. Plasencia, 459 U.S. 21 (1982) .................................................................................. 27, 32
Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004) ................................................................... 28, 29
Larson v. Valente, 456 U.S. 228 (1982) .......................................................................... 34, 36, 39
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 45 F.3d 469 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996) .......................................................................................... 44
Lemon v. Kurtzman, 403 U.S. 602 (1971) ................................................................................ 36, 38
Lopez v. Hecker, 713 F.2d 1432 (9th Cir. 1983)....................................................................... 48
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....................................................................................... 14
Makaeff v. Trump Univ., LLC, 736 F.3d 1180 (9th Cir. 2013)....................................................................... 12
Massachusetts v. EPA, 549 U.S. 497 (2007) ................................................................................ 20, 31
Massachusetts v. Mellon, 262 U.S. 447 (1923) ...................................................................................... 20
Mathews v. Diaz, 426 U.S. 67 (1976) ........................................................................................ 27
vi

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 8 of 70
McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005) ................................................................................ 37, 43
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ......................................................................... 51
Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) ......................................................................... 12
Missouri v. Jenkins, 495 U.S. 33 (1990) ........................................................................................ 12
NAACP v. Alabama, 357 U.S. 449 (1958) ....................................................................................... 17
Nken v. Holder, 556 U.S. 418 (2009) ............................................................... 14 Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997) ..................................................................... 44 Parents’ Ass’n of P.S. 16 v. Quinones,
803 F.2d 1235 (2d Cir. 1986) ........................................................................ 53 Parks Sch. of Bus., Inc. v. Symington,
51 F.3d 1480 (9th Cir. 1995) .......................................................................... 17 Romer v. Evans,
517 U.S. 620 (1996) ...................................................................................... 42 Sausalito v. Oneill,
386 F.3d 1186 (9th Cir. 2004)....................................................................... 18 Separation of Church & State Comm. v. City of Eugene,
93 F.3d 617 (9th Cir. 1996) ........................................................................... 53 Setser v. United States,
556 U.S. 231 (2012) ...................................................................................... 44
vii

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 9 of 70
Singleton v. Wulff, 428 U.S. 106, 114-16 (1976) .......................................................................... 17
South Carolina v. Katzenbach, 383 U.S. 301 (1966) ...................................................................................... 31
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) ................................................................................... 14
Texas v. United States, 787 F.3d 733 (5th Cir. 2015) .......................................................................... 15
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ......................................................................... 53
United States v. Alvarez, 638 F.3d 666 (9th Cir. 2011) ......................................................................... 12
United States v. American–Foreign S.S. Corp., 363 U.S. 685 (1960) ...................................................................................... 12
United States v. Burdeau, 180 F.3d 1091 (9th Cir. 1999)....................................................................... 12
United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014)....................................................................... 27
United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) ...................................................................................... 15
United States v. Windsor, 133 S. Ct. 2675 (2013) .................................................................................. 42
Vasquez v. Los Angeles Cty., 487 F.3d 1246 (9th Cir. 2007)....................................................................... 38
Wallace v. Jaffree, 472 U.S. 38 (1985) .................................................................................. 37, 38
viii

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 10 of 70
Washington v. Trump, 2017 WL 469608 (9th Cir. Feb. 4, 2017)........................................................ 9
Washington v. Trump, 2017 WL 526497 (9th Cir. Feb. 9, 2017).................... 9, 11, 13-17, 19, 21-26,
................................................................................... 29-31, 33-34, 36, 42, 47-53 White v. Lee,
227 F.3d 1214 (9th Cir. 2000)....................................................................... 30 Zadvydas v. Davis,
533 U.S. 678 (2001) ................................................................................ 23, 27 Zetino v. Holder,
622 F.3d 1007 (9th Cir. 2010)....................................................................... 29 Constitutional Provisions
U.S. Const. amend. I ......................................................................................... 34 U.S. Const. amend. V.................................................................................. 27, 39 U.S. Const., art. I, § 8........................................................................................ 23
Statutes 8 U.S.C. § 1152................................................................................................. 45 8 U.S.C. § 1158(a)(1)........................................................................................ 28 8 U.S.C. § 1152(a)(1)(A) ................................................................ 21, 44, 45, 46 8 U.S.C. § 1231(b) ............................................................................................ 28 8 U.S.C. § 1182(f)....................................................................................... 43, 46
ix

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 11 of 70
Immigration and Nationality Act of 1952, Pub. L. 82-414 ............................................................................................... 43
Immigration and Nationality Act of 1965, Pub. L. No. 89-236 (Oct. 3, 1965)........................................................... 21, 43
Minn. Stat. § 363A.02........................................................................................ 20 United Nations Convention Against Torture , implemented in the
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998)................................................................... 28 Wash. Rev. Code § 49.60.010............................................................................ 20
Court Rules Cir. Rule 27-10(a)(3) .................................................................................. 10, 11 Cir. Rule 27-10(b) ....................................................................................... 10, 11 Circuit Advisory Committee Note to Rule 27-10....................................... 10, 11 Cir. Rule 35-1.................................................................................................... 12
Oral Argument Washington v. Trump, No. 17-35105 (Feb. 7, 2017)
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=00000 10885 Oral Argument at 1:05:14-1:05:46, , ............................................................. 11 Oral Argument at 7:10-12:15; 1:05:14-1:05:46 ............................................ 47
Executive Orders Executive Order No. 13,769 (Jan. 27, 2017) ............................................. passim
x

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 12 of 70
Other Authorities
Abby Jackson, The 10 US colleges that stand to lose the most from Trump’s immigration ban, Business Insider (Feb. 1, 2017) http://www.businessinsider.com/colleges-potentially-most-affectedtrump-immigration-ban-2017-2 .................................................................... 16
Congressional Research Service, Executive Auth. to Exclude Aliens: In Brief (Jan. 23, 2017), https://fas.org/sgp/crs/homesec/ R44743.pdf .................................................................................................... 45
Dep’t of Homeland Security, Fact Sheet: Protecting The Nation From Foreign Terrorist Entry To The United States (Jan. 29, 2017), https://www.dhs.gov/news/2017/01/29/protecting-nation-foreignterrorist-entry-united-states ........................................................................... 45
Evan Perez, Pamela Brown, & Kevin Liptak, Inside the confusion of the Trump executive order and travel ban, CNN (Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travelban/index.html ................................................................................................. 5
Glenn Kessler, The number of people affected by Trump’s travel ban: About 90,000, Washington Post (Jan. 30, 2017), https://www.wash ingtonpost.com/news/fact-checker/wp/2017/01/30/the-number-ofpeople-affected-by-trumps-travel-ban-about-90000/?utm_term =.caa5dc63b2c4 ............................................................................................... 5
Jaweed Kaleem, Nearly 60,000 visas revoked since Trump’s immigration order, Los Angeles Times (Feb. 3, 2017), http://www.latimes.com/ politics/washington/la-na-essential-washington-updates-more-than100-000-visas-revoked-since-1486148132-htmlstory.html ............................ 5
Jordan Fabian & Ben Kamisar, Confusion as Priebus says maybe Trump will go to Supreme Court, http://thehill.com/homenews/administration/ 319029-trump-not-planning-to-appeal-travel-ban-ruling-tosupreme-court (Feb. 10, 2017) ...................................................................... 13
xi

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 13 of 70
Lovelace, Full 9th Circuit may review Trump immigration ban ruling, http://www.washingtonexaminer.com/full-9th-circuit-may-reviewtrump-immigration-band-ruling/article/2614556 (Feb. 10, 2017) ................ 13
Lynda Mapes, Joy at Sea-Tac: Families reunite after courts halt travel ban, Seattle Times (Feb. 5, 2017), http://www.seattletimes.com/seattle-news/crime/joy-at-sea-tacfamilies-reunite-after-courts-postpone-travel-ban/; Mathis, Travelers Arrive in US to Hugs and Tears After Ban Is Lifted, New York Times (Feb. 5, 2017), https://www.nytimes.com/ aponline/2017/02/04/us/ap-us-trump-travel-ban-impact.html?_r=0............... 8
Meisam Haghighi, Beyond the Visa Ban: Inside Stories (Feb. 2, 2017), https://www.youtube.com/watch?feature=youtu.be&v=i3hOwva8is c&app=desktop................................................................................................ 7
Nick Gass, Trump not bothered by comparisons to Hitler, Politico (Dec. 8, 2015), http://www.politico.com/trump-muslims-shutdownhitler-comparison............................................................................................. 2
President-Elect Trump Remarks in Palm Beach, Florida, C-SPAN (Dec. 21, 2016), https://www.c-span.org/video/?4205831/presidentelect-trump-calls-berlin-terrorist-attack-attack-humanity............. 3
The American Presidency Project, Presidential Debates: Presidential Debate at Washington University in St. Louis, Missouri (Oct. 9, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=119038 .............. 3
The American Presidency Project, Presidential Debates: Republican Candidates Debate in North Charleston, South Carolina (Jan. 14, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=111395 .............. 2
Trump Signs Executive Orders at Pentagon, ABC News (Jan. 27, 2017), http://abcnews.go.com/Politics/video/trump-signs-executiveorders-pentagon-45099173.............................................................................. 4
xii

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 14 of 70
I. INTRODUCTION In a careful, thoughtful, and narrow opinion, a panel of this Court rejected Defendants’ emergency motion for stay. The panel properly held that Defendants fell short of their burden on several fronts: (1) Defendants failed to show irreparable injury because the district court order that Defendants sought to stay simply restored the status quo; (2) Defendants failed to show a likelihood of success on appeal because the Plaintiff States had established at least one clear constitutional violation (and other likely violations); and (3) the public interest and balance of harms tip decisively against Defendants. In reaching these conclusions, the panel created no conflict with precedent of this Court or the Supreme Court; rather, the panel’s opinion is firmly grounded in precedent. There is thus no basis for en banc review, especially given the interlocutory nature of Defendants’ motion and the cautious approach of the panel’s opinion. Granting en banc review would simply delay the merits of the preliminary injunction appeal to no substantive purpose. The Court should decline.
II. FACTS Donald Trump campaigned on the promise that he would ban Muslims from entering the United States. In December 2015, he issued a press release
1

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 15 of 70
entitled: “Donald J. Trump Statement on Preventing Muslim Immigration.” First Amended Complaint, WD ECF 18, ¶¶ 42-43; WD ECF 18-1. In this press release, Trump asserted that “there is great hatred towards Americans by large segments of the Muslim population.” WD ECF 18-1. He called for “a total and complete shutdown of Muslims entering the United States.” WD ECF 18, ¶ 43; WD ECF 18-1.
Shortly after issuing this press release, Trump defended and reiterated this promise. WD ECF 18, ¶¶ 44-46. He compared the Muslim ban to the internment of Japanese Americans during World War II. WD ECF 18, ¶ 44; WD ECF 18-2. He proposed an entry process that would exclude Muslim noncitizens from the country if they admitted that they were Muslim.1 And he steadfastly refused to rethink his position about “banning Muslims from entering the country[,]” claiming that “we have to stop with political correctness.”2
Trump reaffirmed this promise throughout his campaign. Although Trump began referring to his plan in terms of “territories” or “extreme vetting,”
1 Nick Gass, Trump not bothered by comparisons to Hitler, Politico (Dec. 8, 2015), http://www.politico.com/trump-muslims-shutdown-hitlercomparison.
2 The American Presidency Project, Presidential Debates: Republican Candidates Debate in North Charleston, South Carolina (Jan. 14, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=111395.
2

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 16 of 70
he continued to make it clear that he intended to enact a Muslim ban. When asked whether he was “backing off on his Muslim ban[ ],” Trump responded: “I actually don’t think it’s a pull-back. In fact, you could say it’s an expansion.” WD ECF 18, ¶ 46; WD ECF 18-4. He explained: “I’m looking now at territories. People were so upset when I used the word Muslim.” WD ECF 184, at 7. And when asked whether “the Muslim ban still stands” he replied: “It’s called extreme vetting.”3
Even after his election, Trump maintained his position. When asked whether he had decided “to rethink or re-evaluate [his] plans to create a Muslim registry or ban Muslim immigration to the United States,” he replied: “You know my plans. All along, I’ve been proven to be right.”4
Within one week of taking office, President Trump acted on this promise by signing Executive Order No. 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“the Executive Order”). WD ECF 18, ¶ 49; WD ECF 18-7. The Executive Order radically changed immigration policy. It imposed a 120-day moratorium on the refugee
3 The American Presidency Project, Presidential Debates: Presidential Debate at Washington University in St. Louis, Missouri (Oct. 9, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=119038.
4 President-Elect Trump Remarks in Palm Beach, Florida, C-SPAN (Dec. 21, 2016), https://www.c-span.org/video/?420583-1/presidentelecttrump-calls-berlin-terrorist-attack-attack-humanity.
3

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 17 of 70
resettlement program; indefinitely suspended the entry of Syrian refugees; and suspended for 90 days the entry of all immigrants and nonimmigrants from seven majority-Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. WD ECF 18, ¶¶ 49-52; WD ECF 18-7. When signing the Executive Order, President Trump read its title aloud and said: “We all know what that means.”5
President Trump and his advisors subsequently confirmed the Executive Order’s discriminatory purpose. See WD ECF 18, ¶¶ 53, 61. One advisor indicated that the Executive Order was crafted to be a “legal” ban on Muslims. WD ECF 18, ¶ 61. He explained that President Trump wanted to enact a “Muslim ban” and instructed him to “put a commission together” to “show [Trump] the right way to do it legally.” WD ECF 18, ¶ 61. In addition, President Trump confirmed that Christians in the Middle East would be given priority for admission as refugees. WD ECF 18, ¶ 53.
The Executive Order unleashed chaos around the world. Over the next few days, nearly 60,000 visas were revoked,6 hundreds of people were
5 Trump Signs Executive Orders at Pentagon, ABC News (Jan. 27, 2017), http://abcnews.go.com/Politics/video/trump-signs-executive-orderspentagon-45099173.
6 Jaweed Kaleem, Nearly 60,000 visas revoked since Trump’s immigration order, Los Angeles Times (Feb. 3, 2017),
4

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 18 of 70
prevented from boarding airplanes bound for the United States or denied entry upon landing, and many travelers were detained at U.S. airports.7 This chaos was compounded by Defendants’ conflicting and ever-changing positions about the applicability of the Executive Order to lawful permanent residents. WD ECF 18, ¶¶ 57-59; WD ECF 18-13; WD ECF 18-14; WD ECF 18-15.8
The States of Washington and Minnesota were immediately and significantly impacted. Over 7,000 noncitizen immigrants from the affected countries reside in Washington, and thousands more are U.S. citizens. WD ECF 18, ¶ 11; WD ECF 4, ¶ 7, Ex. A. Over 30,000 Minnesota residents were born in the affected countries. WD ECF 18, ¶ 31. Their lives changed overnight. WD ECF 18, ¶¶ 21-23; WD ECF 33, ¶¶ 5-9; WD ECF 8, ¶¶ 11-13; WD ECF 43, ¶¶ 5-9. Residents temporarily abroad were blocked from returning home. WD ECF 33, ¶¶ 7-8. Residents in the United States faced considerable uncertainty about whether they could travel and whether http://www.latimes.com/politics/washington/la-na-essential-washingtonupdates-more-than-100-000-visas-revoked-since-1486148132-htmlstory.html.
7 Glenn Kessler, The number of people affected by Trump’s travel ban: About 90,000, Washington Post (Jan. 30, 2017), https://www.washingtonpost.com/news/fact-checker/wp/2017/01/30/thenumber-of-people-affected-by-trumps-travel-ban-about-90000/?utm_term =.caa5dc63b2c4.
8 See also Evan Perez, Pamela Brown, & Kevin Liptak, Inside the confusion of the Trump executive order and travel ban, CNN (Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html.
5

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 19 of 70
vulnerable loved ones would be able to join them. WD ECF 8, ¶¶ 5, 7; WD ECF 18, ¶ 22; WD ECF 33, ¶¶ 7-8. For some with serious medical conditions, the situation was especially dire. See, e.g., WD ECF 33, ¶ 8; WD ECF 43, ¶ 5. This chaos and uncertainty tore families apart, undermined personal freedoms, jeopardized individuals’ economic security, and endangered the lives and safety of many.
The States’ economies and businesses were also immediately impacted. WD ECF 18, ¶¶ 12-17, 35. Washington receives substantial sales tax revenue every year from travelers from the seven countries and immediately began losing some of that revenue. See WD ECF 17-1, ¶¶ 3-11. Washington-based travel company Expedia began incurring costs assisting its customers who were suddenly banned from travel to the United States. WD ECF 7, ¶¶ 12-14, 20. Washington companies Amazon, Expedia, and Microsoft depend on skilled immigrants to operate and grow their businesses, and the Executive Order diminished their ability to recruit. WD ECF 18, ¶¶ 12-17; WD ECF 6, ¶¶ 3-4, 11; WD ECF 7, ¶¶ 7, 9, 21. Further, many employees were unable to travel internationally, which impaired business operations. WD ECF 7, ¶¶ 15-20; WD ECF 6, ¶¶ 7-11; WD ECF 18, ¶¶ 14-15.
6

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 20 of 70
The Executive Order also caused immediate harm to the States’ public universities, which are state agencies. Hundreds of their faculty, staff, and students are from the affected countries. WD ECF 18, ¶¶ 28, 32; WD ECF 9, ¶ 5; WD ECF 5, ¶ 5; WD ECF 17-3, ¶¶ 4, 6; WD ECF 17-2, ¶ 10; WD ECF 17-4, ¶ 5. The Executive Order instantly stranded some faculty members and students overseas, prevented others from traveling for scholarship or family visits, halted critical research, jeopardized research programs, and harmed the universities’ overall academic missions.9 WD ECF 9, ¶¶ 6-8; WD ECF 5, ¶¶ 6-9; WD ECF 17-2, ¶¶ 3-13; WD ECF 17-4, ¶¶ 5-8; WD ECF 67, ¶ 2. In addition, the Executive Order exposed the universities to various financial losses, including lost investments on visas for interns and employees the universities had sponsored, lost conference fees, and lost tuition. WD ECF 18, ¶¶ 26-27; WD ECF 17-2, ¶ 10; WD ECF 66, ¶¶ 4-8; WD ECF 67, ¶¶ 2-4.
Due to these immediate and serious harms, Washington filed a complaint and motion for temporary restraining order (TRO) on January 30. WD ECF 3. Minnesota soon joined, alleging similar harms. See WD ECF 18, ¶¶ 30-36. On
9 A video documenting the impact on members of Washington State University’s Iranian Students Association of WSU is available online at Meisam Haghighi, Beyond the Visa Ban: Inside Stories (Feb. 2, 2017), https://www.youtube.com/watch?feature=youtu.be&v=i3hOwva8isc&app=des ktop.
7

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 21 of 70
February 3, the district court entered a TRO barring Defendants from enforcing several sections of the Order. WD ECF 52.
The TRO had immediate, positive effects: families were able to reunite, students and faculty were able to return home, and travel for business and to visit loved ones resumed.10 The State Department declared that it was reinstating visas that had been revoked pursuant to the Executive Order. 9th ECF 29-1, Exs. A, B. The Department of Homeland Security started processing travelers with visas as normal and began processing travelers with standard inspection and security procedures. Id. Exs. E, B, F. Customs and Border Protection directed that nationals of the seven countries and refugees presenting a valid visa or green card be permitted to travel to the United States. Id. Ex. G. Major airlines announced that they would comply with this directive, and travelers from the previously banned countries began arriving at U.S. airports. Id., Exs. G, H, I, J, B, D.
On February 4, Defendants noticed an appeal of the TRO and sought an emergency stay. WD ECF 53; Emergency Motion Under Circuit Rule 27-3 for
10 E.g., Lynda Mapes, Joy at Sea-Tac: Families reunite after courts halt travel ban, Seattle Times (Feb. 5, 2017), http://www.seattletimes.com/seattlenews/crime/joy-at-sea-tac-families-reunite-after-courts-postpone-travel-ban/; Mathis, Travelers Arrive in US to Hugs and Tears After Ban Is Lifted, New York Times (Feb. 5, 2017), https://www.nytimes.com/aponline/2017/02/04/ us/ap-us-trump-travel-ban-impact.html?_r=0.
8

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 22 of 70
Administrative Stay and Motion for Stay Pending Appeal, No. 17-35105. 9th ECF 14. A three-judge panel of this Court denied Defendants’ request for an immediate administrative stay and set deadlines for briefing on Defendants’ emergency stay motion. Washington v. Trump, 2017 WL 469608 (9th Cir. Feb. 4, 2017). On February 7, the panel heard oral argument on the emergency stay motion. Two days later, it issued a published, per curiam order denying the motion, Washington v. Trump, 2017 WL 526497 (9th Cir. Feb. 9, 2017), and it set an expedited briefing schedule for the appeal. 9th ECF 135.
The panel concluded that Defendants had not satisfied their burden in several respects. For one, the panel concluded that Defendants had not shown a likelihood of success on the merits of their appeal, because the States have viable due process claims and may also succeed on their religious discrimination claims. See Washington, 2017 WL 526497, at *8-10. The panel also concluded that Defendants failed to show irreparable injury, because the TRO simply restored the status quo. Id. at *10. Finally, the panel concluded that the competing public interests do not justify a stay. Id. at *11.
On February 10, this Court requested briefing from the parties on whether the order issued by the three judge panel should be reconsidered en banc. ECF 139 (Order, No. 17-35105 (9th Cir. Feb. 10, 2017)).
9

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 23 of 70
III. ARGUMENT The panel properly denied a stay of the district court’s order. Briefing on the merits of the preliminary injunction appeal is proceeding on an expedited schedule. There is no need for en banc review of the panel’s interlocutory decision, which correctly stated the standard for obtaining a stay, correctly articulated the controlling legal principles, and properly applied those principles to the facts presented. A. The Criteria Justifying En Banc Review Are Missing Here En banc reconsideration of the panel’s order is unwarranted because the threshold criteria for such extraordinary review are not satisfied under the Circuit’s rules for en banc reconsideration of a motions panel order or the broader principles governing en banc review. Under the Circuit Rules, en banc reconsideration of an order issued by a motions panel (as opposed to a merits panel) is “not favored,” and requires a showing that the panel has “overlooked or misunderstood a point of law or fact” or that there has been “a change in legal or factual circumstances after the order which would entitle the movant to relief.” Circuit Advisory Committee Note to Rule 27-10; see Cir. Rule 27-10(a)(3), (b). This case does not meet those criteria.
10

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 24 of 70
First, the panel’s order thoroughly considered the legal precedent and the parties’ arguments and neither overlooked nor misunderstood a point of law or fact. As detailed in the remainder of this brief, the panel’s legal conclusions are amply supported by precedent. See infra at 13-53. And the panel’s factual conclusions are unassailable, especially given that Defendants have submitted no evidence whatsoever, either in opposing the States’ request for TRO in the district court or in support of their motion for stay. See Washington, 2017 WL 526497, at *10-11. In fact, the panel repeatedly pressed Defendants about the factual basis for Defendants’ position, but Defendants offered none. Oral Argument at 1:05:14-1:05:46, Washington v. Trump, No. 17-35105 (Feb. 7, 2017), http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=00000 10885; see also Washington, 2017 WL 526497, at *10 n.8 (noting that Defendants could have shared classified information with the Court under seal, but did not).
Second, there has been no “change in legal or factual circumstances after the order which would entitle the movant to relief.” Circuit Advisory Committee Note to Rule 27-10; see Cir. Rule 27-10(a)(3), (b). To the contrary, the most relevant legal development since the panel opinion came when the U.S. District Court for the Eastern District of Virginia recently granted
11

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 25 of 70
Virginia’s motion for a preliminary injunction in a similar challenge to the
Executive Order and provided further support for the panel’s conclusions. See
Aziz v. Trump, 2017 WL 580855 (E.D. Va. Feb. 13, 2017).
En banc review is also unwarranted under the well-established principles
governing such review generally. The Court typically grants such review only
where “the opinion of a panel directly conflicts with an existing opinion by
another court of appeals and substantially affects a rule of national application
in which there is an overriding need for national uniformity[.]” Cir. Rule 35-1;
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003); United States v. Alvarez,
638 F.3d 666, 676 (9th Cir. 2011) (Smith, J. and Kozinski, J., concurring in denial of rehearing en banc).11 Here, Defendants cannot plausibly assert a
11 See also, e.g., United States v. American–Foreign S.S. Corp., 363 U.S. 685, 689 (1960) (“En banc courts are the exception, not the rule.”); Missouri v. Jenkins, 495 U.S. 33, 47 n.14 (1990) (“Rehearing in banc is a discretionary procedure employed only to address questions of exceptional importance or to maintain uniformity among Circuit decisions.”); Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1187 (9th Cir. 2013) (Wardlaw and Callahan, JJ., concurring in denial of rehearing en banc) (id. at 1180, explaining such review unwarranted where “panel opinion faithfully follows our circuit’s precedent, creates no inter-circuit split, does not present an issue of exceptional importance”); United States v. Burdeau, 180 F.3d 1091, 1092 (9th Cir. 1999) (Tashima, J., concurring in order denying rehearing en banc) (stating “criteria for taking a case en banc are clear and well-established—either necessity to secure or maintain uniformity of the court’s decisions, or to decide a question of exceptional importance,” and collecting cases (internal quotation marks omitted)).
12

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 26 of 70
conflict between the panel’s opinion and any other opinion of this Court, another court of appeals, or the Supreme Court.
Finally, it is noteworthy that Defendants have sought neither en banc review nor emergency relief from the Supreme Court. Rather, they have stated an intent to litigate this case on the merits in the district court.12 Even where an issue “is exceptionally important,” the issue may not warrant en banc review where it “does not matter to the parties,” is “not inconsistent with Ninth Circuit precedent, and does not resolve a circuit split.” See Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 1005-06 (9th Cir. 2003) (Rymer, J., writing separately to dismiss en banc review as improvidently granted). En banc review is thus inappropriate on many independent grounds. B. The Panel Correctly Described the Standard for Obtaining a Stay
As the panel explained: “A stay is not a matter of right, even if irreparable injury might otherwise result.” Washington, 2017 WL 526497, at *7 (quoting Nken v. Holder, 556 U.S. 418, 433 (2009)). Defendants bear the heavy burden
12 See, e.g., Jordan Fabian & Ben Kamisar, Confusion as Priebus says maybe Trump will go to Supreme Court, The Hill, http://thehill.com/homenews/administration/319029-trump-not-planning-toappeal-travel-ban-ruling-to-supreme-court (Feb. 10, 2017); Ryan Lovelace, Full 9th Circuit may review Trump immigration ban ruling, Wash. Examiner, http://www.washingtonexaminer.com/full-9th-circuit-may-review-trumpimmigration-band-ruling/article/2614556 (Feb. 10, 2017).
13

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 27 of 70
of showing (1) a strong likelihood of success on the merits, (2) the likelihood of irreparable injury if relief is not granted, (3) a balance of hardships favoring Defendants, and (4) that reinstating the Executive Order is in the public interest. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The first two factors are the most critical. Nken, 556 U.S. at 434.13 As detailed below, the panel properly concluded that Defendants failed to meet their burden here. C. The Panel Correctly Concluded That the States Have Standing
The States established standing by demonstrating that they have suffered concrete, actual, and imminent injuries; that these injuries are traceable to the Executive Order; and that the injuries will be remedied by a favorable decision. Washington, 2017 WL 526497, at *3; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). As the panel correctly noted, “[a]t this very preliminary stage of the litigation,” the States may rely on allegations in the complaint and the evidence filed in support of the motion for a TRO to establish standing. Washington, 2017 WL 526497, at *3 (citing Lujan, 504 U.S. at 561); Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014); Am. Fed’n of Gov’t
13 The States argued to the panel that the temporary restraining order was not appealable and that Defendants’ only remedy was mandamus. The panel rejected the States’ argument. Washington, 2017 WL 526497, at *2-3. Without waiving the issue, the States do not request that this aspect of the panel’s decision be reviewed en banc.
14

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 28 of 70
Emps. Local 1 v. Stone, 502 F.3d 1027, 1032 (9th Cir. 2007) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)).
The panel correctly held that the States have standing based on injury to their proprietary interests. Washington, 2017 WL 526497, at *5. And though the panel found no need to reach the issue, the States also have standing as parens patriae to protect their quasi-sovereign interests in the well-being of state residents. Id. at *4-5, n.5.
1. The States have proprietary standing The panel correctly concluded that the Executive Order has caused concrete and particularized injuries to the States’ proprietary interests. Id. at *5. Proprietary standing can be established based on even modest financial harms. See, e.g., United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973) (recognizing that important interests may be vindicated with no more at stake than a $5 fine or a $1.50 poll tax); Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 932 (9th Cir. 2008) (holding that an “identifiable trifle” is sufficient to establish standing); Texas v. United States, 787 F.3d 733, 748 (5th Cir. 2015) (holding that Texas had standing to challenge a federal immigration directive based solely on
15

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 29 of 70
the cost of issuing driver’s licenses to the beneficiaries of deferred immigration action—approximately $130 per license).
The Executive Order has caused significant and direct harm to the States’ universities, which are branches of the States. Washington, 2017 WL 526497, at *3-4. As the panel found, “students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all.” Id. at *4. Meanwhile, “[t]he schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past,” and the schools have incurred costs, including costs of visa applications, that will be lost under the Order. Id. The panel did not invent these harms; they are firmly grounded in the record. See WD ECF 9, ¶¶ 5, 7-8; WD ECF 5, ¶ 5; WD ECF 17-2, ¶¶ 4-10; WD ECF 17-3, ¶¶ 4, 6; WD ECF 17-4, ¶¶ 3,7;14 WD ECF 66, ¶¶ 5-8. The bottom line is that it is essentially undisputed that the Executive Order has harmed both the financial well-being and the academic mission of the schools.
14 The Executive Order is harming universities across the country. See Abby Jackson, The 10 US colleges that stand to lose the most from Trump’s immigration ban, Business Insider (Feb. 1, 2017), http://www.businessinsider.com/colleges-potentially-most-affected-trumpimmigration-ban-2017-2.
16

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 30 of 70
As the panel recognized, these injuries to the state universities give the States standing, including standing to assert the rights of the students, scholars, and faculty affected by the Order. Washington, 2017 WL 526497, at *4. Citing a mountain of authority, the panel noted that “schools have been permitted to assert the rights of their students.” Id. (citing Runyon v. McCrary, 427 U.S. 160, 175 & n.13 (1976) (holding that schools have standing to assert arguments on behalf of students)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487-88 (9th Cir. 1995) (rejecting argument that school lacked standing to claim discrimination against minority students). And more generally, the panel noted that the harms to the state universities and their students easily meet traditional third party standing principles because the state universities’ injuries are “inextricably bound up” with their students’ interests and the universities are “fully, or very nearly, as effective a proponent” of the students’ rights. Singleton v. Wulff, 428 U.S. 106, 114-16 (1976); see also, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (allowing doctors to assert patients’ interests); NAACP v. Alabama, 357 U.S. 449 (1958) (allowing an organization to pursue a discrimination claim on behalf of its members).
Though the panel saw no need to go beyond the proprietary harms to the States’ universities, the States also suffered injuries to their proprietary interests
17

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 31 of 70
by a loss of tax revenue. Washington receives substantial tax revenues every year from travelers from the countries impacted by the travel ban. WD ECF 17-1, ¶¶ 3-8. Washington also stands to lose tax revenue from businesses harmed by the Order, as well as revenue from legal, non-citizen residents who are being prevented from returning to their homes and jobs. WD ECF 17-1,¶ 6; WD ECF 7, ¶¶ 9, 11-12; WD ECF 8, ¶¶ 6-14. Losing these tax revenues is a real, tangible, and immediate harm, even putting aside the Order’s longer-term consequences for the States’ economies. WD ECF 18, ¶¶ 12-17, 24-25; see, e.g., Sausalito v. Oneill, 386 F.3d 1186, 1198 (9th Cir. 2004) (holding that lost property and sales tax revenues caused by increased traffic established standing without any numeric quantification of the harm).
The direct impacts to the States’ universities, students, faculty, and tax revenue cement the injury-in-fact required for proprietary standing. Far from being speculative, these impacts began occurring the moment the Order took effect.
2. The States have standing as parens patriae In addition to proprietary standing, the States’ have standing to protect their residents as parens patriae. Having concluded that the States have proprietary standing, the panel did not address this alternative theory of
18

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 32 of 70
standing. Washington, 2017 WL 526497, at *5 n.5. But it provides an independent basis for the States’ claims to proceed, as the district court recognized. WD ECF 52 at 4-5.
As the Supreme Court has long held, when the states joined the union “[t]hey did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests” in the federal courts. Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907). More recent Supreme Court decisions confirm that each state has parens patriae standing to protect “the well-being of its populace.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 593 (1982). In Snapp, the Court held that states have standing to sue based on discrimination against their residents: “This Court has had too much experience with the political, social, and moral damage of discrimination not to recognize that a State has a substantial interest in assuring its residents that it will act to protect them from these evils.” Id. at 609.
As in Snapp, the States brought this action to protect against the impacts of discrimination. The Executive Order caused grievous harm to state residents’ well-being during the week it was in place, including harms to those originally from the listed countries who: were temporarily overseas and were prevented from returning to their homes, jobs and families; live in the States and wished to
19

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 33 of 70
travel overseas for professional or personal reasons; or live in the States and were unable to receive visits from their friends and family. WD ECF 8, ¶¶ 6-14; WD ECF 18, ¶¶ 18-23, 31-36. The Executive Order affects not just those individuals, but also Washington and Minnesota residents who have emphatically rejected the discrimination embodied in the Order. See, e.g., Wash. Rev. Code § 49.60.010; Minn. Stat. § 363A.02.
Defendants never meaningfully disputed these harms, instead arguing that state parens patriae suits against the federal government are forbidden by Massachusetts v. Mellon, 262 U.S. 447 (1923). Not so. As the Supreme Court has recognized, “Mellon itself disavowed any such broad reading when it noted that the Court had been ‘called upon to adjudicate, not rights of person or property, not rights of dominion over physical domain, [and] not quasisovereign rights actually invaded or threatened.’ ” Massachusetts v. EPA, 549 U.S. 497, 520 n.17 (2007) (alteration in original) (quoting Mellon, 262 U.S. at 484-85). And in Massachusetts v. EPA, the Court clarified that “there is a critical difference between allowing a State ‘to protect her citizens from the operation of federal statutes’ (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do).” Id. Here, the States seek not to protect their residents from federal statutes, but to
20

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 34 of 70
protect their residents against Defendants’ violations of federal law. This is what States “ha[ve] standing to do.” Id.
The right of the States to ensure that their residents “are not excluded from the benefits” of the federal system also was specifically recognized in Snapp. Snapp, 458 U.S. at 608. The Court determined that “the State need not wait for the Federal Government to vindicate the State’s interest in the removal of barriers to the participation by its residents in the free flow of interstate commerce.” Id. By the same token, the States need not wait for the federal government to vindicate their residents’ constitutional rights to due process and religious freedom. In addition to protecting constitutional rights, Snapp specifically holds that States have parens standing to eliminate discrimination by pursuing their residents’ interests in protection under federal immigration statutes. Id. at 609-10. Thus, the States have standing to pursue the protections against discrimination afforded by the Immigration and Nationality Act of 1965. 8 U.S.C. § 1152(a)(1)(A). D. The Panel Correctly Concluded That Courts Have Power to Review
Executive Action, Even When It Relates to National Security or Immigration Defendants contend that President Trump wields “unreviewable” authority to make immigration policy. Washington, 2017 WL 526497, at *5.
21

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 35 of 70
Not so. As the panel correctly held: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” Id.
The Supreme Court has consistently held that the Constitution does not grant the President or Congress “the power to decide when and where its terms apply.” Boumediene v. Bush, 553 U.S. 723, 765 (2008). Even “concerns of national security and foreign relations do not warrant abdication of the judicial role.” Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010). Although substantial deference is provided to national security decisions, the courts’ “time-honored and constitutionally mandated roles of reviewing and resolving claims” are not displaced even by “threats to military operations.” Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) (plurality opinion).
The panel correctly recognized and applied these principles here, explaining that “the Government’s ‘authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.’ ” Washington, 2017 WL 526497, at *6 (alterations in original) (quoting Humanitarian Law Project, 561 U.S. at 34). Defendants’ assertion of “unreviewable” authority is not unique to this litigation. But abdicating the courts’ constitutional role would be.
22

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 36 of 70
Similarly, despite Defendants’ references to “plenary” power over immigration, 9th ECF 14 at 4—which actually resides with Congress, see U.S. Const., art. I, § 8—the panel also properly recognized that the political branches’ power over immigration is “subject to important constitutional limitations.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001). The Supreme Court has confirmed the judicial authority to review “whether Congress has chosen a constitutionally permissible means” of exercising its immigration power. INS v. Chadha, 462 U.S. 919, 941 (1983). As the panel explained, the Ninth Circuit “has likewise made clear that ‘[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,’ courts ‘can and do review foreign policy arguments’ ” to ensure protection of constitutional rights. Washington, 2017 WL 526497, at *5 (quoting American-Arab AntiDiscrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995)); see also Diouf v. Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011) (refusing to defer to DHS’s regulations because the regulations “raise[d] serious constitutional concerns”).
Finally, the panel correctly determined that Kleindienst v. Mandel, 408 U.S. 753 (1972), “does not compel a different conclusion.” Washington, 2017 WL 526497, at *6. Mandel involved an executive branch decision to deny a
23

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 37 of 70
visa to an individual. The Court held that it would not look behind the stated reasons for such a decision if the denial was supported by a “facially legitimate and bona fide” reason. Mandel, 408 U.S. at 769. But unlike Mandel, this case does not involve the application of a congressionally established policy to one individual non-resident alien. The challenge is to radical changes in “immigration policy” ordered by executive fiat, not the application of congressionally enacted standards to an individual. Washington, 2017 WL 526497, at *6.
The Supreme Court’s consistent recognition of judicial authority to review the constitutionality of immigration and national security decisions makes eminent sense in light of our nation’s troubling experience with blanket decrees based on nationality. If our history teaches anything, it is that courts should exercise caution when asked to defer to the federal government’s claim that its expertise in foreign affairs entitles it to engage in class-based discrimination. Cf. Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889) (citing Congress’s judgment that “the presence of foreigners of a different race in this country, who will not assimilate with us, [is] dangerous to [the country’s] peace and security”). “Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither
24

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 38 of 70
substance nor support.” Korematsu v. United States, 323 U.S. 214, 234 (1944) (Murphy, J., dissenting).
There is simply no support for Defendants’ insistence that the courts lack authority to consider the constitutionality of the Executive Order. E. The Panel Correctly Concluded That Defendants Failed To Show a
Likelihood of Success on Appeal The States’ complaint alleges that the Order violates many constitutional and statutory provisions. WD ECF 18. While all of those claims have merit, time and space constraints forced the States to brief only four of the claims in the TRO motion. The panel understandably issued a narrow opinion that focused primarily on the States’ likelihood of success on just one of those claims, while noting that other claims “raise serious allegations and present significant constitutional questions.” Washington, 2017 WL 526497, at *10. The panel was correct in concluding that Defendants failed to show a likelihood of success on appeal. 1. Defendants failed to show a likelihood of success on the Due
Process claim The panel concluded that Defendants failed to meet their burden to obtain a stay because they showed no likelihood of success on appeal as to the States’ due process claim. The panel was correct.
25

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 39 of 70
As the panel explained, the States have alleged that the Order violates due process “in at least three independent ways.” Washington, 2017 WL 526497, at *8. First, the Order “denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond.” Id. Second, the Order prohibits “certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States.” Id. And third, section 5 of the Order “contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States.” Id. The panel correctly held that Defendants had failed to rebut any of these arguments.
Starting with the first two violations, the Order denies entry to the United States of all persons from the seven impacted countries, regardless of whether they have lived legally in this country for years. Thus, our States’ residents from these countries who travel abroad will be deported if they attempt to re-enter the United States, and those who remain will be forced to forego international travel to avoid that devastating result. This draconian restriction violates due process.
26

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 40 of 70
The Fifth Amendment protects all persons in the United States “from deprivation of life, liberty, or property without due process of law,” regardless of immigration status. Mathews v. Diaz, 426 U.S. 67, 69, 77 (1976); Zadvydas, 533 U.S. at 693. A temporary absence from the country does not deprive longtime residents of their right to due process. See, e.g., Landon v. Plasencia, 459 U.S. 21, 33 (1982) (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.”); Kwong Hai Chew v. Colding, 344 U.S. 590, 601 (1953).
Due process requires that lawful permanent residents and visaholders not be denied re-entry to the United States without “at a minimum, notice and an opportunity to respond.” United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014). A resident denied re-entry must receive a “full and fair hearing of his claims” and “a reasonable opportunity to present evidence on his behalf.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000); Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011).
The Order’s denial of re-entry to all visaholders and lawful permanent residents from the impacted countries, without an opportunity to be heard, violates these principles. The Order also deprives non-citizen residents of our States of the right to travel, a constitutionally protected liberty interest. Kent v.
27

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 41 of 70
Dulles, 357 U.S. 116, 125-26 (1958) (holding that Secretary of State could not deny passports to Communists on the basis that right to travel abroad is a constitutionally protected liberty interest).
The Order also independently violates due process by denying refugees and asylum seekers statutory rights guaranteed to them by Congress. Congress has created a statutory right whereby persons persecuted in their own country may petition for asylum in the United States.15 Federal law prohibits the return of a noncitizen to a country where he may face torture or persecution.16 Congress has established procedures to implement those statutory rights, which include providing refugees the right to present evidence in support of a claim for asylum, to move for reconsideration of an adverse decision, and to seek judicial review of a final order denying their claims. Lanza v. Ashcroft, 389 F.3d 917, 927 (9th Cir. 2004).
In enacting these statutory rights, Congress “created, at a minimum, a constitutionally protected right to petition our government for political
15 8 U.S.C. § 1158(a)(1) (“[a]ny alien who is physically present in the United States or who arrives in the United States . . . irrespective of such alien’s status, may apply for asylum in accordance with this section”).
16 See 8 U.S.C. § 1231(b); United Nations Convention Against Torture, implemented in the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231).
28

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 42 of 70
asylum.” Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038 (5th Cir. 1982). The constitutionally protected right to petition for asylum “invoke[s] the guarantee of due process.” Id. at 1039; Andriasian v. INS, 180 F.3d 1033, 1041 (9th Cir. 1999); see also Lanza, 389 F.3d at 927 (“The due process afforded aliens stems from those statutory rights granted by Congress and the principle that minimum due process rights attach to statutory rights.”). Due process requires at a minimum that refugees seeking asylum receive a “full and fair hearing.” Zetino v. Holder, 622 F.3d 1007, 1013 (9th Cir. 2010).
The Order violates these rights because it provides no avenue for refugees to have their asylum claims heard. Instead, it explicitly states that the United States will not entertain asylum claims from certain groups for a specified period of time, regardless of their merits. This contravenes the due process requirement that refugees receive a “full and fair hearing” on their claims for relief. Zetino, 622 F.3d at 1013.
Defendants never meaningfully contested these fundamental due process principles before the panel. Washington, 2017 WL 526497, at *8 (“The Government has provided no affirmative argument showing that the States’ procedural due process claims fail.”). Instead, they offered three arguments as to why the States could show no violation here. All fail.
29

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 43 of 70
First, Defendants argued that the States’ due process claims were effectively moot because—after much vacillation—they now interpret the Order not to apply to lawful permanent residents. But the panel properly rejected this argument because: (1) Defendants originally interpreted the Order to apply to lawful permanent residents, never changed the text of the Order, and offered no authority for the claim that their new interpretation would be binding going forward, thus leaving the panel unable to find it “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” Washington, 2017 WL 526497, at *8 (quoting Friends of the Earth, Inc., v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000))17; and (2) even if the Order no longer applied to lawful permanent residents, it would still apply to other longtime resident aliens who have due process rights, e.g., “nonimmigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart.” Washington, 2017 WL 526497, at *9 (citing Landon, 459 U.S. at 33-34).
Second, Defendants cited South Carolina v. Katzenbach, 383 U.S. 301 (1966), for the proposition that States cannot raise due process claims. But the panel properly rejected that argument because Katzenbach, unlike this case,
17 See also White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000) (mootness based on voluntary cessation is a “stringent” standard).
30

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 44 of 70
involved no proprietary harms to a State. Washington, 2017 WL 526497, at *45.Where, as here, a state asserts harms to students and faculty at its institutions, the State should be allowed—just like any other proprietor of educational institutions—to raise due process claims on their behalf. See id. at *4 (citing Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487 (9th Cir.1995); Ohio Ass’n of Indep. Schs. v. Goff, 92 F.3d 419, 422 (6th Cir. 1996)); see also Bd. of Nat. Res. of State of Wash. v. Brown, 992 F.2d 937, 943 (9th Cir. 1993).18
Finally, for the first time in their reply brief, Defendants argued that there could be no due process violation in this case because “ ‘notice and an opportunity to respond’ is not required where, as here, the challenged rule reflects a categorical judgment.” 9th ECF 70 at 9 (citing Bi-Metallic Inv. Co. v. State Bd. Of Equalization, 239 U.S. 441, 445 (1915)). But this argument fails
18 Though the panel found it unnecessary to reach this issue, Katzenbach does not control even as to the States’ parens patriae claims. Katzenbach cited Mellon in holding that South Carolina could not use its parens authority to challenge a federal statute. 383 U.S. at 323-24. But in Massachusetts v. EPA, the Court clarified that “there is a critical difference between allowing a State to protect her citizens from the operation of federal statutes (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do).” 549 U.S. at 520 n.17. Here, the States seek not to protect our residents from federal statutes, but to protect our residents against Defendants’ violations of federal law. This is what States “ha[ve] standing to do.” Id.
31

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 45 of 70
for a number of reasons (in addition to being raised too late). First, Supreme Court precedent makes clear that many of the rights implicated by this Order are fundamental, including “the right to rejoin [one’s] immediate family,” Landon, 459 U.S. at 34, the right of longtime residents to temporarily leave and reenter the country, id., and the right to travel abroad. Kent, 357 U.S. at 125-26. Such rights cannot be taken away without an individualized proceeding that “meet[s] the essential standard of fairness under the Due Process Clause.” Landon, 459 U.S. at 34. Second, to the States’ knowledge, the Bi-Metallic doctrine has never been applied to an executive order, perhaps because executive orders include no opportunity for public comment or input, unlike statutes or administrative rules. Cf. Gallo v. U.S. Dist. Court For Dist. of Arizona, 349 F.3d 1169, 1181 (9th Cir. 2003) (“When the action is purely legislative, the statute satisfies due process if the enacting body provides public notice and open hearings.”). Finally, even if Bi-Metallic did apply to executive orders, it would not apply here because this order contemplates at least some measure of individualized assessment via standardless, “case-by-case” decisions by the Secretaries of State and Homeland Security about whether an individual should be admitted to this country “when in the national interest.” Executive Order § 3(g). The Order thus involves at least some degree of
32

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 46 of 70
individualized assessment that takes its provisions outside the Bi-Metallic framework. Cf. Harris v. Cty. of Riverside, 904 F.2d 497, 502 (9th Cir. 1990) (“In determining when the dictates of due process apply . . . we find little guidance in formalistic distinctions between ‘legislative’ and ‘adjudicatory’ or ‘administrative’ government actions. As the Supreme Court impliedly recognized in Bi-Metallic, the character of the action, rather than its label, determines whether those affected by it are entitled to constitutional due process.”).
In short, the panel correctly concluded that Defendants failed to show that they are likely to succeed on appeal as to the States’ due process claims.
2. Defendants failed to show a likelihood of success on the States’ religious discrimination claims
The panel saw no need to finally determine whether Defendants have a likelihood of success on appeal as to the States’ claims based on the Establishment and Equal Protection Clauses, “reserv[ing] consideration of these claims until the merits of this appeal have been fully briefed.” Washington, 2017 WL 526497, at *10. But the panel expressed strong skepticism about Defendants’ likelihood of success on appeal as to these claims, id., and rightly so. Both claims are extremely strong, especially
33

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 47 of 70
considering that the case is still at the pleading stage and the States have had no opportunity for discovery.
a. The States are likely to prevail on the Establishment Clause claim
The Order violates the Establishment Clause of the First Amendment because its purpose and effect is to disfavor Muslims. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). As the panel explained, “endorsement of a religion ‘sends the ancillary message to . . . nonadherents that they are outsiders, not full members of the political community.’” Washington, 2017 WL 526497, at *10 (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000) (citation omitted)).
The Order violates the Establishment Clause by creating a religious preference, and is thus subject to strict scrutiny. See Larson, 456 U.S. at 24647. In Larson, the law at issue did not mention any religious denomination by name, but drew a distinction between religious groups based on the percentage of their revenue received from non-members, which had the effect of harming certain religious groups. Id. at 231-32. Because the law was focused on religious entities and had the effect of distinguishing between them in a way that favored some, the Court applied strict scrutiny. Id. at 246-47.
34

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 48 of 70
Similarly here, Section 5(b) of the Executive Order grants priority to “refugee claims made by individuals on the basis of religious-based persecution,” but only if “the religion of the individual is a minority religion in the individual’s country of nationality.” There is overwhelming evidence that the purpose of this provision is to tilt the scales in favor of Christian refugees at the expense of Muslims. WD ECF 18, ¶ 53, Ex. 8. For example, during an interview with the Christian Broadcasting Network, President Trump confirmed that persecuted Christians were “a priority.” WD ECF 18-8. He explained:
They’ve [Christians] 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 Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them. WD ECF 18-8. While Defendants have argued that the President’s intent cannot be considered, the panel correctly rejected that argument, recognizing that “evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” Washington, 2017 WL 526497, at *10 (citing Church of the Lukimi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (explaining that action
35

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 49 of 70
targeting religion “cannot be shielded by mere compliance with the requirement of facial neutrality”)); see also, e.g., Kerry v. Din, 135 S. Ct. 2128, 2141 (2015) (Kennedy, J., concurring in the judgment) (holding that courts may “look behind” stated motives where “an affirmative showing of bad faith” is “plausibly alleged with sufficient particularity”); INS v. Pangilinan, 486 U.S. 875, 886 (1988) (looking to the “historical record” to determine whether actions were “motivated by any racial animus”). The Court thus has the authority and duty to test the Executive’s intent for compliance with the law.
The bottom line is that the Executive Order fails the Larson test. Affording preferred status to individuals of certain faiths is “precisely the sort of official denominational preference that the Framers of the First Amendment forbade.” Pangilinan, 456 U.S. at 255.
Moreover, even if the Order did not distinguish between denominations, it would violate the Establishment Clause because it fails the “Lemon test.” Lemon v. Kurtzman, 403 U.S. 602 (1971). The Lemon test requires that a government action (1) have a secular legislative purpose; (2) not have the principal or primary effect of advancing or inhibiting religion; and (3) not foster excessive government entanglement with religion. I d . at 612-13. Defendants must satisfy all three prongs, but here they satisfy none.
36

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 50 of 70
First, the Order’s purpose is not “secular” because President Trump’s purpose in issuing this Order—as confirmed by his own public statements—is to “endorse or disapprove of religion.” Wallace v. Jaffree, 472 U.S. 38, 56, 7576 (1985). The secular purpose must be “genuine, not a sham, and not merely secondary to a religious objective.” McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 864-65 (2005). In determining intent, the Supreme Court has refused to ignore prior statements of decision makers. Id. at 866. “[T]he world is not made brand new every morning,” and the courts will not “ ‘turn a blind eye to the context in which [a] policy arose.’ ” Id. at 866 (quoting Santa Fe, 530 U.S. at 315). As the Supreme Court has explained, this inquiry into purpose at times requires invalidation of an action that otherwise would have been constitutional: “One consequence of taking account of the purpose underlying past actions is that the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage.” Id. at 866 n.14. Given the evidence that President Trump’s actual purpose in issuing this Order is to “endorse or disapprove of religion,” the Order violates the first prong of the Lemon test. Wallace, 472 U.S. at 56.
The Order also violates Lemon’s second prong, which requires that the “principal or primary effect . . . be one that neither advances nor inhibits
37

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 51 of 70
religion[.]” Lemon, 403 U.S. at 612. Governmental action violates this prong “if it is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.” Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1256 (9th Cir. 2007) (internalquotation marks omitted). The court analyzes this prong “from the point of view of a reasonable observer who is ‘informed . . . [and] familiar with the history of the government practice at issue.’ ” Id. (alterations in original) (quoting Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373, 1378 (9th Cir. 1994)). Thus, the question here is whether an informed, reasonable observer would perceive this Order as an endorsement of one religion, as disapproval of another, or both. In light of the evidence cited above, there is little question that the answer to this question is yes.
As to the third prong, the Executive Order “foster[s] ‘an excessive governmental entanglement with religion’” by favoring one religious group over another, which “ ‘engender[s] a risk of politicizing religion.’ ” Larson, 456 U.S. at 252, 253 (quoting Walz, 397 U.S. at 674, 695). Selectively burdening Muslims and favoring Christians creates improper “entanglement with
38

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 52 of 70
religion.” Id. at 252 (quoting Walz, 397 U.S. at 674). The Executive Order fails every prong of the Lemon test and violates the Establishment Clause.
b. The States are likely to prevail on the Equal Protection claim
The Executive Order also violates the Equal Protection Clause, which prohibits the government from impermissibly discriminating among persons based on religion or national origin. De La Cruz v. Tormey, 582 F.2d 45, 50 (9th Cir. 1978). Significantly, the States need not show that intent to discriminate “was the sole purpose of the challenged action, but only that it was a ‘motivating factor.’ ” Acre v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015) (quoting Vill. Of Arlington Heights v. Metro. Hous. Dev. Corp, 429 U.S. 252, 265-66 (1977)).
Classifications based on religion are inherently suspect and subject to strict scrutiny. Graham v. Richardson, 403 U.S. 365, 372 (1971); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). Such laws must be narrowly tailored to serve a compelling governmental interest. Ball v. Massanari, 254 F.3d 817, 823 (9th Cir. 2001). Here, the Executive Order creates classifications based on religion and national origin. By its terms, the Executive Order singles out people from seven countries for a blanket ban on entry to the United States. Sec. 3(c). This ban applies to lawful permanent residents, visa holders, asylees,
39

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 53 of 70
and refugees from the seven countries who live in the United States. The Executive Order also expressly states that Defendants will give priority in future refugee claims “on the basis of religious-based persecution,” but only if “the religion of the individual is a minority religion in the individual’s country of nationality.” Sec. 5(b).
The President’s decision to adopt suspect classifications in violation of federal law demands strict scrutiny—a test that this Executive Order cannot remotely withstand. Neither the temporary ban on entry of all non-citizens from certain countries nor the barring of all refugees is narrowly tailored to further a compelling government interest. On the contrary, the Executive Order is profoundly overbroad. Although it purports to aim to prevent terrorism, it sweeps within its ambit infants, children, people with disabilities, victims of terrorism, those who served alongside the United States Armed Forces in Iraq, visaholders who have passed a rigorous screening process, and many others who the government has no reason to suspect of terrorism. Defendants cannot establish that this blanket ban—rather than less extreme measures—is warranted. This is particularly so given that Defendants have not shown that the current vetting procedures are inadequate and have not identified a basis for believing that there is a particularized threat warranting such severe actions.
40

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 54 of 70
See 9th ECF 28, Ex. A ¶¶ 3-4) (Decl. Nat’l Security Advisors) (concluding that there is no national security purpose for a total bar on entry from the seven countries).
At the same time, the Executive Order is under-inclusive with respect to its stated goal. Although it cites the attacks of September 11, 2001, as a rationale, it imposes no restrictions on travelers from the countries whose nationals carried out those attacks (Egypt, Lebanon, Saudi Arabia, and the United Arab Emirates). WD ECF 4 ¶ 8, Ex. B. In reality, as nearly a dozen national security and intelligence officials emphatically declared—the Executive Order “ultimately undermines the national security of the United States, rather than making us safer.” 9th ECF 28, Ex. A (Decl. Nat’l Security Advisors ¶ 3).
Because the Executive Order is both radically overbroad and underinclusive, it cannot withstand any level of review, let alone strict scrutiny. The Executive Order’s “sheer breadth is so discontinuous with the reasons offered for it that the [Executive Order] seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Romer v. Evans, 517 U.S. 620, 632 (1996). And the inference of animus created by the over- and under-inclusiveness of the Order is here
41

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 55 of 70
confirmed by substantial direct evidence that the Executive Order was prompted by animus towards Muslims, as the panel recognized. Washington, 2017 WL 526497, at *10. In short, the Order “is at once too narrow and too broad,” and shows hints of its true purpose. Romer v. Evans, 517 U.S. at 633; see also United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (“The Constitution’s guarantee of equality must at the very least mean that bare [legislative] desire to harm a politically unpopular group cannot justify disparate treatment of that group.”).
Finally, the fact that the seven countries targeted by the Executive Order are the same seven countries that Congress and the Executive Branch identified in restricting the visa-waiver program in 2015 and 2016 does not mean that this Executive Order passes constitutional muster. Requiring travelers (of any nationality) who were present in the seven countries after a given date to get a visa is a far cry from a blanket ban on all travelers from these countries. Further, the fact that these seven countries may once have been selected for a legitimate purpose does not prove that they were chosen here with no improper motive. See McCreary, 545 U.S. at 864.
In short, the Executive Order violates the equal protection clause. It is motivated by discriminatory animus and cannot survive any level of review.
42

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 56 of 70
3. Defendants failed to show a likelihood of success on the States’ statutory claim
Although the panel did not reach this claim, Defendants have also failed to show a likelihood of success on appeal with respect to the States’ statutory claim. The Order’s nationality-based classifications violate the Immigration and Naturalization Act (INA).
Defendants’ assertion of limitless power to issue this Order is based in large part on 8 U.S.C. § 1182(f), which delegates to the President authority to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” Section 1182 was enacted at the height of the McCarthyRed Scare era, as part of the Immigration and Nationality Act of 1952. Pub. L. 82-414.
Any argument that section 1182(f) allows discrimination ended thirteen years later with the passage of the Immigration and Nationality Act of 1965. Pub. L. No. 89-236 (Oct. 3, 1965). Enacted on the heels of the Civil Rights Act and the Voting Rights Act of 1965, the Immigration and Nationality Act of 1965 profoundly changed the law by abolishing the national origin quota system, establishing a uniform quota system, and prohibiting discrimination on the basis of race and national origin in issuing visas. Olsen v. Albright, 990 F.
43

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 57 of 70
Supp. 31, 37 (D.D.C. 1997) (citing Pub. L. No. 89-236). The legislative history of the 1965 INA amendments “is replete with the bold anti-discriminatory principles of the Civil Rights Era.” Id. at 37.
The 1965 INA amendments state that: “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” 8 U.S.C. § 1152(a)(1)(A). “Congress could hardly have chosen more explicit language.” Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 45 F.3d 469, 473 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). Moreover, the statute lists three specific circumstances under which nationality can be considered, none of which apply here, making clear that Congress intended to prohibit other preferences or discrimination based on nationality. 8 U.S.C. §1152(a)(1)(A); see, e.g., Setser v. United States, 556 U.S. 231, 237-39 (2012) (applying the doctrine of expressio unius est exclusio alterius).
Section 3(c) of the Executive Order directly violates 8 U.S.C. § 1152(a)(1)(A) by discriminating on the basis of nationality, forbidding entry by aliens from seven countries. See Dep’t of Homeland Security, Fact Sheet: Protecting The Nation From Foreign Terrorist Entry To The United States
44

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 58 of 70
(Jan. 29, 2017), https://www.dhs.gov/news/2017/01/29/protecting-nationforeign-terrorist-entry-united-states (identifying the nationalities impacted by section 3(c) of the Executive Order).
Defendants offer two primary counterarguments. Both fail. First, Defendants argue that other presidents have issued orders excluding immigrants based in part on nationality. But each was substantially narrower than the order here and focused more tightly on culpable conduct in or by the targeted nation. See Congressional Research Service, Executive Auth. to Exclude Aliens: In Brief (Jan. 23, 2017), https://fas.org/sgp/crs/homesec/ R44743.pdf. For example, President Clinton barred the entry of members of the military junta in Sierra Leone, and President George W. Bush barred foreign government officials responsible for a failure to combat human trafficking. Id. Each action was taken in response to a discrete national security or policy concern. No president in the modern era has issued this type of blanket ban on travelers from multiple countries in blatant violation of 8 U.S.C. § 1152. Permitting this conduct to stand would return the nation to a shameful period in our history when distinctions based on national origin were permitted. Cf. Chae Chan Ping v. U.S., 130 U.S. 581, 595, 606 (1889) (sustaining the Chinese Exclusion Act because the Chinese “remained strangers in the land”).
45

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 59 of 70
Second, Defendants argue that 8 U.S.C. § 1152(a)(1)(A) governs only the issuance of visas, while § 1182(f) governs the separate authority to regulate “admission” to the United States. But the Order says that visas of those from the seven countries are “blocked,”19 and Defendants had in fact revoked a large number of visas before the district court enjoined them from doing so.20 In any event, even if the Order dealt only with admission and not visas, Defendants’ argument would mean that although Congress ordered the President not to discriminate in issuing visas, Congress intended to leave him completely free to decide based on nationality who can actually use their visas to come to the country. That makes no sense. See, e.g., Gila River Indian Cmty. v. United States, 729 F.3d 1139, 1145 (9th Cir. 2013) (noting that in construing a statute, courts must attempt to “fit, if possible, all parts into a harmonious whole”); see also 9th ECT 65-2 (Brief of Amici Curiae National Immigrant Justice Center and ASISTA).
In sum, Defendants’ inability to show a likelihood of success on the States’ INA claim provides added support for the panel’s denial of a stay.
19 See Sec. 3(g) (providing that “nationals of countries for which visas and other benefits are otherwise blocked” may obtain entry “on a case-by-case basis”) (emphasis added).
20 See infra n.7.
46

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 60 of 70
F. The Panel Correctly Concluded that Defendants Failed to Show That They Would Suffer Irreparable Injury Absent a Stay The panel correctly concluded that Defendants failed to show that a stay
is necessary to avoid irreparable injury. Washington, 2017 WL 526497, at *10. Defendants failed to present any evidence whatsoever that national security concerns justified the Order, and as a result, they failed to show that a return to the status quo would result in any harm. These failures are fatal to their claim.
Defendants argued that a stay was necessary for the security of the nation. 9th ECF 14 at 24. But as the panel recognized, Defendants did not offer a shred of evidence that the Order furthered that objective. Defendants submitted no evidence explaining the need for the Order in either their briefing before the district court or their briefing before this Court. Nor did Defendants offer any record evidence in support of the Order when pressed to do so by the panel during oral argument. See Oral Argument at 7:10-12:15; 1:05:141:05:46, http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=00000 10885. In fact, the only evidence in the record on the issue of national security is a declaration from nearly a dozen high ranking national security officials that the Executive Order “cannot be justified on national security or foreign policy grounds” and “ultimately undermines the national security of the United States[,]” which Defendants did not challenge. 9th ECF 28-1, Ex. A ¶ 3.
47

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 61 of 70
Accordingly, as the panel correctly noted, although Defendants’ interest in combating terrorism “is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), Defendants have “done little more than reiterate that fact.” Washington, 2017 WL 526497, at *10.
In light of the complete lack of evidence and argument explaining the urgent need for the Executive Order, Defendants have also failed to show that they would suffer irreparable injury absent a stay. They assert that the district court’s order imposes irreparable harm because it constitutes “[j]udicial second-guessing” and intrudes on separation of powers. 9th ECF 14 at 25. But the panel properly rejected these arguments, because there is no precedent to support Defendants’ claim of unreviewability and because any separation of powers injury can be vindicated in the full course of the litigation. Washington, 2017 WL 526497, at *11. See also, e.g., Lopez v. Hecker, 713 F.2d 1432, 1434 (9th Cir. 1983) (declining to stay district court order “restrain[ing]” the Secretary of Health and Human Services from implementing an announced policy where “separation of powers” was at issue).
Moreover, as the panel correctly noted, the district court’s order “merely returned the nation temporarily to the position it has occupied for many previous years.” Washington, 2017 WL 526497, at *10. Without anything in the
48

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 62 of 70
record to suggest that this poses any risk to national security, Defendants cannot show that a return to the status quo would cause an irreparable injury. On the contrary, as discussed next, it is the States and their residents that would suffer irreparable injury if this Court granted Defendants’ request for a stay. G. The Panel Correctly Concluded that the Balance of Hardships and
Public Interest Tip in the States’ Favor As the panel correctly recognized, the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple other parties. Washington, 2017 WL 526497, at *11. The Executive Order had immediate and far-reaching effects within the States of Washington and Minnesota. It separated families, stranded university students and faculty members abroad, stripped State residents of personal freedoms, and harmed the States’ businesses and education institutions. As the panel correctly determined, these “are substantial injuries and even irreparable harms.” Washington, 2017 WL 526497, at *11 (citing Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))).
49

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 63 of 70
Defendants claim that national security requires these harms. But this Court need not and should not allow constitutional violations merely based on Defendant’s unsupported invocation of national security concerns. See 9th ECF 28, Ex. A, ¶ 4; Hassan v. City of New York, 804 F.3d 277, 306-07 (3d Cir. 2015) (“[I]t is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights.”).
Defendants also claim that the Executive Order’s discretionary waiver provisions are a sufficient protection for those who would suffer unnecessarily. But the panel recognized the many problems with this argument and properly rejected it as unworkable and unpredictable. See Washington, 2017 WL 526497, at *11 (“[Defendants have] offered no explanation for how these provisions would function in practice: how would the ‘national interest’ be determined, who would make that determination, and when?”).
In addition, the panel also correctly recognized that there are compelling public interests in favor of the States. Although the panel found public interests on both sides, it acknowledged that the public “has an
50

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 64 of 70
interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.” Washington, 2017 WL 526497, at *11. And as this Court has repeatedly made clear, “ ‘it is always in the public interest to prevent the violation of a party’s constitutional rights.’ ” Melendres, 695 F.3d at 1003 (internal quotation marks omitted) (quoting Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir. 2002)).
In short, when balancing the hardships and weighing the States’ important public interests against Defendants’ bare assertions of national security concerns, it is clear that the balance of equities and public interest tip sharply in favor of the States. The panel properly concluded that a stay was not justified. H. The Panel Properly Declined to Narrow the Injunction
The panel also properly rejected Defendants’ argument that the district court order is “overbroad” because (1) it is not limited to lawful permanent residents and previously admitted aliens who are temporarily abroad; and (2) it applies nationwide. Washington, 2017 WL 526497, at *9. Neither argument provides a basis for narrowing the preliminary injunction.
First, as the panel explained, limiting the injunction to lawful permanent residents and previously admitted aliens who are temporarily abroad would
51

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 65 of 70
leave citizens without relief as they wait for spouses and family members to
return home, and loved ones to visit. Id. (citing Din, 135 S. Ct. at 2139, 2142
(six Justices declining to adopt a rule categorically barring citizens from
asserting a liberty interest in an alien spouse’s receipt of a visa). It would also
exclude undocumented residents of the States, who possess due process rights.
Washington, 2017 WL 526497, at *9 (citing Zadvydas, 533 U.S. at 693). As the
panel cautioned, “[t]here might be persons covered by the TRO who do not
have viable due process claims, but the Government’s proposed revision leaves
out at least some who do.” Washington, 2017 WL 526497, at *9. If Defendants’
believe the Executive Order should be limited, they are always free to withdraw and narrow the executive order themselves.21
Second, the panel properly held that the national reach of the TRO is
appropriate. Id. The Fifth Circuit has held that the immigration laws must be 21 Furthermore, though the panel saw no need to reach this issue,
narrowing the injunction would not remedy the Establishment Clause harms that the Order is causing to the States and all of our residents. Establishment Clause violations are irreparable harms, and the Clause was designed in part to protect states from the federal government establishing a national religion. See, e.g., Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006) (an Establishment Clause violation “is sufficient, without more, to satisfy the irreparable harm prong”); Parents’ Ass’n of P.S. 16 v. Quinones, 803 F.2d 1235, 1242 (2d Cir. 1986) (same); Separation of Church & State Comm. v. City of Eugene, 93 F.3d 617, 621 (9th Cir. 1996) (O’Scannlain, J., concurring) (“[C]oncerns about federalism . . . motivated ratification of the Establishment Clause.”)
52

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 66 of 70
uniform and cannot be confined to particular states. Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015) (citing Arizona v. United States, 132 S. Ct. 2492, 2502 (2012). Even if a patchwork application of immigration laws were permitted, the panel correctly noted Defendants’ failure to propose an alternative to the TRO that “accounts for the nation’s multiple ports of entry and interconnected transit system.” Washington, 2017 WL 526497, at *9.
IV. CONCLUSION There is no basis for en banc review here. The motions panel properly denied Defendants’ motion for stay in an opinion that carefully applied precedent and creates no conflict. The Court should deny en banc
53

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 67 of 70
reconsideration and allow the merits of the preliminary injunction appeal to
proceed.
RESPECTFULLY SUBMITTED this 16th day of February 2017.
ROBERT W. FERGUSON, WSBA 26004 Attorney General of Washington
s/ Noah G. Purcell NOAH G. PURCELL, WSBA 43492
Solicitor General ANNE E. EGELER, WSBA 20258
Deputy Solicitor General COLLEEN M. MELODY, WSBA 42275
Civil Rights Unit Chief MARSHA CHIEN WSBA 47020 PATRICIO A. MARQUEZ WSBA 47693
Assistant Attorneys General Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744
LORI SWANSON Attorney General of Minnesota
ALAN I. GILBERT, MN #0034678 Solicitor General
JACOB CAMPION, MN #0391274 Assistant Attorney General
Office of the Attorney General 445 Minnesota Street, Suite 1100 St. Paul, MN 55101 (651) 757-1450
54

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 68 of 70
STATEMENT OF RELATED CASES Pursuant to Circuit Rule 28-2.6(c) the Appellees state that there are no related cases.
55

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 69 of 70

CERTIFICATE OF COMPLIANCE (FRAP 32(a)(7)) I certify that pursuant to Fed. R. App. P. 27, the attached States’ Brief Regarding Rehearing En Banc is proportionately spaced, has a typeface of 14 points or more and contains 11,641 words.

February 16, 2017

s/ Noah G. Purcell NOAH G. PURCELL, WSBA 43492

56

Case: 17-35105, 02/16/2017, ID: 10322280, DktEntry: 153, Page 70 of 70

CERTIFICATE OF SERVICE I hereby certify that on February 16, 2017, I electronically filed the foregoing with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

February 16, 2017

s/ Noah G. Purcell NOAH G. PURCELL, WSBA 43492

57

 
 Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 1 of 24

No. 17-35105
444444444444444444444444
In the United States Court of Appeals for the Ninth Circuit
________________

STATE OF WASHINGTON; STATE OF MINNESOTA, Plaintiffs-Appellees, v. DONALD J. TRUMP,
President of the United States, et al. Defendants-Appellants. ________________
On Appeal from the United States District Court for the Western District of Washington _______________
Brief Amicus Curiae of U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate
of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center in Support of Reconsideration En
Banc of Defendants-Appellants’ Motion for Stay Pending Appeal ________________

JOSEPH W. MILLER

HERBERT W. TITUS*

Ramona, CA 92065

WILLIAM J. OLSON

Attorney for Amicus Curiae USJF

JEREMIAH L. MORGAN

MICHAEL BOOS

ROBERT J. OLSON

Washington, D.C. 20003

WILLIAM J. OLSON, P.C.

Attorney for Amici Curiae CU & CUF

370 Maple Avenue W., Suite 4

Vienna, Virginia 22180-5615

*Attorney of Record

(703) 356-5070

February 16, 2017

Attorneys for Amici Curiae

444444444444444444444444

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 2 of 24
DISCLOSURE STATEMENT The amici curiae herein, U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center, through their undersigned counsel, submit this Disclosure Statement pursuant to Federal Rules of Appellate Procedure 26.1, 29(c). All of these amici curiae are non-stock, nonprofit corporations, none of which has any parent company, and no person or entity owns them or any part of them. The amici curiae are represented herein by Herbert W. Titus, who is counsel of record, William J. Olson, Jeremiah L. Morgan, and Robert J. Olson of William J. Olson, P.C., 370 Maple Avenue West, Suite 4, Vienna, Virginia 22180-5615. Amicus United States Justice Foundation also is represented herein by Joseph W. Miller, 932 D Street, Suite 2, Ramona, California 92065. Amici Citizens United and Citizens United Foundation also are represented herein by Michael Boos, 1006 Pennsylvania Avenue SE, Washington, D.C. 20003.
s/Herbert W. Titus Herbert W. Titus
i

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 3 of 24
TABLE OF CONTENTS Page
DISCLOSURE STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. The Panel Utterly Failed to Assess the Constitutionality of the
Authority Conferred upon the President by Statute. . . . . . . . . . . . . . . . . . . . 5 A. Immigration and Nationality Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. Refugee Act of 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 II. The Panel Decision Was Not Supported by the Religious Discrimination Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 III. The Panel Was Unconstitutionally Composed . . . . . . . . . . . . . . . . . . . . . . 14 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ii

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 4 of 24
TABLES OF AUTHORITIES Page
CONSTITUTION Article II, Section 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
STATUTES 8 U.S.C. § 1101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 12 8 U.S.C. § 1157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 8 U.S.C. § 1186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 28 U.S.C. § 294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 28 U.S.C. § 371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CASES Hines v. Davidowitz, 312 U.S. 52 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Louhghalam v. Trump, Memorandum and Order (D. Mass. 2017)
Civ. Action No. 17-10154-NMG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Northern Securities Co. v. United States, 193 U.S. 197 (1904) . . . . . . . . . . . . . . . 4 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). . . . . . . . . . . . . 5
MISCELLANEOUS S. Dinan, "77% of refugees allowed into U.S. since travel reprieve hail from
seven suspect countries," Washington Times (Feb 9, 2017) . . . . . . . . . . . . 10 Justice Elena Kagan, The Scalia Lecture at Harvard Law School
(Nov. 18, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. Scalia & B. Garner, Reading Law (West: 2012). . . . . . . . . . . . . . . . . . . . . . . . 14 D. Stras & R. Scott, “Are Senior Judges Unconstitutional,” 92 CORNELL L.
REV. 453 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Jeffrey Toobin, “The Vulnerabilities in the Ninth Circuit’s Executive-Order
Decision,” The New Yorker (Feb. 10, 2017) . . . . . . . . . . . . . . . . . . . . . . . 2, 6 Benjamin Wittes, “How to Read (and How Not to Read) Today’s 9th Circuit
Opinion,” Lawfare (Feb. 9, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
iii

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 5 of 24
INTEREST OF AMICI CURIAE1 Amici United States Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center are nonprofit organizations, exempt from federal income tax under either section 501(c)(3) or 501(c)(4) of the Internal Revenue Code (“IRC”). Each entity is dedicated, inter alia, to the correct construction, interpretation, and application of law. Their interests also include protecting the our nation’s borders, enforcement of immigration laws, separation of powers, and related issues. Many of these amici have worked on these issues for many years, including the following during the last year: (i) a Legal Analysis of presidential candidate Trump’s proposals to limit immigration from certain countries (Feb. 12, 2016); (ii) an amicus brief to the U.S. Supreme Court in support of a 26-State challenge to presidential executive actions that were clearly outside statutory authority (Apr.
1 Amici requested and received the consents of the parties to the filing of this brief amicus curiae, pursuant to Rule 29(a), Federal Rules of Appellate Procedure. No party’s counsel authored the brief in whole or in part. No party or party’s counsel contributed money that was intended to fund preparing or submitting the brief. No person other than these amici curiae, their members or their counsel contributed money that was intended to fund preparing or submitting this brief.
1

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 6 of 24
4, 2016); (iii) Comments to the Department of State regarding the proposed number of refugees for 2017 (May 19, 2016); (iv) a Legal Policy Paper analyzing the constitutional authority for States to enter into an interstate compact regarding immigration (Sept. 2, 2016); and (v) Comments to the U.S. Citizenship & Immigration Service regarding amendments to the Registration for Classification as Refugee form (Nov. 17, 2016). Additionally, these amici recently filed an Amicus Curiae brief in support of defendants’ Motion for Stay Pending Appeal in this case on February 6, 2017.
STATEMENT The case for reconsideration is strong, as demonstrated by two insightful articles from legal scholars immediately after the issuance of the per curiam opinion in this case. In The New Yorker, CNN senior legal analyst Jeffrey Toobin, after quoting verbatim the statute upon which the contested Executive Order (“EO”) in this case is based, observed: “What does the Ninth Circuit say about this provision? Nothing.”2 Toobin then went on to say:
2 Jeffrey Toobin, “The Vulnerabilities in the Ninth Circuit’s ExecutiveOrder Decision,” The New Yorker (Feb. 10, 2017), http://www.newyorker.com/ news/daily-comment/the-vulnerabilities-in-the-ninth-circuits-executive-order-deci sion.
2

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 7 of 24
the President’s exercise of his authority under this law must be consistent with the Constitution. But the words of the statute must be taken seriously as well.... The Ninth Circuit should have engaged with this statutory text and explored its relation to the commands of the Constitution. [Id. (emphasis added).] Benjamin Wittes, editor-in-chief of Lawfare and a Senior Fellow in Governance Studies at The Brookings Institution, noted the same glaring failure, faulting the panel for “not bother[ing] even to cite ... the principal statutory basis for the executive order”3: That’s a pretty big omission over 29 pages, including several pages devoted to determining the government’s likelihood of success on the merits of the case.4 Giving virtually no attention to the relevant statutory texts, the panel’s decision is deeply flawed. The glaring omission publicized nationwide by Toobin and Wittes is, in and of itself, sufficient reason for this Court to reconsider en banc
3 See also Professor Josh Blackman of the South Texas College of Law, “The Failure of the 9th Circuit to Discuss 8 U.S.C. 1182(f) Allowed It To Ignore Justice Jackson's Youngstown Framework,” (Feb. 10, 2017), and “The Ninth Circuit's Contrived Comedy of Errors in Washington v. Trump: Part I,” (Feb. 13, 2017).
4 Benjamin Wittes, “How to Read (and How Not to Read) Today’s 9th Circuit Opinion,” Lawfare (Feb. 9, 2017), https://lawfareblog.com/howread-and-how-not-read-todays-9th-circuit-opinion.
3

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 8 of 24
the motion for stay pending appeal, which is further necessitated by the argument below.
ARGUMENT Over a century ago, Justice Oliver Wendell Holmes offered a cautionary note for courts when they address cases of great import: Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. What we have to do in this case is to find the meaning of some not very difficult words. [Northern Securities Co. v. United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting) (emphasis added).] The challenge to President Trump’s Executive Order meets the test of being a “great case,” coming as it did in the aftermath of a close popular vote putting into office a nascent politician who faces nearly unanimous opposition from the mainstream media and other established institutions and opinion leaders of our society. Most of the political establishment is less concerned about the scope of presidential power than it is with the fact that President Trump was elected to exercise presidential power. During oral argument, and again in its decision, the panel signaled its irritation with the Administration’s position:
4

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 9 of 24
it is the role of the judiciary to interpret the law.... We are called upon to perform that duty in this case.... [N]either the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. [Slip op. at 14.] However, the issue in this case is not whether the EO was judicially reviewable, but whether the exercise of presidential authority was pursuant to statutes that vest broad discretion in the President of the United States — where the President’s power operates at its zenith5 — may be second guessed by the courts. It should require no citation of authority to assert that a judicial decision which wholly ignores the text of a statute being challenged in litigation is deficient and inherently suspect.6
I. THE PANEL UTTERLY FAILED TO ASSESS THE CONSTITUTIONALITY OF THE AUTHORITY CONFERRED UPON THE PRESIDENT BY STATUTE.
A. Immigration and Nationality Act It took six pages (from page 13 to page 18) for the 3-judge panel to conclude that the President’s authority to issue his Executive Order “suspend[ing] the admission of any class of aliens” was subject to judicial review for its legality
5 See Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 635-36 (1952) (Jackson, J., concurring).
6 See Justice Elena Kagan, The Scalia Lecture at Harvard Law School (Nov. 18, 2015): “We are all textualists now.”
5

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 10 of 24
and constitutionality. Yet, the panel devoted exactly zero words to assess whether the President’s claimed authority to suspend for 90 days entry of certain aliens into the United States actually was lawful or unconstitutional. Indeed, the panel did not even reference, much less address, 8 U.S.C. § 1186(f) — the statute upon which the President relied for issuance of the suspension. Instead, the panel erroneously addressed only the claimed due process violation, the resolution of which was substantially dependent upon whether the President had the constitutional and statutory authority to suspend alien entry on the terms set forth in § 1186(f).
As Jeffrey Toobin observed, the text of § 1186(f) conveyed to the President “a broad grant of power in an area (national security) where the courts have traditionally given the President a relatively free hand.” Of particular noteworthiness is the language of discretion that dominates the text, which reads in full:
Whenever the President finds that the entry of any alien or or 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. § 1186(f) (emphasis added).]
6

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 11 of 24
The statute employs words of discretion, not of obligation and, therefore, does not
confer upon any alien the “liberty” or “property” interest that is a prerequisite for
the court to impose the due process guarantees of notice and an opportunity to be
heard. Rather, an alien who seeks to enter the country has only a unilateral,
unenforceable, expectation of the sort that ordinarily accompanies a visa.
As U.S. District Judge Nathaniel Gorton of the District of Massachusetts
recently summarized in a similar case involving a due process challenge to the
President’s § 1186(f) suspension power:
There is no constitutionally protected interest in either obtaining or continuing to possess a visa. The due process guaranteed by the Fifth Amendment “attaches only when the federal government seeks to deny a liberty or property interest.” Knoetze v. U.S. Dep’t of State, 634 F.2d 207, 211 (5th Cir. 1981). A non-citizen has no “inherent property right in an immigrant visa.” Azizi v. Thornburgh, 908 F. 2d 1130, 1134 (2d Cir. 1990). [B]ecause an alien does not enjoy a property right in a visa, he has no due process right that protects the manner in which a visa is revoked.” [Louhghalam v. Trump, Memorandum and Order at 13-14 (D. Mass. 2017) Civ. Action No. 17-10154-NMG (emphasis added).]
To be sure, the panel did note that some aliens, primarily lawful permanent visa holders,7 have property or liberty interests not subject to the broad
discretionary powers of the President’s suspension power (slip op. at 20-21).
7 Additionally, the clarification issued by White House counsel Donald F. McGahn II should have been sufficient to remove this issue from the case.
7

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 12 of 24
However, there were no such aliens present in the class of plaintiffs who have standing in this case. To the contrary, the panel identifies only visiting students and faculty, and prospective employees, not one of whom is alleged to be within any class of aliens entitled to due process protection as possessors of a constitutionally protected liberty or property interest. See slip op. at 10-11. Neither Washington nor Minnesota has any power to unilaterally confer some special status upon such aliens so as to obligate the federal Government to afford them due process of law. See Hines v. Davidowitz, 312 U.S. 52 (1941).
Yet, the panel faults the “Government [for not having] shown that the [EO] provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.” Slip. op. at 19. However, the class of aliens whose entry was suspended by the President would come from countries that the President and Congress have deemed to be a clear and present danger to American citizens. Such aliens have no due process rights.
Indeed, if a foreign student or visiting faculty alien who is not a permanent resident were entitled to due process notice and opportunity to be heard — what would be the subject matter of such required due process proceeding? And, even if the alien were entitled to notice and an opportunity to be heard — what comment could he make that would diminish the President’s discretionary
8

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 13 of 24
authority to exclude him? Without an independent claim of right of entry, the alien’s claim would need be based upon the President’s lack of constitutional or statutory authority to have suspended his visa. But there is nothing — not one word — in the panel opinion to indicate that the authority exercised by the President was either illegal or outside his constitutional authority as the only person vested with the Nation’s executive power.
B. Refugee Act of 1980. Not only did the panel fail to address the lawfulness or constitutionality of the president’s order to limit entry of certain aliens. It also failed to examine the legality and constitutionality of the EO 120-day suspension of the United States Refugee Admissions Program, which was directed to persons seeking asylum as a refugee based upon claims of discrimination. Yet, the statutory processes and standards for refugees are governed by a distinctly different statute — 8 U.S.C. § 1157(a) — which gives the President administrative oversight of a congressionally developed and established program designed to screen persons who are not just aliens, but a special subset of aliens who have suffered persecution on the statutory bases of race, nationality, religion, etc. See 8 U.S.C. § 1101(a)(42).
9

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 14 of 24
While its summary of the EO acknowledges the several code sections related to the United States Refugee Admissions Program (slip op. at 4), the panel utterly failed to address the discretion conferred by Congress upon the President under 8 U.S.C. § 1157(a)-(e). In order to enter the United States by way of the Refugee program, an alien must meet strict eligibility requirements designed to determine whether a person meets the statutory definition of a persecuted, stateless person, the expansion of which is permitted in “such special circumstances as the President after appropriate consultation” with certain identified members of Congress. See 8 U.S.C. § 1101(a)(42).
On its face, then, no alien seeking asylum has any due process property or liberty interest to gain entry as a refugee into the United States. Thus, those sections of the EO that relate to the suspension of the refugee program are clearly authorized by statute and unquestionably meet constitutional standards.8 II. THE PANEL DECISION WAS NOT SUPPORTED BY THE
RELIGIOUS DISCRIMINATION CLAIM.
8 While the motions panel assumed that the district court's TRO could cause no harm to the Government and the People from the TRO, we now know know that since the judiciary assumed the role of setting the nation's immigration and refugee policy, that refugees have flooded in from the seven failed states designated in the President's EO. See S. Dinan, "77% of refugees allowed into U.S. since travel reprieve hail from seven suspect countries," Washington Times (Feb 9, 2017).
10

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 15 of 24
The panel repeated that the “States argue that the [EO] violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims.” Slip op. at 25. The panel also proclaimed that the “States’ claims raise serious allegations and present significant constitutional questions.” Id. at 26. But it ultimately chose not to determine whether the States were likely to succeed on their claims because of “the sensitive interests involved, ... the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim.” Id. However, for the reasons set out in Section I, supra, the Government has demonstrated the necessary likelihood of success on that due process claim; hence, the question of the likelihood of success on the religious discrimination claim must now be addressed.
Because the panel refrained from relying on or resolving the religion and equal protection claims, it only superficially described the factual basis for the States’ claims and surveyed a few precedents upon which the States represented would support their position. Id. at 25-26. The essence of the States’ claims appears to be “evidence of numerous statements by the President about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the [EO]
11

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 16 of 24
was intended to be that ban, including sections 5(b) and 5(e) of the Order.” Id. at 25. The plaintiff states’ claims are baseless.
First, both sections 5(b) and 5(e) of the President’s Executive Order address enforcement of the Refugee Act which does not preclude, but which actually requires the Government to consider, and make decisions based upon, religious belief and practice. Persecution on account of a refugee’s religion is one of the named refugee categories. Additionally, one of the requisites of proof of such persecution is a “well-founded fear of persecution ... on the basis of religion.” 8 U.S.C. § 1101(a)(42). Section 5(b)’s mandate would “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.” Such a priority makes great sense for two reasons: minority religious status (i) adds credibility to a person’s persecution claim; and (ii) advances those refugees whose need for protection is more acute. Section 5(e) would, during the 120-day temporary suspension, allow “case-bycase” review of refugees in the national interest not just to persons who are a religious minority facing religious persecution, but also to conform to a preexisting international agreement or if a person is already in transit and denying admission would cause undue hardship. Neither provision is religiously
12

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 17 of 24
discriminatory in purpose or effect and thus even meets the Establishment Clause’s Lemon test. See Lemon v. Kurtzman, cited in the panel opinion on page 25.
Second, the States’ claim is based upon the assumption that its temporary ban on entry of persons “from countries referred to in Section 217(a)(12) of the INA,” including Iraq, Syria, (add others) or any other country or area of concern” is discriminatory on a religious basis. On its face, this claim is bogus. As the Government pointed out in its Emergency Motion for Stay of the TRO, “the order suspends entry for 90 days of aliens from seven countries previously identified as being associated with a heightened risk of terrorism....” Motion at 5. Indeed, as the Motion also states, Congress authorized the Executive Branch to designate additional ‘countries or areas of concern,’ and in February 2016, almost a year before Trump became president, the Executive Branch exercised its authority to bar from the visa waiver program individuals who had recently traveled to Libya, Somalia, and Yemen in an effort to ensure that the visa waiver program’s ‘requirements are commensurate with the growing threat from foreign terrorist fighters.” Id. at 6. Not only is the list of countries based upon the sole criterion of the risk of international terrorism, but the waiver program was in place well before Donald Trump was inaugurated as President of the United States.
13

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 18 of 24
Third, the States’ evidence does not directly tie President Trump’s “Muslim ban” to the EO text. Rather it is a classic example of substituting stray language to displace the written words of a legal document in contravention of the supremacy of the text principle that the purpose of the EO “must be derived from the text, not from extrinsic sources such as ... an assumption about the legal drafter’s claims.” A. Scalia & B. Garner, Reading Law at 56 (West: 2012). In any event, the question of religious discrimination and whether the Government has met its burden of likelihood of success would need to be addressed anew should this Court grant reconsideration. III. THE PANEL WAS UNCONSTITUTIONALLY COMPOSED.
Insistently rejecting the Government’s claim that the President’s power to issue the EO was “unreviewable” by the courts, the panel proclaimed that “[t]here is no precedent to support this claimed unreviewability, which runs counter to the fundamental structure of our constitutional democracy.” Slip op. 14. But, who is it in America’s constitutional order who has the power to review the courts’ exercise of judicial review? If it is “beyond question that the federal judiciary retains the authority to adjudicate challenges to executive action,” as the panel declared (slip op 18), then in whom is entrusted the authority to adjudicate challenges to judicial action?
14

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 19 of 24
This issue was posed recently in a 2007 law review article questioning the constitutionality of the “wildly popular retirement system” that enables federal judges to “retire,” but still “retain” the powers of a federal judge. See D. Stras & R. Scott, “Are Senior Judges Unconstitutional,” 92 CORNELL L. REV. 453, 458 (2007). As the authors have rightfully observed: “Senior judges are critical to the federal judiciary.” Id. at 455. Without them, the federal judicial system would face total breakdown, prompting this further observation:
Declaring senior judges unconstitutional would wreak havoc on the federal courts, calling into question the legitimacy of thousands of previous decisions in which senior judges have participated. Also, by invalidating the statute [providing for senior status], a few federal judges would be accusing their own esteemed colleagues, as well as generations of the nation’s most prominent jurists of tacit complicity in a continuing constitutional violation taking place right under their noses. [Id. at 458.] Reluctantly, after careful analysis of the statutory scheme and Articles II and III of the Constitution, the Cornell law review authors came to the conclusion that “as presently defined under federal law, senior judges are ... unconstitutional.” Id. at 456. First, they noted that 28 U.S.C. § 371(b)(1) states that a judge “may retain the office but retire from regular actual service.” Id. But, does a retired judge really retain the office of an Article III judge? As the authors point out, 28 U.S.C.
15

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 20 of 24
§ 294 provides that “[s]enior judges must be designated and assigned by the chief judge or judicial council of their home circuit or by the Chief Justice of the United States before performing any judicial duties.” Id. Unlike senior judges, active judges “have no statutory guarantee of judicial work,” but may be stripped of “the power to decide cases,” which amounts to “constructive removal ... from office,” contrary to the provisions of Article III which vests “life tenure” in the judge subject to removal only by impeachment. Id. at 456-57. In other words, a senior judge does not enjoy the independent status conferred upon him by Article III of the Constitution, in that his exercise of judicial power is subject to the approval of another judicial officer.
Second, they noted that a senior judge may be assigned duties other than Article III judicial duties, raising an Article II, Section 2 Appointments Clause objection:
The President must nominate, and the Senate must confirm, all noninferior officers of the United States. A corollary of this rule is that Congress may not add new, fundamentally different duties to an existing office without unlawfully seizing the appointment power for itself. [Id. at 457.] Notwithstanding these twin constitutional concerns, the 3-judge panel in this case was composed of two senior judges, William C. Canby, who took senior
16

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 21 of 24

status on May 23, 1996, and Richard R. Clifton, on December 31, 2016.9 Granting

reconsideration en banc would avoid these constitutional objections, a worthy goal

in a highly visible and controversial conflict between this Court and the other two

branches in an area that is admittedly “largely immune from judicial control.” Slip

op. 13.

CONCLUSION

For the foregoing reasons, this Court should reconsider en banc whether to

stay the district court’s February 3, 2017 Temporary Restraining Order pending

appeal.

Respectfully submitted,

JOSEPH W. MILLER UNITED STATES JUSTICE FOUNDATION 932 D Street, Ste. 3 Ramona, California 92065-2355 Co-Counsel for Amicus Curiae U.S. Justice Foundation
MICHAEL BOOS CITIZENS UNITED 1006 Pennsylvania Avenue SE Washington, D.C. 20003 Co-Counsel for Amici Curiae Citizens United and

/s/ Herbert W. Titus *HERBERT W. TITUS WILLIAM J. OLSON JEREMIAH L. MORGAN ROBERT J. OLSON Attorney for Amici Curiae
WILLIAM J. OLSON, P.C. 370 Maple Avenue West, Suite 4 Vienna, Virginia 22180-5615 (703) 356-5070

9 The presiding District Judge below is James L. Robart, who is also on senior status, having retired on June 8, 2016.
17

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 22 of 24
Citizens United Foundation February 16, 2017 *Attorney of record
18

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 23 of 24
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) IT IS HEREBY CERTIFIED: 1. That the foregoing Brief Amicus Curiae of U.S. Justice Foundation, et al. in Support of Reconsideration En Banc of Defendants-Appellants’ Motion for Stay Pending Appeal complies with the limitation set forth by Circuit Rule 292(c)(2), because this brief contains 3,809 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using WordPerfect version 18.0.0.200 in 14-point Times New Roman.
/s/ Herbert W. Titus __________________________ Herbert W. Titus Attorney for Amici Curiae Dated: February 16, 2017

Case: 17-35105, 02/16/2017, ID: 10322327, DktEntry: 155, Page 24 of 24
CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that service of the foregoing Brief Amicus Curiae of U.S. Justice Foundation, et al., in Support of Reconsideration En Banc of Defendants-Appellants’ Motion for Stay Pending Appeal was made, this 16th day of February 2017, by the Court’s Case Management/Electronic Case Files system upon the attorneys for the parties.
/s/ Herbert W. Titus _________________________ Herbert W. Titus Attorney for Amici Curiae

 
 Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-1, Page 1 of 6

(1 of 42)

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W. TILLERSON, Secretary of State; JOHN F. KELLY, Secretary of the Department of Homeland Security; UNITED STATES
OF AMERICA,
Defendants-Appellees.

On Appeal from the Issuance of a Temporary Restraining Order by the U.S. District Court for the Western District of Washington, No. 2:17-cv-00141-JLR

MOTION FOR LEAVE TO FILE OVERSIZE BRIEF AS AMICI CURIAE FOR THE FOUNDATION FOR THE CHILDREN OF IRAN AND IRANIAN
ALLIANCES ACROSS BORDERS

Dated: February 16, 2017

Kevin P. Martin Nicholas K. Mitrokostas William B. Brady Joshua M. Daniels Eileen L. Morrison GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-1, Page 2 of 6

(2 of 42)

Pursuant to Federal Rule of Appellate Procedure 29(a)(5)(d) and Circuit Rule 29-2, The Foundation for the Children of Iran and Iranian Alliances Across Borders respectfully seek leave to file the attached oversize brief containing 6,622 words as amici curiae in support of Plaintiffs-Appellees and in Opposition to en banc Reconsideration. Amici curiae have obtained the consent of the parties to this action to file a brief.
While Federal Rule of Appellate Procedure (“FRAP”) 29(a)(5)(d) limits the length of amicus briefs to one-half the maximum length authorized for a party’s principal brief, Circuit Rule 29-2(c)(2) limits the length of an amicus brief submitted in this circumstance to 15 pages or 4,200 words. On February 10, 2017, the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit issued a Supplemental Briefing Order ordering that the parties’ supplemental briefs shall consist of no more than 14,000 words, which exceeds the length limitations prescribed by 9th Circuit Rule 40-1(a). FRAP 29(a)(5)(d) makes clear that length extensions granted to parties do not adjust the maximum word length for an amicus curiae brief. However, FRAP 29(a)(5)(d) does permit an enlargement of the word limits for an amicus brief with the court’s permission. Given the allowable length of the briefs to be submitted by the parties and the important issues presented in this case, amici respectfully state that they have addressed the issues in as few words as possible. The amici present unique perspectives that are important to the
2

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-1, Page 3 of 6

(3 of 42)

Court’s consideration. Amici have a strong interest in seeing the district court’s order upheld. Amici have included in this brief not only legal arguments, but also personal stories of Iranians concerning the extensive screening procedures to which they already were subjected before entering the United States, and the harm that these individuals suffered and will continue to suffer under the Executive Order if it survives.
CONCLUSION For these reasons, the Court should grant this Motion, and permit The Foundation for the Children of Iran and Iranian Alliances Across Borders to file their concurrently submitted Brief Amici Curiae which contains 6,622 words.

Dated: February 16, 2017

Respectfully submitted,
s/ Kevin P. Martin Kevin P. Martin Nicholas K. Mitrokostas William B. Brady Joshua M. Daniels Eileen L. Morrison GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231
Counsel for Amici Curiae The Foundation for the Children of Iran and Iranian Alliances Across Borders

3

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-1, Page 4 of 6

(4 of 42)

CIRCUIT RULE 32-2(A) DECLARATION Pursuant to Circuit Rule 32-2(a), I Kevin P. Martin, declare:
1. I am a partner with law firm Goodwin Procter LLP and counsel for amici curiae The Foundation for the Children of Iran and Iranian Alliances Across Borders (“amici”).
2. I make this declaration in support of the foregoing Motion for Leave to File Oversize Brief as Amici Curiae for The Foundation for the Children of Iran and Iranian Alliances Across Borders (the “Motion”).
3. Given the allowable length of the briefs to be submitted by the parties and the importance and challenges presented in this case, amici respectfully state that they have addressed the issues in as few words as possible. The amici present unique perspectives that are important to the Court’s consideration. Amici have a strong interest in seeing the district court’s order providing preliminary relief upheld, and are well-positioned to explain why that result is the correct one. To that end, amici have included in this brief not only legal arguments, but also personal stories of Iranians concerning the extensive screening procedures to which they already were subjected before entering the United States, and the harm that these individuals suffered and will continue to suffer under the Executive Order if it survives.
I declare under penalty of perjury that the foregoing is true and correct.
4

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-1, Page 5 of 6

(5 of 42)

Executed this 16th day of February, 2017 at Boston, Massachusetts.

s/ Kevin P. Martin Kevin P. Martin

5

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-1, Page 6 of 6

(6 of 42)

CERTIFICATE OF SERVICE
I hereby certify that the foregoing Motion for Leave to File Oversize Brief as
Amici Curiae for The Foundation for the Children of Iran and Iranian Alliances
Across Borders and was filed with the Clerk of the Court for the United States
Court of Appeals for the Ninth Circuit via the appellate CM/ECF system on
February 16, 2017. All parties in this case or their counsel of record who are
registered CM/ECF users will be served by operation of the ECF system; the
following unregistered participants were served by U.S. Mail:
James J. O’Hagan 2298 Cranberry Road Grayland, WA 98547
Kim Blandino c/o 411 N. 16th Street Las Vegas, NV 89101
Daniel O. Escamilla Suite 100 888 W. Santa Ana Blvd. Santa Ana, CA 92701

Dated: February 16, 2017

s/ Kevin P. Martin Kevin P. Martin GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 1 of 36

(7 of 42)

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W. TILLERSON, Secretary of State; JOHN F. KELLY, Secretary of the Department of Homeland Security; UNITED STATES
OF AMERICA,
Defendants-Appellants.
On Appeal from the Issuance of a Temporary Restraining Order by the U.S. District Court for the Western District of Washington, No. 2:17-cv-00141-JLR
BRIEF FOR THE FOUNDATION FOR THE CHILDREN OF IRAN AND IRANIAN ALLIANCES ACROSS BORDERS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES AND IN OPPOSITION TO EN BANC RECONSIDERATION
Kevin P. Martin Nicholas K. Mitrokostas William B. Brady Joshua M. Daniels Eileen L. Morrison GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231
Dated: February 16, 2017

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 2 of 36

(8 of 42)

CORPORATE DISCLOSURE STATEMENT As required by Fed. R. App. P. 26.1(a), the undersigned counsel states that amici curiae The Foundation for the Children of Iran and Iranian Alliances Across Borders are both nonprofit organizations that each have no parent company and have not issued any stock.

Dated: February 16, 2017

s/ Kevin P. Martin Kevin P. Martin GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231
Counsel for Amici Curiae The Foundation for the Children of Iran and Iranian Alliances Across Borders

(i)

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 3 of 36

(9 of 42)

TABLE OF CONTENTS Page
INTEREST OF THE AMICI CURIAE ......................................................................1 BACKGROUND .......................................................................................................4
I. Azar and Ahmad ....................................................................................5
II. Banu and Basir ......................................................................................7
III. Dr. David Overman ...............................................................................8
IV. Dalir ......................................................................................................9 SUMMARY OF ARGUMENT ...............................................................................12 ARGUMENT ...........................................................................................................13
I. The Executive Order’s Travel Ban Is Irrational..................................13
A. Preexisting Screening Procedures for Persons from the Seven Restricted Countries to Enter the United States Are Robust and Thorough.........................................................13
B. The List of Countries Singled Out by the Executive Order’s Travel Ban Lacks a Rational Connection to the Asserted Reasons for the Ban. .............................................................. 17
II. The List of Countries Singled Out by the Executive Order’s Travel Ban Lacks a Rational Connection to the Asserted Reasons for the Ban.............................................................................17
III. The President’s Statutory Authority Under Section 212(f) of the INA Does Not Justify the Executive Order.........................................24
CONCLUSION ........................................................................................................28
CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
(ii)

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 4 of 36

(10 of 42)

TABLE OF AUTHORITIES
Page(s)
Cases
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)......................................................................................21, 24
Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332 (1994)............................................................................................25
Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947)............................................................................................27
Jimenez v. Weinberger, 417 U.S. 628 (1974)............................................................................................14
Mathews v. Diaz, 426 U.S. 67 (1976)..............................................................................................13
McDonnell v. United States, 136 S. Ct. 2355 (2016)........................................................................................26
Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2008) ..............................................................................14
Miller v. Alabama, 132 S. Ct. 2455 (2012)........................................................................................21
Plyler v. Doe, 457 U.S. 202 (1982)............................................................................................14
Romer v. Evans, 517 U.S. 620 (1996)............................................................................................19
Ruiz-Diaz v. United States, 703 F.3d 483 (9th Cir. 2012) ..............................................................................13
Rust v. Sullivan, 500 U.S. 173 (1991)............................................................................................28
U.S. Dep’t of Agriculture v. Moreno, 413 U.S. 528 (1973)......................................................................................14, 15
(iii)

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 5 of 36

(11 of 42)

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)............................................................................................28
Statutes 8 U.S.C. § 101..........................................................................................................27 8 U.S.C. § 1151........................................................................................................27 8 U.S.C. § 1153........................................................................................................27 8 U.S.C. § 1182(a) .............................................................................................25, 26 8 U.S.C. § 1182(f) .............................................................................................passim 8 U.S.C. § 1201(g) ...................................................................................................15 Other Authorities 22 C.F.R. § 41.31(a)(3) ............................................................................................16 51 Fed. Reg. 30,470 (Aug. 22, 1986) ......................................................................27 Executive Order No. 13769 ..............................................................................passim Fed. R. App. P. 29 .....................................................................................................1 Norman Singer & Shambie Singer,
2B Sutherland Statutes and Statutory Construction § 49:3 (7th ed. 2016) ...............................................................27

(iv)

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 6 of 36

(12 of 42)

INTEREST OF THE AMICI CURIAE1 Amicus The Foundation for the Children of Iran (FCI) is a 501(c)(3) organization that helps arrange health-care services, including life-saving treatments, for Iranian children and children of Iranian origin. Based in Bloomington, Minnesota, FCI relies on a global network of volunteers to serve the needs of as many children as possible, regardless of race, creed, religious belief, or political affiliation. Essential to FCI’s mission is the ability of children residing in Iran and their parents to travel to the United States on non-immigrant visas over the course of several years to obtain the critical treatment that they need. Amicus Iranian Alliances Across Borders (IAAB) is a 501(c)(3) organization based in New York City that seeks to strengthen America’s Iranian diaspora community through leadership and educational programming that encourages collaboration and solidarity across borders and multiple communities. IAAB includes over a thousand members of Iranian descent or nationality and works by empowering members of the Iranian diaspora community to deepen connections with their new communities while continuing to maintain their roots. These activities rely in large part on the ability of IAAB members to travel
1 No parties’ counsel authored this brief in whole or in part, no party or its counsel contributed money intended to fund preparation or submission of this brief, and no person other than amici or their counsel contributed money that was so intended. Fed. R. App. P. 29(a)(4)(E). Amici describe their authority to file in the concurrently filed motion in accordance with Fed. R. App. P. 29.

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 7 of 36

(13 of 42)

between the United States and Iran, including on non-immigrant student visas. The Executive Order at the heart of this case, Executive Order No. 13769
(“Executive Order” or “the Order”), poses a grave threat to amici and their respective missions. Among other things, with certain limited exceptions for government officials, the Executive Order bars any Iranian national (as well as nationals of Iraq, Libya, Somalia, Sudan, Syria and Yemen, with whom amici stand in solidarity) from entering the United States for a period of at least 90 days. See Executive Order, § 3(c). Those affected by the Order, before it was enjoined by the district court below, have included Iranian nationals who are lawful permanent residents of the United States as well as those who were previously allowed to enter the United States on student, work or visitor visas. Many of amici’s members and other constituents, as well as their relatives and friends, have found their ability to travel severely curtailed as a result. Those who happened to be within the United States when the Executive Order was issued found themselves unable to leave for fear of being denied reentry or subjected to lengthy detention upon their return. Others who were traveling abroad found themselves stranded in airports worldwide, unable to return to their family or work commitments in the United States. For some, the consequences of the Executive Order’s restrictions could be severe: for the children served by amicus FCI, for example, their ability to travel to the United States for life-saving medical care is a matter of life-or-
2

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 8 of 36

(14 of 42)

death. The district court’s February 3, 2017 order in this case brought temporary
relief from the chaos that immediately followed the Order’s issuance, a respite that the February 9, 2017 panel decision wisely left in place. Since the panel’s decision, however, a judge of this Court has requested a vote on whether the panel’s decision should be reconsidered en banc, and the Court has directed that issue to be briefed. Should the en banc Court decide to stay the effectiveness of the district court’s order, the grave harms visited upon the Iranian community residing in or traveling to the United States—including amici’s members and other constituents—will resume unabated.
Given both the vital importance of the legal questions presented to their members and other constituents, amici have a strong interest in seeing the district court’s order providing preliminary relief upheld, and are well-positioned to explain why that result is the correct one. To that end, amici have included in this brief not only legal arguments, but also personal stories of Iranians concerning the extensive screening procedures to which they already were subjected before entering the United States, and the harm that these individuals suffered and will

3

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 9 of 36

(15 of 42)

continue to suffer under the Executive Order if it survives.2 BACKGROUND
On January 27, 2017, President Trump issued the Executive Order which, inter alia, suspended entry and the issuance of visas to nationals from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The avowed “[p]urpose” of the Executive Order is “to protect Americans” by “ensur[ing] that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” Executive Order, § 1. Purportedly to that end, the Executive Order institutes a 90-day ban on the “immigrant and nonimmigrant entry into the United States of aliens from” the seven countries while the Departments of State and Homeland Security as well as U.S. intelligence officials undertake a “review” of the United States’ current visa-application and issuance process. Id., § 3(a)-(c).
As the following personal stories that have been relayed to amici demonstrate, however, nationals from these countries, including children seeking

2 For the safety of these individuals and their families, the italicized names used in this brief are pseudonyms. Given the heightened tension surrounding these issues, as well as the reported threats made against individuals associated with these proceedings, e.g., federal judges connected to this case, these individuals are understandably fearful about revealing their identities. See Evan Perez, et al., Threats Against Judges in Immigration Ban Cases Leads to Increased Security, CNN (Feb. 9, 2017), available at http://www.cnn.com/2017/02/09/politics/judgesthreatened-immigration-order (visited Feb. 15, 2017). These individuals also fear retaliation by Iran’s government and its supporters should they be publicly identified as beneficiaries of American charities and organizations such as amici.
4

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 10 of 36

(16 of 42)

medical attention and students from Iran, already must undergo an extensive and lengthy vetting process to obtain visas to enter the United States. The Executive Order nevertheless bars those who have cleared that existing screening process from entry, and has thereby caused tremendous stress and terrible disruption to these individuals and their families. I. Azar and Ahmad
Azar and her husband live in Iran with their teenage daughter and eight-yearold son, Ahmad.3 Ahmad suffers from a univentricular heart. Azar and Ahmad first came to the United States on B-2 visitor visas when Ahmad was three-years-old because Ahmad required treatment not available in Iran—a surgery called the Fontan procedure.
Obtaining those visitor visas was a difficult process. First, only Azar and Ahmad could receive visas, separating the family while Azar and Ahmad traveled to the United States. In FCI’s experience, the United States will grant only one parent (typically the mother) a visa to enter the United States out of fear that, if both parents are granted visas, they will not return to Iran. Therefore, as with all of FCI’s beneficiaries, FCI recommended that only the mother and child seek visitor visas.

3 As described supra, note 2, the identities of Iranian nationals have been anonymized using pseudonyms.
5

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 11 of 36

(17 of 42)

Second, Azar and Ahmad were both required to travel to the American embassy in Dubai for an interview because the United States does not maintain an embassy or consulate in Iran. Besides the documents described infra at 15-17, Azar also brought, inter alia, documentation regarding FCI’s financial support of Azar and Ahmad, which included a place to stay while in the United States, and medical documentation detailing Ahmad’s medical condition and the lack of treatment options in Iran. Azar was required to return to the embassy four times with additional documentation before she and Ahmad were finally issued visas. Azar stayed in Dubai for over a month in an effort to obtain a life-saving visa for her sick child.
Ahmad’s first surgery in the United States was a success, but it was only the first of a planned series, as is typical with the Fontan procedure. Ahmad required significant post-operative recovery time. Azar and Ahmad stayed in the United States for four months and then returned to Iran. Four years later, when Ahmad was seven-years-old, he was scheduled for his next surgery. Again Azar was required to travel with Ahmad to Dubai for an interview. This time, a woman working at the embassy told Azar that, because Azar was not a resident of Dubai, she could not obtain a visa from the embassy in Dubai. After much uncertainty and anguish, this misunderstanding was resolved and Azar was able to obtain visas

6

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 12 of 36

(18 of 42)

for herself and Ahmad. Azar and Ahmad traveled again to the United States, where they stayed for three months after Ahmad’s surgery.
Ahmad is now eight-years-old. Azar and Ahmad traveled to the United States a third time in November 2016 for another surgery. Ahmad is currently recovering from that surgery and doctors expect that he will require a fourth soon. Azar and Ahmad’s visas expire in May 2017. Azar longs to be reunited with her husband and daughter in Iran but now fears that if she and Ahmad leave the country they will not be permitted to return for the next surgery. II. Banu and Basir
Banu, her husband, daughter and son Basir live in Iran. Basir was born in late 1998 with a congenital heart defect that resulted in a lack of oxygen in his blood. Banu and her husband consulted the best Iranian doctors, but none in Iran could help Basir or could keep him alive. Their only hope was in the United States. Banu contacted FCI, which assisted Banu with the visa-application process.
Banu, her husband and Basir traveled to the U.S. embassy in Turkey for Banu and Basir’s interviews when Basir was still an infant. Basir was extremely sick and required constant oxygen and medication during the interview process.
Banu and Basir were issued visas and traveled to the United States for Basir’s surgery. At 44-days-old, Basir was so sick that he was greeted by an
7

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 13 of 36

(19 of 42)

ambulance at the airport gate and immediately transported to the hospital. Basir’s surgery was successful but his recovery was lengthy. Banu’s visa was valid for only three months, and therefore she needed to return to Iran. FCI was able to assist Banu’s husband with obtaining a visa so that he could be with Basir during the remainder of Basir’s recovery.
Basir returned to the United States in 2012 for an anticipated additional surgery and recovered well. Today, Basir is an eighteen-year-old student at the best university in Iran. He enjoys playing soccer and is a chess champion. After his 2012 surgery, however, doctors anticipated that he would need additional surgery in another five to ten years—between 2017 and 2022—and Basir is now within that window. He is under the care of doctors in Iran, who consult with U.S. physicians as needed. Although Basir’s condition is currently stable, it is difficult to predict when in the next five years he will need his additional surgery. FCI, Banu and Basir are concerned that the Executive Order could prevent Basir from receiving further life-saving surgery should an urgent need arise during the 90-day travel ban. III. Dr. David Overman
Dr. David Overman is Chief of the Division of Cardiovascular Surgery at Children’s Hospitals and Clinics of Minnesota and a staff surgeon. His clinical interests include the surgical management of congenital heart disease. He has
8

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 14 of 36

(20 of 42)

specific expertise with hypoplastic left heart syndrome and complex neonatal repairs, as well as aortic root disease and the Ross Procedure.
Dr. Overman is Medical Director of Children’s HeartLink, a nongovernmental organization that builds partnerships between pediatric cardiac programs in the developing world and in North America and Europe. Dr. Overman began working with FCI in early 1999 when he operated on Basir. Since then, Dr. Overman has operated on approximately 15 Iranian children brought to the United States by FCI. Some of these children, like Basir, require close monitoring and multiple surgeries.
Dr. Overman’s role with FCI involves evaluating the medical records of potential beneficiaries to determine whether they may be good candidates for treatment in the United States, performing surgery on these beneficiaries if they do come to the United States, and working remotely with doctors in Iran to monitor their conditions. Dr. Overman is concerned that if the Executive Order remains in place, it will interfere with his ability to offer necessary treatment to his patients. IV. Dalir
Dalir is a Ph.D. chemistry student in the Midwestern United States. As an Iranian, he counts himself lucky to have obtained a student visa to enter the United States. As with all student visa applicants, Dalir was first required to obtain acceptance at an American university. He was accepted in 2015 and immediately
9

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 15 of 36

(21 of 42)

applied for an F-1 (student) visa for himself and an F-2 (dependent) visa for his wife. After submitting the necessary applications, photographs and fees, he made an appointment for them to travel to Dubai to be interviewed at the U.S. embassy. At his interview, he presented, inter alia, his research plan, statement of purpose, certificate of marriage and bank statements. He and his wife were fingerprinted. Two months later, they received their visas. Dalir was pleasantly surprised that they received multiple-entry visas; in Dalir’s experience, most Iranian students receive only single-entry visas, which are valid for five years. Because their visas are multiple-entry visas, however, they are valid for only two years (until the summer of 2017).
Dalir and his wife arrived in the United States for the fall semester 2015. By the end of 2016, they had not been to Iran for over one year and missed their families. They decided to return to Iran for the winter holidays. Dalir could stay only two weeks due to his academic demands. His wife, not being a student, could stay longer and planned to return to the United States in February. After hearing rumors of a forthcoming travel ban, however, Dalir immediately called his wife and rescheduled her return. His wife was in the air, attempting to reunite with her husband, when President Trump signed the Executive Order.
His wife’s itinerary took her from Iran to Chicago via Frankfurt. She landed in Frankfurt shortly after the Executive Order was signed. Two hours into
10

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 16 of 36

(22 of 42)

her layover, the airline informed her that she would not be allowed to board her flight to Chicago due to the Executive Order and put her on a plane back to Iran.
The next week was extremely difficult for Dalir and his wife. Both feared that they would not be able to see one another again unless Dalir quit his Ph.D. program. Dalir’s worry that he would not be reunited with his wife prevented him from concentrating on his studies. For six days, he desperately followed the news. He was aware of the TRO issued by a federal district court in Boston, but also knew that airlines were not allowing Iranian visa holders to board planes bound for the United States. When Dalir learned that Lufthansa was allowing Iranian visa holders to board planes bound for Boston, he immediately called his wife. Dalir had told her to pack her bags and be prepared to leave. It was 2 am in Iran, but he convinced his wife to get to the airport for a 7 am flight. Dalir booked her ticket and she immediately left for the Tehran airport. Simultaneously, Dalir began a seventeen-hour car ride to Boston.
Dalir arrived in Boston just as his wife’s flight was landing. As he waited at the international arrivals area, Dalir grew concerned when he did not see his wife for several hours, despite seeing other passengers exit customs. She emerged three hours after landing, following secondary screening.
Dalir and his wife got back into the car and drove another seventeen hours home. The travel ban had significant impacts on Dalir’s studies—e.g., he delayed
11

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 17 of 36

(23 of 42)

one of his seminars that was scheduled to take place during the six days when he was trying to bring his wife back into the United States—which he continues to work with his university to resolve. Although Dalir and his wife may lawfully remain in the United States until Dalir completes his Ph.D. program, they fear that they will be unable to obtain additional visas when their current visas expire, leaving them potentially unable to visit their families for three years.
SUMMARY OF ARGUMENT The Executive Order cannot satisfy even the comparatively less demanding rational-basis standard of review. The United States’ preexisting visa-application process and other screening procedures are already aimed specifically at the problems that the Executive Order purportedly seeks to solve—preventing terrorism inside the United States. As described by the compelling stories above from the amici’s members and other constituents, these visa-application procedures are stringent, even for a newborn baby seeking a visa to the United States for lifeor-death surgery. The irrationality of the travel ban is further confirmed by the list of countries singled out by the Executive Order, which is both under-inclusive and over-inclusive in relation to the national origins of the perpetrators of the recent terrorist attacks that allegedly provide the justification for the ban. There are statutory as well as constitutional flaws with the travel ban. Although the Executive Order relies on 8 U.S.C. § 1182(f) for its purported
12

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 18 of 36

(24 of 42)

authority to exclude all nationals of seven countries, a holistic reading of that statute refutes that claim. That provision states that the President may “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants,” but does not define “classes of aliens.” Another part of the same section defines multiple “classes of aliens”—but none by reference to immutable characteristics such as nationality. Reading the statute as a whole, 8 U.S.C. § 1182(f) does not permit the President to bar entire nationalities without some individualized consideration of applicants for admission. Because the Executive Order exceeds the proper scope of the President’s statutory authority, it cannot stand.
ARGUMENT I. The Executive Order’s Travel Ban Is Irrational.
A. Preexisting Screening Procedures for Persons from the Seven Restricted Countries to Enter the United States Are Robust and Thorough.
Even acknowledging that the political branches of the federal government have comparatively “broad power over naturalization and immigration,” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976), any distinction that the federal government may wish to draw between noncitizens based on national origin still must satisfy at least “rational basis” review. See, e.g., Ruiz-Diaz v. United States, 703 F.3d 483, 486-87 (9th Cir. 2012). Because the Executive Order’s travel ban operates selectively with respect to only certain foreign nationals, depending on their

13

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 19 of 36

(25 of 42)

national origin, it must be supported by at least some “assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler v. Doe, 457 U.S. 202, 216 (1982). While comparatively less demanding than other standards of review in federal constitutional law, the rational-basis standard is far from a meaningless rubber stamp on the actions of the political branches. See, e.g., Jimenez v. Weinberger, 417 U.S. 628, 636-37 (1974) (striking down provision of the Social Security Act as not rationally connected to provision’s asserted purpose); U.S. Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534-36 (1973) (striking down as irrational statute withholding food stamps to households with unrelated members); Merrifield v. Lockyer, 547 F.3d 978, 992 (9th Cir. 2008) (striking down exemption from pesticide-control regulations as irrational).
The problem the travel ban has in satisfying this standard is the fact that, as alluded to by the personal experiences recounted above, the United States’ preexisting visa-application process and other screening procedures have been in place all along, and are “aimed specifically at the problems” that the Executive Order’s travel ban purportedly seeks to solve. Moreno, 413 U.S. at 536. Indeed, the Executive Order acknowledges that these procedures were already tightened significantly in response to the September 11 attacks. See Executive Order, § 1. “The existence of these provisions necessarily casts considerable doubt upon the
14

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 20 of 36

(26 of 42)

proposition that the [travel ban] could rationally have been intended to prevent those very same [harms].” Moreno, 413 U.S. at 536-37.
The United States government currently employs stringent standards regarding the admission of most nonimmigrants into the United States. When foreign nationals wish to enter the United States, they first must obtain visas unless they are from one of only 38 visa-waiver countries where a visa is not required for stays of 90 days or less for tourism or business reasons (and even then, only if they are not also a national of Iraq, Iran, Syria, or Sudan). U.S. Dep’t of State, Visa Waiver Program, available at http://travel.state.gov/content/visas/en/visit/visawaiver-program.html (visited Feb. 15, 2017). The process for obtaining a nonimmigrant visa to the United States is lengthy, expensive and difficult— particularly for Iranian Americans. Over 45 percent of Iranian B-visa seekers were denied visas in Fiscal Year 2016.4 See U.S. Dep’t of State, Adjusted Refusal Rate—B-Visas Only By Nationality Fiscal Year 2016, available at http://travel. state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/RefusalRates/ FY16.pdf (visited Feb. 15, 2017).
Applicants for nonimmigrant visas must complete an application, submit photographs, pay an application fee and schedule an interview at a U.S. embassy or
4 In FCI’s experience, the Department of State denies many Iranian visa seekers’ applications for incomplete applications or supporting documentation. See 8 U.S.C. § 1201(g).
15

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 21 of 36

(27 of 42)

consulate. U.S. Dep’t of State, Student Visa, available at http://travel.state.gov/ content/visas/en/study-exchange/student.html (visited Feb. 15, 2017) (applicable to F-1 and F-2 visa applicants); U.S. Dep’t of State, Visitor Visa, available at http:// travel.state.gov/content/visas/en/visit/visitor.html (visited Feb. 15, 2017) (applicable to B-2 visa applicants, including those seeking medical treatment). The application form itself is lengthy, asking for information such as a list of all of the countries the applicant has entered in the last ten years and all professional, social and charitable organizations to which the applicant has belonged or contributed, or with which the applicant has worked. Applicants seeking visas for medical reasons additionally must submit an invitation letter from the hospital and doctors providing treatment, medical documentation describing the illness (translated) and a letter from a doctor stating the reasons why the planned treatment cannot or should not be performed in Iran or a neighboring country such as Turkey. Many FCI beneficiaries also require affidavits of support from sponsors if the beneficiaries cannot afford to travel with their own funds, lest the consular official determine their personal financial situation to be insufficient. See 22 C.F.R. § 41.31(a)(3). Because the United States does not maintain an embassy or consulate in Iran, Iranian nationals seeking visas to enter the United States must travel to a third country for their interviews. Travel to that third country (for example, the United Arab Emirates), also requires a visa. Applicants must bring
16

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 22 of 36

(28 of 42)

significant documentation with them to their visa interviews, including six months of bank statements (translated and officially stamped). Applicants are also fingerprinted during their interviews.
In this litigation, the government has never suggested what further screening processes might be put into place at the end of the 90-day review period that would improve upon those already in place for nationals of the seven countries. Indeed, and as discussed in the following section, the evidence is that the existing procedures are working insofar as adult nationals from these countries have not traveled to the United States and participated in terrorist attacks in the past two decades. In the absence of identified problems with the existing screening process for persons from these countries and with no indication that a “solution” to the non-existent problems is forthcoming, there is at a minimum a reasonable likelihood that plaintiffs will succeed in establishing that the Executive Order lacks a rational basis.
B. The List of Countries Singled Out by the Executive Order’s Travel Ban Lacks a Rational Connection to the Asserted Reasons for the Ban.
The rationality of the Executive Order’s travel ban also is in doubt because of the manner in which it operates. The ban is both selective—targeting only foreign nationals from the seven referenced countries—but at the same time broad, prohibiting any alien from those countries from entering the United States, even

17

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 23 of 36

(29 of 42)

minors, and regardless of the grounds on which that entry is sought: for work, for study, for resettlement as a refugee fleeing an active war zone, for medical treatment that is unavailable in their home countries, or for short-term visits with family members residing in the United States. See Executive Order, § 3(c). Viewing the Executive Order’s selective travel ban in light of the Order’s stated reasons for it, the ban’s arbitrary harshness presents a second, independent reason why it lacks a rational basis.
The Executive Order stated justification for barring the entry of all foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen is the concern that any national from those countries might commit terrorist acts in the United States, perhaps at the behest of terrorist organizations, and the Executive Order points to the “[n]umerous foreign-born individuals [that] have been convicted or implicated in terrorism-related crimes since September 11, 2001” as support. Executive Order, § 1. The problem, however, is that those “foreign-born individuals” and incidents lend no support to the Executive Order’s selective and discriminatory ban. Indeed, the list of seven countries whose nationals the Executive Order has singled out bears little or no correlation to the places from which those who have attempted or committed terrorist attacks within the United

18

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 24 of 36

(30 of 42)

States have hailed over the last 16 years.5
To begin, the Order is over-inclusive. Romer v. Evans, 517 U.S. 620, 632
(1996) (laws fail rational basis review where their “sheer breadth is so
discontinuous with the reasons offered for it that [they] seem[] inexplicable by
anything but animus toward the class [they] affect[]”). There have been only a
handful of persons who originally hail from some of the seven countries the
Executive Order singles out and who have carried out or attempted to carry out
terrorist plots since 9/11 that did not result in fatalities. These include one car-
ramming attack carried out in 2006 by an Iranian-American lawful permanent
resident (“LPR”) in Chapel Hill, North Carolina in 2006;6 an unsuccessful plot by a
Somali-American who planned to bomb a Christmas tree lighting in Portland,
Oregon in 2010;7 an attack involving multiple stabbings by a Somali-American at a
5 Defendants have argued in this case and elsewhere that Congress and the prior administration identified these seven countries as ones presenting “terrorismrelated concerns,” and that the Executive Order merely adopts that prior determination and enhances the security measures with regard to those countries. E.g., Defs. Emergency Stay Mot. at 5-6 (Dkt. No. 14). But neither Congress nor the prior administration banned nationals from those countries from entering the United States for any period of time, as the Executive Order does. 6 Jessica Rocha, et al., Suspect Says He Meant to Kill, Charlotte News & Observer (Mar. 8, 2006), available at http://web.archive.org/web/20081013151023/ http://www.newsobserver.com/news/v-print/story/415421.html (visited Feb. 15, 2017). 7 US ‘Foils Oregon Bomb Plot’, ALJAZEERA (Nov. 27, 2010), available at http:// www.aljazeera.com/news/americas/2010/11/2010112764714953451.html (visited Feb. 15, 2017).
19

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 25 of 36

(31 of 42)

shopping mall in St. Cloud, Minnesota in 2016;8 and another car-ramming attack carried out by a Somali-American LPR at Ohio State University in 2016.9
To put these four individuals in broader perspective, there are approximately 500,000 persons of Iranian ancestry and 130,000 persons of Somali ancestry living in the United States, according to 2011 American Community Survey data.10 These incidents also offer no reason whatsoever for the inclusion of the other five countries in the Executive Order’s travel ban. Moreover, even with respect to these four incidents, there is no credible basis for believing that the Executive Order’s travel ban, sweeping as it is, would have done anything to prevent them. Two of the four incidents—the 2006 car-ramming attack and the 2010 bomb plot—involved naturalized U.S. citizens who immigrated to the United States as young children and lived here for many years before engaging in

8 FBI Investigates Stabbing That Injured 9 at Minnesota Mall as Possible Act of Terrorism, CHI. TRIB. (Sept. 18, 2016), available at http://www.chicagotribune. com/news/nationworld/ct-minnesota-mall-stabbing-20160918-story.html (visited Feb. 15, 2016). 9 Islamic State Group Claims Ohio State University Rampage, BBC (Nov. 30, 2016), available at http://www.bbc.com/news/world-us-canada-38151669 (visited Feb. 15, 2017). 10 See U.S. Census Bureau, 2011 American Community Survey 1-Year Estimates: Total Ancestry Reported (Dec. 22, 2012), available at http://ia601608.us.archive. org/26/items/2011AmericanCommunitySurveyAncestry/2011Acs.pdf (visited Feb. 15, 2017).
20

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 26 of 36

(32 of 42)

terrorism.11 The individuals at the center of the other two incidents reportedly also
came to the United States as children—one at age seven and the other at age 16—
and did not carry out their attacks for years after arriving.12 The idea that it is
rational to ban toddlers from entering the country out of a speculative fear that they
might someday grow up to be terrorists is implausible, and offends our most basic
principles. Cf. Miller v. Alabama, 132 S. Ct. 2455, 2464-65 (2012) (recognizing
that fundamental differences between juveniles and adults that makes it difficult to
predict with confidence how children will behave as they mature). Nor could any
“enhanced screening” plausibly determine which young children will grow up to
be terrorists.
The Order is also arguably under-inclusive—another sign of irrationality
that often bespeaks constitutionally impermissible animus toward those few the
law actually targets. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
11 See Rocha, et al., supra (reporting that 22-year-old perpetrator was born in Iran but “grew up in the Charlotte area, attending public school for 13 years until he graduated from South Mecklenburg High School in 2001,” five years before attack); Colin Miner, et al., F.B.I. Says Oregon Suspect Planned ‘Grand’ Attack, N.Y. Times (Nov. 27, 2010), available at http://www.nytimes.com/2010/11/28/us/ 28portland.html (visited Feb. 15, 2017) (reporting that 19-year-old plotter attended middle school and high school in Oregon). 12 See FBI Investigates Stabbing That Injured 9 at Minnesota Mall as Possible Act of Terrorism, supra (reporting that 22-year-old perpetrator “was born in Africa and had lived in the U.S. for 15 years”); Islamic State Group Claims Ohio State University Rampage, supra (reporting that 18-year-old perpetrator arrived in the United States two years before the incident, after living for seven years in a refugee camp in Pakistan).
21

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 27 of 36

(33 of 42)

450 (1985) (rejecting need to regulate population density of group homes for mentally disabled residents as a justification for a zoning ordinance requiring special permits for such facilities because other types of facilities presenting identical concerns were not subject to similar requirements). There have been twelve persons who have succeeded in carrying out fatal terrorist attacks inside the United States since the September 11, 2001 attacks; not a single one of these attacks was committed by anyone from the seven countries identified in the Executive Order.13 Three of them were of Pakistani heritage.14 Three more were African Americans who were born here.15 Another was Egyptian.16 Two were of Chechen ancestry, born in former Soviet republics, and came to the United States

13 See Peter Bergen, et al., In Depth: Terrorism in America After 9/11, Part II: Who are the Terrorists? available at https://www.newamerica.org/indepth/terrorism-in-america/who-are-terrorists/ (visited Feb. 15, 2017). 14 See San Bernardino Shooting: Who Were the Attackers?, BBC (Dec. 11, 2015), available at http://www.bbc.com/news/world-us-canada-35004024 (visited Feb. 15, 2017); Jennifer Sullivan, Seattle Jewish Center Shooter Gets Life Sentence, L.A. TIMES (Jan. 15, 2010), available at http://articles.latimes.com/print/ 2010/jan/15/nation/la-na-seattle-jewish-center15-2010jan-15 (visited Feb. 15, 2017). 15 See Sergio Peçanha & K.K. Rebecca Lai, The Origins of Jihadist-Inspired Attackers in the U.S., N.Y. TIMES (Dec. 8, 2015), available at http://www.nytimes. com/interactive/2015/11/25/us/us-muslim-extremists-terrorist-attacks.html?_r=0 (visited Feb. 15, 2017) (Ali Muhammad Brown, Alton Nolen and Abulhakim Mujahid Muhammad). 16 See Los Angeles Airport Shooting Kills 3, CNN (July 5, 2002), available at http://edition.cnn.com/2002/US/07/04/la.airport.shooting/ (visited Feb. 15, 2017).
22

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 28 of 36

(34 of 42)

from Russia as children.17 And one each came from families that originally hailed
from Kuwait, Afghanistan and the Palestinian Territories.18 Indeed, even the
primary example that the Executive Order cites in support of the travel ban—the
September 11 attacks themselves, see Executive Order, § 1—is wholly unrelated to
any of the countries the ban is focused on. The “19 foreign nationals who went on
to murder nearly 3,000 Americans,” id., came to the United States from Saudi
Arabia, Egypt, Lebanon and the United Arab Emirates.19
In sum, even under rational-basis review, the record of terrorist attacks
committed or attempted in the United States since the September 11 attacks offers
no basis for singling out the seven countries identified in the Executive Order for
travel restrictions. Most of the countries from which foreign terrorist attacks
against the United States have originated are not even included on the list; most of
17 See Nina Burleigh, The Brothers Who Became the Boston Marathon Bombers, NEWSWEEK (Apr. 6, 2015), available at http://www.newsweek.com/brothers-whobecame-boston-marathon-bombers-319822 (visited Feb. 15, 2017). 18 See Orlando Gay Nightclub Shooting: Who Was Omar Mateen?, BBC (June 14, 2016), available at http://www.bbc.com/news/world-us-canada-36513468 (visited Feb. 15, 2017); Catherine E. Shoichet & Gary Tuchman, Chattanooga Shooting: 4 Marines Killed, A Dead Suspect and Questions of Motive, CNN (July 17, 2015), available at http://edition.cnn.com/2015/07/16/us/tennessee-naval-reserveshooting (visited Feb. 15, 2017); James Dao, Suspect Was ‘Mortified’ About Deployment, N.Y. TIMES (Nov. 5, 2009), available at http://www.nytimes.com/ 2009/11/06/us/06suspect.html (visited Feb. 15, 2017). 19 September 11th Hijackers Fast Facts, CNN (Sept. 5, 2016), available at http:// cnn.com/2013/07/27/us/september-11th-hijackers-fast-facts (visited Feb. 15, 2017).
23

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 29 of 36

(35 of 42)

the countries that are on the list are ones from which no terrorist threat has come at all in the period following the September 11 attacks; and even acknowledging that a handful of recent attackers or would-be attackers were from these countries, because they came here as children it seems inconceivable that any purported “enhanced screening” would have prevented those incidents or more like them. Based on both its under-inclusiveness and over-inclusiveness, the Executive Order’s travel ban “appears to rest on an irrational prejudice against” nationals from the seven countries singled out for adverse treatment, which is not a legitimate government interest that supplies the requisite rational basis. Cleburne, 473 U.S. at 450. III. The President’s Statutory Authority Under Section 212(f) of the INA
Does Not Justify the Executive Order. Even ignoring the substantial constitutional difficulties with the Executive Order’s travel ban, Defendants’ principal statutory basis for it—Section 212(f) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(f)—also fails to justify it. See Executive Order, § 3(c). To be sure, Section 212(f) is framed in broad language, authorizing the President to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” when he finds that “the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). But for the reasons to
24

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 30 of 36

(36 of 42)

follow, the phrase “class of aliens” in Section 212(f) should not be interpreted to include “nationality” as a type of class.
The phrase “class of aliens” in Section 212(f) is not defined, and thus does not explicitly provide the President authority to define a “class” in terms of nationality or any similar immutable characteristic. Nor should it be interpreted to include such authority. Instead, the phrase “class of aliens” in Section 212(f) should be read in light of the same phrase as used elsewhere in the statute, specifically Section 212(a). See Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 342 (1994) (“[I]dentical words used in different parts of the same act are intended to have the same meaning.”). Section 212(a) defines several specific “classes of aliens ineligible for visas or admission,” who are categorically “ineligible to receive visas and ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a). None of the “classes of aliens” set forth in Section 212(a) are defined in terms of immutable characteristics, such as nationality; rather, the categories are typically defined by reference to the alien’s individual conduct, and in some cases by mutable characteristics (e.g., infection with a communicable disease). See, e.g., id. § 1182(a)(1) (health-related grounds), (a)(2) (certain criminal activities or convictions), (a)(1) (communicable diseases), (a)(3) (terrorism, membership in totalitarian parties and related activities), (a)(6) & (9) (prior violations of U.S. immigration laws), (a)(7) (failure to present required
25

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 31 of 36

(37 of 42)

documentation). The absence of any “classes” of aliens defined by immutable characteristics in Section 212(a) provides reason to believe that “any class of aliens” in 212(f) similarly excludes immutable characteristics such as nationality.
Put another way, the meaning of the phrase “any class of aliens” as used in Section 212(f) (emphasis added) should be determined in light of the “company it keeps” under “familiar” statutory-interpretation principles. McDonnell v. United States, 136 S. Ct. 2355, 2368 (2016) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)). And here, the “company” that Section 212(f) keeps—the enumeration of specific “classes of aliens” identified in Section 212(a)—suggests that it was only meant to provide the President with the authority to temporarily exclude additional “classes of aliens” defined by their individual conduct or mutable characteristics, not their immutable characteristics such as nationality. 8 U.S.C. § 1182(f). Nowhere in Section 212 is there any contrary evidence that would support reading “class” to include an entire nationality.
Consistent with that limited reading of Section 212(f), the Executive Order’s categorical prohibition on all foreign nationals (other than certain government officials) from certain countries holding valid U.S. visas entering the United States is unprecedented in the history of the clause. Notwithstanding numerous wars, hot and cold, during Section 212(f)’s more than 60-year history, during which Section 212(f) was invoked dozens of times, none of those invocations were to bar all
26

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 32 of 36

(38 of 42)

aliens of a given nationality holding visas from entering the United States whether as immigrants or non-immigrants.20 Instead, suspensions pursuant to Section 212(f) usually were on the basis of only demonstrated conduct by specific aliens (e.g., committing human rights abuses, supporting terrorism, or participating in anti-democratic coups). See Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief (Cong. Res. Serv. Jan. 23, 2017), at 1-2 & 6-10 (Table 1). That “contemporaneous and consistent” executive practice suggests that “any class of aliens” means something less than a whole nationality, and that understanding “is entitled to great weight” in construing the statute. Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116 (1947); accord Norman Singer & Shambie Singer, 2B Sutherland Statutes and Statutory Construction § 49:3 (7th ed. 2016); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-611 (1952) (Frankfurter, J., concurring) (“[A] systemic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a
20 An August 26, 1986 proclamation limited the entry of Cuban immigrants, but included broad categorical exceptions for Cuban nationals applying for admission as immediate relatives, “special immigrants”—which includes numerous categories of immigrants including lawful permanent residents returning from abroad—and “preference immigrants,” including those with family-sponsored and employment-based immigrant visas. See Proclamation No. 5517, 51 Fed. Reg. 30,470 (Aug. 22, 1986); 8 U.S.C. §§ 101, 1151, 1153.
27

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 33 of 36

(39 of 42)

gloss on ‘executive Power’ vested in the President by § 1 of Art. II.”). In summary, there is no clear indication that Congress meant to give the
President carte blanche to prevent entire nationalities of aliens from entering the country. Section 212(f)’s grant of authority should be construed so as not to create unnecessary tension with the rest of Section 212, and thus construed, the Executive Order’s travel ban should be invalidated as an action that lies beyond the President’s authority. Cf. Rust v. Sullivan, 500 U.S. 173, 191 (1991).
CONCLUSION This Court should decline to reconsider the panel’s February 9, 2017 decision en banc and should also decline to disturb the district court’s February 3, 2017 prohibiting enforcement of the Executive Order, which ultimately should be affirmed in this appeal.

28

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 34 of 36

(40 of 42)

Dated: February 16, 2017

Respectfully submitted,
s/ Kevin P. Martin Kevin P. Martin Nicholas K. Mitrokostas William B. Brady Joshua M. Daniels Eileen L. Morrison GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231
Counsel for Amici Curiae The Foundation for the Children of Iran and Iranian Alliances Across Borders

29

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 35 of 36

(41 of 42)

CERTIFICATE OF COMPLIANCE The undersigned counsel for amici curiae The Foundation for the Children of Iran and Iranian Alliances Across Borders hereby certifies that this brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2(c)(2) and is 6,622 words, excluding the portions exempted by Fed. R. App. P. 32(f). The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6) because the brief has been prepared using Times New Roman, 14point type.

Dated: February 16, 2017

s/ Kevin P. Martin Kevin P. Martin GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231

Case: 17-35105, 02/16/2017, ID: 10322616, DktEntry: 159-2, Page 36 of 36

(42 of 42)

CERTIFICATE OF SERVICE
I hereby certify that the foregoing Brief of Foundation for the Children of
Iran and Iranian Alliances Across Borders as Amici Curiae Supporting Plaintiffs-
Appellees and in Opposition to en banc Reconsideration was filed with the Clerk
of the Court for the United States Court of Appeals for the Ninth Circuit via the
appellate CM/ECF system on February 16, 2017. All parties in this case or their
counsel of record who are registered CM/ECF users will be served by operation of
the ECF system; the following unregistered participants were served by U.S. Mail:
James J. O’Hagan 2298 Cranberry Road Grayland, WA 98547
Kim Blandino c/o 411 N. 16th Street Las Vegas, NV 89101
Daniel O. Escamilla Suite 100 888 W. Santa Ana Blvd. Santa Ana, CA 92701

Dated: February 16, 2017

s/ Kevin P. Martin Kevin P. Martin GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231

 
 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
FEB 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

STATE OF WASHINGTON and STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States; et al.,
Defendants-Appellants.

No. 17-35105 D.C. No. 2:17-cv-00141 Western District of Washington, Seattle
ORDER

THOMAS, Chief Judge: The United States has represented to the Court that the President intends to
issue a new Executive Order and has urged the Court to “hold its consideration of the case until the President issues the new Order.” The United States has further represented that it will inform the Court of any new developments.
En banc proceedings before this Court are stayed pending further Order of this Court.

 
 Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 1 of 20
No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________________________________________
STATE OF WASHINGTON, ET AL
Plaintiffs-Appellees
v.
DONALD J. TRUMP, ET AL.
Defendants-Appellants
_____________________________________________________
ON APPEAL FROM THE WESTERN DISTRICT OF WASHINGTON
RAISING POLITICAL QUESTION NONJUSTICIABILITY, A BRIEF FROM AMICUS CURIAE PROFESSOR VICTOR WILLIAMS
OF THE AMERICA FIRST LAWYERS ASSOCATION IN SUPPORT OF DEFENDANTS-APPELLANTS DONALD TRUMP,
ET AL’S MOTION FOR RECONSDERATION EN BANC OF THE STAY PENDING APPEAL
_______________________________________________________________
Victor Williams, Appearing Pro Se
America First Lawyers Association 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
1

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 2 of 20
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to. Rule 28(a)(1), Amicus certifies as follows: A. Parties and Amici. All parties, interveners, and amici appearing in this Court are listed in the briefing for Plaintiffs and Defendants except that this brief is filed on behalf of Professor Victor Williams in support of Defendants. B. Rulings Under Review. The Ninth Circuit’s panel decision and the TRO
Decisions and Orders issued by U.S. District Judge James Robart. C. Related Cases. Other related cases of which is Amicus are aware are referenced the briefing offered by Plaintiffs and Defendants. Dated: February 16, 2017 /s/Victor Williams Victor Williams America First Lawyers Association 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
2

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 3 of 20

TABLE OF CONTENTS

Page

Certificate as to Parties, Rulings and Related Cases …………….……………......2 Table of Contents…………………………………………………………………..3 Table of Authorities………………………………………………………......……4 Glossary ………………………………………………………….…………….....5 Statement of Authorship and Financial Contribution…………………...................5 Statement of Identity, Interest and Authority of Amicus………………...………6-7 Argument………………………………………………………………….….…….8 Rule 32 Certificate of Compliance…………………………………..………...….19 Certificate of Service……………………………………………………..……….20

3

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 4 of 20

Source Cases

TABLE OF AUTHORITIES

Page(s)

Baker v. Carr, 369, U.S. 186 (1962)..…………………..…………………11,12, 13

Colegrove v. Green, 328 U.S. 549 (1946)………………………………….……..11

Coleman v. Miller, 307 U.S. 433 (1939)………………………………………….11

Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007)………………………….8

Goldwater v. Carter, 44 U.S. 996 (1979) ……..…………….…………...……14-15

Luther v. Borden, 48 U.S. (7 How.) 1 (1849)…………………………………..…11

Marbury v. Madison, 5 U.S. 137 (1803)……..……………………………..…11,12

Nixon v. United States, 506 U.S. 224 (1993)…………..….…………………...13,14

Nixon v. United States, 938 F.2d 239 (D.C. Cir. 1991)………………..….……...17

Oetjen v. Central Leather Co., 246 U.S. 297 (1918)………………………….…..11

Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912) ………………….….11

Constitutions/Statutes U.S. Const.

art. II, § ……………………..………………………………………...............…....9 art. II, § 2,................................................................................................................. 9

Other Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (Yale 1986) ...…………………………………………………..16
Alexander Hamilton, No. 23: The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union, Clinton Rossiter, ed., THE FEDERALIST PAPERS 148-53(New York: Mentor, 1999)……… . ………...……9-10

4

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 5 of 20
GLOSSARY Plaintiffs State of Washington, et al (States) Defendants Donald J. Trump, et al (President Trump)
STATEMENT OF AUTHORSHIP AND FINANCIAL CONTRIBUTION This brief is offered by Amicus as an individual No party’s counsel
authored this brief in whole or in part, and no party, nor other person, contributed money intended to fund the preparation or submission of this brief.
5

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 6 of 20
STATEMENT OF AUTHORITY, IDENTITY, AND INTEREST . In attached Motion, leave of the Court is requested to file this Brief. In accord with Circuit Rule 29-3, prospective Amicus asked for party consent to this filing through email. Counsel for Washington State and Donald Trump have consented. Professor Victor Williams is longtime Washington, D.C. attorney and law professor formerly affiliated as fulltime faculty with both the City University of New York’s John Jay College of Criminal Justice and the Catholic University of America’s Columbus School of Law. Victor Williams, now Chair of the America First Lawyers Association, the In past, he has been granted leave to file Amicus Briefs in this and other circuits as well as by the U.S. Supreme Court. Since his undergraduate law studies (J.D. University of California-Hastings College of the Law), Professor Williams has researched and published in the area of constitutional law for twenty-five years. With advanced training in economic analysis of the law (LL.M. George Mason University Scalia School of Law) and federal jurisdiction (LL.M. Columbia University School of Law), Amicus’ published scholarship and commentary has offered support for the constitutional authorities prerogatives of five presidents (without regard to their party affiliation). He has particular knowledge and expertise regarding the text, history and interpretation of Article II of the U.S. Constitution.
6

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 7 of 20
In note: After his first-year of law school at U.C. Hastings, Victor Williams had the honor to serve as an extern for the late U.S. Court of Appeals for the Ninth Circuit Judge Joseph P. Sneed. Professor Williams continues to hold the Ninth Circuit in the deepest regard – a sentiment which further prompts the filing of this Brief. /s/ Victor Williams, Appearing Pro Se Victor Williams Appearing Pro Se America First Lawyers Association 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
7

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 8 of 20
ARGUMENT
Amicus respectfully argues that an en banc sitting of this Court is needed as the lower court did not and does not have subject matter jurisdiction in this matter. Offered in support of Defendant Donald J. Trump, et al, this Amicus Brief endorses and incorporates the government’s factual statement, background and arguments but does not duplicate them particularly as to the substance of the statutory interpretation. Rather, Amicus presents an alternatively focused theory asserting that the Plaintiffs’ claims against the Executive Order of January 27, 2017 raise nonjusticiable political questions. This Court has reaffirmed that “if a case presents a political question, [the judiciary] lack[s] subject matter jurisdiction to decide that question.” Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007).
Thus, neither the trial court nor the Ninth Circuit panel should have reviewed the challenges (including the Executive Order and/or relevant statutory language) beyond that examination needed to recognize the patent political question presented.
The political-question doctrine is fundamental to separation of powers and American self-governance. Answers to political questions should come only from elected political leaders. The Constitution textually grants the president the exclusive responsibility to implement war strategy and foreign policy to defeat
8

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 9 of 20
America’s foreign enemies. The president, not the judiciary, has the institutional competence to know what specific actions are required to fulfill those responsibilities.
America is a nation at war with radical Islamic terrorists. The judiciary has no role in overseeing the president (acting as Commander-in-Chief, implementing war strategy and Chief Executive implementing security-related foreign policy) in matters related to allowing foreign aliens entry onto America soil.
Defending the nation against foreign enemies during a time of war is the highest mandate of the president who is vested with all executive power by Article II, Section 1 and made Commander-in-Chief of the Army and Navy by Article II, Section 2. In carrying out these duties, the president has a most unique duty to protect the Republic and its citizens from potential harm from foreign enemies. Providing such Executive energy was a fundamental reason for the 1787 Constitution’s replacement of the failed Articles of Confederation. Consider Alexander Hamilton’s ratification argument in Federalist 23:
The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this
9

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 10 of 20
reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. Alexander Hamilton, "No. 23: The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union," in Clinton Rossiter, ed., The Federalist Papers (New York: Mentor, 1999), 148-53.
Throughout our Republic's history, the Supreme Court has recognized that some issues are committed by the Constitution's text to the exclusive discretion of the elected political branches. When these political questions manifest, the judiciary must keep out of any such dispute for it lacks subject matter jurisdiction to act in its limited role as a court. Any such action remains extra-judicial in nature – although the judiciary’s “opinions and orders” may still be enforced by the U.S. Marshall’s bayonet. All the more reason for judicial self-restraint.
Congressman John Marshall, in 1800, warned his U.S. House colleagues that the political branches would be "swallowed-up by the judiciary" without such abstention. Chief Justice John Marshall then provided early guidance as to the "rule of law to guide the court in the exercise of its jurisdiction.” Marshall offered this political question description: "By the constitution of the United States, the president is invested with certain important political powers, in the exercise of
10

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 11 of 20
which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." Marbury v. Madison, 5 U.S. 137, 165 (1803).
From Marbury forward, the abstention theory has since developed to preclude judicial consideration in a variety of issues. See e.g., Colegrove v. Green, 328 U.S. 549, 552–56 (1946) (legislative apportionment); Coleman v. Miller, 307 U.S. 433, 450 (1939)(constitutional amendment ratification challenge); Luther v. Borden, 48 U.S. (7 How.) 1, 40–43 (1849) (asserting of the Guarantee Clause); Oetjen v. Central Leather Co., 246 U.S. 297, 303 (1918) (foreign relations); Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 133–37 (1912) (processes of referenda and initiative requirements).
In the modern case of Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court identified six independent characteristics “[p]rominent on the surface of any case held to involve a political question,” including:
[1] a textually demonstrable commitment of the issue to a coordinate political department; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
11

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 12 of 20
[4] or the impossibility of a court’s undertaking of independent resolution without expressing lack of the respect due to coordinate branches of government; [5] or an unusual need for unquestioning adherence to the political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker, 369 U.S. at 217. Not one, not two, but all six Baker characteristics are patent in the lower court’s initial consideration of the Plaintiffs’ challenge to the travel restriction.
If this Circuit allows the lower court to go beyond the textually-committed Article II authority of the president as Commander-in-Chief and Chief Executive, the trial court will be lost in the densest of a modern political thicket. The lower court will find no manageable standards to competently decide the challenge and will be forced to make initial policy determinations -- without the skills or information need for such determinations. Particularly for questioning the underlying motives of the newly elected President Donald Trump in deciding to implement the Executive Order, the lower court and the Circuit panel have already expressed a lack of the respect due the coordinate branch of government. Sadly, to some observers and commentators, it even appears that such disrespect against Donald Trump was purposeful.
12

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 13 of 20
With little or no concern for “adherence” to the president’s political decision already made, the lower court threw this nation in chaos by issuing its Temporary Restraining Order and immediately applying the TRO nationally. Then Judge James Robart refused to grant the government’s request for a weekend stay pending an emergency appeal to this Circuit. The Ninth Circuit panel has now worsened this chaos by its ruling affirming the rejection of a stay on appeal.
And the lower court and Circuit panel ruling have now only added to the “multifarious pronouncements” of courts across the nation regarding the travel restriction. Although it is the federal judiciary which suffers “embarrassment” from this usurpation, it is the American people who suffer a great danger of terrorist violence.
Subsequent to Baker, the Supreme Court in Nixon v. United States, 506 U.S. 224 (1993) applied these Baker factors by instructing that the political question analysis begins by “determin[ing] whether and to what extent the issue is textually committed.” 506 U.S. at 228. The Supreme Court rejected, as nonjusticiable, a debenched federal judge’s challenge to the Senate’s exercise of its Article I, Section 3, Clause 6 “sole” duty to “try” all impeachments. The Court refused to review a procedurally problematic Senate impeachment trial process in which an “evidence committee” of only 12 senators heard testimony while 88 senators avoided jury duty. All 100 Senators were ultimately allowed to vote --
13

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 14 of 20
thumbs up or down -- rendering the final removal verdict. The Court determined that it did not have authority to review the shortcut Senate trial process used to strip U.S. District Judge Walter Nixon of his tenured office and salary. The Court explicitly ruled “the word ‘try’ in the Impeachment Trial Clause does not provide an identifiable textual limit on the authority which is committed to the Senate” Id. at 239. The nation’s highest court would not attempt to impose a definition of the word “try” on the upper chamber or critique the shortcut manner in which the upper chamber transformed itself into the nation’s High Court of Impeachment.
Neither should the lower court review the president’s exercise of his exclusive textual authority to implement war strategy and develop related national security foreign policy. Just as the Supreme Court did in Nixon, this Court should readily determine that “there is no separate provision of the Constitution that could be defeated” by allowing the President’s “authority” to utilize his war strategy powers. 506 U.S. at 237.
As an additional preliminary point of authority, Goldwater v. Carter is an example of the Supreme Court’s most efficient political question determination. 444 U.S. 996 (1979). Goldwater involved a group of senators, led by Barry Goldwater, who sued President Jimmy Carter for his controversial abrogation of a United States treaty with the Republic of China (Taiwan). The Supreme Court firmly rejected the senators’ attempt to interfere with an exclusive Executive
14

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 15 of 20
authority. Without oral argument, the high court announced: “The petition for a writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to the District Court with directions to dismiss the complaint.” Id. In a concurring statement, Associate Justice William Rehnquist explained: “[T]he basic question presented by the petitioners in this case is ‘political’ and therefore nonjusticiable.” Id. at 1002. “Here, while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a treaty.” Id at 1003.
In cheering the Supreme Court’s quick and final decision not to review the merits of the senators’ challenge for fear it would “spawn legal consequences,” Rehnquist’s statement should now guide this Court : “An Art. III court's resolution of a question that is ‘political’ in character can create far more disruption among the three coequal branches of Government than the resolution of a question presented in a moot controversy. Since the political nature of the questions presented should have precluded the lower courts from considering or deciding the merits of the controversy, the prior proceedings in the federal courts must be vacated, and the complaint dismissed.” Goldwater, 444 U.S. at 1005-06.
15

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 16 of 20
Perhaps less “domesticated” abstention advocacy is needed for this Circuit’s consideration of this matter; “something greatly more flexible, something of prudence, not construction and not principle.” The purest prudential strain of nonjusticiability still incubates in Alexander Bickel’s THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS. Professor Bickel discussed political questions are those issues which ask the courts to evaluate policy and choose between outcomes – functions which the judiciary as an institution is functionally incompetent to carry out. In unmatched aesthetic, Alexander Bickel offered a foundation instead of Baker-like criteria:
In a mature democracy, choices such as this must be made by the executive…” Such is the foundation, in both intellect and instinct, of the political-question doctrine: the Court's sense of lack of capacity, compounded in unequal parts of (a) the strangeness of the issue and its intractability to principled resolution; (b) the sheer momentousness of it, which tends to unbalance judicial judgment; (c) the anxiety, not so much that the judicial judgment will be ignored, as that perhaps it should but will not be; (d) finally (“in a mature democracy”), the inner vulnerability, the selfdoubt of an institution which is electorally irresponsible and has no earth to draw strength from. Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 184 (Yale 1986). Admittedly, the late Yale University Law professor’s prudential poetry continues to unnerve the judge-centric consciousness so predominant in our age. All the more reason for the Ninth Circuit en banc’s deep consideration of its truths.
16

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 17 of 20
There is a related -- but separate –consideration: The nation’s extreme need for finality in the president’s alien vetting practices as a part of his war strategy. This need for finality weighs very heavily in favor of a political question determination. As Judge Steven Williams reasoned in 1991, when Nixon v. United States was before the D.C. Circuit:“ Although the primary reason for invoking the political question doctrine in our case is the textual commitment…the need for finality also demands it.” Nixon v. United States, 938 F.2d 239, 245-46 (D.C. Cir. 1991)(citations omitted). The cost is chaos:
If claims such as Nixon's were justiciable, procedural appeals from every impeachment trial would become routine….[ F]or the impeachments that are anything but routine, those of presidents and chief justices, the intrusion of the courts would expose the political life of the country to months, or perhaps years, of chaos. Id at 246.
Challenges to the president’s Executive Order are now becoming “routine” with adjudications challenging the travel restriction ongoing in several sister circuits. It must be clearly seen that “the intrusion of the courts would expose the political life [and national security] of the country to months, or perhaps years, of [dangerous] chaos.” Id..
As Trump derangement syndrome appears virulently contagious among the intellectual and political elites – particularly among lawyers who need only the
17

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 18 of 20
federal court filing fee to make manifest their disorder -- finality in this area is needed to help retard future frivolous litigation against Donald Trump’s governance.
Lastly, perhaps it would help for this Circuit to consider the reality that the president has inherent, unreviewable constitutional authority to take military action to obliterate airports in all seven listed nations if and when he judges it necessary for our national security in this continued war -- even if that action results in the certain death of aliens sitting in those airports who are holding boarding passes and who are eager to visit the United States for whatever purpose. The past two presidents have dropped tonnage of bombs on certain of those listed nations. Many would-be visitors to the United States from certain of the listed nations have been killed by the relatively indiscriminate bombs and particularized drone-strike of past two presidents – without any review of their actions by the federal courts. Certainly, the new president has inherent, unreviewable constitutional authority to simply suspend visitations of foreign aliens coming from the listed seven nations.
Article II grants the president exclusive war strategy and security-related foreign relations authorities “the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." Marbury v. Madison. 5 U.S. 137, 165 (1803). Plaintiffs’ challenge to
18

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 19 of 20
President Donald John Trump’s exercise of those authorities raise a nonjusticiable political question and their complaint is due for immediate dismissal.
Dated: February 16, 2017
Victor Williams Appearing Pro Se America First Lawyers Association 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume requirement of Federal Rule of Appellate Procedure 29 [c] 2 and 32 [a] as this brief contains 3157 words, as determined by the word-count function of Microsoft Word 2010.
2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) this brief has been prepared in a proportionally spaced typeface Microsoft Word 2010 in 14-point Times New Roman font. Dated: February 16, 2017 /s/Victor Williams Victor Williams Appearing Pro Se America First Lawyers Association 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
19

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-1, Page 20 of 20
CERTIFICATE OF SERVICE I hereby certify that on February 16, 2017, the foregoing brief with motion was filed with the Clerk of this Court using the appellate CM/ECF system. All parties or their counsel are registered users. /s/Victor Williams Victor Williams Appearing Pro Se America First Lawyers Association 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
20

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 1 of 20
No. 17-35105
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________________________________________
STATE OF WASHINGTON, ET AL
Plaintiffs-Appellees
v.
DONALD J. TRUMP, ET AL.
Defendants-Appellants
_____________________________________________________
ON APPEAL FROM THE WESTERN DISTRICT OF WASHINGTON
RAISING POLITICAL QUESTION NONJUSTICIABILITY, A BRIEF FROM AMICUS CURIAE PROFESSOR VICTOR WILLIAMS
OF THE AMERICA FIRST LAWYERS ASSOCATION IN SUPPORT OF DEFENDANTS-APPELLANTS DONALD TRUMP,
ET AL’S MOTION FOR RECONSDERATION EN BANC OF THE STAY PENDING APPEAL
_______________________________________________________________
Victor Williams, Appearing Pro Se
America First Lawyers Association 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
1

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 2 of 20
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to. Rule 28(a)(1), Amicus certifies as follows: A. Parties and Amici. All parties, interveners, and amici appearing in this Court are listed in the briefing for Plaintiffs and Defendants except that this brief is filed on behalf of Professor Victor Williams in support of Defendants. B. Rulings Under Review. The Ninth Circuit’s panel decision and the TRO
Decisions and Orders issued by U.S. District Judge James Robart. C. Related Cases. Other related cases of which is Amicus are aware are referenced the briefing offered by Plaintiffs and Defendants. Dated: February 16, 2017 /s/Victor Williams Victor Williams America First Lawyers Association 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
2

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 3 of 20

TABLE OF CONTENTS

Page

Certificate as to Parties, Rulings and Related Cases …………….……………......2 Table of Contents…………………………………………………………………..3 Table of Authorities………………………………………………………......……4 Glossary ………………………………………………………….…………….....5 Statement of Authorship and Financial Contribution…………………...................5 Statement of Identity, Interest and Authority of Amicus………………...………6-7 Argument………………………………………………………………….….…….8 Rule 32 Certificate of Compliance…………………………………..………...….19 Certificate of Service……………………………………………………..……….20

3

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 4 of 20

Source Cases

TABLE OF AUTHORITIES

Page(s)

Baker v. Carr, 369, U.S. 186 (1962)..…………………..…………………11,12, 13

Colegrove v. Green, 328 U.S. 549 (1946)………………………………….……..11

Coleman v. Miller, 307 U.S. 433 (1939)………………………………………….11

Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007)………………………….8

Goldwater v. Carter, 44 U.S. 996 (1979) ……..…………….…………...……14-15

Luther v. Borden, 48 U.S. (7 How.) 1 (1849)…………………………………..…11

Marbury v. Madison, 5 U.S. 137 (1803)……..……………………………..…11,12

Nixon v. United States, 506 U.S. 224 (1993)…………..….…………………...13,14

Nixon v. United States, 938 F.2d 239 (D.C. Cir. 1991)………………..….……...17

Oetjen v. Central Leather Co., 246 U.S. 297 (1918)………………………….…..11

Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912) ………………….….11

Constitutions/Statutes U.S. Const.

art. II, § ……………………..………………………………………...............…....9 art. II, § 2,................................................................................................................. 9

Other Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (Yale 1986) ...…………………………………………………..16
Alexander Hamilton, No. 23: The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union, Clinton Rossiter, ed., THE FEDERALIST PAPERS 148-53(New York: Mentor, 1999)……… . ………...……9-10

4

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 5 of 20
GLOSSARY Plaintiffs State of Washington, et al (States) Defendants Donald J. Trump, et al (President Trump)
STATEMENT OF AUTHORSHIP AND FINANCIAL CONTRIBUTION This brief is offered by Amicus as an individual No party’s counsel
authored this brief in whole or in part, and no party, nor other person, contributed money intended to fund the preparation or submission of this brief.
5

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 6 of 20
STATEMENT OF AUTHORITY, IDENTITY, AND INTEREST . In attached Motion, leave of the Court is requested to file this Brief. In accord with Circuit Rule 29-3, prospective Amicus asked for party consent to this filing through email. Counsel for Washington State and Donald Trump have consented. Professor Victor Williams is longtime Washington, D.C. attorney and law professor formerly affiliated as fulltime faculty with both the City University of New York’s John Jay College of Criminal Justice and the Catholic University of America’s Columbus School of Law. Victor Williams, now Chair of the America First Lawyers Association, the In past, he has been granted leave to file Amicus Briefs in this and other circuits as well as by the U.S. Supreme Court. Since his undergraduate law studies (J.D. University of California-Hastings College of the Law), Professor Williams has researched and published in the area of constitutional law for twenty-five years. With advanced training in economic analysis of the law (LL.M. George Mason University Scalia School of Law) and federal jurisdiction (LL.M. Columbia University School of Law), Amicus’ published scholarship and commentary has offered support for the constitutional authorities prerogatives of five presidents (without regard to their party affiliation). He has particular knowledge and expertise regarding the text, history and interpretation of Article II of the U.S. Constitution.
6

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 7 of 20
In note: After his first-year of law school at U.C. Hastings, Victor Williams had the honor to serve as an extern for the late U.S. Court of Appeals for the Ninth Circuit Judge Joseph P. Sneed. Professor Williams continues to hold the Ninth Circuit in the deepest regard – a sentiment which further prompts the filing of this Brief. /s/ Victor Williams, Appearing Pro Se Victor Williams Appearing Pro Se America First Lawyers Association 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
7

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 8 of 20
ARGUMENT
Amicus respectfully argues that an en banc sitting of this Court is needed as the lower court did not and does not have subject matter jurisdiction in this matter. Offered in support of Defendant Donald J. Trump, et al, this Amicus Brief endorses and incorporates the government’s factual statement, background and arguments but does not duplicate them particularly as to the substance of the statutory interpretation. Rather, Amicus presents an alternatively focused theory asserting that the Plaintiffs’ claims against the Executive Order of January 27, 2017 raise nonjusticiable political questions. This Court has reaffirmed that “if a case presents a political question, [the judiciary] lack[s] subject matter jurisdiction to decide that question.” Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007).
Thus, neither the trial court nor the Ninth Circuit panel should have reviewed the challenges (including the Executive Order and/or relevant statutory language) beyond that examination needed to recognize the patent political question presented.
The political-question doctrine is fundamental to separation of powers and American self-governance. Answers to political questions should come only from elected political leaders. The Constitution textually grants the president the exclusive responsibility to implement war strategy and foreign policy to defeat
8

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 9 of 20
America’s foreign enemies. The president, not the judiciary, has the institutional competence to know what specific actions are required to fulfill those responsibilities.
America is a nation at war with radical Islamic terrorists. The judiciary has no role in overseeing the president (acting as Commander-in-Chief, implementing war strategy and Chief Executive implementing security-related foreign policy) in matters related to allowing foreign aliens entry onto America soil.
Defending the nation against foreign enemies during a time of war is the highest mandate of the president who is vested with all executive power by Article II, Section 1 and made Commander-in-Chief of the Army and Navy by Article II, Section 2. In carrying out these duties, the president has a most unique duty to protect the Republic and its citizens from potential harm from foreign enemies. Providing such Executive energy was a fundamental reason for the 1787 Constitution’s replacement of the failed Articles of Confederation. Consider Alexander Hamilton’s ratification argument in Federalist 23:
The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this
9

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 10 of 20
reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. Alexander Hamilton, "No. 23: The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union," in Clinton Rossiter, ed., The Federalist Papers (New York: Mentor, 1999), 148-53.
Throughout our Republic's history, the Supreme Court has recognized that some issues are committed by the Constitution's text to the exclusive discretion of the elected political branches. When these political questions manifest, the judiciary must keep out of any such dispute for it lacks subject matter jurisdiction to act in its limited role as a court. Any such action remains extra-judicial in nature – although the judiciary’s “opinions and orders” may still be enforced by the U.S. Marshall’s bayonet. All the more reason for judicial self-restraint.
Congressman John Marshall, in 1800, warned his U.S. House colleagues that the political branches would be "swallowed-up by the judiciary" without such abstention. Chief Justice John Marshall then provided early guidance as to the "rule of law to guide the court in the exercise of its jurisdiction.” Marshall offered this political question description: "By the constitution of the United States, the president is invested with certain important political powers, in the exercise of
10

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 11 of 20
which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." Marbury v. Madison, 5 U.S. 137, 165 (1803).
From Marbury forward, the abstention theory has since developed to preclude judicial consideration in a variety of issues. See e.g., Colegrove v. Green, 328 U.S. 549, 552–56 (1946) (legislative apportionment); Coleman v. Miller, 307 U.S. 433, 450 (1939)(constitutional amendment ratification challenge); Luther v. Borden, 48 U.S. (7 How.) 1, 40–43 (1849) (asserting of the Guarantee Clause); Oetjen v. Central Leather Co., 246 U.S. 297, 303 (1918) (foreign relations); Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 133–37 (1912) (processes of referenda and initiative requirements).
In the modern case of Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court identified six independent characteristics “[p]rominent on the surface of any case held to involve a political question,” including:
[1] a textually demonstrable commitment of the issue to a coordinate political department; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
11

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 12 of 20
[4] or the impossibility of a court’s undertaking of independent resolution without expressing lack of the respect due to coordinate branches of government; [5] or an unusual need for unquestioning adherence to the political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker, 369 U.S. at 217. Not one, not two, but all six Baker characteristics are patent in the lower court’s initial consideration of the Plaintiffs’ challenge to the travel restriction.
If this Circuit allows the lower court to go beyond the textually-committed Article II authority of the president as Commander-in-Chief and Chief Executive, the trial court will be lost in the densest of a modern political thicket. The lower court will find no manageable standards to competently decide the challenge and will be forced to make initial policy determinations -- without the skills or information need for such determinations. Particularly for questioning the underlying motives of the newly elected President Donald Trump in deciding to implement the Executive Order, the lower court and the Circuit panel have already expressed a lack of the respect due the coordinate branch of government. Sadly, to some observers and commentators, it even appears that such disrespect against Donald Trump was purposeful.
12

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 13 of 20
With little or no concern for “adherence” to the president’s political decision already made, the lower court threw this nation in chaos by issuing its Temporary Restraining Order and immediately applying the TRO nationally. Then Judge James Robart refused to grant the government’s request for a weekend stay pending an emergency appeal to this Circuit. The Ninth Circuit panel has now worsened this chaos by its ruling affirming the rejection of a stay on appeal.
And the lower court and Circuit panel ruling have now only added to the “multifarious pronouncements” of courts across the nation regarding the travel restriction. Although it is the federal judiciary which suffers “embarrassment” from this usurpation, it is the American people who suffer a great danger of terrorist violence.
Subsequent to Baker, the Supreme Court in Nixon v. United States, 506 U.S. 224 (1993) applied these Baker factors by instructing that the political question analysis begins by “determin[ing] whether and to what extent the issue is textually committed.” 506 U.S. at 228. The Supreme Court rejected, as nonjusticiable, a debenched federal judge’s challenge to the Senate’s exercise of its Article I, Section 3, Clause 6 “sole” duty to “try” all impeachments. The Court refused to review a procedurally problematic Senate impeachment trial process in which an “evidence committee” of only 12 senators heard testimony while 88 senators avoided jury duty. All 100 Senators were ultimately allowed to vote --
13

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 14 of 20
thumbs up or down -- rendering the final removal verdict. The Court determined that it did not have authority to review the shortcut Senate trial process used to strip U.S. District Judge Walter Nixon of his tenured office and salary. The Court explicitly ruled “the word ‘try’ in the Impeachment Trial Clause does not provide an identifiable textual limit on the authority which is committed to the Senate” Id. at 239. The nation’s highest court would not attempt to impose a definition of the word “try” on the upper chamber or critique the shortcut manner in which the upper chamber transformed itself into the nation’s High Court of Impeachment.
Neither should the lower court review the president’s exercise of his exclusive textual authority to implement war strategy and develop related national security foreign policy. Just as the Supreme Court did in Nixon, this Court should readily determine that “there is no separate provision of the Constitution that could be defeated” by allowing the President’s “authority” to utilize his war strategy powers. 506 U.S. at 237.
As an additional preliminary point of authority, Goldwater v. Carter is an example of the Supreme Court’s most efficient political question determination. 444 U.S. 996 (1979). Goldwater involved a group of senators, led by Barry Goldwater, who sued President Jimmy Carter for his controversial abrogation of a United States treaty with the Republic of China (Taiwan). The Supreme Court firmly rejected the senators’ attempt to interfere with an exclusive Executive
14

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 15 of 20
authority. Without oral argument, the high court announced: “The petition for a writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to the District Court with directions to dismiss the complaint.” Id. In a concurring statement, Associate Justice William Rehnquist explained: “[T]he basic question presented by the petitioners in this case is ‘political’ and therefore nonjusticiable.” Id. at 1002. “Here, while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a treaty.” Id at 1003.
In cheering the Supreme Court’s quick and final decision not to review the merits of the senators’ challenge for fear it would “spawn legal consequences,” Rehnquist’s statement should now guide this Court : “An Art. III court's resolution of a question that is ‘political’ in character can create far more disruption among the three coequal branches of Government than the resolution of a question presented in a moot controversy. Since the political nature of the questions presented should have precluded the lower courts from considering or deciding the merits of the controversy, the prior proceedings in the federal courts must be vacated, and the complaint dismissed.” Goldwater, 444 U.S. at 1005-06.
15

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 16 of 20
Perhaps less “domesticated” abstention advocacy is needed for this Circuit’s consideration of this matter; “something greatly more flexible, something of prudence, not construction and not principle.” The purest prudential strain of nonjusticiability still incubates in Alexander Bickel’s THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS. Professor Bickel discussed political questions are those issues which ask the courts to evaluate policy and choose between outcomes – functions which the judiciary as an institution is functionally incompetent to carry out. In unmatched aesthetic, Alexander Bickel offered a foundation instead of Baker-like criteria:
In a mature democracy, choices such as this must be made by the executive…” Such is the foundation, in both intellect and instinct, of the political-question doctrine: the Court's sense of lack of capacity, compounded in unequal parts of (a) the strangeness of the issue and its intractability to principled resolution; (b) the sheer momentousness of it, which tends to unbalance judicial judgment; (c) the anxiety, not so much that the judicial judgment will be ignored, as that perhaps it should but will not be; (d) finally (“in a mature democracy”), the inner vulnerability, the selfdoubt of an institution which is electorally irresponsible and has no earth to draw strength from. Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 184 (Yale 1986). Admittedly, the late Yale University Law professor’s prudential poetry continues to unnerve the judge-centric consciousness so predominant in our age. All the more reason for the Ninth Circuit en banc’s deep consideration of its truths.
16

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 17 of 20
There is a related -- but separate –consideration: The nation’s extreme need for finality in the president’s alien vetting practices as a part of his war strategy. This need for finality weighs very heavily in favor of a political question determination. As Judge Steven Williams reasoned in 1991, when Nixon v. United States was before the D.C. Circuit:“ Although the primary reason for invoking the political question doctrine in our case is the textual commitment…the need for finality also demands it.” Nixon v. United States, 938 F.2d 239, 245-46 (D.C. Cir. 1991)(citations omitted). The cost is chaos:
If claims such as Nixon's were justiciable, procedural appeals from every impeachment trial would become routine….[ F]or the impeachments that are anything but routine, those of presidents and chief justices, the intrusion of the courts would expose the political life of the country to months, or perhaps years, of chaos. Id at 246.
Challenges to the president’s Executive Order are now becoming “routine” with adjudications challenging the travel restriction ongoing in several sister circuits. It must be clearly seen that “the intrusion of the courts would expose the political life [and national security] of the country to months, or perhaps years, of [dangerous] chaos.” Id..
As Trump derangement syndrome appears virulently contagious among the intellectual and political elites – particularly among lawyers who need only the
17

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 18 of 20
federal court filing fee to make manifest their disorder -- finality in this area is needed to help retard future frivolous litigation against Donald Trump’s governance.
Lastly, perhaps it would help for this Circuit to consider the reality that the president has inherent, unreviewable constitutional authority to take military action to obliterate airports in all seven listed nations if and when he judges it necessary for our national security in this continued war -- even if that action results in the certain death of aliens sitting in those airports who are holding boarding passes and who are eager to visit the United States for whatever purpose. The past two presidents have dropped tonnage of bombs on certain of those listed nations. Many would-be visitors to the United States from certain of the listed nations have been killed by the relatively indiscriminate bombs and particularized drone-strike of past two presidents – without any review of their actions by the federal courts. Certainly, the new president has inherent, unreviewable constitutional authority to simply suspend visitations of foreign aliens coming from the listed seven nations.
Article II grants the president exclusive war strategy and security-related foreign relations authorities “the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." Marbury v. Madison. 5 U.S. 137, 165 (1803). Plaintiffs’ challenge to
18

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 19 of 20
President Donald John Trump’s exercise of those authorities raise a nonjusticiable political question and their complaint is due for immediate dismissal.
Dated: February 16, 2017
Victor Williams Appearing Pro Se America First Lawyers Association 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume requirement of Federal Rule of Appellate Procedure 29 [c] 2 and 32 [a] as this brief contains 3157 words, as determined by the word-count function of Microsoft Word 2010.
2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) this brief has been prepared in a proportionally spaced typeface Microsoft Word 2010 in 14-point Times New Roman font. Dated: February 16, 2017 /s/Victor Williams Victor Williams Appearing Pro Se America First Lawyers Association 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
19

Case: 17-35105, 02/16/2017, ID: 10323638, DktEntry: 165-2, Page 20 of 20
CERTIFICATE OF SERVICE I hereby certify that on February 16, 2017, the foregoing brief with motion was filed with the Clerk of this Court using the appellate CM/ECF system. All parties or their counsel are registered users. /s/Victor Williams Victor Williams Appearing Pro Se America First Lawyers Association 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
20

 
 Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-1, Page 1 of 1

JP006151

250 VESEY STREET • NEW YORK, NEW YORK 10281.1047 TELEPHONE: +1.212.326.3939 • FACSIMILE: +1.212.755.7306

Direct Number: (212) 326-7870 mfeder@JonesDay.com

February 17, 2017

CM/ECF
Molly C. Dwyer Clerk of Court United States Court of Appeals for the Ninth Circuit
Re: State of Washington et al. v. Trump et al., No. 17-35105
Dear Ms. Dwyer:
On February 6, 2017, amici curiae constitutional scholars filed a brief in this Court (Dkt. 43). We informed the Court that we would be filing a more complete version of our brief in Darweesh v. Trump, 17-cv-480 (E.D.N.Y.), pursuant to the briefing schedule set in that case. Having filed that Brief of Law Professors of Constitutional Law, Federal Court Jurisdiction, Immigration, National Security, and Citizenship, as amici curiae in support of Petitioners in Darweesh on February 16, 2017, we provide a copy of our brief to this Court.

Enclosure cc: All parties (via CM/ECF)

Very truly yours,
/s/ Meir Feder Meir Feder

ALKHOBAR • AMSTERDAM • ATL ANTA • BEIJING • BOSTON • BRISBANE • BRUSSEL S • CHICAGO • CLEVEL A ND • COLUMBUS • DALL AS DETROIT • DUBAI • DÜSSELDORF • FRANKFURT • HONG KONG • HOUSTON • IRVINE • JEDDAH • LONDON • LOS ANGELES • MADRID MEXICO CIT Y • MIAMI • MIL AN • MINNEAPOLIS • MOSCOW • MUNICH • NEW YORK • PARIS • PERTH • PITTSBURGH • RIYADH SAN DIEGO • SAN FRANCISCO • SÃO PAULO • SHANGHAI • SILICON VALLEY • SINGAPORE • SYDNEY • TAIPEI • TOKYO • WASHING TON

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi, et al. Petitioners, v.
Donald Trump, President of the United States, et al., Respondents.
17 Civ. 480 (CBA)

BRIEF OF LAW PROFESSORS OF CONSTITUTIONAL LAW, FEDERAL COURT JURISDICTION, IMMIGRATION, NATIONAL SECURITY, AND
CITIZENSHIP, AS AMICI CURIAE IN SUPPORT OF PETITIONERS

JONES DAY Meir Feder Matthew R. Cushing 250 Vesey Street New York, NY 10281 Telephone: (212) 326-3939 mfeder@jonesday.com

Of Counsel: Judith Resnik Burt Neuborne
Counsel for Amici Curiae Law Professors

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 2 of 31
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ................................................................................. 1 ARGUMENT....................................................................................................................... 1
I. U.S. Law No Longer Reflects Doctrines of Unconstrained Authority And A Tolerance of Invidious Discrimination That Once Had Currency In Immigration Law................................................... 2
II. The Supreme Court Has Recognized Numerous Limits On Executive And Legislative Power Over Immigration................................ 8 A. Section 1182(f), like any other statutory provision, must be construed to avoid raising serious constitutional questions. ......... 8 B. Courts have consistently exercised constitutionally-based judicial review of the immigration process. ................................... 10 C. Invocation of national security or foreign affairs does not displace the essential role of the courts in enforcing constitutional limits........................................................................... 13
III. The Executive Order, At A Minimum, Raises Grave Questions Under The First Amendment And The Due Process Clause................. 14
IV. Deliberation Based On A Full Factual Record Is Essential................... 17 CONCLUSION ................................................................................................................ 20 ADDENDUM
- i -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 3 of 31
TABLE OF AUTHORITIES Page
CASES Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ........................................................................................................ 19 Alden v. Maine,
527 U.S. 706 (1999) .......................................................................................................... 8 Aziz v. Trump,
17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)....................................9, 12, 14 Betrand v. Sava,
684 F.2d 204 (2d Cir. 1982)........................................................................................... 12 Boumediene v. Bush,
553 U.S. 723 (2008) .................................................................................................. 11, 14 Chae Chan Ping v. United States,
130 U.S. 581 (1889) .......................................................................................................... 4 City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ........................................................................................................ 20 Ex parte Endo,
323 U.S. 283 (1944) ........................................................................................................ 18 Fiallo v. Bell,
430 U.S. 787 (1977) ........................................................................................................ 11 Fisher v. Univ. of Tex. at Austin,
133 S. Ct. 2411 (2013) .................................................................................................... 19 Fong Yue Ting v. United States,
149 U.S. 698 (1893) .......................................................................................................... 4
- ii -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 4 of 31
Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014)........................................................................................... 13
Gomez v. United States, 490 U.S. 858 (1989) .......................................................................................................... 8
Hamdan v . Rumsfeld, 548 U.S. 557 (2006) ........................................................................................................ 14
Hamdi v. Rumsefeld, 542 U.S. 507 (2004) ........................................................................................................ 14
INS v. Chadha, 462 U.S. 919 (1983) .................................................................................................. 11, 12
INS v. St Cyr, 533 U.S. 289 (2001) .................................................................................................... 9, 12
Kerry v. Din, 135 S. Ct. 2128 (2015) .................................................................................................... 12
Kleindienst v. Mandel, 408 U.S. 753 (1972) ........................................................................................................ 11
Knauff v. Shaughnessy, 338 U.S. 537 (1950) .......................................................................................................... 6
Korematsu v. United States, 323 U.S. 214 (1944) ........................................................................................................ 18
Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) ............................................................................. 19
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) .................................................................................................... 6, 11
Landon v. Plasencia, 459 U.S. 21 (1982) .................................................................................................... 10, 11
- iii -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 5 of 31
Louhghalam v. Trump, 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017)............................................ 14
Loving v. Virginia, 388 U.S. 1 (1967)............................................................................................................. 19
Munfa v. Geren, 553 U.S. 674 (2008) ........................................................................................................ 11
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) .................................................................................................... 20
Oyama v. California, 322 U.S. 633 (1948) .......................................................................................................... 7
Printz v. United States, 521 U.S. 898 (1997) ........................................................................................................ 13
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) ........................................................................................................ 19
Romer v. Evans, 517 U.S. 620 (1996) .................................................................................................. 16, 17
Shaughnessy v. Mezei, 345 U.S. 206 (1953) .......................................................................................................... 6
United States v. Ju Toy, 198 U.S. 254 (1905) .......................................................................................................... 4
Washington v. Trump, No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017) ..................................... 13, 14
Webster v Doe, 486 U.S. 592 (1988) .......................................................................................................... 8
Zadvydas v. Davis, 533 U.S. 678 (2001) ..........................................................................................8, 9, 10, 11
- iv -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 6 of 31
STATUTES 8 U.S.C. § 1182(a)(3) .............................................................................................................. 9 8 U.S.C. § 1182(f) ............................................................................................................. 8, 15 8 U.S.C. § 1187(a)(12)(A)..................................................................................................... 16 8 U.S.C. § 1324B(a) ................................................................................................................ 9 22 U.S.C. § 6411 ................................................................................................................... 10 Chinese Exclusion Act, Chapter 126, 22 Stat. 58 (1882)................................................... 3 Immigration Act of 1924, 43 Stat. 153 (1924) .................................................................... 3 Immigration and Nationality Act of 1952, Chapter 477, § 311, 66 Stat.
163 (1952) .......................................................................................................................... 5 Immigration and Nationality Act, Pub. L. No. 89-236, § 202, § 2(a), 79
Stat. 911-912 (1965)...................................................................................................... 5, 9 Immigration and Nationality Act, Pub. L. No. 94-571, sec. 101(a)(27),
§ 7(a), 90 Stat. 2703 (1976) .............................................................................................. 6 Page Law of 1875, Chapter 141, 18 Stat. 477 (1875) ......................................................... 3 Visa Waiver Program Improvement and Terrorist Travel Prevention Act
of 2015, Pub. L. No. 114-113, Div. O, Tit. II, 129 Stat. 2988 (2015) ...................... 16 OTHER AUTHORITIES 70 Cong. Rec. 3526 (1929) .................................................................................................... 4 70 Cong. Rec. 3620 (1929) .................................................................................................... 5 70 Cong. Rec. 4907 (1929) .................................................................................................... 4 T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of
Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365 (2002)................................................... 7
- v -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 7 of 31
Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998) ........................................ 7
Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Tex. L. Rev. 1 (2002) ........................................................................................................ 7
Congressional Research Service, Executive Authority to Exclude Aliens: In Brief (Jan. 23, 2017) ......................................................................................................... 16
Nancy F. Cott, Marriage and Women’s Citizenship in the United States, 18301934, 103 Am. Hist. Rev. 1140 (Dec. 1998).................................................................. 4
Press Release, Dep’t of Homeland Sec., DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016) ................................................. 16
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380 (2011) ........................................... 18
Louis Henkin, THE AGE OF RIGHTS (1990)........................................................................ 7
Peter H. Irons, Unfinished Business: The Case for Supreme Court Repudiation of the Japanese Internment Cases (2013) ................................................................................. 19
Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255 (1984) ........................................................ 7
Douglas S. Massey, America’s Immigration Policy Fiasco: Learning from Past Mistakes, 142 Daedelus J. Am. Acad. Arts & Sci. 5 (Summer 2013)........................... 7
Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992)................................................................................................................................ 11
Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990) .......................................................................................................................... 7
Proclamation 4417—An American Promise, 41 Fed. Reg. 7,085 (Feb. 19, 1976) ................................................................................................................................. 19
- vi -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 8 of 31
Proclamation 5517—Suspension of Cuban Immigration, 51 Fed. Reg. 30,470 (Aug. 22, 1986) ................................................................................................... 15
Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proc. Am. Philosophical Soc’y 117 (2016) ................................ 7
Peter Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1 (1984).................................................................................................................................. 6
Staff Report, Select Commission on Immigration and Refugee Policy (Apr. 20, 1981) .................................................................................................................. 3
Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezi, 143 U. Pa. L. Rev. 933 (1995) ....................... 6
- vii -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 9 of 31
INTEREST OF AMICI CURIAE Amici curiae are scholars of federal constitutional law, federal court jurisdiction, and the law of immigration, national security and citizenship.1 In light of the claims advanced in this case about separation of powers, Executive authority, immigration, and national security, Amici believe this overview of the history and governing legal principles will be helpful.
ARGUMENT Amici write to address the contention that the political branches’ control over immigration is “plenary” and that the Executive has unreviewable authority to suspend the admission of “any class of aliens”—even if the selection of a particular class reflects invidious discrimination based on religion, race, or sex, or an arbitrary exercise of authority lacking a rational basis. While decisions by the Executive on matters related to immigration and national security are entitled to deference, the President has no authority to ignore the Constitution, and the courts retain their critical responsibility to “say what the law is.” Our constitutional history demonstrates the harms of excessive deference to Executive claims that national security requires it to target individuals of particular
1 Amici certify that (a) no party’s counsel authored any part of this brief, (b) no party or party’s counsel contributed money that was intended to fund the preparation or submission of this brief, and (c) no person other than Amici or their counsel contributed money that was intended to fund the preparation or submission of this brief.
- 1 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 10 of 31
nationalities, races, and religions. The powerful exemplar is the evacuation and detention of more than 100,000 Japanese-American citizens and lawful residents during World War II, to which the courts acceded and for which both the Executive and Congress later apologized.
The Executive Order of January 27, 2017 raises a host of constitutional questions, implicating the rights of visa holders, and the relationships of visa holders to U.S. citizens, businesses, and educational institutions, as well as the rights and obligations of states. Moreover, the Order stands in sharp contrast to congressional enactments that during the second half of the twentieth century abolished overt race discrimination in immigration law.
The assertion of unfettered Executive authority to take such action is breathtaking in multiple ways: its disregard for the host of legally-cognizable interests it affects; the haste with which the Order appears to have been drafted and implemented; its indifference to constitutional obligations of even-handedness among religions and of due process; and its circumvention of procedures designed to ensure that Executive action will reflect the expertise of the relevant agencies. Most fundamentally, the claim of blanket and unquestionable power that the Executive has asserted is inconsistent with established law. I. U.S. Law No Longer Reflects Doctrines of Unconstrained Authority And A
Tolerance of Invidious Discrimination That Once Had Currency In Immigration Law.
There was a time when American immigration statutes incorporated, and the
- 2 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 11 of 31
courts declined to invalidate, openly discriminatory immigration provisions. The notion that the authority of the political branches over immigration is unconstrained—“plenary”—derives from cases dating back to such periods. But the lesson to be drawn from this unhappy history is precisely the opposite of the government’s position. The Supreme Court has made clear that immigration rules and statutes are subject to constitutional constraints. Moreover, the shift in the Supreme Court’s approach is paralleled by shifts in Congress, which since the 1950s has moved away from policies nested in invidious discriminations.
A list of those once excluded – based on national stereotypes, gender, and race - makes the point. Congress’s exclusion of Chinese immigrants began in the late nineteenth century, first with the Page Law of 1875, ch. 141, 18 Stat. 477 (1875), and then with the Chinese Exclusion Act of 1882, which suspended immigration of Chinese laborers for a period of ten years and also declared that “no State Court or Court of the United States shall admit Chinese to Citizenship,” Chinese Exclusion Act, ch. 126, §§ 1 & 14, 22 Stat. 58, 59-61 (1882). Exclusionary laws expanded over several decades, culminating in the Immigration Act of 1924, which both re-codified the race-based exclusionary laws and created a national-origins quota system that would remain in place for decades thereafter. Immigration Act of 1924, 43 Stat. 153, 168 (1924). See Staff Report, Select Commission on Immigration and Refugee Policy 194-197 (Apr. 20, 1981). Moreover, American women who married noncitizen men from certain countries (including those marrying men from India and China) lost their
- 3 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 12 of 31
United States citizenship. See Nancy F. Cott, Marriage and Women’s Citizenship in the United States, 1830-1934, 103 Am. Hist. Rev. 1140 (Dec. 1998).
During many of these decades, the courts acceded to such classifications and exclusions. For example, Chae Chan Ping v. United States, 130 U.S. 581 (1889), upheld the unilateral exclusion of a Chinese legal permanent resident who had been given permission to reenter before he left the country. Fong Yue Ting v. United States, 149 U.S. 698 (1893), declined to review the expulsion of a Chinese national who had not produced a “white” witness to testify to the lawfulness of his presence. And United States v. Ju Toy, 198 U.S. 254 (1905), denied habeas corpus review of immigration officials’ determination to exclude an individual notwithstanding his claim of United States citizenship.
The 1924 Immigration Act not only excluded Asians, but set strict nationalorigin quotas aimed (as one member of Congress commented in 1929) “principally at two peoples, the Italians and the Jews.” 70 Cong. Rec. 3526 (1929) (statement of Rep. John J. O’Connor). By the late 1920s, the focus had shifted to other “others.” AntiMexican sentiments permeated discussion in the House of Representatives, as proponents of criminalizing entry-after-deportation argued that migrants brought with them poverty, disease, alcohol, as well as competition in labor markets and challenges to America’s identity. One Representative claimed that “hordes of undesirable aliens . . . [were] undermining [the] health, integrity, and moral fiber of the forthcoming generations.” 70 Cong. Rec. 4907 (1929) (statement of Rep. Jed Johnson). Another
- 4 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 13 of 31
argued the need to stop foreigners from “poisoning the American citizen.” 70 Cong. Rec. 3620 (1929) (statement of Rep. William Thomas Fitzgerald).
But during the middle of the twentieth century, both Congress and the Court moved away from these attitudes, mired in racial and religious stereotypes that echoed the licensing, before Brown v. Board of Education, of domestic racial discrimination. In terms of legislation, Congress gradually abolished overt race discrimination in the nationality laws, first through providing in the Immigration and Nationality Act of 1952 that the “right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex.” Immigration and Nationality Act of 1952, ch. 477, § 311, 66 Stat. 163, 239 (1952).
What is known as the 1965 Hart-Celler Act (sponsored by Congressman Emanuel Celler, for whom one of Brooklyn’s federal courthouses was named) provides the next landmark. Congress responded to the history of racialized national exclusivity by abandoning the national-origins quota systems. The 1965 Act replaced the prohibitions on immigration from Asia and Africa and the severe limits on migrants from certain European countries with uniform quotas of 20,000 per country in Europe, Africa, Asia, and the Pacific. Immigration and Nationality Act, Pub. L. No. 89-236, sec. 202, § 2(a), 79 Stat. 911-912 (1965). Section 202 of the Act specifically stated that with regard to immigration admissions, “[n]o person shall receive any preference or priority or be discriminated against . . . because of his race, sex, nationality, place of birth, or place of residence.” Id. at 911. Although the 1965
- 5 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 14 of 31
Act left certain countries in the Western Hemisphere without quotas, in 1976 the Act was amended to subject each country in the Americas to a numerical cap of 20,000. Immigration and Nationality Act, Pub. L. No. 94-571, sec. 101(a)(27), § 7(a), 90 Stat. 2703, 2706 (1976).
The Supreme Court in turn moved away from its “hands off” approach. To be sure, the 1950s saw a mixture of approaches. On the one hand, Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), rejected the contention that a lawful permanent resident could be excluded from the United States without being given notice of the charges justifying his exclusion and an opportunity to be heard to object. On the other hand, Knauff v. Shaughnessy, 338 U.S. 537 (1950), and Shaughnessy v. Mezei, 345 U.S. 206 (1953), held respectively that an individual seeking permanent residency and a permanent resident seeking re-entry after a nearly two year absence could be excluded without fair process.
Subsequent to those Cold War era decisions, the Supreme Court—while continuing to recognize the need for appropriate deference—retreated from the Knauff/Mezei licensing of unfettered government power in the immigration sphere. See generally Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezi, 143 U. Pa. L. Rev. 933, 938 (1995). A wealth of scholarship has chronicled the shift in the doctrine as due process and equal protection norms came to be reflected, albeit with variations, in immigration law. See, e.g., Peter Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 4 (1984);
- 6 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 15 of 31
Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990); T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365 (2002); Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1, 54-58 (1998); Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proc. Am. Philosophical Soc’y 117 (2016); Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255 (1984).
Furthermore, the vision of law that supported judicial approval of such discriminatory legislation and produced pejoratives such as “the Yellow Peril,” (Oyama v. California, 322 U.S. 633, 668–69 (1948) (Murphy, J., concurring)); and the “Latino Threat” (see Douglas S. Massey, America’s Immigration Policy Fiasco: Learning from Past Mistakes, 142 Daedelus J. Am. Acad. Arts & Sci. 5, 7-8, 11 (Summer 2013)), came to be understood, as Professor Louis Henkin put it, as “an embarrassment”—”relics of a bygone, unproud era.” Louis Henkin, THE AGE OF RIGHTS 137 (1990). Decisions like the Chinese Exclusion Cases, Mezei, and Knauff exemplify outdated attitudes toward national sovereignty premised on racial purity and religious dogma, which were swept away in the wake of Brown by the Supreme Court’s recognition in diverse settings of the centrality of the constitutional guaranties of due process, equal protection, and religious liberty. See generally Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81
- 7 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 16 of 31
Tex. L. Rev. 1 (2002). II. The Supreme Court Has Recognized Numerous Limits On Executive And
Legislative Power Over Immigration. A. Section 1182(f), like any other statutory provision, must be construed to
avoid raising serious constitutional questions. Immigration statutes, like other federal statutes, must be construed to avoid serious constitutional questions. As is obvious here, such questions exist because the President has claimed that 8 U.S.C. § 1182(f) vests him with unbounded authority to exclude “any class of aliens” — even if those aliens are lawful permanent residents, and even if his selection of the “class” were to be affected by invidious racial, gender, religious, or other considerations. It is a “cardinal principle” of statutory interpretation that when an Act of Congress raises “a serious doubt” as to its constitutionality, the Supreme Court “will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001). The Supreme Court has repeatedly emphasized that it will “avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.” Gomez v. United States, 490 U.S. 858, 864 (1989). Moreover, statutes in tension with basic constitutional values are construed in accord with strong “clear statement” presumptions, requiring that in the absence of explicit language, a statute will not be interpreted to trench on those fundamental values. See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Webster v Doe, 486 U.S. 592, 603-05 (1988).
- 8 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 17 of 31
The canon of constitutional avoidance has repeatedly been applied to limit provisions of immigration statutes that on their face appeared to confer unconstrained authority. In INS v. St Cyr, 533 U.S. 289, 299-300 (2001), the Court avoided interpreting a statute to have barred habeas corpus, which would have required addressing the Suspension Clause. In Zadvydas, where the text of the immigration statute at issue contained no apparent time limit on the detention of certain aliens, the Court read the statute to include an implicit reasonableness limitation, and emphasized that “[w]e have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation.” Zadvydas, 533 U.S. at 689.
Here, the Order represents a major shift in immigration policy, well beyond any prior use of § 1182(f), inconsistent with statutory bans on discrimination enacted after § 1182(f), see Immigration and Nationality Act, Pub. L. No. 89-236, sec. 202, § 2(a), 79 Stat. 911(1965) (“[N]o person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”); 8 U.S.C. § 1324B(a) (making it illegal for employers to discriminate against aliens based upon their national origin or citizenship), and in tension with the specific statutory criteria for excluding persons believed to be involved in terrorist activity, see 8 U.S.C. § 1182(a)(3). The Order is also tainted by disturbing evidence of an intention to disfavor a particular religious group. See Aziz v. Trump, 17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017). Given the seriousness of the constitutional issues raised by the Executive Order, the canon of constitutional
- 9 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 18 of 31
avoidance compels reading § 1182(f) as complying with the anti-discrimination norms enacted by Congress and embedded in the Constitution.
The Executive Order is also in tension with this Nation’s leadership role in protecting religious freedom, in both domestic and international settings. In 1998, Congress mandated establishment of an Office of International Religious Freedom in the State Department, which prepares Annual Reports on International Religious Freedom. See 22 U.S.C. § 6411. This congressional directive is inconsistent with the notion that Congress intended to authorize the President to discriminate on the basis of religion. Thus, § 1182(f) can and should be construed to avoid the many serious constitutional questions raised by the Executive Order.
B. Courts have consistently exercised constitutionally-based judicial review of the immigration process.
In addition to construing statutes to avoid constitutional difficulties, the federal courts have repeatedly reviewed the political branches’ regulation of immigration for constitutional soundness, and the Supreme Court has expressly said that the political branches’ power over immigration “is subject to important constitutional limitations.” Zadvydas, 533 U.S. at 695. The examples run from exclusion to detention and deportation, and the individuals and institutions affected range from citizens and their families, to universities, businesses, and states. The Supreme Court has insisted on constitutional limits on the federal government’s power to prevent resident noncitizens from returning to the country after traveling abroad, see Landon v. Plasencia, 459
- 10 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 19 of 31
U.S. 21 (1982); Colding, 344 U.S. 590; to detain individuals pending their removal from the country, see Zadvydas, 533 U.S. 678; and to deny judicial review to non-citizens held in Guantánamo Bay and held outside the United States as “enemy combatants,” see Boumediene v. Bush, 553 U.S. 723 (2008); Munfa v. Geren, 553 U.S. 674 (2008).
Further, even in cases relating to the federal government’s discretionary issuance of visas, courts no longer approach immigration decisions as intrinsically free from scrutiny. In Kleindienst v. Mandel, 408 U.S. 753 (1972), addressing the refusal of a visa to an individual invited to a conference on a college campus, the Court declined to adopt the government’s argument that Congress had delegated such matters “to the Executive in its sole and unfettered discretion, and any reason or no reason may be given.” Id. at 769. Rather, the Court upheld the Executive’s decision on the ground that it was justified by a “facially legitimate and bona fide reason.” Id. at 770. Fiallo v. Bell, 430 U.S. 787 (1977), rejected the argument that a policy “regulating the admission of aliens” was not “subject to judicial review,” and instead recognized a “limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens.” Id. at 793, n.5 (emphasis added).
Since Mandel and Fiallo were decided, the Supreme Court has consistently refused to insulate immigration legislation and Executive action from constitutional scrutiny. See Landon, 459 U.S. at 32-35, 37; INS v. Chadha, 462 U.S. 919, 940-41 (1983) (invalidating legislative veto over decisions by the Executive to grant relief from deportation). See generally Hiroshi Motomura, The Curious Evolution of Immigration Law:
- 11 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 20 of 31
Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992). The core concern is to protect against “arbitrary” decisions by any single branch of government. See Chadha, 462 U.S. at 959. Cases in which immigration statutes were construed to avoid constitutional difficulty, such as Zadvydas and St. Cyr, 533 U.S. at 304, are also pertinent here.
More recently, in Kerry v. Din, the Court considered the denial of a visa to a non-citizen spouse of a U.S. citizen. 135 S. Ct. 2128, 2139 (2015). The concurring opinion from Justice Kennedy, joined by Justice Alito, which constitutes the majority holding, agreed with the denial of a visa, but based on their view that the reasons provided met the “facially legitimate and bona fide” standard of Mandel. Id. at 2140. The decision reflects a commitment to due process and judicial review in the visa issuance context. Further, Justice Kennedy’s opinion noted that under the Mandel standard, an “affirmative showing of bad faith” would require a court to “look behind” the stated reasons for a decision. Id. at 2141. The Second Circuit has similarly made clear that “discretion may not be exercised to discriminate invidiously against a particular race or group or to depart without rational explanation from established policies. . . . Such exercise of the power would not be ‘legitimate and bona fide’ within the meaning of Kleindienst v. Mandel.” Betrand v. Sava, 684 F.2d 204, 212-13 (2d Cir. 1982). These are the concerns raised here, given that other courts have already found such indications of bad faith in the multiple statements suggesting antiMuslim motivations for the Order. See Aziz, 2017 WL 580855, at *3-5, 8-9;
- 12 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 21 of 31
Washington v. Trump, No. 17-35105, 2017 WL 526497, at *10 (9th Cir. Feb. 9, 2017) (per curiam) (reh’g en banc pending).
Further constraints on the political branches’ plenary powers have come from the structure of “Our Federalism,” illustrated by decisions addressing the applying the non-commandeering principle of Printz v. United States, 521 U.S. 898 (1997), in the immigration context. E.g., Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[T]he federal government cannot command the government agencies of the states to imprison persons of interest to federal officials.”).
In sum, notwithstanding the discretion properly recognized in the political branches with respect to many aspects of immigration law, the courts remain responsible to ensure that those powers are exercised within the bounds set by the Constitution.
C. Invocation of national security or foreign affairs does not displace the essential role of the courts in enforcing constitutional limits.
Deployment of the term “national security” likewise cannot stop appropriate judicial inquiry into the legality of, or the basis for, government actions. Indeed, in the period since the events of September 11, 2001, courts have repeatedly addressed the merits of claims of individuals and entities subjected to government orders flowing from 9/11—even when dealing with measures specifically directed at individuals believed to have engaged in terrorism. Executive claims based on national security are properly entitled to significant deference, but that deference is not a
- 13 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 22 of 31
“blank check.” Hamdi v. Rumsefeld, 542 U.S. 507, 536 (2004). Across a range of areas, the Government regularly argued that the judiciary had
no role, as the political branches were responding to “national security” concerns and the Congress had authorized military engagements. The judiciary nonetheless has repeatedly discharged its constitutional obligation. See id.; Hamdan v . Rumsfeld, 548 U.S. 557, 576-78 (2006); Boumediene, 553 U.S. at 771. III. The Executive Order, At A Minimum, Raises Grave Questions Under The
First Amendment And The Due Process Clause. As of this writing, federal district courts in Washington, Massachusetts, New
York, and Virginia have examined the Executive Order. All but the decision in Louhghalam v. Trump, 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017), have found the Order constitutionally suspect. Indeed, in a per curiam decision, a unanimous panel of the Ninth Circuit denied the Government’s request to stay a district court’s TRO enjoining enforcement of the Executive Order, because the panel concluded that (1) there was a likelihood of success on the merits for upholding a preliminary injunction on due process grounds, and (2) adequate evidence of unconstitutional religious animus existed to warrant a full judicial exploration. Washington, 2017 WL 526497, at *7-10. A Virginia District Judge found that evidence of unconstitutional religious animus merited issuance of a preliminary injunction against the ban’s enforcement in Virginia against Virginia residents, students, or employees of Virginia’s schools. Aziz, 2017 WL 580855, at *11.
- 14 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 23 of 31
Both the procedural due process and religious liberty issues are before this Court. This case is focused on whether aliens who had returned to the United States with valid travel documents and those who have lawful permanent residence have a cognizable liberty interest under the Due Process Clause, as well as whether those in relationship to the Petitioners - ranging from universities and employers to citizen family members - have constitutional and statutory entitlements to individualized consideration through specified procedures prior to the voiding of the visas.
Further, per the Court’s grant of intervention, the New York Attorney General has asserted the rights of New York State, its businesses, universities, and hospitals, the health of its economy and citizens, and the civil rights of its residents. Through its pleadings, New York has raised claims that are not derivative of the rights of aliens but reflect independent harms in New York and in its interactions across the country.
To be sure, every President over the last thirty years has issued at least one Executive Order pursuant to 8 U.S.C. § 1182(f), many of them directed at particular nations. Each, however, was narrowly tailored to focus on a particular concern that did not involve invidious stereotyping. In the most sweeping example, President Reagan reacted to the decision of the Cuban government to suspend its then-existing immigration agreement with the United States by using § 1182(f) to temporarily exclude all Cubans, other than those eligible for family reunification visas. Proclamation 5517—Suspension of Cuban Immigration, 51 Fed. Reg. 30,470 (Aug. 22, 1986). Other legislation and orders have imposed extra vetting, most notably
- 15 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 24 of 31
determinations that travelers who had been present in Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen on or after March 1, 2011, were, unlike some others, required to obtain visas to travel to the United States. See 8 U.S.C. § 1187(a)(12)(A), Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, Pub. L. No. 114113, Div. O, Tit. II, 129 Stat. 2988 (2015) (extra vetting for individuals who have traveled to Iran, Iraq, Sudan, or Syria on or after March 1, 2011); Press Release, Dep’t of Homeland Sec., DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016), available at https://www.dhs.gov/news/2016/02/18/dhs-announcesfurther-travel-restrictions-visa-waiver-program (adding by executive order extra vetting for individuals who have traveled to Libya, Somalia, or Yemen).
Those provisions did not impose blanket exclusions but instead required that certain individuals obtain visas prior to their travel, and none of these orders was been tainted by statements proclaiming an intention to exclude members of a particular religion from the United States. See Congressional Research Service, Executive Authority to Exclude Aliens: In Brief, at 6-10 (Jan. 23, 2017) (describing all Executive Orders issued pursuant to § 1182(f) and observing that “in no case to date, though, has the Executive purported to take certain types of action, such as . . . explicitly distinguishing between categories of aliens based on their religion.”).
While all lawmaking relies on categories as a “practical necessity,” not all categories are equal. Romer v. Evans, 517 U.S. 620, 631 (1996). When the category is race, religion, gender, or national origin, alarm bells go off. The Executive Order has
- 16 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 25 of 31
echoes of the amendment invalidated in Romer, for it too can be described as: “imposing a broad and undifferentiated disability” – here on nationals or visitors to seven countries rather than, as in Romer, “a single named” group; “its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” 517 U.S. at 632. IV. Deliberation Based On A Full Factual Record Is Essential
Amici have set forth several constitutional doctrines that bear on the Executive Order and which require careful and deliberate consideration—rather than a rush to judgment. The order in Washington v. Trump has helped to limit the profound disruption of the administration of justice, of businesses and universities, and of families. The preliminary injunction in the Eastern District of Virginia has responded to parallel problems in that state. These orders, like the prior order in this case, permit an opportunity for careful judicial consideration of the factual and legal issues posed by the Executive Order, restoring a status quo that the Government has not shown to pose any imminent risk of harm, or, indeed, to have ever resulted in any of the harms said to justify the Executive Order.
In carrying out such careful judicial consideration, one final facet of constitutional history requires discussion, for this is not the first time in our history that the Government has pressed courts to defer to claims of national security and of threats identified with people from particular nationalities. The results of deference
- 17 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 26 of 31
without factual support have often been tragic, as exemplified by the hasty approval of Japanese internment.2 Korematsu v. United States, 323 U.S. 214 (1944), has rightly become part of an “anticanon” – deployed as examples of what U.S. law no longer accepts as constitutional. See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380, 396, 456-60 (2011).
A few of the details of Korematsu bear repeating, as there – like here – national origin stood in as a proxy for risk. In the 1940s, the Court deferred to the Government’s assertion that national security required the detention of 117,000 people based on their race alone because time purportedly did not permit individualized determinations. 323 U.S. at 218-219. This claim turned out to be false. A bi-partisan Congressional Commission later concluded that no evidence supported the claim of military necessity for internment, and that it was instead the result of “race prejudice, war hysteria and a failure of political leadership. See Report of the Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied (Washington, D.C., 1982) at 18. Moreover, the government’s representation that categorical detention was needed because it had insufficient time for
2 Even at its lowest ebb, the Supreme Court recognized in the companion case to Korematsu, Ex parte Endo, that individualized hearings for each detainee were required. See 323 U.S. 283, 299-300, 30304 (1944). Faced with the requirement of individualized hearings, the United States released the Japanese internees four months after the decision in Ex parte Endo. Thus, unless and until the United States provides a mechanism for such individualized consideration in connection with the cancellation of valid entry documents, this Court should enjoin the application of the blanket ban to holders of otherwise valid entry documents.
- 18 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 27 of 31
individualized review was untruthful. See Peter H. Irons, Unfinished Business: The Case for Supreme Court Repudiation of the Japanese Internment Cases 4, 7-9, 18-19 (2013).
In 1976, the order was formally terminated by President Gerald Ford, who called the order a “setback to fundamental American principles.” President Ford urged American’s “to resolve that this kind of action shall never again be repeated.” Proclamation 4417—An American Promise, 41 Fed. Reg. 7,085 (Feb. 19, 1976).
The next chapter in Korematsu comes from the federal district court grant of a writ of coram nobis to Mr. Korematsu. As that court wrote, “[a]s historical precedent,” the decision is a “constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees.” Moreover, “the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.” Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984).
One more aspect of Korematsu bears elaboration. The Court has come to invoke the decision for the proposition that strict scrutiny applies to racial classifications under equal protection doctrine. “All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 288, (1978) (quoting Korematsu, 323 U.S. at 216). See also Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2422, (2013); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214 (1995); Loving v.
- 19 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 28 of 31

Virginia, 388 U.S. 1, 11, (1967). As the Court explained in City of Richmond v. J.A. Croson Co., “[t]he history of
racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis.” 488 U.S. 469, 501 (1989) (citing Korematsu, 323 U.S. at 235-40). By linking national origin discrimination with racial discrimination, the Court has made plain how one noxious basis for classification leads to another. Indeed, as Justice Kennedy eloquently put it: the “identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
Conclusion The Executive Order of January 27, 2017 should not be allowed to stand without a thorough review that entails fact-based analyses of its legality as a matter of statutory and constitutional law.

Dated: February 16, 2017
Of counsel: Judith Resnik Burt Neuborne

Respectfully submitted,
JONES DAY
/s/ Meir Feder Meir Feder Matthew R. Cushing 250 Vesey Street New York, NY 10281 Telephone: (212) 326-3939
Counsel for Amici Curiae Law Professors

- 20 -

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 29 of 31
ADDENDUM List of Amici law professors3:
Kerry Abrams, Professor of Law, University of Virginia School of Law
Bruce Ackerman, Sterling Professor of Law and Political Science, Yale Law School
Janet Cooper Alexander, Frederick I. Richman Professor of Law, Emerita, Stanford Law School
Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law
Kristin Collins, Professor of Law and Associate Dean for Intellectual Life, Boston University
Laura K. Donahue, Professor of Law, Director of the Center on National Security and the Law, and Director of the Center on Privacy and Technology, Georgetown University Law Center
Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia Law School
Catherine Y. Kim, Associate Professor of Law, University of North Carolina School of Law
Edward A. Purcell, Jr., Joseph Solomon Distinguished Professor of Law, New York Law School
Hiroshi Motomura, Susan Westerberg Prager Professor of Law, UCLA School of Law
Burt Neuborne, Norman Dorsen Professor of Civil Liberties and Founding Legal Director of the Brennan Center for Justice, New York University School of Law
Judith Resnik, Arthur Liman Professor of Law, Yale Law School
3 Institutional affiliations are provided for identification purposes only; this brief does not represent the institutional views of any entity with which Amici are affiliated.

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 30 of 31
Stephen I. Vladeck, Professor of Law, University of Texas School of Law Jonathan T. Weinberg, Professor of Law, Wayne Law

Case: 17-35105, 02/17/2017, ID: 10323844, DktEntry: 166-2, Page 31 of 31

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastern District of New York by using the CM/ECF system on February 16, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated: February 16, 2017

/s/ Meir Feder
Meir Feder Jones Day 250 Vesey Street New York, NY 10281 Telephone: (212) 326-3939 mfeder@jonesday.com

Counsel for Amici Curiae Law Professors

 
 Case 2:17-cv-00141-JLR Document 93 Filed 02/17/17 Page 1 of 12

1

HONORABLEJAMESL.ROBART

2 Harry E. Ries

3

P.O. Box 1849

Moses Lake, WA 98837

4

5

6

7
STATE OF WASHINGTON,

CIVIL ACTION NO. 2:17-CV-00141-

8

jlr

Plaintiff,

9

DECLARATION IN OPPOSITION

10 v.

TO POSITION TAKEN BY STATE OF WASHINGTON AND IN

11 DONALD TRUMP, in his official

CONTINUED REPRESENTATION

capacity as President of the United 12 States; U.S. DEPARTMENT OF

BY WASHINGTON ATTORNEY GENERAL

13

HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as

14 Secretary of the Department of Homeland Security; TOM

15 SHANNON, In his official capacity as

Acting Secretary of State; and the

16

UNITEDSTATES OF AMERICA,

17
Defendants.
18

19

HARRY E. RIES hereby declares as follows:

20

I am a resident of the State of Washington, and have been since 1948. I

21 reside in Grant County, Washington. I graduated from Moses Lake High School
22

23

in 1966, served honorably in the United States Marine Corps from 1966 to 1968,

24

DECLARATION IN OPPOSITION TO POSITION TAKEN BY STATE OF WASHINGTON AND IN

CONTINUED REPRESENTATION BY WASHINGTON ATTORNEY GENERAL

PAGE-- 1

Case 2:17-cv-00141-JLR Document 93 Filed 02/17/17 Page 2 of 12

1 graduated from the University of Washington in 1977, and graduated with honors
2 from Gonzaga School of Law in December, 1979. I was admitted to the
3
Washington State Bar Association in the spring of 1980, and remain a member. I
4
was engaged in the private practice of law for approximately 35 years until I
5
6 accepted a judicial appointment as Commissioner of the Grant County Superior
7 Court in 2015.

8

I write this Declaration to voice my opposition to the position asserted by

9 the Attorney General of the State of Washington in his COMPLAINT FOR
10
DECLARATORY AND INJUNCTIVE RELIEF (hereinafter referred to as
11
"COMPLAINT") filed with this Court. Further, I write this Declaration to
12
13 express my belief that the Attorney General of the State of Washington cannot
14 ethically or legally pursue this action on behalf of the corporations and

15 individuals that he purports to represent. I do not submit this declaration in any

16 professional capacity. Instead, I submit it merely as a lifelong resident of the
17
State of Washington.
18
I am one of over one million, two hundred thousand Washington residents
19
20 who voted for and supported, and still support, the Honorable Donald Trump,
21 President of the United States. In the COMPLAINT filed in this action, the

22 Attorney General of the State of Washington states: 23

24

DECLARATION IN OPPOSITION TO POSITION TAKEN BY STATE OF WASHINGTON AND IN

CONTINUED REPRESENTATION BY WASHINGTON ATTORNEY GENERAL

PAGE-- 2

Case 2:17-cv-00141-JLR Document 93 Filed 02/17/17 Page 3 of 12

1

"9. The State's interest in preventing and

remedying injuries to the public's health, safety, and

2

well-being extends to all of the State's residents,

3

including individuals who suffer indirect injuries and

members of the general public."

4
I am certainly a "resident", as are many others whose interests are not being 5

6

represented by the Attorney General of the State of Washington in the present

7 litigation.

8

According to the language of the COMPLAINT, the action taken by the

9 Attorney General of the State of Washington arises as a reaction to Executive

10 Order 13769, signed by President Trump on January 27, 2017. According to the
11
plain language of that executive order, its purpose is to provide protection to the 12

13

citizens and residents of the United States, including residents of the State of

14 Washington. Executive Order 13769 is directly authorized by the United States

15 Congress in its grant of exclusive authority to the President under 8 U.S.C. §

16

1182(±) to suspend the entry of any or all aliens for such period as he shall deem

17
necessary, or impose any restrictions on entry that he deems appropriate.
18
The Attorney General of the State of Washington alleges that many
19

20

immigrants who are residents of the State of Washington are employed by

21

Microsoft, Amazon, Expedia and Starbucks, and states:

22

"The market for highly skilled workers and leaders

m the technology industry is extremely competitive. 23

24

DECLARATION IN OPPOSITION TO POSITION TAKEN BY STATE OF WASHINGTON AND IN

CONTINUED REPRESENTATION BY WASHINGTON ATTORNEY GENERAL

PAGE-- 3

Case 2:17-cv-00141-JLR Document 93 Filed 02/17/17 Page 4 of 12

1

Changes to U.S. immigration policy that restrict the flow

of people may inhibit these companies' ability to

2

adequately staff their research and development efforts

3

and recruit talent from overseas. If recruiting efforts are

less successful, these companies' abilities to develop and

4

deliver successful products and services may by

adversely affected." 5

6

COMPLAINT,~ 13.

T

Apparently, at least 76 Microsoft employees might be affected by the

8 executive order. Some Amazon employees may be affected. The executive order

9

may cause Expedia to incur increased business costs. The .executive order may

10
impact 230 college students, 13 individuals, and "an unknown number of

11
Washington residents from the affected countries". 12

13

The COMPLAINT goes on to allege that the executive order (1) violates

14 the equal protection rights of these known and unknown persons; (2) violates the

15 establishment clause because it prefers one religion over another; (3) violates the

16 due process of these individuals; (4) discriminates in the issuance of visas; (5)

17
denies certain individuals the right to apply for asylum; (6) forecloses the ability
18
of some to apply for relief under the Convention Against Torture; (7) may
19

20

prevent certain people from practicing their religion while in detention, or from

21

taking religious holidays, and thereby violates the Religious Freedom Restoration

22 Act; and (8) somehow violates the Administrative Procedures Act. All of these

23

24

DECLARATION IN OPPOSITION TO POSITION TAKEN BY STATE OF WASHINGTON AND IN

CONTINUED REPRESENTATION BY WASHINGTON ATTORNEY GENERAL

PAGE--4

Case 2:17-cv-00141-JLR Document 93 Filed 02/17/17 Page 5 of 12

1 "causes of action", so states the Attorney General of the State of Washington,

2 "causes ongoing harm to Washington residents."

3
The COMPLAINT, while couched in terms of representing the State of

4
Washington, is nothing more than a civil action on behalf of Microsoft and some
5

6

of its employees, Amazon, Expedia, Starbucks, 230 college students, and some

7 other unknown persons. It is not, however, an action that "extends to all of the

8 State's residents".

9

The Attorney General of the State of Washington has stated on his official

10
website:

11

"State law prohibits the Attorney General, deputy

12

attorneys general, and assistant attorney generals from

13

engaging in the private practice of law.

14

This means that they cannot represent private citizens in

court either to bring an action on behalf of an individual,

15

or to defend an individual.

16

Any private citizen needing such representation should

17

consult a private attorney."

18 Taken from the website of the Washington State Office of the Attorney General:

19 atg.wa.gov- Roles of the Office.

20

I have previously expressed my concerns to the Attorney General of the

21
State of Washington in a letter directed to Robert Ferguson dated February 8,
22

20 17. I have attached a copy of that letter to this Declaration.
23

24

DECLARATION IN OPPOSITION TO POSITION TAKEN BY STATE OF WASHINGTON AND IN

CONTINUED REPRESENTATION BY WASHINGTON ATTORNEY GENERAL

PAGE-- 5

Case 2:17-cv-00141-JLR Document 93 Filed 02/17/17 Page 6 of 12

1

In that letter, I point out to the Attorney General that I believe he has a

2 conflict of interest. The Attorney General is representing one small class of
3
Washington residents (and non-residents) to the exclusion of the class of
4
residents to which I belong. I would define that class as a class of Washington
5
6 residents who believes that Executive Order 13769 as signed by the President of
7 the United States on January 27, 2017, is a lawful executive order by the

8 President designed to protect citizens and residents of the United States,

9 including residents of the State of Washington, without regard to their political
10
beliefs. Further, that class is made up of individuals who believe that additional
11
measures to screen immigrants are legal and appropriate to ensure the safety of
12
13 all members of the class, all residents of the State of Washington, and all other
14 citizens and residents of the United States. Finally, that class believes that the

15 plain language of the executive order does not implicate the religious beliefs or

16 freedoms of those who might be affected by its enforcement.
17
While Microsoft and Starbucks are certainly entitled to equal protection of
18
the law, so certainly am I and other similarly situated persons who are also
19
20 residents of the State of Washington. But, what neither Microsoft, Starbucks nor
21 I are entitled to is to have the Attorney General ofthe State of Washington bring

22 a civil action to protect our private interests. This would hold true for the 76 23

24

DECLARATION IN OPPOSITION TO POSITION TAKEN BY STATE OF WASHINGTON AND IN

CONTINUED REPRESENTATION BY WASHINGTON ATTORNEY GENERAL

PAGE-- 6

Case 2:17-cv-00141-JLR Document 93 Filed 02/17/17 Page 7 of 12

1 Microsoft employees,· 230 college students and other individuals referred to the

2 COMPLAINT.

3
The Attorney General of the State of Washington also states in the

4
COMPLAINT that the issues raised are matters of public concern. With that I
5

6

agree. However, my public concern is quite different than the public concern

7 espoused by the Attorney General. The Attorney General also states:

8

"The State also has an interest in ensuring that its

9

residents are not excluded from the benefits that flow

10

from participation in the federal system, including the

rights and privileges provided by the U.S. Constitution

11

and federal law."

12 COMPLAINT, ~ 8

13

I can only assume that what is meant by the above-quoted language is that

14
being able to enjoy the benefits of the federal system, "including the rights and
15
privileges provided by the U.S. Constitution and federal law" only applies to
16

17 residents ofthe State of Washington who agree with the interpretation ofthe U.S.

18 Constitution and federal law as pronounced by the Attorney General of the State

19 of Washington. I do not agree with that interpretation. Nor, do I believe that the
20 Attorney General of the State of Washington should be able to force his
21
politically motivated interpretation upon me, in the name of protecting my
22
interests as a resident of this State. 23

24

DECLARATION IN OPPOSITION TO POSITION TAKEN BY STATE OF WASHINGTON AND IN

CONTINUED REPRESENTATION BY WASHINGTON ATTORNEY GENERAL

PAGE --7

Case 2:17-cv-00141-JLR Document 93 Filed 02/17/17 Page 8 of 12

1

I, and other similarly situated persons, have been labeled as deplorable,

2 bigot, racist, misogynist, narcissistic, fascist, Nazi, homophobic, uneducated,

3
unintelligent, and poorly informed, as well as countless other disparaging terms

4
(or non-disparaging depending upon your point of view) for voicing our support
5

6

for the President of the United States. While I could take the time to deny each

7 such label, that denial would be absolutely irrelevant and meaningless to those

8 who have placed those labels upon me. Whether I am any of those things, all of

9 those things, or none of those things, I am still entitled to the same representation
10
as those whom the Attorney General of the State of Washington purports to
11
represent in this litigation. My views, concerns and fears are no less important,
12
13 and no less worthy. Yet, in this litigation they are treated as if nonexistent.
14 While I am sure that we are all concerned with a better cup of coffee, is it really

15 the role of the Attorney General of the State of Washington to protect the

16 research and development capabilities of Starbucks, Microsoft, Expedia, and

17
Amazon, to the exclusion of the rights of other residents of the State of

18
Washington? I, for one, would hope not.
19

20

I am quite sure that the court is not interested in my views concerning the

21 merits of the action filed on behalf of the residents of the State of Washington.

22 This Declaration has nothing to do with the merits, if there are any. I simply 23

24

DECLARATION IN OPPOSITION TO POSITION TAKEN BY STATE OF WASHINGTON AND IN

CONTINUED REPRESENTATION BY WASHINGTON ATTORNEY GENERAL

PAGE-- 8

Case 2:17-cv-00141-JLR Document 93 Filed 02/17/17 Page 9 of 12

1 want to make sure that the court is aware that the interests of a large number of

2 Washington residents are not being addressed by the Attorney General of the

3
State of Washington, regardless of what he might say otherwise. In fact, quite to

4
the contrary, they are being ignored.
5

6

I declare under penalty of perjury under the laws of the State of

7 Washington that the foregoing is true and correct.

8

1r- Signed this

day ofFebruary, 2017 at Ephrata, ashington.

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

DECLARATION IN OPPOSITION TO POSITION TAKEN BY STATE OF WASHINGTON AND IN

CONTINUED REPRESENTATION BY WASHINGTON ATTORNEY GENERAL

PAGE-- 9

Case 2:17-cv-00141-JLR Document 93 Filed 02/17/17 Page 10 of 12
February 8, 2017 Robert W. Ferguson Attorney General of the State of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188
RE: State of Washington v. Donald Trump, et al. United States District Court, Western District of Washington No. 17-35105
Mr. Ferguson: I am a resident of Grant County, State of Washington. I have read and considered the Complaint for Declaratory and Injunctive Relieffiled by you on behalf of a group of Washington residents, a small group of Washington businesses, and two public universities, in the United States District Court for the Western District of Washington. I have also read and considered Executive Order 13769, signed by President Donald Trump on January 27, 2017. This letter is to formally advise you that I do not share the views that you allege in the Complaint. Nor do I share the legal conclusions you reach. I believe that Executive Order 13769 is a proper exercise of presidential authority as granted by the United States Constitution and the laws of the United States. I also firmly believe that the State of Washington lacks judicial standing to assert the claims it asserts, and lacks authority to prosecute this action on behalf of the individuals, companies and universities it purports to represent. This letter will serve as my demand that, to the extent the State of Washington asserts any position in the above-entitled legal action, that it assert my position as well. In the Complaint you allege:
"7. The State's interest in protecting the health, safety, and well-being of its residents, including protecting its residents from harms to their physical or economic health, is a quasi-sovereign interest.
9. The State's interest in preventing and remedying injuries to the public's health, safety, and well-being extends to all of the State's residents, including individuals who suffer indirect injuries and members of the general public."

Case 2:17-cv-00141-JLR Document 93 Filed 02/17/17 Page 11 of 12
Mr. Robert Ferguson February 8, 2017 Page2
It is my belief that Executive Order 13769 is designed solely to protect me and my fellow citizens. I see your "political grandstanding" as a direct threat to my health and safety, and a direct threat to the health and safety of millions of other residents of this State, whether they share my views or not. I expect you to prevent and remedy injuries to my health, safety, and well-being. You specifically acknowledge that to be the "interest" of this State.
Rule 1.7 of the Rules of Professional Conduct states as follows:
"(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing (following authorization from the other client to make any required disclosures)."
Based upon what is asserted in the Complaint, I am of the opinion that you will be unable to "provide competent and diligent representation" to me. You have a conflict of interest. You do not have my consent to further the political agenda set forth in your Complaint. Nor do you have my consent to state, directly, indirectly or otherwise, that you represent the residents of the State of Washington.
Very truly yours,
HARRY E. RIES P.O. Box 1849 Moses Lake, WA 98837

~~s ~0?ff37 ~r~J~t..-:s~I;P

L..d'Q
/ l r /W/1

s
UNITt:DSTIJTES POS'T.d£. SiRVlCh
1007

1111111/lt IIi
98101

U.,J:8STAGE EPHRATA, WA
98823 FEB 15, 17
AMOUNT
$23.75
R2305E123433-03

Case 2:17-cv-00141-JLR Document 93 Filed 02/17/17 Page 12 of 12

-

(PLEASE PRINT)

PHONE(

lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll E K2 9 7 9 2 9 9 4 0 US

u.i
_J
m

<.?
UJ
_J

(f)

UJ

~

~signature 0 SIGNATURE REQUIRED Note: The mailer must check the

Required" box if

O

Requires the addressee's signature; OR 2) Purchases additional insurance; OR 3) Purchases COD

j

Purchases Return Receipt service. If the box is not checked, the Postal Service will leave the item in the addressee's mail receptacle or other secure location without attempting to obtain the addressee's signature on delivery.

<( Delivery Options

UJ ~

0 No Saturday Delivery (delivered next business day) 0 Sunday/Holiday Delivery Required (additional fee, where available")

<(

0 10:30 AM Delivery Required (additional tee, where available")

~

*Refer to

f2
~
a~ : u:::

UJ
af-:

S ' ZIP + 4° (U.S. ADDRESSES ONLY)

, dJ!cflfX~lliJ~~ ®

PRIORITY
*MAIL*
P'ft[;

TransrJortailon fe~;;

• For pickup or USPS Tracking••, visit USPS.com or call 800-222-1811. • $100.00 insurance Included.

S:irJnatiJTe

'------
LABEL 11-B,

------r-
JANUARY 2014

1

-

-

------_L_-PSN 7690-02-000-9996

-

-

-

-

·

-

-

-

-

-3--A-D-D·R-E-S-S-E-E-C-O-P. Y.J

 
 RECEIVED
MOLLY C. DWYER CLERK U.S. COURT OF APPEALS

No 17-35105

FEB22 2017

7iLED

,)oC ETED

C)a s

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

iN1TIAL

STATE OF WASHINGTON and STATE OF MINNESOTA, Plaintiffs-Appellees,
V.
DONALD J. TRUMP, President of the United States, et al., Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, THE HONORABLE JAMES L. ROB ART PRESIDING, CASE NO. 2:17-cv-00141-JLR

BRIEF OF AMICUS CURIAE ANTHONY KEYTER IN SUPPORT OF THE RULE OF LAW CONCERNING REHEARING EN BANC

ANTHONY KEYTER 6200 SOUNDVIEW DRIVE, R201
GIG HARBOR, WA 98335 TEL: 253-853 3859

FEBRUARY 16, 2017

TABLE OF CONTENTS

Page

Table of Authorities / Cases Referenced ..........................................

2

Statutes.................................................................................

2

Disclosure Statement .................................................................

2

Motion for Leave to File .............................................................3

Amicus Curiae Brief ............. . .. . ...................... . .... . ...................

4

Conclusion............................................................................

8

TABLE OF AUTHORITIES/ CASES REFERENCED
Anthony P. Keyter vs The Boeing Company: US District Court, Western Washington 09cv962, 2009 ........................ US District Court, Western Washington 12cv474, 2012 ....................... US District Court, Western Washington 13cv982, 2013 ....................... 9th Circuit Appeal Court 06-15253 ................................................ 9'h Circuit Appeal Court 12-72265 ............................................... 9th Circuit Appeal Court 13-36056 ................................................. Anthony P. Keyter vs 230 Government Officers: 9thCircuit Appeal Court 05-35717 ..............................................

Page
5 5 5 5 5, 7 5-8
5

STATUTES
18USC2381........................................................................... 18USC2383................................................................................................... 18USC2384 ................................................................................................... Constitution, Article III, Section 1 ............................................................... Constitution, 14th Amendment, Section 3 ...................................................

Page 4, 7 4, 7 4, 7 4, 7 4, 8

DISCLOSURE STATEMENT - RULE 29(a)(4XE) This brief was authored by Anthony Keyter, a private citizen, without the involvement of counsel for any party in this matter. No party or counsel for such party contributed money that was intended to fund preparing or submitting this brief. No person other than the Amicus Curiae Anthony Keyter contributed money that was intended to fund preparing or submitting this brief.

2

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF - RULE 29(a)(3) Motion
Amicus curiae Anthony Keyter respectfully moves the 9th Circuit Appeals Court for leave to file a Brief as amicus curiae in support of the `rule of law', and all that that terms means, as practically applied to the `rehearing en banc'. This motion is accompanied by the proposed Brief, given below. Statement of Interest of Amicus Curiae - Rule 29(a)(3)(A)
Anthony Keyter is a private citizen with personal knowledge of a virulent `seditious conspiracy' active within the US District Court, Seattle, and 9th Circuit Appeals Court, and files this Amicus Curiae Brief in the paramount interest of 'the rule of law' for the United States, and in the best interests of the American public. As will be clear from the 'Brief, the interest that the 'rule of law' prevails in this case is not an elementary whim or sentiment or legal theory, but a profound practical necessity in this matter before the 9u' Circuit Appeals Court affecting the 'rule of law', the dignity, and the good name of the United States and the American veoole. Reasons Why Amicus Brief is Desirable - Rule 29(a)(3)(B)
For justice to be served in this case, the 9a' Circuit bench and Judge Robart of the US District Court for Western Washington have to obey the statutes of the United States of America, which they are in direct violation of- and must disqualify themselves. Only then can justice and the 'rule of law' be served in this important matter, so vital to the public wellbeing. Only then can the best interests of the American public be served and the American nation claim to be a law-abiding country.
3

Judge Robart (and several other US District Court judges for Western Washington besides), together with most all 9th Circuit Court Judges, are implicated in a welldocumented seditious conspiracy and an `insurrection against the laws'. A number of criminal complaints have been filed against the judges in several court cases, only to be suppressed on each occasion, in order to protect the lawbreaking judicial officials from prosecution and the justice system from disgrace. (Those criminal complaints were also filed with the FBI and DOJ under Presidents GW Bush and Obama, and were similarly squashed and covered up).
Pending criminal charges filed against the judges for their active role in the criminal enterprise include, inter alia, the crimes of seditious conspiracy, insurrection against the laws, and treason. The statutes which forbid those subversive activities (18USC2384, 18USC2383, and 18USC2381 respectively) and the Constitution, Article III, Section 1 and the 14th Amendment, Section 3, simultaneously and expressly forbid Judge Robart and most 9th Circuit Judges from holding public office under the United States. Since the judges have no legal standing under those statutes, all decisions taken by the judges are null and void. It is in the United States best interest and in the public interest that only judges who are in good behavior and have legal standing decide this case, important for the public wellbeing.
ANUCUS CURIAE BRIEF Background
There is a major criminal endeavor afoot by United States Court officials and others, to obstruct the administration of the laws, to provide impunity to known criminals, to deny fundamental rights of due process and protection of the laws to victims and to the
ri

United States, and to defeat the ends of justice. A number of persons have perpetrated violent criminal offenses in pursuit of the objectives of the unlawful endeavor, including: intimidation, coercion, extortion, tampering with evidence, theft of court record, obstruction of justice, and mass murder of 161 innocent people and grave injury to 189 others (in two completely avoidable air accidents); and several foiled attempts to kidnap and kill a key witness.
The criminal endeavour has been meticulously documented over a period of 14 years in a 2600-page digest titled the `Dossier of Crimes', and in thousands of pages of evidential documents surrounding the broader case. The `Dossier of Crimes' describes the impunity with which numerous government and industry officials have committed innumerable offenses and have on several occasions attempted to kidnap and murder witnesses to their crimes. The Dossier is filed in US District Court Western Washington, case numbers 09cv962, 12cv474, and 13cv982; and in 9a' Circuit case numbers 05-35717, 06-15253, 12-72265, and 13-36056, amongst other filings.
Several attempts to bring the perpetrators to justice in the United States Courts have met with strong efforts on the part of the judiciary to suppress all information and knowledge of the shameful affair. Those court cases have been combined into a single US Supreme Court Case titled: the "Consolidated Boeing Company Murder Case ", which remains pending, although obstructed, with Chief Justice Roberts. Judges' Role in the Seditious Conspiracy
From the earliest stages of the matter, the role of the federal judiciary has been one of considerable corruption. Amongst numerous other statutory obligations to act against malfeasant officials, the Federal Rules of Criminal Procedure (Rules 4 and 41)
E

dictate that the courts 'shall' arrest those defendants in a court action who are suspected
of crime. Not a single arrest has been made. Not a single hearing has been convened.
Not a single crime, amongst a multitude committed by officials, has been investigated or
prosecuted despite overwhelming and unambiguous evidence presented.
In every civil and criminal case filed against the seditious government
conspirators, the federal courts simply swept all criminal charges against officials under
the carpet, thereby impeding a critical function of government and nullifying their very
own raison d'être. In that way many fully informed federal judges aided and abetted
known criminals to escape justice, with one paramount purpose in mind: to protect
seditious officials from prosecution and public disgrace, knowing that those officials
would do the same for them in return.
Amongst those federal judges who obstructed justice in the extensive criminal
matter and who assisted known felons to escape justice, are Judge James Robart (and several other US Western Washington District Court judges) and the following 9th Circuit
Judges:
9th Circuit Court of Appeals Judges Judge Mary M. Schroeder; Judge S. Reinhardt; Judge M.D. Hawkins; Judge Trott; Judge Canby; Judge Kleinfeld; Judge Edward Leavy; Judge Ronald M. Gould; Judge Richard R. Clifton; James R. Browning; Alfred T. Goodwin; J. Clifford Wallace; Joseph T. Sneed; Procter Hug, Jr.; Otto R. Skopil; Jerome Farris; Harry Pregerson; Arthur L. Alarcon; Warren J. Ferguson; Dorothy W. Nelson; Robert Boochever; Robert R. Beezer; Cynthia Holcomb Hall; Melvin Brunetti; Alex Kozinski; John T. Noonan, Jr.; David R. Thompson; Diarmuid F. O'Scannlain; Ferdinand F. Fernandez; Pamela Ann Rymer; Thomas G. Nelson; A. Wallace Tashima; Sidney R. Thomas; Barry G. Silverman; Susan P. Graber; M. Margaret McKeown; Kim McLane Wardlaw; William A. Fletcher; Raymond C. Fisher; Richard A. Paez; Marsha S. Berzon; Richard C. Tallman; Johnnie B. Rawlinson; Jay S. Bybee; Consuelo M. Callahan; Carlos T. Bea; Milan D. Smith, Jr.; Sandra S. Ikuta; R Smith; M. Murguia; M. Christen; J Nguyen; P. Watford; A. Hurwitz.
Cel

For details of criminal charges filed against Judge Robart and not addressed by any
court, see the Dossier of Crimes: Vol. II, Chapters 18.39.1, 18.44.1, 18.49, 18.50.1; and Vol. III, Chapters 49.1, 49.3, 50.2, and 50.3).
For details of criminal charges filed against 9t Circuit Judges and not attended
to, see the Dossier of Crimes: Vol. IT, Chapters 18.30, 18.34, 18.37, 18.38, 18.39.1, 18.44.1, 18.49; and Vol. III, Chapters 49.1, 49.3, 50.2, and 50.3).
The Dossier of Crimes is filed in 9a' Circuit case no. 13cv-36056, as Appendix 1 to the motion for joinder of defendants. An updated copy is available to investigators.
Criminal Charges Filed against Judges Amongst several other charges, sedition charges were filed against the judges in a
number of the court cases (including 9`h Circuit cases 12-72265 & 13cv-36056) for their role in preventing, hindering, and delaying the execution of the laws of the United States by violence (accessories after the fact to attempted murder of a prime witness). The vast extent of the criminal endeavour within the US Courts and government over many years, involving the US District Court and 9th Circuit judges, and many other judges and senior government officials besides, constitutes a rebellion against the laws of the United States.
Further charges of violating 18USC2383 (for insurrection against the laws) were filed against the judges in the courts, as were charges of treason (18USC2381) filed against
them for providing aid and comfort to the insurgents (enemies of the United States), and for assisting them to escape justice.
Those charges against the judges remain filed and pending (awaiting the judges
imperative actions) in the 90 Circuit Court, in the "Combined Boeing Company Murder
7

Case ", case no. 13-36056, in the Dossier of Crimes filed as Addendum 7 in the Amended Appeal Brief. The Laws Demand Compliance
Statutes 18USC2381 (on treason) and 18USC2383 (on insurrection against the laws), demand that judges so engaged in these subversive offenses, shall be incapable of holding any office under the United States. That means that 9th Circuit Judges listed above are holding their positions illegally.
In addition, the Constitution, in Article III, Section 1, demands that "The judges, both of the Supreme and inferior courts, shall hold their offices during good behaviour". Judge Robart and the 9`h Circuit Judges are not in good behaviour while engaged in subversive activities against the United States. They may not legally hold office. The laws are clear and have not been obeyed.
Furthermore, the 14th Amendment, Section 3, dictates that no person shall hold any office under the United States, who, having previously taken an oath to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. That includes the judges.
US District Court Judge Robart and the 9th Circuit Judges are not above the law, and are compelled, like any other citizen, to obey the laws and the Constitution. The laws and the Constitution declare that they shall not hold office under the United States.
CONCLUSION US District Court Judge Robart and the 9d' Circuit Judges continue to hold office under the United States in violation of the Constitution and the statutes mentioned above, as detailed in the Dossier of Crimes filed in 9's Circuit case no. 13-36056. They have no

legal standing to adjudicate this case, or any other case for that matter. Any rulings made by any of these judges are illegal and void.
For justice to be served in this case, US District Court Judge Robart and the 9th Circuit Bench of Judges need to obey the statutes of the United States of America, and to step aside and disqualify themselves, so that judges who are loyal to the Constitution and the laws can decide this important case in the interests of the 'rule of law' and the welfare of the American people.
Respectfully Submitted, Anthony P. Keyter
W

CERTIFICATE OF SERVICE I hereby certify that on this 16th day of February 2017, a true and correct copy of this Amicus Curiae Brief was served electronically, on the following counsel for the parties: Counsel for Defendants-Appellants: Edwin S. Kneedler United States Department of Justice 950 Pennsylvania Ave., N.W. Room 5139 Washington, DC 20530 Counsel for Plaintiffs-Appellees: Noah G. Purcell Office of the Washington Attorney General P.O. Box 40100 1125 Washington St., SE Olympia, WA 98504
Respectfully Submitted,
Anthony P. Keyter
10

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON and STATE OF MINNESOTA, Plaintiffs-Appellees,
ALI PLAINTIFFS; JAMES J. O’HAGAN, Intervenors-Pending,
v.
DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W. TILLERSON, Secretary of State; JOHN F. KELLY, Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA, Defendants-Appellants.

No. 17-35105

DEFENDANTS-APPELLANTS’ MOTION TO HOLD PROCEEDINGS IN ABEYANCE
Defendants-appellants Donald J. Trump et al. respectfully move this Court to hold proceedings in abeyance pending further order of the Court. Counsel for plaintiffs-appellees oppose this motion. In support of this motion, counsel states as follows:
1. This appeal is from an injunction entered by the U.S. District Court for the Western District of Washington, barring defendants-appellants from enforcing Sections 3(c) and 5(a), (b), and (c) of Executive Order No. 13,769, and from

enforcing Section 5(e) of the Executive Order “to the extent [it] purports to prioritize refugee claims of certain religious minorities.”
2. On February 9, 2017, a panel of this Court denied defendants-appellants’ motion for an emergency stay of the injunction pending appeal. The panel also issued an order that, inter alia, set a briefing schedule for appeal, pursuant to which the opening brief is due March 3, 2017. A judge of the Court subsequently called sua sponte for a vote as to whether the order denying a stay should be reconsidered by the en banc Court, and the Court ordered the parties to file briefs setting forth their respective positions on whether this matter should be reconsidered en banc.
3. Defendants-appellants filed a supplemental brief on en banc consideration on February 16, 2017. The supplemental brief explained that “the United States does not seek en banc review of the merits of the panel’s ruling. Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order * * *.” Defendants-appellants asked the Court to “hold its consideration of the case until the President issues the new Order and then vacate the panel’s preliminary decision.”
4. On February 16, 2017, the Court issued an order staying en banc proceedings before the Court pending further order of the Court. The Court’s order referenced the United States’ “representat[ion] to the Court that the President intends
2

to issue a new Executive Order” and its request that the Court “hold its consideration of the case until the President issues the new Order.”
5. There is no need at this time for immediate briefing of the appeal as contemplated by the February 9 order. Although the Court’s February 16 order did not specifically address the earlier order setting a briefing schedule, the stay of en banc proceedings reflects the appropriateness of awaiting further developments before committing further resources of the parties or the Court to appellate litigation. Defendants-appellants respectfully request that the Court hold all proceedings on appeal in abeyance pending further order of the Court.
6. Counsel for the plaintiffs-appellees, Ann Egeler, has indicated that the plaintiffs-appellees oppose this motion.
3

CONCLUSION Defendants-appellants respectfully request that the Court hold proceedings in this appeal in abeyance pending further order of the Court.
Respectfully submitted, /s/ Sharon Swingle SHARON SWINGLE (202) 353-2689 Attorney, Appellate Staff Civil Division, Room 7250 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001 FEBRUARY 2017
4

CERTIFICATE OF SERVICE I hereby certify that on February 24, 2017, I filed the foregoing DefendantsAppellants’ Motion to Hold Proceedings in Abeyance and served opposing counsel through the CM/ECF system.
/s/ Sharon Swingle SHARON SWINGLE Counsel for Defendants-Appellants

CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing motion complies with the type-volume limitations of Fed. R. App. P. 27(d)(2) because it contains 471 words, excluding the portions of the motion identified in Fed. R. App. P. 32(f).
/s/ Sharon Swingle SHARON SWINGLE Counsel for Defendants-Appellants
6

 
 NO.17-35105

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON and STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.

RESPONSE TO DEFENDANTS-APPELLANTS’ REQUEST TO HOLD CASE IN ABEYANCE

DONALD J. TRUMP, President of the United States, et al.,

Defendants-Appellants.

INTRODUCTION Although Defendants contend that this case presents urgent national security issues, they now request indefinite delay of the Ninth Circuit proceedings. There is no justification for delay of the briefing schedule. Contrary to representations made to this Court on February 16, 2017, President Trump and the White House Press Secretary have repeatedly stated that they intend to pursue this appeal and defend the Executive Order—not repeal it. The motion to hold the proceedings in abeyance should be denied, just as the Defendants’ requests for delay were denied by the District Court.
PROCEDURAL HISTORY On January 27, President Trump signed Executive Order No. 13679, which radically changed immigration policy and unleashed chaos around the world. On

1

January 30, Washington filed a motion for a temporary restraining order (TRO). ECF 3.1 Minnesota soon joined, alleging similar harms. See ECF 18. On February 3, the District Court entered a TRO barring enforcement of several sections of the Executive Order. ECF 52.
The next day, Defendants filed an emergency motion in this Court for an administrative stay and a motion for stay pending appeal. 9th ECF 14. A three judge panel of this Court denied Defendants’ request for an immediate administrative stay. 9th ECF 15. Two days later, the panel issued a per curiam order denying the motion, Washington v. Trump, No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017). In doing so, it characterized the District Court’s February 3 order as an order “possess[ing] the qualities of an appealable preliminary injunction.” Id. at *3. The panel also set an expedited briefing schedule for the appeal. 9th ECF 135. On February 10, following a sua sponte request that an en banc vote be taken, the Chief Judge of this Court ordered the parties to submit simultaneous briefs on whether the Order Denying Stay should be reconsidered en banc. 9th ECF 139.
Following the panel’s ruling on the emergency stay motion, the Defendants asked the District Court to postpone any further proceedings pending action from
1 All ECF citations are to the District Court docket, No. 2:17-cv-00141-JLR (W.D. Wash.), unless otherwise indicated.
2

the Ninth Circuit. ECF 76. The District Court concluded that there was no basis to postpone the litigation and issued an initial scheduling order. ECF 78, 87.
On February 16, the parties filed briefing in this Court regarding rehearing en banc. 9th ECF 153, 154. Defendants asserted that “the President intends in the near future to rescind the [Executive] Order and replace it with a new, substantially revised Executive Order . . . .” 9th ECF 154, at 4. They argued that “the most appropriate course would be for the Court to hold its consideration of the case until the President issues the new Order[.]” 9th ECF 154, at 4. Relying on Defendants’ representations, this Court entered an order staying en banc proceedings. 9th ECF 161.
On February 24, Defendants filed a motion to hold proceedings on appeal in abeyance. 9th ECF 178. Defendants’ opening brief on the appeal of the District Court’s February 3 Order is currently due on March 3. 9th ECF 178. The President has not rescinded the Executive Order and has not issued a new Executive Order.
ARGUMENT Given the President’s stated intention to pursue the appeal of the preliminary injunction, there is no justification for the extraordinary request that proceedings be “held in abeyance.”2
2 Defendants do not cite any court rules or other authority to support their request that proceedings be indeterminately stayed.
3

Throughout these proceedings, there appears to have been a lack of communication between the Department of Justice and the White House. On February 16, Defendants filed a supplemental brief on en banc consideration, representing that “[r]ather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order . . . .” 9th ECF 154, at 4. In response, the Court immediately issued an order staying further en banc proceedings. 9th ECF 161.
Yet on the same day—February 16—President Trump directly contradicted the representations made to this Court. During a news conference, the President informed the nation that he is pursuing his appeal in the Ninth Circuit.3 He explained that: “We’re issuing a new executive action next week that will comprehensively protect our country. So we’ll be going along the one path and hopefully winning that, at the same time we will be issuing a new and very comprehensive order to protect our people.” Id. at note 3.
President Trump’s intent to pursue the present litigation—rather than rescind the Order—was confirmed as recently as yesterday. During the White House press briefing, Press Secretary Sean Spicer stated that the President will continue to pursue the case in the Ninth Circuit, rather than withdrawing the Executive Order.
3 Presidential News Conference (Feb. 16, 2017), transcript and video is available at https://www.nytimes.com/2017/02/16/us/politics/donald-trump-pressconference-transcript.html?_r=0.
4

Q: Sean, thank you very much. . . . I wanted to go back to the executive order on immigration. You’ve talked about these dual-tracks, where you’re going to be doing the new executive order but also continuing to fight that in court. Can you give us a status update on where that legal fight is and what we should see happening?
MR. SPICER: So with respect to the executive order, there are several courts that this is being fought in—10 or so—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 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 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 come and the other venues and the others—that we feel equally confident, as we did in Massachusetts and other venues. So it’s not a single-track system.
. . .
Q: Have you made a decision yet about the Supreme Court taking it there? And then the other question was on the safe zones and the timeline.
MR. SPICER: So with respect to the Supreme Court, I mean, we’ve got to continue to work this through the process. So right now it’s at the 9th Circuit. That’s the primary problem that we are addressing. And then we don’t have any timeline that I can announce today on Syrian safe zones.
White House Press Briefing (Feb. 23, 2017)4.
Mr. Spicer’s comments yesterday were consistent with statements made by
the White House throughout this week. On Tuesday, Mr. Spicer explained that the

4

https://www.whitehouse.gov/the-press-office/2017/02/23/press-brie

fing-press-secretary-sean-spicer-2232017-15.

5

President has “made very clear” that there will be a “dual-track system” and is “confident that we’re still going to prevail on the case—the merits of the case.” White House Press Briefing (Feb. 21, 2017).5 This was repeated during Wednesday’s White House press briefing. Mr. Spicer explained that the President is “fighting this on both fronts, making sure that we keep evolving through the court system on the existing EO,” while drafting an additional executive order. White House Press Briefing (Feb. 22, 2017).6
Notably, the Defendants’ Motion to Hold Proceedings in Abeyance does not make any new representations about whether or when the President intends to rescind the Executive Order. Because the White House has repeatedly stated that the Executive Order will not be rescinded, briefing on the merits of the preliminary injunction should proceed. If the Court determines that en banc review of the decision rejecting the motion for stay is appropriate, it will not impact the legal arguments as the challenge to the merits of the preliminary injunction proceeds.
As in the district court, the Defendants’ request that the case be stalled indefinitely should be denied. There is no basis for altering the Court of Appeals’ briefing schedule.

5

https://www.whitehouse.gov/the-press-office/2017/02/21/press-brie

fing-press-secretary-sean-spicer-2212017-13.

6

https://www.whitehouse.gov/the-press-office/2017/02/22/press-brie

fing-press-secretary-sean-spicer-2222017-14.

6

CONCLUSION The States respectfully request that the motion to hold the proceedings in abeyance be denied.

RESPECTFULLY SUBMITTED this 24th day of February 2017.

ROBERT W. FERGUSON Attorney General
NOAH G. PURCELL, WSBA 43492 Solicitor General
s/Anne E. Egeler
ANNE E. EGELER, WSBA 20258 Deputy Solicitor General
COLLEEN M. MELODY, WSBA 42275 Civil Rights Unit Chief Washington State
Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744

LORI SWANSON Attorney General of Minnesota
ALAN I. GILBERT, MN #0034678 Solicitor General
JACOB CAMPION, MN #0391274 Assistant Attorney General
Office of the Attorney General 445 Minnesota Street, Suite 1100 St. Paul, MN 55101 (651) 757-1450

7

 
 Case 2:17-cv-00141-JLR Document 94 Filed 02/22/17 Page 1 of 11

The Honorable James L. Robart 1

2

3

4

5

6

7

8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE WESTERN DISTRICT OF WASHINGTON

11 STATE OF WASHINGTON, et al.,
12 Plaintiffs,
13

CIVIL ACTION NO. 2:17-cv-00141-JLR

14

v.

15 DONALD J. TRUMP, et al.,

16

Defendants.

17 STATE OF OREGON,
18 Intervenor-Plaintiff

STATE OF OREGON'S MOTION TO INTERVENE

19 v.

NOTE ON MOTION CALENDAR:

20

March 17, 2017

DONALD TRUMP, in his official capacity as

21 President of the United States; U.S. DEPARTMENT OF HOMELAND

22 SECURITY; JOHN F. KELLY, in his official capacity as Secretary of the Department of

23 Homeland Security; REX TILLERSON, in his official capacity as Secretary of State; and the

24 UNITED STATES OF AMERICA,

25

Intervenor-Defendants

26

STATE OF OREGON'S MOTION TO INTERVENE (2:17-cv-00141-JLR)

SK/rh2/8069134-v1

PAGE - 1

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 2:17-cv-00141-JLR Document 94 Filed 02/22/17 Page 2 of 11

1

I. MOTION

2

Pursuant to Fed. R. Civ. P. 24, the State of Oregon moves to intervene as of right. Fed. R.

3 Civ. P. 24(a)(2). In the alternative, the State of Oregon moves for permissive intervention.

4 Fed. R. Civ. P. 24(b)(1)(B). This motion is based on the declarations of Tobias Read, Howard N.

5 Kenyon, Janet Billups, Richard Birkel, David G. Ellis, Margaret Everett, Dennis Galvan, Lee Po

6 Cha, Ronald L. Adams, and Marc Overbeck, the pleadings and papers on file herein, and the

7 accompanying points and authorities. The State of Oregon’s proposed Complaint-in-Intervention

8 is attached hereto as Exhibit 1.

9

II. INTRODUCTION

10

On January 27, 2017, after campaigning on a promise to impose “a total and complete

11 shutdown of Muslims entering the United States” (Dkt. #18, ¶¶ 42-43), President Donald J.

12 Trump signed Executive Order No. 13769, which he titled, “Protecting the Nation from Foreign

13 Terrorist Entry into the United States” (the “Executive Order”). (Dkt. #18, ¶ 49). The State of

14 Washington filed suit in this Court on January 30 (Dkt. #1, 3), soon joined by the State of

15 Minnesota, to enjoin enforcement of certain portions of the Executive Order. (Dkt. #18, 19). In

16 particular, Washington and Minnesota allege that the Executive Order is motivated by a

17 discriminatory animus toward Muslims, violates a host of federal constitutional protections, and

18 runs afoul of several federal statutes. They further allege that the Executive Order harms their

19 state interests and the interests of their residents.

20

Oregon is both similarly and uniquely harmed. The Executive Order has caused—and

21 threatens to further cause—harm to Oregon and its residents, employers, agencies, educational

22 institutions, healthcare system, and economy. Moreover, the Executive Order forces Oregon to

23 violate its own laws against discrimination, frustrating Oregon’s sovereign interest in providing a

24 welcoming home to people from all over the world. In order to vindicate its rights and to protect

25 its unique interests, and because no party would be prejudiced by Oregon’s participation in this

26 matter, Oregon now seeks to intervene.

STATE OF OREGON'S MOTION TO INTERVENE (2:17-cv-00141-JLR)

SK/rh2/8069134-v1

PAGE - 2

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 2:17-cv-00141-JLR Document 94 Filed 02/22/17 Page 3 of 11

1

III. STATEMENT OF FACTS

2

The procedural and substantive facts underlying this litigation are familiar to this Court

3 and were recently set forth at length by published order of the Ninth Circuit Court of Appeals.

4 See Washington v. Trump, No. 17-35105, 2017 WL 526497, at *1–*2 (9th Cir. Feb. 9, 2017)

5 (recounting facts). In the interests of judicial efficiency and economy, Oregon does not recount

6 that history in detail here. Any additional facts relevant to Oregon’s claims are set forth below, as

7 appropriate.

8

IV. ARGUMENT

9

“Intervention is governed by Fed. R. Civ. Proc. 24(a) and (b).” In re Estate of

10 Ferdinand E. Marcos Hum. Rts. Litig., 536 F.3d 980, 984 (9th Cir. 2008). Here, Oregon is

11 entitled to intervene as of right under Rule 24(a)(2). In the alternative, this court should permit

12 Oregon to intervene under Rule 24(b)(1)(B).

13 A. Oregon has a Right to Intervene Under Federal Rule of Civil Procedure 24(a)(2).

14

Oregon has a right to intervene under Fed. R. Civ. P. 24(a)(2). That rule provides, in

15 pertinent part:

16

On timely motion, the court must permit anyone to intervene who: . . . (2) claims

an interest relating to the property or transaction that is the subject of the action,

17

and is so situated that disposing of the action may as a practical matter impair or

impede the movant’s ability to protect its interest, unless existing parties

18

adequately represent that interest.

19 Fed. R. Civ. P. 24(a)(2).

20

This Court examines four factors to determine whether an applicant should be permitted

21 to intervene as a matter of right under Rule 24(a)(2): (1) the motion must be timely; (2) the

22 applicant must have a “significantly protectable interest” relating to the property or transaction

23 which is the subject of the action; (3) the applicant must be so situated that the disposition of the

24 action may impair or impede the applicant’s ability to protect that interest; and (4) the applicant’s

25 interest must be inadequately represented by the parties to the action. Arakaki v. Cayetano,

26

STATE OF OREGON'S MOTION TO INTERVENE (2:17-cv-00141-JLR)

SK/rh2/8069134-v1

PAGE - 3

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 2:17-cv-00141-JLR Document 94 Filed 02/22/17 Page 4 of 11

1 324 F.3d 1078, 1083 (9th Cir. 2003) (citation omitted). Oregon’s motion satisfies each of these

2 factors.

3

1. Oregon’s motion is timely.

4

Oregon plainly meets the timeliness factor. To determine whether a motion to intervene is

5 timely, this Court considers (1) “the stage of the proceeding at which an applicant seeks to

6 intervene,” (2) “the prejudice to other parties,” and (3) “the reason for and length of the delay.”

7 United States v. Alisal Water Corp., 370 F3d 915, 921 (9th Cir. 2004). Here, as the Ninth Circuit

8 observed less than two weeks ago, this case is at a “very preliminary stage” of the proceedings.

9 See Washington, 2017 WL 526497, at *1. This case has not substantially progressed since that

10 time—for example, discovery has not commenced, nor has this Court held evidentiary

11 proceedings. In the absence of any such additional proceedings, defendants cannot plausibly

12 claim that intervention would result in any form of prejudice. Moreover, any delay in

13 intervention has been short and reasonably attributable to the need to gather evidence. Cf. Day v.

14 Apoliona, 505 F.3d 963, 965–66 (9th Cir. 2007) (finding motion timely when made two years

15 after case was filed); Smith v. Los Angeles Unified Sch. Dist., 830 F.3d 843, 854 (9th Cir. 2016)

16 (finding motion timely when made twenty years after case was filed). Accordingly, Oregon’s

17 motion is timely.

18

2. Oregon has a “significantly protectable interest” related to this case.

19

Oregon also meets the second factor, because it has a “significantly protectable interest”

20 related to this case. See Arakaki, 324 F.3d at 1083 (stating requirement). A significantly

21 protectable interest exists where “the interest is protectable under some law, and . . . there is a

22 relationship between the legally protected interest and the claims at issue.” Id. at 1084 (quotation

23 marks and citation omitted). The “relationship” requirement is generally met where the

24 “resolution of the plaintiff's claims actually will affect the applicant.” Id. (quotation marks and

25

26

STATE OF OREGON'S MOTION TO INTERVENE (2:17-cv-00141-JLR)

SK/rh2/8069134-v1

PAGE - 4

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 2:17-cv-00141-JLR Document 94 Filed 02/22/17 Page 5 of 11

1 citation omitted). Here, Oregon holds a number of legally protected interests that actually will 2 be affected by the resolution of this litigation.1

3

Effect on Oregon’s Finances

4

First, Oregon’s own finances will suffer if the unlawful immigration ban is enforced. Of

5 Oregon’s $92 billion investment portfolio, more than 19 million shares are held in technology

6 companies who have expressed alarm at the likely impacts of the Executive Order on their

7 businesses. (See Declaration of Tobias Read, ¶¶ 6-12). Additionally, because Oregon

8 companies employ immigrants, refugees, and others who would be affected by the ban in more

9 indirect ways (such as spouses of immigrants), threats to Oregon’s companies will result in

10 serious risks to Oregon’s financial investments, credit ratings, companies, and tax revenue. (See

11 Read Dec., ¶¶ 5-13.).

12

Effect on Oregon’s Educational Institutions

13

Second, the Executive Order harms Oregon’s educational institutions. Oregon has 7 state

14 universities, 17 community colleges, and at least 12 to 20 private colleges and universities.

15 Hundreds of students and professors at those universities and colleges are from one of the seven

16 countries covered by the Muslim travel ban. As a result, the work of those colleges is adversely

17 affected by the ban. For example, of the 3,016 international students currently studying at the

18 University of Oregon (“UO”), a public research university, 38 are citizens of the seven affected

19 countries, and are here on valid student visas. International students typically pay substantially

20 more than in-state students, providing more than $100 million in tuition each year, in total. That

21
22 1 “In general, an applicant for intervention need not establish Article III standing to intervene.” Perry v. Schwarzenegger, 630 F.3d 898, 906 (9th Cir. 2011) (per curiam); but see Laroe Estates,
23 Inc. v. Town of Chester, 828 F.3d 60, 65 (2d Cir. 2016), cert. granted sub nom. Town of Chester, N.Y. v. Laroe Estates, Inc., No. 16-605, 2017 WL 125674 (U.S. Jan. 13, 2017) (noting that “there
24 is a circuit split on this issue”). To the extent that Oregon is required to demonstrate Article III standing in order to intervene, it has standing for the same reasons that the Ninth Circuit
25 concluded that Washington and Minnesota have standing. See Washington, No. 17-35105, 2017 WL 526497, at *3–*5, *5 n 5 (concluding that the States had standing to challenge the harm to
26 their proprietary interests at a minimum).

STATE OF OREGON'S MOTION TO INTERVENE (2:17-cv-00141-JLR)

SK/rh2/8069134-v1

PAGE - 5

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 2:17-cv-00141-JLR Document 94 Filed 02/22/17 Page 6 of 11

1 tuition allows UO to subsidize Oregon students. (See Declaration of Dennis Galvan, ¶¶ 7-8).

2 The Executive Order damages UO’s funding, its ability to attract international students, and its

3 ability to retain faculty who may not be able to return to the United States after travel. (Id., ¶¶ 9-

4 17).

5

Similarly, Portland State University (“PSU”) has over 1900 international students, 59 of

6 whom are citizens of five of the countries affected by the Executive Order: Iran, Iraq, Yemen,

7 Libya and Syria. (Declaration of Margaret Everett, ¶ 7). PSU also relies on tuition from

8 international students, which constituted approximately 13 percent of its net tuition and fees for

9 2015-2016. (Id., ¶ 8). PSU admitted thirteen international students from the affected countries

10 for the Spring 2017 term. Their tuition revenue will be lost if they are unable to travel to

11 Oregon. (Id., ¶ 16). The Executive Order has also damaged research being conducted at PSU.

12 For example, a researcher who is an Iranian national was conducting research funded by a

13 university in Finland related to water resources engineering in collaboration with faculty in

14 PSU’s Maseeh College of Engineering and Computer Sciences. He returned to Finland over the

15 winter break and was scheduled to leave Europe to return to the United States on January 27,

16 2017. He was not allowed to board his flight, despite holding a valid J-1 visa. To date, the

17 visiting researcher has not returned to PSU and it is unclear at this time whether he will do so,

18 thereby harming this important research. (Id., ¶ 13).

19

Oregon State University (“OSU”) has 3,529 international students enrolled, comprising

20 more than 11 percent of its student body of 30,354 students. Approximately 165 current students

21 are citizens of the affected countries, studying in Oregon on student visas. As with other students

22 from outside Oregon, those 165 students typically pay full non-resident rates; OSU’s international

23 students represent approximately $85 million in annual gross tuition revenue to OSU. (See

24 Declaration of Ronald Adams, ¶¶ 5-8.) Those students, as well as the school’s international

25 scholars (faculty, post-doctoral students, and others) are all affected by the Executive Order in

26

STATE OF OREGON'S MOTION TO INTERVENE (2:17-cv-00141-JLR)

SK/rh2/8069134-v1

PAGE - 6

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 2:17-cv-00141-JLR Document 94 Filed 02/22/17 Page 7 of 11

1 ways that are affecting OSU’s resources and staff, and draining away time and resources that

2 otherwise would be spent on other community needs. (Id., ¶¶ 9-19.)

3

Oregon’s private colleges and universities are also affected by the Executive Order,

4 resulting in a loss of tax dollars, employment, and diversity that these students bring to the state.

5 For example, Lewis & Clark College in Portland, Oregon has approximately 200 international

6 students from six continents and more than 70 counties. (Declaration of David G. Ellis, ¶ 4.

7 Lewis & Clark has at least one student from the affected counties who cannot participate in the

8 college’s overseas study program. (Id., ¶ 5-6). Additionally, if the Executive Order takes effect,

9 it will harm the college’s efforts to recruit international students, causing not only a loss of tuition

10 revenue, but also harming Lewis & Clark’s efforts to foster a diverse and global student body.

11 (Id., ¶ 8)

12

Impact on Oregon’s Voluntary Organizations

13

Third, the Executive Order harms Oregon’s voluntary organizations (“VOLAGS”) that

14 work in the field of refugee resettlement. Since 2010, more than 8,500 refugees have arrived in

15 Oregon, with the majority resettling in Portland, and the numbers have steadily increased each 16 year. Three of the six most common refugee groups come from Iran, Iraq, and Somalia.2 Once

17 those refugees arrive in Oregon, the resettlement process is facilitated by VOLAGS. But if the

18 immigration ban is enforced, Oregon VOLAGS will lose federal funding for refugee resettlement

19 programs, which will force those organizations to lay off staff and reduce operations—resulting

20 in a loss of tax revenue to Oregon. (See generally Declaration of Howard N. Kenyon;

21 Declaration of Richard Birkel; Declaration of Lee Po Cha).

22

23

24
25 2 See Refugees in Oregon Data, Oregon Department of Human Services, available online at http://www.oregon.gov/DHS/ASSISTANCE/REFUGEE/Pages/data.aspx (last accessed Feb. 21,
26 2017).

STATE OF OREGON'S MOTION TO INTERVENE (2:17-cv-00141-JLR)

SK/rh2/8069134-v1

PAGE - 7

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 2:17-cv-00141-JLR Document 94 Filed 02/22/17 Page 8 of 11

1

Impact on Oregon’s Health Care System

2

Fourth, the Executive Order harms Oregon’s health care system. Six medical residents at

3 Oregon Health & Science University—a public academic medical center—are from the countries

4 affected by the Executive Order. Those residents perform critically needed medical care in a

5 variety of fields. If they were prevented from returning to the United States after a trip abroad,

6 or if they left the country due to the effects of the Executive Order, OHSU likely would not be

7 able to replace them. As a result, OHSU would lack the necessary work force to provide the

8 services currently provided by those Residents. The loss of even one Resident to a program

9 carries a very high risk of an adverse impact on OHSU’s ability to provide the patient care that

10 the State of Oregon and Oregonians need. (See Declaration of Janet Billups ¶¶ 3, 5, 7-9).

11

The Executive Order also threatens Oregon’s ability to attract and retain physicians to

12 practice in rural and underserved areas, though the J-1 visa program. (See Declaration of Marc

13 Overbeck, ¶¶ 3-6). Already, one physician from a country affected by the Executive Order who

14 had been willing to work in Florence, Oregon, an area affected by a physician shortage, has

15 indicated through his counsel that because of the Executive Order, he was unlikely to obtain a

16 visa. (Overbeck Dec., ¶ 4). Currently, J-1 visa physicians from Iran and Iraq are practicing in

17 underserved areas in Oregon. Without those J-1 visa physicians, Oregon patients will have to

18 either delay treatment or travel farther to obtain it, resulting in additional Oregon Health Plan and

19 Medicare Costs to the State. (See Overbeck Dec., ¶¶ 5-6.).

20

Impact on Oregon’s Sovereign Interests

21

Sixth, the Executive Order harms Oregon’s sovereign interest in enforcing its own laws.

22 Oregon has codified its state policy that practices of unlawful discrimination against any of its

23 inhabitants because of religion or national origin are “a matter of state concern,” and that such

24 discrimination “menaces the institutions and foundation of a free democratic state.” See Or. Rev.

25 Stat. § 659A.006(1). But the Executive Order gives effect to discriminatory policies and

26

STATE OF OREGON'S MOTION TO INTERVENE (2:17-cv-00141-JLR)

SK/rh2/8069134-v1

PAGE - 8

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 2:17-cv-00141-JLR Document 94 Filed 02/22/17 Page 9 of 11

1 practices that necessarily affect Oregon’s inhabitants, thereby frustrating Oregon’s ability to

2 effectuate its statutorily codified sovereign duty toward its residents.

3

In short, because the executive order harms Oregon’s finances, educational institutions,

4 voluntary organizations, health care system, and sovereign interests, Oregon has a significantly

5 protectable interest related to this case.

6

3. The disposition of this action may impair Oregon’s ability to protect its

interests. 7

8

Oregon also meets the third requirement, because the disposition of the action “may as a

9 practical matter” impair or impede Oregon’s ability to safeguard its protectable interests. See

10 Smith, 830 F.3d at 862; Arakaki, 324 F.3d at 1083. For the reasons discussed above, that test is

11 met here. A decision in favor of defendants would have far-reaching practical consequences for

12 Oregon’s ability to safeguard its protectable interests—both those that it shares with Washington

13 and Minnesota, and its unique interests arising under Oregon law. Therefore, Oregon meets the

14 third Rule 24(a)(2) factor.

15

4. Oregon’s interests are inadequately represented by the parties to the action.

16

Finally, Oregon’s interests are inadequately represented by the parties to this action. The

17 burden on a proposed intervenor to demonstrate inadequate representation is “minimal,” and is

18 satisfied by a showing that representation of its interests “may be” inadequate. Arakaki, 324 F.3d

19 at 1086 (quotation marks and citation omitted; emphasis added). Three factors are relevant to

20 that inquiry: “(1) whether the interest of a present party is such that it will undoubtedly make all

21 of a proposed intervenor’s arguments; (2) whether the present party is capable and willing to

22 make such arguments; and (3) whether a proposed intervenor would offer any necessary

23 elements to the proceeding that other parties would neglect.” Id. (citation omitted). Those

24 factors weigh in favor of intervention here.

25

Oregon has an interest separate from, and as critical as, the interest advanced by

26 Washington and Minnesota—Oregon’s statutorily codified sovereign interest in protecting its

STATE OF OREGON'S MOTION TO INTERVENE (2:17-cv-00141-JLR)

SK/rh2/8069134-v1

PAGE - 9

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 2:17-cv-00141-JLR Document 94 Filed 02/22/17 Page 10 of 11

1 residents from discrimination. See Or. Rev. Stat. § 659A.006(1). As noted above, this statute

2 provides that discrimination because of religion or national origin is “a matter of state concern,”

3 and that such discrimination “menaces the institutions and foundation of a free democratic state.”

4 Oregon seeks to protect this unique Oregon legislative policy in this case. The State of Oregon

5 also seeks to protect its state coffers and universities from damage, as well as its citizens and

6 organizations; the States of Washington and Minnesota are not in a position to speak to the

7 injuries suffered in Oregon.

8

If Washington and Minnesota prevail in this case, as they should, it is possible that this

9 Court may craft a more limited remedy, short of a nationwide injunction, that will not address the

10 harm to Oregon’s unique sovereign interests. Moreover, because it has no independent power to

11 regulate federal immigration law, Oregon has no independent recourse to remediate that harm.

12

In short, for all of the foregoing reasons, Oregon is entitled to intervene in this action as a

13 matter of right.

14 B. 15

Should the Court determine that Oregon does not have a right to intervene, it should grant permissive intervention under Rule 24(b).

16

In the alternative, this Court should exercise its discretion to grant Oregon permission to

17 intervene under Rule 24(b). That rule provides in pertinent part that, “On timely motion, the

18 court may permit anyone to intervene who . . . (B) has a claim or defense that shares with the

19 main action a common question of law or fact.” Blum v. Merrill Lynch Pierce Fenner & Smith

20 Inc., 712 F3d 1349, 1353 (9th Cir 2013) (quoting Fed. R. Civ. P. 24(b)(1)). Generally,

21 permissive intervention requires “(1) an independent ground for jurisdiction; (2) a timely motion;

22 and (3) a common question of law and fact between the movant’s claim or defense and the main

23 action.” Blum, 712 F3d at 1353 (quotation marks and citation omitted). In determining whether

24 to exercise its discretion to grant permissive intervention, the Court considers “whether the

25 intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”

26 Fed. R. Civ. P. 24(b)(3). Oregon meets the requirements for permissive intervention here.

STATE OF OREGON'S MOTION TO INTERVENE (2:17-cv-00141-JLR)

SK/rh2/8069134-v1

PAGE - 10

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 2:17-cv-00141-JLR Document 94 Filed 02/22/17 Page 11 of 11

1

First, jurisdiction is easily established, because this is a federal-question case. See

2 Freedom from Religion Found., Inc. v. Geithner, 644 F3d 836, 844 (9th Cir 2011) (explaining

3 that jurisdictional requirement of permissive intervention satisfied where case presented federal

4 question). See also 28 U.S.C. §1331 (“The district courts shall have original jurisdiction of all

5 civil actions arising under the Constitution, laws, or treaties of the United States.”). Second,

6 Oregon’s motion is timely, as explained above. Third, also for the reasons described above, this

7 case squarely presents a common question of law and fact between Oregon’s claims and the

8 main action. Finally, defendants will suffer no conceivable prejudice, at this very early stage in

9 the proceedings, due to intervention by Oregon. Allowing Oregon to intervene will aid the Court

10 to better assess the effects and lawfulness of the Executive Order. For all of those reasons, this

11 Court should, in the alternative, exercise its discretion to allow Oregon to intervene.

12

IV. CONCLUSION

13

Oregon’s motion should be granted and it should be given leave to file its Complaint-in-

14 Intervention, attached hereto as Exhibit 1.

15

16

DATED February 22 , 2017.

17

Respectfully submitted,

18

ELLEN F. ROSENBLUM

Attorney General 19

20

s/ Scott Kaplan

21

SCOTT J. KAPLAN, WSBA #49377

Senior Assistant Attorney General

22

Oregon Department of Justice

100 SW Market Street

23

Portland, OR 97201

(971) 673-1880

24

Email: scott.kaplan@doj.state.or.us

Of Attorneys for Intervenor-Plaintiff 25

26

STATE OF OREGON'S MOTION TO INTERVENE (2:17-cv-00141-JLR)

SK/rh2/8069134-v1

PAGE - 11

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 1 of 20

1 ELLEN F. ROSENBLUM Attorney General
2 SCOTT J. KAPLAN, WSBA #49377 Senior Assistant Attorney General
3 Oregon Department of Justice 100 Market Street
4 Portland, OR 97201 971-673-1880
5 Email: scott.kaplan@doj.state.or.us

The Honorable James L. Robart

6 Attorneys for Intervenor-Plaintiff

7

8

9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE WESTERN DISTRICT OF WASHINGTON
11

12 STATE OF WASHINGTON, et al.,

CIVIL ACTION NO. 2:17-cv-00141-JLR

13

Plaintiffs,

14

v.

15 DONALD J. TRUMP, et al.,

16

Defendants.

17

18 STATE OF OREGON,

19

Intervenor-Plaintiff

20

v.

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF

21

DONALD TRUMP, in his official capacity as President of the United States; U.S.

22

DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official

23

capacity as Secretary of the Department of Homeland Security; REX TILLERSON, in his

24

official capacity as Secretary of State; and the UNITED STATES OF AMERICA,

25

Intervenor-Defendants

26

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 1
Exhibit 1 to State of Oregon's Motion to Intervene, Page 1 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 2 of 20

1

INTRODUCTION

2

1. The State of Oregon (“Oregon”) joins this action in order to protect its residents,

3 its employers, its agencies, its educational institutions, and its state constitution and laws against

4 an Executive Order that harms the State of Oregon, its economy, its institutions, its families, its

5 laws, and its sovereign interest in serving as a welcoming home to people from all over the

6 world.

7

2. On January 27, 2017, defendant Donald Trump signed Executive Order

8 No. 13769 (“the Executive Order”), which he titled “Protecting the Nation from Foreign

9 Terrorist Entry into the United States.” Defendant Trump has stated that the Executive Order

10 will be amended to respond to this Court’s rulings and those of the Ninth Circuit, but has not yet

11 done so, nor indicated that the damage done to Oregon by the Executive Order to Oregon will be

12 remedied.

13

3. The Executive Order denies entry into the United States to, among others,

14 individuals from Iran, Iraq, Syria, Sudan, Libya, Yemen, and Somalia who are refugees or legal

15 permanent residents or who were issued valid student, work, or spousal visas (e.g., B-1, B- 2,

16 H-1B, L-1, O, F-1, F-2, J-1, J-2) entitling them to be in the United States.

17

4. The Executive Order is neither designed nor intended to “protect the nation,” but

18 is rather a step in implementing the “total and complete shutdown of Muslims entering the

19 United States” that defendant Trump promised in his presidential campaign.

20

5. Banning the entry of Oregonians and others from the seven Muslim-majority

21 countries named in the Order is a violation of the United States Constitution and unlawful under

22 federal statute, and it subjects the State of Oregon, its interest, residents, and laws to irreparable

23 harm.

24

JURISDICTION AND VENUE

25

6. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1346, 1361. This Court has

26 remedial authority under 28 U.S.C. § 2201 et seq.

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 2
Exhibit 1 to State of Oregon's Motion to Intervene, Page 2 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 3 of 20

1

7. Venue is proper in this District under 28 U.S.C. §§ 1391(b)(2) and 1391(e)(1)(B).

2

8. Oregon intervenes in this action pursuant to Fed R. Civ. P. 24(a) and 24(b).

3

PARTIES

4

Plaintiff-in-Intervention State of Oregon

5

9. Petitioner-Intervenor is the State of Oregon.

6

10. The Governor is the chief executive officer of the State of Oregon. The Governor

7 is responsible for overseeing the operations of the State of Oregon and ensuring that its laws are

8 faithfully executed.

9

11. The Attorney General is the chief legal adviser to the State of Oregon. The

10 Attorney General’s powers and duties include acting in federal court on matters of public

11 concern.

12

12. Oregon has codified its state policy that practices of unlawful discrimination

13 against any of its inhabitants because of religion or national origin are “a matter of state

14 concern,” and that such discrimination “menaces the institutions and foundation of a free

15 democratic state.” See ORS § 659A.006.

16

Defendants

17

13. Defendant Donald Trump is the President of the United States, and issued the

18 January 27, 2017, Executive Order on which Defendants rely for authority to detain, remove, or

19 refuse admission to non-citizen immigrants from Iran, Iraq, Syria, Somalia, Sudan, Libya, and

20 Yemen who are traveling or returning to the States via air, land, and sea ports across the United

21 States, including Portland International Airport. He is sued in his official capacity.

22

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

23 agency responsible for implementing and enforcing the Immigration and Nationality Act

24 (“INA”). DHS is a Department of the Executive Branch of the U.S. Government, and is an

25 agency within the meaning of 5 U.S.C. § 552(f). The U.S. Customs and Border Protection is an

26 Operational and Support Component agency within DHS. The U.S. Customs and Border

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 3
Exhibit 1 to State of Oregon's Motion to Intervene, Page 3 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 4 of 20

1 Protection is responsible for detaining and/or removing non-citizen immigrants from Iran, Iraq,

2 Syria, Somalia, Sudan, Libya, and Yemen arriving at air, land, and sea ports across the United

3 States, including Portland International Airport.

4

15. Defendant John F. Kelly is the Secretary of the Department of Homeland

5 Security. He is responsible for implementing and enforcing the INA, and oversees the U.S.

6 Customs and Border Protection. He is sued in his official capacity.

7

16. Defendant Rex Tillerson is the Secretary of State. The Secretary of State has

8 authority to determine and implement certain visa procedures for non-citizens. He is sued in his

9 official capacity.

10

17. Defendant the United States of America includes all government agencies and

11 departments responsible for the implementation of the INA and responsible for the admission,

12 detention, removal of non-citizen immigrants from Iran, Iraq, Syria, Somalia, Sudan, Libya, and

13 Yemen who are traveling to or returning to the States via air, land, and sea ports across the

14 United States, including Portland International Airport.

15

GENERAL ALLEGATIONS

16 A. 17

The Executive Order 18. As a candidate for office, defendant Trump called for “a total and complete

18 shutdown of Muslims entering the United States,” claiming baselessly that “there is great hatred

19 towards Americans by large segments of the Muslim population.” His statement continued,

20 “Until we are able to determine and understand this problem and the dangerous threat it poses,

21 our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and

22 have no sense of reason or respect for human life.” (See Amended Complaint for Declaratory and

23 Injunctive Relief filed by State of Washington, Exhibit 1, ECF No. 18.)

24

19. On June 14, 2016, candidate Trump reiterated his promise to ban all Muslims

25 entering this country until “we as a nation are in a position to properly and perfectly screen those

26 people coming into our country.” (See id., Ex. 3.)

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 4
Exhibit 1 to State of Oregon's Motion to Intervene, Page 4 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 5 of 20

1

20. As President, defendant Trump signed the Executive Order. The stated purpose of

2 the Executive Order, signed on January 27, 2017, is to ensure that the United States is “vigilant

3 during the visa-issuance process to ensure that those approved for admission do not intend to

4 harm Americans and that they have no ties to terrorism.”

5

21. The Executive Order asserts, “Numerous foreign-born individuals have been

6 convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign

7 nationals who entered the United States after receiving visitor, student, or employment visas.”

8

22. Section 3(c) of the Executive Order bans individuals from seven countries, unless

9 they are a U.S. citizen or possess a diplomatic visa, North Atlantic Treaty Organization visa, C-2

10 visa for travel to the United Nations, or G-1, G-2, G-3, and G-4 visa.

11

23. Only Muslim-majority countries are included in the ban: Iraq, Iran, Syria, Libya,

12 Somalia, Yemen, and Sudan are majority-Muslim countries.

13

24. No person from Iraq, Iran, Syria, Libya, Somalia, Yemen, or Sudan in the United

14 States as a lawful permanent resident or under a work, student, or spousal visa has been

15 implicated in a terrorist plot in the United States since or before September 11, 2001. The

16 terrorist attacks that have occurred in the United States on or after September 11, 2001, have

17 been committed by extremists harboring a variety of ideologies, all of whom were from countries

18 not included in the ban, including the United States itself.

19 B. Impact of the Executive Order on and in Oregon

20

Generally—Impact on Oregon’s Economy

21

25. According to the American Community Survey data from the U.S. Census

22 Bureau, as of 2015, almost 7,000 Oregon residents were born in Iran, Iraq, Libya, Somalia,

23 Sudan, Syria, and Yemen. Almost 2,500 of those residents were not citizens of the United States

24 as of the date of the survey. As a result of the Executive Order, these Oregonians now cannot

25 leave the country to travel or visit their families without running a very real risk that they will not

26

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 5
Exhibit 1 to State of Oregon's Motion to Intervene, Page 5 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 6 of 20

1 be allowed to return home to Oregon, and cannot invite their families to visit without putting

2 their family members at risk of being turned away.

3

26. Oregon’s economy will suffer if the immigration ban is enforced. Oregon’s

4 investment portfolio totaled about $92 billion in 2016; and as of the third quarter of 2016,

5 Oregon held more than 19 million shares in technology companies who have expressed alarm at

6 the likely impacts of the executive order on their businesses.

7

27. Oregon’s companies employ immigrants, refugees, and others who would be

8 affected by the ban in more indirect ways (spouses of immigrants, for example). Threats to

9 Oregon’s companies will, as a result, result in serious risks to Oregon’s financial investments, its

10 credit rating, its companies, and its tax revenue from those companies and their employees. This

11 will impede the state’s economic health and will expose individuals who invest in Oregon-

12 facilitated funds to unnecessary and avoidable risk.

13

28. Portland International Airport, located in Portland, Oregon, served over 670,000

14 international travelers in 2016. It has been estimated that international travelers from just one

15 major airline contributes over $172 million in business revenue to Oregon. The Executive Order

16 by interfering with international travel and deterring international travelers from coming to the

17 United States causing significant economic injury to Oregon.

18

Effect on Oregon of the Ban on Refugee Resettlement

19

29. A ban on refugee resettlement would be harmful not only to the refugees and their

20 families, but also to the State of Oregon. Oregon is the home to many refugees. Since 2010,

21 more than 8,500 refugees have arrived in Oregon, with the majority resettling in Portland, and

22 the numbers have steadily increased from year to year. Three of the six most common refugee

23 groups come from Iran, Iraq, and Somalia.

24

30. After a refugee is granted legal status and permission to enter the U.S., state

25 agencies and community organizations handle the “resettlement and acculturation process.”

26 Voluntary organizations (VOLAGS) do the initial resettlement, such as assisting with acquisition

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 6
Exhibit 1 to State of Oregon's Motion to Intervene, Page 6 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 7 of 20

1 of housing and basic necessities. The VOLAGS have 90 days to accomplish this resettlement

2 process. The Federal Office of Refugee Resettlement provides up to eight months of cash and

3 medical assistance. Those federal funds are administered through the Oregon Department of

4 Human Services.

5

31. Ecumenical Ministries of Oregon (“Ecumenical Ministries”) assists

6 approximately 600 refugees each year, many of whom are reuniting with family members

7 already living in Oregon. That organization employs 12 people in Oregon who assist with

8 refugee resettlement in Oregon, and will have to terminate all of them if refugees are no longer

9 permitted to enter the United States, and may not be able to ever re-hire them. The State of

10 Oregon will accordingly lose the income taxes that were paid as a result of those jobs existing in

11 Oregon.

12

32. Ecumenical Ministries receives approximately $75,000 per year in government

13 funding for refugee resettlement. If the ban were enforced and remained in place, the

14 organization would lose that funding, which could lead to staffing reductions in other parts of the

15 organization. Those job losses would also necessarily result in a loss of tax revenue to the State.

16

33. Catholic Charities of Oregon (“Catholic Charities”) has operated a refugee

17 resettlement program for more than 60 years, successfully resettling thousands of refugees in

18 Oregon. A 120-day suspension of the refugee program would result in an immediate loss of

19 about $200,000 in revenue from the U.S. Department of State, and would put another $110,000

20 in funding at risk. Another $126,000 would be placed at risk if no new refugees were permitted

21 to enter during that 120-day period.

22

34. Catholic Charities is not planning to fill any vacancies in its refugee resettlement

23 program and is already considering reducing its workforce by almost half. If the ban were to last

24 longer than 120 days, Catholic Charities would be forced to consider eliminating the remainder

25 of its staff. It is already pulling back from its plan to operate a resettlement office in Salem. The

26

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 7
Exhibit 1 to State of Oregon's Motion to Intervene, Page 7 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 8 of 20

1 layoffs and reduction in active offices will result in a loss of tax revenue from the eliminated

2 positions, as well as an economic impact from the money that will not be spent in Oregon.

3

35. Immigrant and Refugee Community Organization (IRCO), a community-based

4 organization in Portland, has a mission of promoting the integration of refugees and immigrants

5 into the community at large. It works closely with the State of Oregon in assisting with refugee

6 resettlement.

7

36. A substantial number of IRCO’s clients come from the countries subject to the

8 Executive Order. IRCO has already experienced a 50 percent drop in the number of refugee

9 arrivals seeking services. If the ban is given effect, IRCO may be forced to reduce services and

10 lay off Oregon employees. The layoffs will have an adverse effect on the State by reducing

11 income taxes and other spending as a result of those jobs no longer existing.

12

Effect on Oregon’s Institutions of Higher Education

13

37. Oregon’s public and private colleges and universities would also be damaged, and

14 already have been damaged, by the immigration ban in the Executive Order. Oregon has seven

15 state universities and 17 community colleges, along with approximate 12-20 private colleges and

16 universities. Hundreds of students/professors at those universities and colleges are from one of

17 the seven countries covered by the Muslim travel ban. As a result, the work of those colleges is

18 adversely affected by this ban.

19

38. Oregon’s 13,360 foreign students contributed $439.1 million to the state’s

20 economy in tuition, fees, and living expenses for the 2013-2014 academic year, according to

21 NAFSA: Association of International Educators. The students’ families contributed another $5.2

22 million. Foreign students and their spouses were calculated to have created 5,256 jobs in

23 Oregon, as of the date of the NAFSA report.

24

39. The Executive Order directly harms Oregon colleges and universities that will not

25 be able to attract students or professors who would enrich their campuses and advance their

26 educational mission. Foreign-born faculty teaching at Oregon colleges and universities under a

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 8
Exhibit 1 to State of Oregon's Motion to Intervene, Page 8 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 9 of 20

1 valid visa typically have specialized expertise that cannot be easily replaced. Students studying

2 under a valid visa offer perspectives and experiences that cannot be replicated in their absence.

3

40. The University of Oregon (UO) is a public research university with an enrollment

4 of more than 23,000 students, of whom more than 3,000 are from countries other than the United

5 States. Additionally, the school has 205 visiting international scholars and approximately 120

6 faculty members from other countries.

7

41. Of the 3,016 international students at the UO, 38 are citizens of the seven affected

8 countries and are here on valid student visas. International students typically pay substantially

9 more than in-state students; those students pay more than $100 million in tuition each year, in

10 total. This tuition allows UO to subsidize Oregon students, who pay about three times less than

11 international students.

12

42. The Executive Order would damage UO’s funding, its ability to attract an

13 international student undergraduate and graduate body, and its ability to retain faculty who may

14 not be able to return to the United States after travel, or who may find that their area of study has

15 suffered as a result of the ban. Even students from outside the seven immediately affected

16 countries have expressed a loss of enthusiasm for the prospect of studying in the United States.

17 UO’s Admissions Department has already seen a 15 percent decrease in applications from

18 international students.

19

43. UO’s professors are also forced to weigh the benefit of academic travel against

20 the risk of not being permitted to return home, and the University itself is facing the likely loss of

21 participants in two international conferences already scheduled for UO campuses, because

22 attendees and international schools are hesitant to schedule travel to the United States.

23

44. Portland State University (“PSU”), a public research university, has an enrollment

24 of about 25,000 students, of whom 1,929 are foreign nationals studying at PSU. Of those 1,929

25 students, 59 are citizens of the seven affected countries, and all are attending school on valid

26 student visas

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 9
Exhibit 1 to State of Oregon's Motion to Intervene, Page 9 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 10 of 20

1

45. The 59 students from the seven affected countries at PSU are all paying tuition

2 and fees that are significantly higher than in-state resident tuition and fees. Approximately $33

3 million of PSU’s tuition and fee revenue in academic year 2015-16 was derived from

4 international students.

5

46. The Executive Order is having an adverse impact on PSU’s 59 students from the

6 affected countries, who cannot travel without the risk of being forbidden to return; a visiting

7 researcher who traveled to Finland over the winter break and was prevented from returning and

8 continuing his research; and a recent graduate who are unable to return to PSU to present his

9 research at PSU with his graduate advisor. The presentation will likely occur outside the country

10 now, which requires PSU to bear the cost of having the research presented in another country.

11

47. PSU’s ability to attract international students, and its ability to create a

12 community in which its students may build positive and lasting ties with foreign students, have

13 been damaged by the Executive Order.

14

48. Oregon State University (OSU) has 3,529 international students enrolled,

15 comprising more than 11 percent of its student body of 30,354 students. Approximately 165

16 current students are citizens of the affected countries, studying in Oregon on student visas. As

17 with other students from outside Oregon, those 165 students typically pay full non-resident rates;

18 OSU’s international students represent approximately $85 million in annual gross tuition revenue

19 to OSU. Those students, as well as the school’s international scholars (faculty, post-doctoral

20 students, and others) are all affected by the Executive Order in ways that are affecting OSU’s

21 resources and staff, and draining away time and resources that otherwise would be spent on other

22 community needs.

23

49. Lewis & Clark College, a private institution in Portland composed of three

24 schools (undergraduate, law school, and a graduate school of education and counseling) has

25 more than 200 international students from six continents enrolled currently. At least one of those

26 students is from a country subject to the ban in the Executive Order, and cannot participate in a

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 10
Exhibit 1 to State of Oregon's Motion to Intervene, Page 10 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 11 of 20

1 planned overseas study program, because that student can no longer expect to be allowed to

2 return to the United States.

3

50. By interfering with the ability of students to travel and re-enter the United States

4 on student visas, the Executive Order disrupts the operation of Lewis & Clark’s programs and

5 services, and it damages the college’s ability to foster diversity and inclusion in its students’

6 lives. It also harms the college’s ability to attract and retain students from the countries subject

7 to the immigration ban, and is likely to have a chilling effect on Lewis & Clark’s ability to

8 recruit international students, causing both fiscal harm (loss of tuition) and harming the college’s

9 ability to foster a diverse and global student body.

10

Effect on Health Care in Oregon

11

51. Oregon Health & Sciences University (“OHSU”), a public academic medical

12 center, has at least 15 individuals from the seven affected countries at its campus: six students,

13 two post-doctoral fellows, one professor, and six medical Residents. The school is expecting two

14 more post-doctoral fellows from Iran.

15

52. Additionally, six medical Residents at OHSU are from the countries affected by

16 the Executive Order. Those residents are performing critically needed medical care in the fields

17 of surgery, pathology, and cardiology; if they were prevented from returning to the United States

18 after a trip abroad, or if they left the country due to the effects of the Executive Order, OHSU

19 likely would not be able to replace them. OHSU would as a result lack the necessary work force

20 to provide the services currently provided by those Residents, if it were to lose them. The loss of

21 even one Resident to a program carries a very high risk of an adverse impact on OHSU’s ability

22 to provide the patient care that the State of Oregon and Oregonians need.

23

53. Oregon’s health care system will suffer additional injury as a result of the

24 Executive Order even outside of the impact on OHSU’s medical Residents. Particularly in rural

25 and underserved areas, Oregon is dependent on international medical graduates who have been

26 given a J-1 Visa to complete a medical residency or fellowship in the United States (“J-1 Visa

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 11
Exhibit 1 to State of Oregon's Motion to Intervene, Page 11 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 12 of 20

1 physicians”). A stipulation of the J-1 Visa is that, upon completion of training, the physicians

2 must return to their home country for two years. This requirement is “waived” for a physician

3 willing to work in a shortage area, in a position for which recruitment of a U.S. physician has

4 been unsuccessful. Oregon, like other states, has 30 J-1 slots per year, with up to 10 “flex” slots

5 available outside of designated Health Professional Shortage Areas, provided other program

6 requirements are met.

7

54. There is a great deal of competition to obtain physicians willing to work on the

8 J-1 program. In the past, Oregon has been unable to fill all of its available slots and the

9 Executive Order will make this even more difficult. Already, one physician from a country

10 affected by the Executive Order who had been willing to work in Florence, Oregon, an area

11 affected by a physician shortage, has indicated through his counsel that because of the Executive

12 Order, he was unlikely to obtain a visa.

13

55. Since 2002, approximately 320 J-1 visa physicians have practiced in Oregon,

14 including 16 physicians from the countries affected by the Executive Order. As required by the

15 visa, these physicians serve regions such as rural areas of southern and eastern Oregon that have

16 difficulty recruiting physicians domestically, particularly physicians who are willing to accept

17 the Oregon Health Plan or Medicare payment. Currently, physicians from Iran and Iraq are

18 practicing in underserved areas. Without J-1 visa physicians, Oregon patients will have to either

19 delay treatment or travel farther to obtain it, resulting in additional Oregon Health Plan and

20 Medicare costs to the State.

21

FIRST CLAIM FOR RELIEF

22

(Fifth Amendment – Equal Protection)

23

56. Oregon realleges and incorporates by reference the allegations in the preceding

24 paragraphs of the Complaint.

25

57. As alleged above, Oregon has codified its state policy that practices of unlawful

26 discrimination against any of its inhabitants because of religion or national origin are “a matter

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 12
Exhibit 1 to State of Oregon's Motion to Intervene, Page 12 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 13 of 20

1 of state concern,” and that such discrimination “menaces the institutions and foundation of a free

2 democratic state.” See ORS 659A.006.

3

58. The State’s interest in protecting the health, safety, and well-being of its residents,

4 including protecting its residents from harms to their physical or economic health as a result of

5 discrimination on the basis of their national origin, is a quasi-sovereign interest.

6

59. The Due Process Clause of the Fifth Amendment prohibits the federal

7 government from denying equal protection of the laws.

8

60. Sections 3 and 5 of the Executive Order, together with statements made by

9 Defendants concerning their intent and application, target Oregonians for discriminatory

10 treatment based on their country of origin and/or religion, without lawful justification.

11

61. The Executive Order was motivated by animus and a desire to harm a particular

12 group of individuals from seven countries, due solely to their national origin and their presumed

13 religion, and due to the “hatred” and “no sense of reason or respect for human life” attributed

14 baselessly to them by Defendant Trump.

15

62. The discriminatory terms and application of the Executive Order are arbitrary and

16 cannot be sufficiently justified by federal interests.

17

63. Through their actions above, Defendants have violated the equal protection

18 guarantee of the Fifth Amendment.

19

64. Defendants’ violation has caused and will continue to cause harm to Oregonians

20 and to the State of Oregon, deprived as it is of its residents’ full and free participation in the life

21 and economy of the State.

22

SECOND CLAIM FOR RELIEF

23

(First Amendment—Establishment Clause)

24

65. Oregon realleges and incorporates by reference the allegations set forth in the

25 preceding paragraphs

26

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 13
Exhibit 1 to State of Oregon's Motion to Intervene, Page 13 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 14 of 20

1

66. The Establishment Clause of the First Amendment prohibits the federal

2 government from officially preferring one religion over another, or preferring those who follow a

3 religion over those who do not follow any religion. These principles are also embodied in Art. 1,

4 secs. 2 through 6 of the Oregon Constitution.

5

67. Sections 3 and 5 of the Executive Order, together with statements made by

6 Defendants concerning their intent and application, are intended to disfavor Islam and favor

7 Christianity.

8

68. Section 5 of the Executive Order directs the Secretary of Homeland Security to

9 “to prioritize refugee claims made by individuals on the basis of religious-based persecution,

10 provided that the religion of the individual is a minority religion in the individual’s country of

11 nationality.” Each affected country is majority Muslim; this explicitly places members of other

12 religions ahead of Muslims. It also places members of minority religions above refugees who

13 do not follow any religion.

14

69. Through their actions above, Defendants have violated the Establishment Clause

15 of the First Amendment.

16

70. Defendants’ violation causes harm to the State of Oregon, by preventing non-

17 religious and Muslim immigrants from traveling to Oregon and contributing to the life and

18 economy of the State, to its colleges and universities, and to its businesses and tax revenues, as

19 refugees have done for years in Oregon.

20

THIRD CLAIM FOR RELIEF

21

Fifth Amendment—Procedural Due Process

22

71. Oregon realleges and incorporates by reference the allegations set forth in the

23 preceding paragraphs

24

72. The Due Process Clause of the Fifth Amendment prohibits the federal

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

26

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 14
Exhibit 1 to State of Oregon's Motion to Intervene, Page 14 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 15 of 20

1

73. Where Congress has granted statutory rights and authorized procedures applicable

2 to arriving and present non-citizens, minimum due process rights attach to those statutory rights.

3

74. Sections 3 and 5 of the Executive Order conflict with the statutory rights and

4 procedures directed by Congress. In issuing and implementing the Executive Order, Defendants

5 have violated the procedural due process guarantees of the Fifth Amendment.

6

75. Defendants’ violation causes ongoing harm to Oregon residents and to the State of

7 Oregon, by preventing people from traveling to Oregon and contributing to the life and economy

8 of the State, to its colleges and universities, to its businesses, and to the medical care that Oregon

9 provides for its rural and low-income citizens.

10

FOURTH CLAIM FOR RELIEF

11

(Immigration and Nationality Act —Discriminatory Visa Procedures)

12

76. Oregon realleges and incorporates by reference the allegations set forth in the

13 preceding paragraphs.

14

77. The Immigration and Nationality Act, 8 U.S.C. § 1152(a)(1)(A), prohibits

15 discrimination in the issuance of immigrant visas on the basis of race, nationality, place of birth,

16 or place of residence.

17

78. Sections 3 and 5 of the Executive Order, together with statements made by

18 Defendants concerning their intent and application, discriminate on the basis of race, nationality,

19 place of birth, and/or place of residence in the issuance of visas, in violation of the Immigration

20 and Nationality Act.

21

79. Defendants’ violation causes ongoing harm to Oregon residents and to the State of

22 Oregon, by preventing people from traveling to Oregon and contributing to the life and economy

23 of the State, to its colleges and universities, and to the medical care that Oregon provides for its

24 rural and low-income citizens.

25

26

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 15
Exhibit 1 to State of Oregon's Motion to Intervene, Page 15 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 16 of 20

1

FIFTH CAUSE OF ACTION

2

(Immigration and Nationality Act — Denial of Asylum and Withholding of Removal)

3

80. Oregon realleges and incorporates by reference the allegations set forth in the

4 preceding paragraphs.

5

81. The Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), entitles

6 certain non-citizens arriving at Oregon ports of entry to apply for asylum and withholding of

7 removal.

8

82. As implemented, the Executive Order suspends all immigrant and nonimmigrant

9 entry into Oregon by individuals from seven countries and forecloses their ability to apply for

10 asylum and withholding of removal.

11

83. Defendants’ violation causes ongoing harm to Oregon residents and to the State of

12 Oregon, by preventing people from traveling to Oregon and contributing to the life and economy

13 of the State, to its colleges and universities, to its businesses, and to the medical care that Oregon

14 provides for its rural and low-income citizens.

15

SIXTH CAUSE OF ACTION

16

(Foreign Affairs Reform and Restructuring Act —

17

Denial of Convention Against Torture Relief)

18

84. Oregon realleges and incorporates by reference the allegations set forth in the

19 preceding paragraphs.

20

85. The Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C. § 1231 note,

21 implements the United Nations Convention Against Torture, which the United States ratified in

22 1994. Pub. L. 105-277, div. G, subdiv. B, title XXII, § 2242. Under the Convention Against

23 Torture, the United States may not involuntarily return any person to a country where there are

24 substantial grounds for believing the person would be in danger of being subjected to torture.

25

26

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 16
Exhibit 1 to State of Oregon's Motion to Intervene, Page 16 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 17 of 20

1

86. As implemented, the Executive Order suspends all immigrant and nonimmigrant

2 entry into Oregon by individuals from seven countries and forecloses their ability to apply for

3 relief under the Convention Against Torture.

4

87. The Executive Order likewise precludes an individualized determination by the

5 Secretary of State as to whether an individual immigrant is entitled to enter the country, under

6 the Convention Against Torture. That determination is required under the law.

7

88. Defendants’ violation causes ongoing harm to Oregon residents and to the State of

8 Oregon, by preventing people from traveling to Oregon who have a protected Due Process

9 liberty interest in doing so, and thereby prevents them contributing to the life and economy of the

10 State, to its colleges and universities, and to its businesses.

11

SEVENTH CAUSE OF ACTION

12

(Religious Freedom Restoration Act)

13

89. Oregon realleges and incorporates by reference the allegations set forth in the

14 preceding paragraphs.

15

90. The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(a), prohibits the

16 federal government from substantially burdening the exercise of religion, even if the burden

17 results from a rule of general applicability.

18

91. Section 3 of the Executive Order, if implemented, will result in substantial

19 burdens on the exercise of religion by non-citizen immigrants by, for example, preventing them

20 from exercising their religion while in detention, returning to their religious communities in

21 Oregon, and/or taking upcoming, planned religious travel abroad. Such burdens on religion

22 violate the Religious Freedom Restoration Act.

23

92. Defendants’ violation causes ongoing harm to Oregon residents and to the State of

24 Oregon, by preventing Oregon from enforcing its policy and laws against religious

25 discrimination, by preventing spending at Oregon-based travel-related businesses by those

26 Oregon residents, by denying the State tax revenues that would have been derived from those

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 17
Exhibit 1 to State of Oregon's Motion to Intervene, Page 17 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 18 of 20

1 transactions, and by preventing the State from providing convenient medical care to rural and

2 low-income Oregonians.

3

EIGHTH CAUSE OF ACTION

4

(Procedural Violation of the Administrative Procedure Act)

5

93. Oregon realleges and incorporates by reference the allegations set forth in the

6 preceding paragraphs.

7

94. The Administrative Procedure Act, 5 U.S.C. §§ 553 and 706(2)(D), requires that

8 federal agencies conduct formal rulemaking before engaging in action that impacts substantive

9 rights.

10

95. In implementing Sections 3 and 5 of the Executive Order, federal agencies have

11 changed the substantive criteria by which individuals from affected countries may enter the

12 United States. Federal agencies did not follow the procedures required by the Administrative

13 Procedure Act before taking action affecting these substantive rights.

14

96. Through their actions above, Defendants have violated the Administrative

15 Procedure Act.

16

97. Defendants’ violation causes ongoing harm to Oregon residents who were

17 deprived of the opportunities and protections under the rulemaking system that federal law

18 requires, and to the State of Oregon by preventing the entry and re-entry of people into Oregon

19 who would have contributed to the life and economy of the State and contributed to its tax

20 revenues.

21

NINTH CLAIM FOR RELIEF

22

(Substantive violation of the Administrative Procedure Act)

23

98. Oregon realleges and incorporates by reference the allegations set forth in the

24 preceding paragraphs.

25

99. The State realleges and incorporates by reference the allegations set forth in each

26 of the preceding paragraphs of this Complaint.

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 18
Exhibit 1 to State of Oregon's Motion to Intervene, Page 18 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 19 of 20

1

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

2 action that is arbitrary, unconstitutional, and contrary to statute.

3

101. In implementing Sections 3 and 5 of the Executive Order, federal agencies have

4 taken unconstitutional and unlawful action, as alleged herein, in violation of the Administrative

5 Procedure Act.

6

102. In implementing Sections 3 and 5 of the Executive Order, federal agencies have

7 applied provisions arbitrarily, in violation of the Administrative Procedure Act.

8

103. Defendants’ violation causes ongoing harm to Oregon residents who were

9 deprived of the opportunities and protections under the rulemaking system that federal law

10 requires, and to the State of Oregon by preventing the entry and re-entry of people into Oregon

11 who would have contributed to the life and economy of the State and contributed to its tax

12 revenues.

13

TENTH CLAIM FOR RELIEF

14

(Tenth Amendment)

15

104. Oregon realleges and reincorporates the allegations set forth in each preceding

16 paragraph of this Complaint.

17

105. The Tenth Amendment reserves all powers not enumerated in the Constitution to

18 the states and prohibits the federal government from commandeering state legislative processes.

19

106. The Tenth Amendment prohibits the federal government from directly compelling

20 states to enact and enforce federal law.

21

107. Sections 3 and 5 of the Executive Order, together with statements made by

22 Defendants concerning their intent and application, target individuals for discriminatory

23 treatment based on their country of origin and/or religion, without lawful justification and

24 contrary to ORS 659A.006.

25

26

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 19
Exhibit 1 to State of Oregon's Motion to Intervene, Page 19 of 20

Case 2:17-cv-00141-JLR Document 94-1 Filed 02/22/17 Page 20 of 20

1

108. Oregon, its employers, housing providers, business and government entities have

2 long been prohibited by Oregon law from discriminating against people based on national origin

3 in employment, housing, education, and in places of public accommodation.

4

109. The Executive Order effectively mandates that Oregon engage in discrimination

5 based on national origin and/or religion, thereby nullifying Oregon’s historic protection of civil

6 rights and religious freedom.

7

110. Through their actions above, Defendants have violated the Tenth Amendment.

8

111. Defendant’s violation is causing ongoing harm to Oregon.

9

PRAYER FOR RELIEF

10

112. Wherefore, the State of Oregon prays that the Court:

11

a. Declare that Sections 3(c), 5(a)-(c), and 5(e) of the Executive Order are

12

unauthorized by and contrary to the Constitution and laws of the United States;

13

b. Enjoin Defendants from implementing or enforcing Sections 3(c), 5(a)-(c),

14

and 5(e) of the Executive Order, including at all United States borders, ports of entry, and

15

in the issuance of visas, pending further orders from this Court; and

16

c. Award such other relief as the Court deems appropriate and just.

17

DATED: February , 2017.

18

Respectfully submitted,

19

ELLEN F. ROSENBLUM

Attorney General

20

21

22

SCOTT J. KAPLAN, WSBA #49377

Senior Assistant Attorney General

23

Oregon Department of Justice

100 SW Market Street

24

Portland, OR 97201

971-673-1880

25

Email: scott.kaplan@doj.state.or.us

Of Attorneys for Intervenor-Plaintiff

26

INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00141-JLR)

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

SK/rh2/8063034-v2

Page 20
Exhibit 1 to State of Oregon's Motion to Intervene, Page 20 of 20

 
 UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

FEB 27 2017

STATE OF WASHINGTON and STATE OF MINNESOTA,
Plaintiffs-Appellees,

No. 17-35105

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

D.C. No. 2:17-cv-00141 Western District of Washington, Seattle

v.

ORDER

DONALD J. TRUMP, President of the United States; et al.,

Defendants-Appellants.

Before: CANBY, CLIFTON, and FRIEDLAND, Circuit Judges. Appellants’ motion to hold this appeal in abeyance is denied (Docket Entry
No. 178). On our own motion, we extend the briefing schedule for this appeal. The
opening brief is due March 10, 2017; the answering brief is due March 31, 2017; and the optional reply brief is due April 5, 2017.

AT/MOATT

 
 Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-1, Page 1 of 2

U.S. Department of Justice Civil Division, Appellate Staff
950 Pennsylvania Ave. NW, Rm. 7250 Washington, DC 20530
Tel: 202-353-2689

VIA CM/ECF

March 6, 2017

Hon. Molly Dwyer Clerk of the Court U.S. Court of Appeals for the Ninth Circuit The James R. Browning Courthouse 95 Seventh Street San Francisco, CA 94103
RE: State of Washington v. Trump, No. 17-35105
Dear Ms. Dwyer:
Pursuant to Federal Rule of Appellate Procedure 28(j), defendants-appellants notify the Court that the President today signed a new Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States.” The new Order, which is attached and takes effect on March 16, 2017, id. § 14, revokes Executive Order 13,769, id. § 13, the subject of this appeal and related motions practice.
The new Order differs from Executive Order 13,769 in critical respects. Section 2(c) of the new Order temporarily suspends entry, for 90 days, of aliens who are nationals of six countries, subject to significant limitations and exceptions. The suspension applies only to aliens who are outside the United States on the effective date of the new Order, do not have a valid visa on that date, and also did not have a valid visa at 5 p.m. E.S.T. on January 27, 2017. Section 3(a). The suspension does not apply to, inter alia, lawful permanent residents or nationals of the six countries not currently in the United States who have a valid document permitting them to travel to the United States and seek entry or admission. Section 3(b). In addition, the new Order includes a case-by-case waiver process that

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-1, Page 2 of 2
permits the issuance of a visa to, and entry of, an alien who would otherwise be excluded. Section 3(c).
Section 6 of the new Order suspends for 120 days travel into the United States under the U.S. Refugee Admission Program and decisions on applications for refugee status, to allow the Government to review the application and adjudication process to determine what additional procedures should be taken to ensure that individuals seeking admission as refugees do not pose a threat to the United States. The new Order eliminates provisions of Executive Order 13,769 that applied to religious minorities and the entry of Syrian nationals as refugees. The new Order also excludes from the suspension any refugee applicants who were formally scheduled for transit by the State Department before the effective date of the Order. Section 6(a).
Sincerely,
/s/ Sharon Swingle
Sharon Swingle
cc: all counsel (via CM/ECF)

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 1 of 19

THE WHITE HOUSE Office of the Press Secretary

For Immediate Release

March 6, 2017

EXECUTIVE ORDER
- - - - - - -
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

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 2 of 19
2
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 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

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 3 of 19
3
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-bycase 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 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

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 4 of 19
4
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 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

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 5 of 19
5
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. Al-Shabaab, an al-Qa'idaaffiliated 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. The United States Embassy in Syria suspended its operations in 2012. Syria does not

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 6 of 19
6
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, al-Qa'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-by-case 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

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 7 of 19
7
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 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 terrorism-related crimes in the United States. They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees. 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-treelighting 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.

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 8 of 19
8
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 public-safety threat. The Secretary of Homeland Security may conclude that certain 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.

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 9 of 19
9
(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 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

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 10 of 19
10
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 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.

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 11 of 19

11

(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;

(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;

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 12 of 19

12

(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 Government-sponsored 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 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

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 13 of 19
13
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

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 14 of 19
14
National Intelligence, shall review 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 case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United States, 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

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 15 of 19
15
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.
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 diplomatictype 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

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 16 of 19
16
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.
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;

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 17 of 19
17
(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 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.

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 18 of 19
18
(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 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.

Case: 17-35105, 03/06/2017, ID: 10343708, DktEntry: 184-2, Page 19 of 19
19 (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.
# # #

 
 a James J. O'Hagan

2 2298 Cranberry Rd.

3 Grayland WA 98547

4 (360) 267-7911

5 Wayoutwestl@hotmail.com

6

f IN THE UNITED STATES DISTRICT COUR ILED

pE.yCEIVED
s. aUR OEPPEAAELRK
MAR 06 2Q17

7

FOR THE WESTERN DISTRICT OF WASHINGTON

---., .

8 WASHINGTON STATE Et All

)

9

Plaintiff( s)

)

District NO. 17-cv-00141-JLR

10

IN

th

_

11 PRESIDENT DONALD TRUMP Et All

)

DEFENDANT JAMES J. O'HAGAN'S

12

Defendant (s)

)

MOTION TO RECONSIDER ALLOWING

13

)

HIM TO JOIN LAWSUIT AS A REAL PARTY

14 JAMES J. O'HAGAN, (Et AII)

)

IN INTEREST

15

Co- Defendant(s)

)

BY DECLARATION OF JAMES J. O'HAGAN

16

17

I, JAMES J. O'HAGAN, swear under the penalty of perjury the following is true and

18 correct to the best of my knowledge.

19

1 am a Republican candidate that supported Donald Trump and was subjected to

20 election crimes by democratic members of the judicial branch of Washington State. 1

21 campaigned to clean up the corruption involved in the judicial branch of Washington State.

22 After being slanderously and maliciously attacked by the judicial branch, I lost my political race

23 by less than 10%.

24

I will show the court where Washington State prosecutors have a pattern of using the

25 people's courts for their criminal actions and file cases where they lack the standing or

26 authority to file the case. I have undeniable evidence to show the court that Washington State

27 prosecutors are using the people's courts and public funds to promote their political beliefs or

28 prevent opponents of their political beliefs, from getting elected. Please see exhibit 1.

29

I have undeniable evidence that shows the last several Democratic Governors of

30 Washington State came through the Washington State Attorney General's office, and were

31 leaders of the judicial fraud industry that has stolen justice from every economically vulnerable

32 individual in Washington State.

33

I have undeniable evidence that shows Washington State Attorney General Robert

34 Ferguson is a leader of the Judicial Fraud Industry of Washington State and is using this case

1

1 and unlawfully using public funds to further his political career in an effort to protect his

2 organized crime family's judicial fraud industry. As Washington State Attorney General, Robert

3 Ferguson is directly involved in leading the corruption of the judicial branch of Washington

4 State. Please see exhibit 2.

5

I have evidence that shows Washington State Attorney General Robert Ferguson lacked

6 proper authorization to use public funds to file this case and therefore lacked standing to file

7 this case and as such U.S. District Judge James Robart lacked jurisdiction to proceed, but did so

8 to promote and protect the judicial fraud industry operating within the jurisdiction of the Ninth

9 Circuit Court of Appeals.

10

1 have evidence that shows a pattern where the Ninth Circuit Court of Appeals Justices

11 are supporting the criminal activities of Washington and Oregon U.S District Court Judges and

12 Washington and Oregon State court Judges, and State Supreme Court Justices. I have evidence

13 that shows this is a judicial fraud industry of attorneys that is preying off of the lives, liberties

14 and properties of economically vulnerable individuals. I have evidence that shows this is a well

15 organized crime ring that needs to be broken up so all economically vulnerable individuals have

16 an opportunity to achieve justice.

17

I have evidence from a multitude of individuals (fraud victims of the judicial branches)

18 that shows the Judicial Fraud Industry operating within the jurisdiction of the Ninth Circuit

19 Court of Appeals, is ran by members of the Judicial branch of governments violating the

20 separation of powers and infiltrating our legislative and executive branches of our governments

21 so they can profit by stealing every economically vulnerable individuals opportunity for justice

22 then steal their lives, liberties and properties.

23

I am positive that U.S. District Judge James Robart does not want my evidence near the

24 people's courtroom where he holds office and is leading the organized crimes involved in the

25 judicial fraud industry of Washington State. I am also sure that James Robart would like to have

26 Suri law implemented in Washington State where his accomplices in the judicial fraud industry

27 would be protected of their organized judicial fraud crimes, and destroying our domestic

28 tranquility.

29

RELIEF I WILL OBTAIN FROM BEING A PARTY TO THIS ACTION

2

1

In evaluating my evidence, witnesses and testimony either the jury of this court or the

2 Appellate courts will determine Robert Ferguson filed this lawsuit to further his political career

3 and protect a small elite group of individual's stranglehold on Washington State Politics, and

4 the judicial fraud industry operating within the jurisdiction of the Ninth Circuit Court of Appeals.

5

Either the jury of this court or the appellate courts will determine Robert Ferguson was

6 using public funds inappropriately to further his political career, and as such he will be removed

7 from political office.

8

Either the jury of this court or the Appellate courts will determine members of the

9 Judicial branches within the jurisdiction of the Ninth Circuit Court of Appeals have violated the

10 equal footing doctrine and are violating the separation of powers and have infiltrated the

11 legislative and executive branches of governments and have organized together to create a

12 judicial fraud industry that has stolen justice from every economically vulnerable property

13 owner within the Ninth Circuit.

14

The violations of the separation of powers that is occurring at the federal level and the

15 state level will be terminated, and members of the judicial branches will be prohibited from

16 holding office in our legislative and executive offices and justice will be restored to all

17 economically vulnerable individuals, including all economically vulnerable property owners.

18

if I am allowed to remain in this case a s a party of interest I will bring an end to the

19 judicial fraud industry that has stole justice from every economically vulnerable individual

20 within the jurisdiction of the Ninth Circuit Court of Appeals, our pledge of allegiance will 21 actually mean something and together we will restore our domestic tranquility that has been

22 broken by attorneys who are profiting from keeping our domestic tranquility broken.

23

Make no mistake about it I completely understand it is the leaders of the Judicial Fraud

24 Industry that has stolen justice and our domestic tranquility from all economically vulnerable

25 individuals and it is they who will determine if I am to be considered a party of interest in this

26 action. The people of our nation need to know who is making money and power from

27 destroying our country's domestic tranquility, and how highly motivated these individuals are

28 to keep me and my arguments out of this case.

3

1

It is not "justice" Robert Ferguson and his accomplices including Judge James Robart

2 desires, it is their determination to throw us into more domestic turmoil and defraud us of

3 justice because their crime family is getting rich beyond most individuals wildest dreams, by

4 creating arguments between humans, and defrauding them of their lives, liberties and

5 properties.

6

If given the opportunity I will restore our Nation's Domestic Tranquility by restoring

7 justice to every economically vulnerable individual.

PRAYER FOR RELIEF

9

In order to restore our Nation's Domestic Tranquility the violations of the separation of

10 powers and their Judicial Fraud Industry needs to be brought to an end. As a Nation we need to

11 take the all of the profit out of attacking our Domestic Tranquility (arguments between

12 humans). Together we can produce less predators and more beneficial parasites and

13 producers.

A

I

14 Dated thDisat.y of February 2017. By

15

Jame~A. O'H~fgan, Vo se All Rights & Protections Reserved

16

CERTIFICATE OF SERICE

17

I the undersigned placed true and correct copies of the foregoing in the U.S. mail

18 postage prepaid via certified mail and / or via first class mail and / or via email.

19 20 Ninth Circuit Court of Appeals

U.S. District Court Clerk

Robert W. Ferguson

21 P.O. Box 193939 22 San Francisco CA 94119-3939

700 Stewart St. Suite 2301 P.O. Box 40100

Seattle WA 98101

Olympia WA 98504-0100

23 24 Colleen M. Melody 25 800 5th Ave. Ste 2000

USDO1 Civil Division

michelle.bennett «@USDOI.GOV

20 Massachusetts Ave. NW ariun.eare@usdoi.gov

26 Seattle WA 98104

Washington DC 20530

27

28 President Donald Trump 29 1600 Pennsylvania Ave NW 30 Washington D.C. 20500

My Political Supporters

My Legislators

My Next Frienj Wq hington State Supreme Court

1 /J

31 Dated this 4'day of February 2017.

By

32

4

` C

- •- x'43

;~.

STATE OF WASHINGTON
WASHINGTON STATE PATROL
3811 Werner Road + firemertun, Washin8tun 98312-3331 a (360) 478-3646
October 24, 2013

Mr. James I O'Hagan

2298 Cranberry Road

—

Grayiand WA 98547

The Washington State Patrol (WSP) Criminal Investigation Division has completed the investigation of your case. The case number associated with this Investigation is 08-13-006659. The case officer Is Scott Marlow of the Attorney General's Office. The attorney may be reached at (206) 389-2098 during normal business hours. If the attorney is not available when you call, please leave a message and the attorney will call you back as soon as possible.
You are receiving this letter because you are either a victim in this case or becauseyou have been identified to us as a point of contact for the affected person(s).
The investigation has been completed and referred to the Attorney General'sOffice for a charging decision. The Attorney General makes the decision regarding whether or not to charge a suspect with a crime and what those charge(s) should be. Although the active investigation is complete,the case is not closed until it is adjudicated. The attorney assigned to this case will continue to work closely with the Attorney General's Office until the case is adjudicated by thecourt.
Now that the case has been referred to the Attorney General's Office, further inquiries regarding this case should be directed to the attorney's office for updates and case status inquiries.
Sincerely,
i~
Captain Charles Leblanc Criminal Investigation Division
CL:rg cc: Captain Christopher D Old, Bremerton

2.
1 James J. O'Hagan 2 2298 Cranberry Rd. 3 Grayland WA 98547

6
20 'F€B 21 API 10 49

4 (360) 267-7911 5 Wayoutwestl@hotmaii.com 6 7

VtRGtNI; LE ;Cif C;En•lr
t' • CfFtC COUNTY, 13r
OE t

8

9

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR PACIFIC COUNTY qtr e,iiekt-y i i.„ r46o

11 STATE OF WASHINGTON

)

U.S. Dist. Cause no 3: 16-MC-5038

12

Plaintiff

)

Cause no. 16-1-00207-1

13

Vs.

14 JAMES JOHN O'HAGAN

)

MOTION TO QUASH BENCH WARRANT

)

15

Accused

)

16

)

BY DECLARATION OF JAMES O'HAGAN

17

I James J. O'Hagan swear under penalty of perjury of the laws of the state of

18 Washington that the following is true and correct to the best of my knowledge.

19

I have appealed the decision involved in this action to both the Ninth Circuit Court of

20 Appeals and the Washington State Supreme Court.

21

Currently the Ninth Circuit Court of Appeals has issued a briefing order. Please see

22 exhibit 1.

23

In addition to the appeals that are in place this court lacks jurisdiction because the Lewis

24 County prosecutor lacked the lawful authority to prosecute me in Pacific County Superior Court,

25 and therefore lacked the Standing and jurisdiction to bring this lawsuit in Pacific County

26 Superior Court.

27

STANDING

28

Express authority. Authority delegated to agent by words which expressly authorize him

29 to do a delegable act. Authority which is directly granted to or conferred upon agent in express

30 terms. That authority which principal intentionally confers upon his agent by manifestations

31 to him.

32 Epstein v. Corporaclon Peruana de Vapares, D. C.N. Y., 325 F.Supp. 535.537.

33 That which confers power to do a particular identical thing set forth and declared exactly.

34 plainly, and directly with well-defined limits. An authority given in direct terms, definitely and

35 explicitly, and not left to inference or implication, as distinguished from authority which is 36 general, implied or not directly stated or given.

1

2 Department of Ins, of Indiana v. Church Members Relief Ass'n.. 217 Ind. 58.26 N E 2d 51 3 (19401: "Public officers are merely the agents of the public whose rowers and authority are 4 defined and limited by law. Any act without the scope of the authority so defined does not

5 bind the principal, and all persons dealing with such agents are charged with knowledge of 6 the extent of their authority," 113 F.2d, at 286.

7

8 "The people themselves have it in their power effectually to resist usurpation, without

9 being driven to an appeal in arms. An act of usurpation is not obligatory: It is not law;

10 and any man may be justified

cnmma

11 the general government; yet only his fellow citizens can convict him. They are his jury,

12 and if they pronounce him innocent, not all powers of congress can hurt him; and

13 innocent they certainly will pronounce him, if the supposed law he resisted was an act of

14 usurpation." Elliot's Debates, 94; 2 Bancroft, History of the Constitution, 267.

15 The holding in Ryder vs. United States, 115 S. Ct. 2031, 132 L. Ed. 2d 136, 515 U.S. 177

16 (1995) Held:

17 The Court of Military Appeals erred in according de facto validity to the actions of the

18 civilian judges of the Coast Guard Court of Military Review. Pp. 3-11.

19 (a) The de facto officer doctrine - which confers validity upon acts performed under the

20 color of official title even though it is later discovered that the legality of the actor's

21 appointment or election to office is deficient - cannot be invoked to authorize the actions

22 of the judges in question. Those cases in which this Court relied upon the doctrine in

23 deciding criminal defendants' challenges to the authority of a judge who participated in

24 the proceedings leading to their conviction and sentence, see, e.g., Ball v. United States,

25 140 U.S. 118, are distinguishable here because, inter alia, petitioner's claim is that there

26 has been a trespass upon the constitutional power of appointment, not merely a

27 misapplication of a statute providing for the assignment of already appointed judges.

28

29 One who makes a timely challenge to the constitutionality of the appointment of an

30 officer who adjudicates his case is entitled to a decision on the merits of the question

31 and whatever relief may be appropriate if a violation indeed occurred. Cf. Glidden

32 Co. V. Zdanok, 370 U.S. 530, 536 . Any other rule would create a disincentive to raise

33 Appointments Clause challenges with respect to questionable judicial appointments. 34 Buckley v. Valeo and Connor v. Williams, 404 U.S. 549, which Buckley cited as

35 authority, were civil cases that did not explicitly rely on the de facto officer doctrine in

36 validating the past acts of public officials against constitutional challenges, and this Court 37 is not inclined to extend those cases beyond their facts. Pp. 2-6. (b) The Court rejects the 38 Government's several alternative defenses of the Court of Military Appeals' decision to 39 give its Carpenter holding prospective application only. First, the argument that the latter

40 court exercised remedial discretion pursuant to Chevron Oil Co. v. Huson, 404 U.S. 97, is

41 unavailing because there is not the sort of grave disruption or inequity involved in

42 awarding retrospective relief to this petitioner that would bring the Chevron Oil doctrine

43 into play. Nor is it persuasively argued that qualified immunity, which specially

Va

1 protects public officials from damages liability for judgment calls made in a legally 2 uncertain environment, should be extended to protect such officials from Appointments 3 Clause attacks, which do not involve personal damages, but can only invalidate actions 4 taken pursuant to defective title. Similarly, the practice of denying criminal defendants an 5 exclusionary remedy from Fourth Amendment violations when those errors occur despite 6 the government actors' good faith, United States v. Leon, 468 U.S. 897, does not require 7 the affirmance of petitioner's conviction, since no collateral consequence arises from 8 rectifying an Appointments Clause violation, see id., at 907, and such rectification 9 provides a suitable incentive to make challenges under the Clause, see id., at 918-921. 10 Finally, the Government's harmless-error argument need not be considered,
nw an ere is no in ication that the Court of Military Appeals determined 12 that no harm occurred in this case. The related argument that any defect in the Court of 13 Military Review proceedings was in effect cured by review in the Court of Military 14 Appeals must be rejected because of the difference in function and authority between the 15 two courts. Petitioner is therefore entitled to a hearing before a properly appointed panel 16 of the Coast Guard Court of Military Review. Pp. 6-10.39 M. J. 454, reversed and 17 remanded.
18 19 Whatever the form in which the Government functions, anyone entering into an arrangement 20 with the Government takes the risk of having accurately ascertained that he who purports
21 to act for the Government stays within the bounds of his authority. The scope of this 22 authority may be explicitly defined by Congress or be limited by delegated legislation, properly
23 exercised through the rule-making power. And this is so even though, as here, the agent 24 himself may have been unaware of the limitations upon his authority. Federal Crop insurance 25 Corp. v. Merrill, 322 U.S. 380, at 384; 68 S. Ct. 1; 92 L.Ed.10, (1947). 26 See also Continental Casualty Co. v. United States, 113 F.2d 284, 286 (5th Cir. 1940) ("Public 27 officers are merely the agents of the public, whose powers and authority is defined and limited 28 by law. Any act without the scope of the authority so defined does not bind the principal and all 29 persons dealing with such agents are charged with knowledge of the extent of their 30 authority"). 31 Persons dealing with the government are charged with knowing government statutes and 32 regulations and they assume the risk that government agents may exceed their authority and 33 provide misinformation. Lavin v. Marsh, 9th Cir., 1981, 644 F. 2d 1378, 1383. 34 All persons in the United States are chargeable with the knowledge of the Statutes at Large and 35 it is well established that anyone who deals with the government assumes the risk that the 36 agent acting in the governments behalf has exceeded the bounds of his authority. Bollow v.
37

38

Pacific County Prosecutor Mark McClain did not have the power to appoint Lewis

39 County Prosecutor Jonathan Meyer to bring the charges nor prosecute this case in Pacific

40 County Superior court. In addition to Lewis County Prosecutor Jonathan Meyer's lack of

41 standing in Pacific County Superior court Judge Nancy McAllister, Judge Mike Turner and judge

1 William Faubion all are charged with knowing the law and as such they are charged with
2 knowing Lewis County prosecutor Jonathan Meyer lacked the authority to file this lawsuit in
3 Pacific County superior court and lacked the authority to prosecute this lawsuit in Pacific
4 County superior court as such they knowingly lacked jurisdiction because when standing goes
5 so goes jurisdiction. Herein the law is specific and certain. In accordance with RCW 36.27.030
6 Disability of Prosecuting Attorneys, and RCW 36.27.040 Appointment of deputies- special and
7 temporary deputies2.
1 RCW 36.27.030 Disability of prosecuting attorney. When from illness or other cause the prosecuting attorney is temporarily unable to perform his or her duties, the court or judge may appoint some qualified person to discharge the duties of such officer in court until the disability is removed. When any prosecuting attorney fails, from sickness or other cause, to attend a session of the superior court of his or her county, or is unable to perform his or her duties at such session, the court or judge may appoint some qualified person to discharge the duties of such session, and the appointee shall receive a compensation to be fixed by the court, to be deducted from the stated salary of the prosecuting attorney, not exceeding, however, one-fourth of the quarterly salary of the prosecuting attorney: PROVIDED, That in counties wherein there is no person qualified for the position of prosecuting attorney, or wherein no qualified person will consent to perform the duties of that office, the judge of the superior court shall appoint some suitable person, a duly admitted and practicing attorney-at-law and resident of the state to perform the duties of prosecuting attorney for such county, and he or she shall receive such reasonable compensation for his or her services as shall be fixed and ordered by the court, to be paid by the county for which the services are performed.
2 RCW 36.27.040 Appointment of deputies—Special and temporary deputies. The prosecuting attorney may appoint one or more deputies who shall have the same power in all respects as
their principal. Each appointment shall be in writing, signed by the prosecuting attorney, and filed in the county auditor's office. Each deputy thus appointed shall have the same qualifications required of the prosecuting
attorney, except that such deputy need not be a resident of the county in which he or she serves. The prosecuting
attorney may appoint one or more special deputy prosecuting attorneys upon a contract or fee basis whose authority shall be limited to the purposes stated in the writing signed by the prosecuting attorney and filed in the county auditor's office. Such special deputy prosecuting attorney shall be admitted to practice as an attorney before the courts of this state but need not be a resident of the county in which he or she serves and shall not be under the legal disabilities attendant upon prosecuting attorneys or their deputies except to avoid any conflict of interest with the purpose for which he or she has been engaged by the prosecuting attorney. The prosecuting attorney shall be responsible for the acts of his or her deputies and may revoke appointments at will.
Two or more prosecuting attorneys may agree that one or more deputies for any one of them may serve temporarily as deputy for any other of them on terms respecting compensation which are acceptable to said prosecuting attorneys. Any such deputy thus serving shall have the same power in all respects as if he or she were serving permanently.
The provisions of chapter 39.34 RCW shall not aoply to such agreements The provisions of *RCW 41.56.030(2) shall not be interpreted to permit a prosecuting attorney to alter the at-will relationship established
between the prosecuting attorney and his or her appointed deputies by this section for a period of time exceeding
his or her term of office. Neither shall the provisions of *RCW 41.56.030(2) require a prosecuting attorney to alter the at-will relationship established by this section. Chapter 39.34 RCW INTERLOCAL COOPERATION ACT
4

1

In addition to Mark McClain, Jonathan Meyer, Nancy McAlister Mike turner and William

2 Faubion being charged with knowing the law, so are the Pacific County Commissioners charged

3 with knowing the law, as is Pacific County Sherriff Scott Johnson charged with knowing the law.

4 As such the Pacific County Commissioners and Sherriff Scot Johnson are aware Lewis County

5 Prosecutor Jonathan Meyer had no authority to file these criminal charges in Pacific County

6 Superior Court and use the people's court of Pacific County for his and Prosecutor Mark

7 McClain's organized crimes. Please see RCW 42.20.020 Powers may not be delegated f r — _

8 profit3.

9

Unlike the members of the judicial branch currently Sherriff Scott Johnson is honoring

10 the law, and even though he may be providing special privileges as described in RCW 42.52.070 11 Special Privileges4, to members of the judicial branch I have to commend him for doing the best

12 he can under the circumstances.

13

In addition to Lewis County Prosecutor Jonathan Meyer lacking the authority to file this

14 lawsuit in Pacific County Superior Court, the argument involves an ongoing civil action that

15 prevents the criminal charges from being alleged or filed in court as described in RCW

16 60.70.050 Immunity from liability for failure to accept filing or disclose common law lien. A

17 person is not liable for damages arising from a refusal to record or file or a failure to disclose

18 any claim of a common law lien of record., and RCW 60.70.020 Real property common law

19 liens unenforceable--Personal property common law liens limited5.

3 RCW 42.20.020 Powers may not be delegated for profit. Every public officer who, for any reward, consideration, or gratuity paid or agreed to be paid, shall, directly or
indirectly, grant to another the right or authority to discharge any function of his or her office, or permit another to perform any of his or her duties, shall be guilty of a gross misdemeanor.
4 RCW 42.52.070 Special privileges. Except as required to perform duties within the scope of employment, no state officer or state employee may
use his or her position to secure special privileges or exemptions for himself or herself, or his or her spouse, child, parents, or other persons.
5 RCW 60.70.020 Real property common law liens unenforceable—Personal property common law liens limited.
Nonconsensual common law liens against real property shall not be recognized or enforceable. Nonconsensual
common law liens claimed against any personal property shall not be recognized or enforceable if, at any time the lien is claimed, the claimant fails to retain actual lawfully acquired possession or exclusive control of the property.

As such the Pacific County Commissioners are charged with knowing the law and as such

if they have financed any of these criminal actions they have used public funds to finance

3 organized crimes including election violations which is a class B felony as described in RCW

4 42.20.070 Misappropriation and falsification of accounts by public officer6. In addition to using

5 public funds to finance organized crimes, it may be determined the Pacific County

6 Commissioners used public funds to engage in election crimes as described in RCW 42.23.070

7 Prohibited Acts7.

It is expected the public defense involved in attempting to unlawfully and unsuccessfully

9 prosecute me in connection with these slanderous, malicious and vindictive criminal charges

10 will exceed $100,000.00 and incur immense amounts of additional civil liabilities to everyone

11 involved that does not have the express authority to do what they are attempting to do, or use

12 their public office for and public facilities for and public funds for.

13

CONCLUSION

6 RCW 42.20.070 Misappropriation and falsification of accounts by public officer. Every public officer, and every other person receiving money on behalf or for or on account of the people of the
state or of any department of the state government or of any bureau or fund created by law in which the people are directly or indirectly interested, or for or on account of any county, city, town, or any school, diking, drainage, or irrigation district, who:
(1) Appropriates to his or her own use or the use of any person not entitled thereto, without authority of law, any money so received by him or her as such officer or otherwise; or
(2) Knowingly keeps any false account, or makes any false entry or erasure in any account, of or relating to any money so received by him or her; or
(3) Fraudulently alters, falsifies, conceals, destroys, or obliterates any such account; or (4) Willfully omits or refuses to pay over to the state, its officer or agent authorized by law to receive the same, or to such county, city, town, or such school, diking, drainage, or irrigation district or to the proper officer or authority empowered to demand and receive the same, any money received by him or her as such officer when it is a duty imposed upon him or her by law to pay over and account for the same, is guilty of a class B felony and shall be punished by imprisonment in a state correctional facility for not more than
fifteen years.
7 RCW 42.23.070 Prohibited acts. (1) No municipal officer may use his or her position to secure special privileges or exemptions for himself,
herself, or others. (2) No municipal officer may, directly or indirectly, give or receive or agree to receive any compensation, gift,
reward, or gratuity from a source except the employing municipality, for a matter connected with or related to the officer's services as such an officer unless otherwise provided for by law.
(3) No municipal officer may accept employment or engage in business or professional activity that the officer might reasonably expect would require or induce him or her by reason of his or her official position to disclose
confidential information acquired by reason of his or her official position. (4) No municipal officer may disclose confidential information gained by reason of the officer's position, nor
may the officer otherwise use such information for his or her personal gain or benefit.

1

In accordance with RCW 2.44.030 Production of Authority to Act8, the Court should

2 cease all further proceedings until it can be verified that lawful procedures were followed to

3 provide proper authority to Jonathan Meyer to file this lawsuit.

4

In accordance with RCW 2.44.020 Appearance without Authority — Procedure9, the court

5 should call on the jury to determine the amount of damages all of the people who acted

6 without authority and jurisdiction cause to James O'Hagan and his family, friends and political

7 supporters.

8

PRAYER FOR RELIEF

9

It is proper for the court to quashe the arrest warrant issued on James O'Hagan and if it

10 chooses to pursue the criminal charges appoints a public defender to assist Mr. O'Hagan in

11 making his court appearances, or set a date for the jury to determine the amount of damages

12 the accused has suffered.

13 Dated this jZday of February 2017.

14

By

15

James J. O' agan p o s

ghts & Protections Reserved

16

8 RCW 2.4.1.030 Production of authority to act. The court, or ajudge, may, on motion of either party, and on showing reasonable grounds therefor, require the
attorney for the adverse party, or for any one of several adverse parties, to produce or prove the authority under which he or she appears, and until he or she does so, may stay all proceedings by him or her on behalf of the party for whom he or she assumes to appear.
9 RCW 2.44.020 Appearance without authority—Procedure. If it be alleged by a party for whom an attorney appears, that he or she does so without authority, the court may,
at any stage of the proceedings, relieve the party for whom the attorney has assumed to appear from the consequences of his or her act; it may also summarily, upon motion, compel the attorney to repair the injury to either party consequent upon his or her assumption of authority.
7

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

____________________________________

)

STATE OF WASHINGTON, et al.,

)

)

Plaintiffs-Appellees,

)

)

v.

)

)

DONALD J. TRUMP, et al.,

)

)

Defendants-Appellants.

)

____________________________________)

No. 17-35105

APPELLANTS’ MOTION FOR VOLUNTARY DISMISSAL

Pursuant to Federal Rule of Appellate Procedure 42(b), appellants hereby

respectfully move to dismiss their appeal in this matter, with an order taxing costs

in the amount of $126.36 to appellants. Appellees have authorized us to represent

that they consent to this motion.

Respectfully submitted,

/s/ Sharon Swingle SHARON SWINGLE Attorney, Appellate Staff Civil Division, Room 7250 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 353-2689

CERTIFICATE OF SERVICE I hereby certify that on March 9, 2016, I electronically filed the foregoing Motion with the Clerk of the Court by using the appellate CM/ECF system. The participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system.
/s Sharon Swingle Sharon Swingle
2

CERTIFICATE OF COMPLIANCE I hereby certify that this Motion complies with the word count and typeface requirements set forth in Federal Rule of Appellate Procedure 27. The Motion contains ___ words and is prepared in Times New Roman font, 14-point type.
s/Sharon Swingle Sharon Swingle
3

 
 Case: 17-35105, 03/08/2017, ID: 10348237, DktEntry: 187, Page 1 of 1
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MAR 08 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

STATE OF WASHINGTON and STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States; et al.,
Defendants-Appellants.

No. 17-35105 D.C. No. 2:17-cv-00141 Western District of Washington, Seattle
ORDER

Before: CANBY, CLIFTON, and FRIEDLAND, Circuit Judges. Appellants’ unopposed motion for voluntary dismissal of this appeal
(Docket Entry No. 186) is granted. This appeal is dismissed. See Fed. R. App. P. 42(b).
By agreement of the parties, costs in the amount of $126.36 are taxed to appellants.
DISMISSED.

MOATT

 
 Case 2:17-cv-00141-JLR Document 105 Filed 02/22/17 Page 1 of 2

The Honorable James L. Roba11

2

3

4

5

6

7

8

9
IN THE UNITED STATES DISTRICT COURT 10
FOR THE WESTERN DISTRICT OF WASHINGTON 11

12 STATE OF WASHINGTON, et al.,

CIVIL ACTION NO . 2: 17-cv-00141-JLR

13

Plaintiffs,

14

v.

15 DONALD J. TRUMP, et al.,

16

Defendants.

17

18 STATE OF OREGON,

19

Intervenor-Plaintiff

(!I*O~gE9] ORDER GRANTING STATE OF OREGON'S MOTION TO INTERVENE

20

v.

21

DONALD TRUMP, in his official capacity as President of the United States; U.S.

22

DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official

23 capacity as Secretary of the Department of Homeland Security; REX TILLERSON, in his

24

official capacity as Secretary of State; and the UNITED STATES OF AMERICA,

25

Intervenor-Defendants

26

I - [PROPOSED] ORDER GRANTING STATE OF

OREGON DEPARTMENT OF JUSTICE

OREGON'S MOTION TO INTERV EN E (2: 17-cv-00141-JLR)

100 SW Market Street

Pe n land, OR 9720 1

(97 1) 673- 1880 I Fax: (97 1) 673-5000

SK/rh2/8070266-v I

Page I

Case 2:17-cv-00141-JLR Document 105 Filed 02/22/17 Page 2 of 2

This matter came before the Comt on the State of Oregon's Motion to Intervene

2 [Dkt. #94, 94-1]. Having been fully informed,

3

IT IS HEREBY ORDERED:

4 _K_ Oregon's Motion to Intervene as of right pursuant Fed. R. Civ. P. 24(a)(2) is

5

GRANTED;

6

Oregon's Motion for permissive intervention pursuant to Fed. R. Civ. P. 24 (b)(l)(B) is

7

GRANTED.

8

9

q DATED:

ffic..a c ~ Q.._cj\fl

10 11 12

13 Presented by:
14 sl Scott Kaplan
15 Scott Kaplan, WSBA #49377 Oregon Department of Justice
16 100 SW Market Street Portland, Oregon 97201
17 971-673-1880 scott.kaplan@doj .state.or.us
18
19
20
21

22

23

24

25

26
2 - [PROPOSED] ORDER GRANTING STATE OF OREGON'S MOTION TO INTERVENE (2: 17-cv-001 4 1-JLR)

SK/rh2/8070266-v I

Page 2

OREGON DEPARTMENT OF JUSTICE 100 SW Market Street Ponland, OR 9720 I
(971) 673· 1880 / Fax: (97 1) 673-5000

 
 Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 1 of 16

1

THE HONORABLE JAMES L. ROBART

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

STATE OF WASHINGTON, and

9 STATE OF MINNESOTA,

Civil Action No. 2:17-cv-00141-JLR

10

Plaintiffs,

11

v.

12 DONALD TRUMP, in his official capacity as President of the United
13 States; U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN
14 F. KELLY, in his official capacity as Secretary of the Department of
15 Homeland Security; REX W. TILLERSON, in his official capacity
16 as Secretary of State; and the UNITED STATES OF AMERICA,
17 Defendants.
18

RESPONSE TO DEFENDANTS’ NOTICE OF FILING OF EXECUTIVE ORDER

19

I. INTRODUCTION

20

When a court enjoins a defendant from implementing policies, the defendant cannot

21 evade that injunction simply by reissuing the same basic policies in a new form. Courts do not

22 issue injunctive relief in a game of whack-a-mole, forced to start anew at a defendant’s whim.

23 See, e.g., Sys. Fed’n No. 91, Ry. Emps.’ Dep’t v. Wright, 364 U.S. 642, 647 (1961) (“[N]either

24 the plaintiff nor the court should be subjected to the unnecessary burden of re-establishing

25 what has once been decided.”). Of course, a defendant need not be bound forever by an

26

RESPONSE TO DEFENDANTS’ NOTICE OF

1

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 2 of 16

1 injunction, and can request its modification or termination under well-settled rules, but it is the

2 court—not the defendant—that decides whether modification is warranted.

3

President Trump here seeks to evade these fundamental principles. On February 3, this

4 Court enjoined key provisions of Executive Order No. 13769 (First Executive Order). The

5 Ninth Circuit unequivocally rejected President Trump’s request to stay or narrow this Court’s

6 injunction. Nonetheless, on March 6, President Trump signed a new Executive Order (Second

7 Executive Order) that, in the words of his own senior advisers, adopts “the same basic policy”

8 as the first: “the goal is obviously to maintain the way that we did it the first time.” In

9 particular, the policy purports to reinstate two provisions of the prior order that this Court

10 enjoined: (1) a 90-day ban on entry of persons from several Muslim-majority countries, and

11 (2) a 120-day suspension of the U.S. Refugee Admissions Program. See First Executive Order

12 §§ 3(c), 5(a) (imposing these bans), and ECF No. 52, at 5 (enjoining §§ 3(c), 5(a)), and Second

13 Executive Order §§ 2(c), 6(a) (reinstating these bans).

14

Although seeking to reinstate the “same basic policy” this Court already enjoined,

15 President Trump did not first ask this Court to modify or dissolve its injunction. Instead, in a

16 “Notice” filed with the Court on Monday, the President simply asserted that “[t]his Court’s

17 injunctive order does not limit [his] ability to immediately begin enforcing the [Second

18 Executive Order].” ECF No. 108, at 14 (Notice of Filing). Saying it does not make it so. While

19 this assertion may be in keeping with the President’s position that courts are powerless to

20 review his executive orders related to immigration, it is utterly inconsistent with basic legal

21 principles. It is the judicial branch, not the President, that decides whether actions are lawful,

22 and this Court should confirm that its injunction applies to these reissued provisions. The

23 burden is on Defendants to show that modification or termination of the injunction as to these

24 provisions is warranted, a burden they have not met. This Court should confirm that its

25 injunction applies to reinstated provisions 2(c) and 6(a) in the Second Executive Order and

26 direct Defendants to file a motion for modification if they wish to enforce those provisions.

RESPONSE TO DEFENDANTS’ NOTICE OF

2

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 3 of 16

1

II. FACTUAL AND PROCEDURAL BACKGROUND

2 A. This Court and Other Courts Enjoined Key Provisions of the First Executive Order on Multiple Grounds
3 President Trump campaigned on the promise of “a total and complete shutdown of
4 Muslims entering the United States.”1 First Amended Complaint ¶¶ 42-43, Ex. 1, ECF No. 18
5 (Am. Compl.). Although he was repeatedly asked to reconsider this campaign promise, he
6 refused. See Am. Compl. ¶¶ 46-47, Exs. 4-5 (refusing to “pull-back” the Muslim ban; instead,
7 referring to “extreme vetting” as “an expansion” of his position); Declaration of Noah G.
8 Purcell in Support of Response to Defendants’ Notice of Filing of Executive Order (Purcell
9 Decl.) ¶ 3, Ex. A (declining to “re-think” his position in the Republican primary debate); ¶ 4,
10 Ex. B (responding to a question about his position on Muslims after being elected: “You know
11 my plans. All along, I’ve been proven to be right”); see also Am. Compl. ¶ 43, Ex. 1 (noting
12 President Trump’s call for a Muslim ban, to date, remains available on his campaign website).
13 Put simply, “[t]he ‘Muslim ban’ was a centerpiece of the president’s campaign for months[.]”
14 Aziz v. Trump, No. 1:17-cv-1116-LMB/TCB, 2017 WL 580855, at *8 (E.D. Va. Feb. 13,
15 2017).
16 One week after his inauguration, President Trump acted on his campaign promise by
17 issuing the First Executive Order. Am. Compl. ¶ 49, Ex. 7. President Trump confirmed that the
18 First Executive Order was meant to “follow[ ] through” on his campaign promise. See Purcell
19 Decl. ¶ 5, Ex. C (“I’m here following through on what I pledged to do. That’s all I’m doing.”);
20 see also id. (“I keep my campaign promises.”). President Trump’s advisors confirmed that the
21 First Executive Order was meant to fulfill the campaign promise. See, e.g., Am. Compl. ¶ 61,
22 Ex. 17 (citing cybersecurity advisor’s statement that the executive order was designed to be a
23 “legal” ban on Muslims).
24

25

1 On or before March 15, 2017, a motion for leave to file a Second Amended Complaint, to include

26

allegations related to the Second Executive Order, shall be filed with the Court. It is anticipated that other states may join as plaintiffs at that time.

RESPONSE TO DEFENDANTS’ NOTICE OF

3

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 4 of 16

1

On February 3, following a week of chaos and confusion at airports across the country,

2 this Court enjoined five sections of the First Executive Order. ECF No. 52, at IV(1)(a)-(e). The

3 Court found that the States had established: (1) both proprietary and parens patriae standing;

4 (2) that they were “likely to succeed on the merits of the claims that would entitle them to

5 relief”; (3) that they were likely to suffer irreparable harm absent an injunction; and (4) that the

6 equities and public interest tipped in their favor. ECF 52, at 4-5. Defendants sought an

7 emergency stay, but the Ninth Circuit declined to stay the injunction or alter it in any respect.

8 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). In particular, the Ninth Circuit refused

9 Defendants’ request to narrow the injunction to cover only lawful permanent residents and

10 other previously admitted aliens who wished to travel. Id. at 1166. Defendants have since

11 abandoned their preliminary injunction appeal and it has been dismissed. 9th Cir. ECF Nos.

12 186-87.

13

Many other courts agreed with this Court and the Ninth Circuit that the First Executive

14 Order was likely unconstitutional.2 In particular, the district court for the Eastern District of

15 Virginia issued a detailed opinion reviewing the history of the President’s statements regarding

16 the order and holding that the plaintiff State of Virginia was “likely to succeed on an

17 Establishment Clause claim.” See Aziz, 2017 WL 580855, at *8.

18 B. The Second Executive Order Adopts “the Same Basic Policy” as the First and Retains Two Key Provisions Already Enjoined by this Court
19 After being restrained from implementing the First Executive Order, President Trump
20 issued a second. According to his senior staff, the revisions in the Second Executive Order are
21 intended to address only “very technical issues” and achieve “the same basic policy outcome”
22 as the first. Purcell Decl. ¶ 6, Ex. D (statements of Senior Policy Advisor Stephen Miller); see
23

24

2 In addition to this Court’s preliminary injunction, federal courts in the following cases have enjoined

parts or all of the travel ban: Arab Am. Civil Rights League v. Trump, No. 2:17-cv-10310, ECF 8 (E.D. Mich. Feb.

25

2, 2017) (order granting permanent injunction, in part); Darweesh v. Trump, No. 1:17-cv-00480, ECF 8 (E.D.N.Y. Jan. 28, 2017) (order granting stay of removal and TRO); Vayeghan v. Kelly, No. 2:17-cv-00702, ECF 5 (C.D.

26

Cal. Jan. 29, 2017) (granting TRO); Mohammed v. United States, No. 2:17-cv-00786, ECF 7 (C.D. Cal. Jan. 31, 2017) (granting TRO).

RESPONSE TO DEFENDANTS’ NOTICE OF

4

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 5 of 16

1 also id. ¶ 7, Ex. E (statement of White House Press Secretary Sean Spicer on March 6, that “if

2 you think about it, the principles of the executive order remain the same”). In the words of the

3 President’s spokesman: “the goal is obviously to maintain the way that we did it the first time.”

4 Id. ¶ 8, Ex. F. President Trump likewise tied the Second Executive Order to his previous

5 campaign promises, sending a fundraising email the day that he signed the Second Executive

6 Order citing it as an example of keeping a campaign promise and again emphasizing its focus

7 on “radical” Muslims. Id. ¶ 9, Ex. G.

8

The Second Executive Order purports to reinstate two key provisions that have already

9 been enjoined by this Court. While the provisions differ slightly from their original

10 incarnations, the differences do not remove them from the ambit of this Court’s injunction.

11

The first reinstated provision is the bar on entry of individuals based on their national

12 origin. Enjoined section 3(c) of the First Executive Order barred entry of individuals for 90

13 days from seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and

14 Yemen. The Second Executive Order retains this unconstitutional provision. Section (2)(c) of

15 the Second Executive Order bars entry of individuals for 90 days from the same Muslim-

16 majority countries, with the exception of Iraq. While section 3 of the Second Executive Order

17 differs from the original in that it excludes lawful permanent residents, visa-holders, and

18 refugees living in the United States from its travel ban, it bars entry for virtually all other aliens

19 from the listed countries, including: relatives of U.S. citizens from the listed countries; students

20 who have been admitted to state universities but not yet received visas; prospective employees

21 of state universities or private businesses who have been offered positions but not yet obtained

22 visas; students and employees who may need to renew their visas; and many other individuals

23 protected by this Court’s order. The Ninth Circuit explicitly rejected Defendants’ request to

24 narrow the injunction to exclude these categories of individuals. Washington, 847 F.3d at 1166.

25

The second reinstated provision is the 120-day suspension of the U.S. Refugee

26 Admissions Program. Section 6(a) of the Second Executive Order is almost identical to its

RESPONSE TO DEFENDANTS’ NOTICE OF

5

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 6 of 16

1 predecessor—enjoined section 5(a)—and differs only cosmetically, such as by modifying the

2 refugee suspension to exclude those already scheduled for travel. While the Second Executive

3 Order removes other provisions related to refugees enjoined by this Court (particularly section

4 5(c), which indefinitely suspended entry of Syrian refugees, and section 5(e)’s explicit

5 preference based on religious minority status), removal of those provisions does not alter the

6 virtually complete overlap between new section 6(a) and enjoined section 5(a).

7

As with the First Executive Order, the Second Executive Order states that the six-

8 country and refugee bans are subject to possible waivers. For the six-country ban, the Second

9 Executive Order provides that “case-by-case waivers could be appropriate.” Second Executive

10 Order § 3(c). This parallels the “national interest” waivers following “case-by-case

11 determinations” available under section 3(g) of the First Executive Order. Likewise, the

12 refugee ban remains subject to waivers on the same terms as the First Executive Order: “[O]n a

13 case-by-case basis, in their discretion, but only so long as [the Secretaries of State and

14 Homeland Security] determine” that the refugee’s admission (1) “is in the national interest,”

15 and (2) does not pose a threat “to the security or welfare of the United States.” First Executive

16 Order § 5(e); Second Executive Order § 6(c).

17

In short, with the retention of these provisions, it remains apparent that President

18 Trump is not backing down from his campaign promise. Like their predecessors, new sections

19 2(c) and 6(a) have the same effect as sections of the First Executive Order that have already

20 been enjoined: they broadly ban aliens from listed majority-Muslim countries and suspend the

21 U.S. Refugee Admissions Program.

22

III. ARGUMENT

23

The President cannot unilaterally declare himself free of this Court’s injunction and

24 reinstate policies that this Court already enjoined. Rather, President Trump bears the burden of

25 showing that the factual or legal background has changed significantly enough to warrant a

26 modification of this Court’s injunction. He has not met and cannot meet this burden.

RESPONSE TO DEFENDANTS’ NOTICE OF

6

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 7 of 16

1 A. 2

Defendants Must Show a Significant Change in Fact or Law, and that Inequity Will Result if the Status Quo Remains in Place
“A party seeking modification or dissolution of an injunction bears the burden of

3 establishing that a significant change in facts or law warrants revision or dissolution of the

4 injunction.” Sharp v. Weston, 233 F.3d 1166, 1170 (9th Cir. 2000). This standard applies to

5 motions to dissolve preliminary injunctions. Alto v. Black, 738 F.3d 1111, 1118 (9th Cir.

6 2013). Modification may be appropriate where a significant change “threaten[s] to convert a

7 previously proper injunction ‘into an instrument of wrong,’ ” such that “judicial intervention

8 may be necessary to prevent inequities.” Gooch v. Life Inv’rs Ins. Co. of Am., 672 F.3d 402,

9 414 (6th Cir. 2012) (quoting Salazar v. Buono, 559 U.S. 700, 714-15 (2010)).

10 In considering a motion to modify or dissolve a preliminary injunction, the Court does

11 not revisit its underlying order, but limits its consideration to “new material presented with

12 respect to the motion to dissolve.” Sharp, 233 F.3d at 1170; see also Credit Suisse First Boston

13 Corp. v. Grunwald, 400 F.3d 1119, 1124 (9th Cir. 2005) (“[A] motion to modify a preliminary

14 injunction is meant only to relieve inequities that arise after the original order.” (emphasis

15 added) (quoting Favia v. Ind. Univ. of Pa., 7 F.3d 332, 337 (3d Cir. 1993))). Finally, the

16 moving party must show that its proposed modification is “suitably tailored to the changed

17 circumstance.” Bellevue Manor Assocs. v. United States, 165 F.3d 1249, 1255 (9th Cir. 1999)

18 (quoting Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 393 (1992)).

19 B. Defendants Are Not Excused From Proving the Modification Requirements

20 Here, Defendants do not even attempt the required showing, apparently assuming that

21 the Second Executive Order exempts them from the normal rules.3 They are mistaken.

22

23

3 Despite baldly asserting that the Second Executive Order will operate free of the injunction, Defendants

neglect to note their Notice of Filing as a motion, cite the Court to the applicable standard for modification or

24

dissolution, or explain how maintaining the injunction results in inequity to them. Defendants’ attempt to slip their request for relief into the Notice of Filing violates Federal Rule of Civil Procedure 7(b). Under that Rule,

25

Defendants are required to “state with particularity the grounds” for relief and “state the relief sought.” Id. 7(b)(1)(b)-(c). They do neither. If the Court is inclined to grant Defendants’ motion, the undersigned respectfully

26

request that the Court first set a hearing and consider argument on Defendants’ claim that they may ignore the preliminary injunction. See LCR 7(b)(4).

RESPONSE TO DEFENDANTS’ NOTICE OF

7

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 8 of 16

1

Under well-settled law, this Court’s preliminary injunction remains in effect unless it is

2 altered by this Court or an appellate court, or until a final judgment on the merits is rendered.

3 See Order, ECF No. 78, at 4 (“[T]he Court agrees that the Ninth Circuit has construed the TRO

4 as a preliminary injunction”); U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th

5 Cir. 2010) (“[T]he very purpose of a preliminary injunction . . . is to preserve the status quo

6 and the rights of the parties until a final judgment issues in the cause.” (citing Univ. of Texas v.

7 Camenisch, 451 U.S. 390, 395 (1981))). “The ‘purpose of a preliminary injunction is to

8 preserve the status quo ante litem pending a determination of the action on the merits.’ ”

9 Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1024 (9th Cir. 2016) (quoting Sierra Forest

10 Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009)). “ ‘Status quo ante litem’ refers to ‘the last

11 uncontested status which preceded the pending controversy.’ ” Boardman, 822 F.3d at 1024

12 (quoting GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1210 (9th Cir. 2000)). Until then,

13 “neither the plaintiff nor the court should be subjected to the unnecessary burden of re-

14 establishing what has once been decided.” Sys. Fed’n No. 91, Ry. Emps.’ Dep’t, 364 U.S. at

15 647.

16

It should go without saying that Defendants cannot evade this rule by unilaterally

17 declaring that they have made sufficient changes to the enjoined policy to take it outside the

18 scope of the prior injunction. See, e.g., Movers Conference of Am. v. United States, 251 F.

19 Supp. 882, 885 (S.D. Cal. 1966) (holding that federal government should have sought

20 modification of injunction rather than simply adopting revised policy that purported to address

21 court’s prior holding); McCarty Corp. v. Rice, No. 89-2668-OG, 1989 WL 201077, at *1

22 (D.D.C. Dec. 22, 1989) (holding that “[d]efendants may not evade the legal effect of [the]

23 preliminary injunction by circumventing normal legal channels,” and enforcing preliminary

24 injunction against Defendants’ proposed actions that were “inconsistent with the injunctive

25 order still in effect”); see also id. (“[D]efendants may not effectively remove from this Court

26 jurisdiction and control over a case which is still pending before it.”); see also Innovation

RESPONSE TO DEFENDANTS’ NOTICE OF

8

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 9 of 16

1 Ventures, LLC v. N2G Distrib., Inc., No. 08-CV-10983, 2013 WL 2145677, at *6 (E.D. Mich.

2 May 15, 2013) (holding defendants in contempt for making only “minor changes” to enjoined

3 conduct in an effort “to hide from and avoid [their] obligations under this Court’s order”),

4 aff’d, 763 F.3d 524 (6th Cir. 2014). Issuing a Second Executive Order that repeats two of the

5 five enjoined provisions, while within the President’s prerogative, does nothing to alter or

6 dispose of this Court’s injunction. Sections 2(c) and 6(a) of the Second Executive Order, which

7 have “the same effect as the already-enjoined . . . policy,” may not be implemented without

8 this Court first agreeing to modify or terminate the injunction. Potter v. District of Columbia,

9 Nos. 01-1189-JR, 05-1792-JR, 2007 WL 2892685, *2 (D.D.C. Sept. 28, 2007) (confirming that

10 preliminary injunction of employer’s “grooming policy,” which required that firefighters who

11 wear beards for religious reasons be clean-shaven, also enjoined subsequent “safety policy,”

12 which forbade certain workers to have facial hair); see also Movers Conference of Am., 251 F.

13 Supp. at 885; McCarty Corp., 1989 WL 201077, at *1.

14

Defendants make only a passing argument to the contrary, citing Fusari v. Steinberg,

15 419 U.S. 379 (1975), and Diffenderfer v. Central Baptist Church of Miami, Fla., Inc., 404 U.S.

16 412 (1972), for the proposition that the Second Executive Order “falls outside of this Court’s

17 injunction” because it is substantially different from the now-revoked First Executive Order.

18 Notice of Filing, ECF No. 108, at 14. But Fusari and Diffenderfer provide no authority for that

19 proposition. In Fusari, a federal district court held that aspects of Connecticut’s unemployment

20 compensation scheme violated due process and enjoined the state from denying benefits under

21 that scheme, but it stayed its injunction pending appeal. While the case was on appeal, the

22 legislature “completely altered” the challenged system. Fusari, 419 U.S. at 379-80, 384-85.

23 The Supreme Court expressed no opinion about the injunction, which was stayed in any event,

24 and instead declined to rule in the first instance on the constitutionality of the “completely

25 altered” scheme, remanding to the trial court for “reconsideration in light of the intervening

26 changes in Connecticut law.” Fusari, 419 U.S. at 389-90. The case is an example of appellate

RESPONSE TO DEFENDANTS’ NOTICE OF

9

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 10 of 16

1 restraint to avoid ruling in the first instance on a constitutional question where the underlying

2 law had changed dramatically; it says nothing about a district court’s ability to enforce its own

3 injunction in the face of a defendant’s attempt to reinstate enjoined policies. Diffenderfer is

4 even less relevant, as it did not involve an injunction at all and instead simply held that changes

5 to state law while the appeal was pending had rendered the case moot, an argument that

6 Defendants have not advanced and could not plausibly advance here. Diffenderfer, 404 U.S. at

7 414-15.

8

To the extent Defendants mean to imply that they have mooted the entire injunction by

9 revising some of the enjoined provisions, they are mistaken. Compare Second Executive Order

10 § 1(i) (“revoking” and “replacing” the First Executive Order), with Ne. Fla. Chapter of

11 Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 660-62 (1993)

12 (concluding controversy was not moot where City “repealed” and “replaced” challenged

13 ordinance, though new ordinance differed in certain respects from the prior one, because it

14 disadvantaged complainants “in the same fundamental way”); see also Rosenstiel v. Rodriguez,

15 101 F.3d 1544, 1548 (8th Cir. 1996) (“The Supreme Court has held that where a new statute ‘is

16 sufficiently similar to the repealed [statute] that it is permissible to say that the challenged

17 conduct continues’ the controversy is not mooted by the change . . . .” (alteration in original)

18 (quoting Ne. Fla. Chapter of Associated Gen. Contractors, 508 U.S. at 662 n.3)); Smith v.

19 Exec. Dir. of Ind. War Mem’ls Comm’n, 742 F.3d 282, 287 (7th Cir. 2014) (“When a

20 challenged policy is repealed or amended mid-lawsuit—a ‘recurring problem when injunctive

21 relief is sought’—the case is not moot if a substantially similar policy has been instituted or is

22 likely to be instituted.” (quoting ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist., 724

23 F.3d 854, 864 (7th Cir. 2013))).

24

Simply put, Defendants cannot unilaterally declare that they are free to implement

25 Sections 2(c) or 6(a) of the Second Executive Order. Absent a successful motion to modify the

26 preliminary injunction, “such injunction will remain in force as applied to [the] amended

RESPONSE TO DEFENDANTS’ NOTICE OF

10

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 11 of 16

1 [Executive Order].” See Mescall v. Rochford, No. 75 C 3913, 1976 WL 1672, *2 (N.D. Ill.

2 May 3, 1976) (denying motion to vacate preliminary injunction issued against challenged rule

3 because “amended [rule] remains of questionable constitutionality”).

4 C. To the Extent Defendants’ Notice Is Construed as a Motion, It Should Be Denied

5

Even assuming that Defendants’ notice can be construed as a motion to modify the

6 preliminary injunction with respect to the six-country or refugee bans, the Court should deny

7 Defendants’ request. Not only do the Second Executive Order’s provisions share fundamental

8 features with those enjoined in the First Executive Order, but, by Defendants’ own admission,

9 they were motivated by the same goals and designed to achieve the “same basic policy

10 outcome.” See Purcell Decl. ¶¶ 6-8, Exs. D-F.

11

First, the President admits that the Second Executive Order redeploys “critical

12 provisions” of the First Executive Order. Second Executive Order § 1(c). Sections 2(c) and

13 6(a) have the same basic effects as sections of the First Executive Order that this Court already

14 enjoined, namely sections 3(c) and 5(a). Although section 2(c) now exempts certain individuals

15 covered by the prior section 3(c) (including green card holders and visa holders), the Ninth

16 Circuit already rejected the idea that the prior injunction protected only these individuals.

17 Washington, 847 F.3d at 1166. And although the revised order eliminates other provisions

18 related to refugees that this Court enjoined, it makes no material change to section 5(a) in new

19 section 6(a). The bottom line is that this Court already enjoined Defendants from suspending

20 the U.S. Refugee Admissions Program and the entry of nationals from Iran, Libya, Somalia,

21 Sudan, Syria, and Yemen. The President cannot unilaterally reinstate these provisions just by

22 repackaging them.

23

To the extent Defendants seek to treat the Second Executive Order’s waiver provisions

24 as a get-out-of-jail free card, it is inappropriate because materially identical waiver provisions

25 applied to the First Executive Order. Compare First Executive Order §§ 3(g), 5(e), with Second

26 Executive Order §§ 3(c), 6(a). As before, waivers, if any, will be granted exclusively at

RESPONSE TO DEFENDANTS’ NOTICE OF

11

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 12 of 16

1 Defendants’ discretion. See Second Executive Order § 3(c) (identifying circumstances where a

2 case-by-case waiver “could be appropriate”) (emphasis added). And, unlike almost all other

3 provisions in the Second Executive Order—which instruct federal agencies to submit detailed

4 reports on their progress, implement “uniform screening and vetting standards,” and issue

5 appropriate “directives,”—the waiver provisions carry no such procedural requirements.

6 Cf. Second Executive Order § 2(b) (report on worldwide review); § 2(e) (submission of

7 recommendations); § 2(g) (joint report); § 5(a) (“implement a program”); § 5(b) (reports at 60,

8 100, and 200 days of the order); § 6(a) (review and implement procedures); § 7 (reconsider

9 certain authority, directives, and guidance); § 8(b) (periodic reports at 100, 180, 200, and 365

10 days); § 11(a)-(b) (collect and publish information every 180 days). In light of Defendants’

11 alleged motivations in issuing the Second Executive Order, the lack of any implementing

12 provisions suggests the waivers may be nothing more than an empty promise. See also

13 Washington, 847 F.3d at 1169 (rejecting argument that “waiver provisions are a sufficient

14 safety valve”).

15

Second, Defendants have not shown and cannot show that the unlawful, discriminatory

16 motives that played a part in the adoption of the First Executive Order somehow disappeared in

17 adopting nearly identical provisions of the Second Executive Order. See Aziz, 2017 WL

18 580855, at *8 (“the world is not made brand new every morning” (quoting McCreary Cty. v.

19 ACLU, 545 U.S. 844, 866 (2005)). This Court, the Ninth Circuit, and other courts have all

20 found that states’ Establishment Clause and equal protection claims based on improper

21 religious intent are quite strong. See, e.g., ECF 52, at 4; Washington, 847 F.3d at 1168 (“The

22 States’ [Establishment Clause and Equal Protection] claims raise serious allegations and

23 present significant constitutional questions.”); Aziz, 2017 WL 580855, at *8 (same). Thus,

24 Defendants are simply incorrect to claim that “the concerns relied upon by the States in

25 bringing this action are no longer at issue.” Notice of Filing, ECF No. 108, at 14.

26

RESPONSE TO DEFENDANTS’ NOTICE OF

12

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 13 of 16

1

Indeed, senior Administration officials have reiterated that Defendants’ current

2 motivations are no different than the first time around. See Purcell Decl. ¶ 6, Ex. D; (Second

3 Executive Order designed to achieve “the same basic policy outcome”); see also id. ¶ 7, Ex. E

4 (“[I]f you think about it, the principles of the executive order remain the same.”); Peacock v.

5 Duval, 694 F.2d 644, 646 (9th Cir. 1982) (holding “post hoc rationalizations” cannot prevent a

6 “searching inquiry” into the motives behind alleged constitutional violations). And the

7 evidence that has appeared since the Court’s initial injunction only further highlights that

8 Defendants’ purported national security motivations for issuing the executive orders are

9 pretextual. See Purcell Decl. ¶ 10, Ex. H at 1 (“Key Finding[ ]” by Department of Homeland

10 Security Office of Intelligence and Analysis that “country of citizenship is unlikely to be a

11 reliable indicator of potential terrorist activity”); id. ¶ 11, Ex. I at 1 (“Key Judgment[ ]” of same

12 office that “most foreign-born, US-based extremists likely radicalized several years after their

13 entry to the United States, limiting the ability of screening and vetting officials to prevent their

14 entry because of national security concerns”). The Administration’s rejection of intelligence

15 reports that conflict with its preferred outcome only adds to the mountain of motive evidence

16 already present in this case. See Purcell Decl. ¶ 12, Ex. J (lamentation by senior Administration

17 official that “[t]his is not the intelligence assessment the president asked for”).

18

Finally, Defendants point to no evidence that inequity will result from maintaining the

19 status quo until the merits are determined. Cf. Credit Suisse First Boston Corp., 400 F.3d at

20 1124 (“[A] motion to modify a preliminary injunction is meant only to relieve inequities that

21 arise after the original order.”). Instead, equity favors “preserv[ing] the status quo and the

22 rights of the parties until a final judgment issues[.]” U.S. Philips Corp., 590 F.3d at 1094. As

23 the Ninth Circuit held in rejecting Defendants’ claim that they would suffer irreparable harm

24 absent a stay of this Court’s injunction, “the Government submitted no evidence to rebut the

25 States’ argument that the district court’s order merely returned the nation temporarily to the

26 position it has occupied for many previous years.” Washington, 847 F.3d at 1168; accord Aziz,

RESPONSE TO DEFENDANTS’ NOTICE OF

13

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 14 of 16

1 2017 WL 580855, at *10 (finding that Defendants had shown no harm from enjoining the First

2 Executive Order by presenting no “evidence of harm they or the nation will suffer” beyond

3 “bare assertions that the [Executive Order] is necessary for national security”). That analysis

4 remains correct. Defendants will suffer no inequity from leaving the status quo in place until

5 the merits are settled.

6

In summary, Defendants show no significant change in fact, law, or equity that would

7 warrant modification of this Court’s preliminary injunction. Sections 2(c) and 6(a) of the

8 Second Executive Order are materially indistinguishable from provisions this Court already

9 enjoined, and are motivated by the same religious animus as the First Executive Order. Absent

10 modification by this Court following a properly noted motion and opportunity to be heard, the

11 injunction applies and restrains Defendants from implementing these provisions.

12

IV. CONCLUSION

13

Defendants unilaterally declare that “[t]his Court’s injunctive order does not limit the

14 Government’s ability to immediately begin enforcing the New Executive Order.” Notice of

15 Filing, ECF No. 108, at 14. Defendants are incorrect. This Court should confirm that its

16 preliminary injunction continues to restrain Defendants from implementing sections 2(c) and

17 6(a) of the Second Executive Order, which purport to reinstate provisions of the First

18 Executive Order already enjoined by the Court.

19

20

21

22

23

24

25

26

RESPONSE TO DEFENDANTS’ NOTICE OF

14

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 15 of 16

1

RESPECTFULLY SUBMITTED this 9th day of March 2017.

2

ROBERT W. FERGUSON

3

Washington Attorney General

4

s/ Robert W. Ferguson

ROBERT W. FERGUSON, WSBA #26004 5
NOAH G. PURCELL, WSBA #43492

6

Solicitor General

7

COLLEEN M. MELODY, WSBA #42275 Civil Rights Unit Chief

8

ANNE E. EGELER, WSBA #20258

9

Deputy Solicitor General

MARSHA CHIEN, WSBA #47020

10

PATRICIO A. MARQUEZ, WSBA #47693

11

Assistant Attorneys General

Office of the Attorney General

12

800 Fifth Avenue, Suite 2000

13

Seattle, WA 98104 (206) 464-7744

14

Noahp@atg.wa.gov

15

16

17

18

19

20

21

22

23

24

25

26

RESPONSE TO DEFENDANTS’ NOTICE OF

15

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113 Filed 03/09/17 Page 16 of 16

1

CERTIFICATE OF SERVICE

2

I hereby certify that the foregoing document was electronically filed with the United

3 States District Court using the CM/ECF system. I certify that all participants in the case are

4 registered CM/ECF users and that service will be accomplished by the appellate CM/ECF

5 system.

6 March 9, 2017
7
8

s/ Noah G. Purcell NOAH G. PURCELL, WSBA 43492

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

RESPONSE TO DEFENDANTS’ NOTICE OF

16

FILING OF EXECUTIVE ORDER

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-00141-JLR Document 113-1 Filed 03/09/17 Page 1 of 3

1

ROBERT W. FERGUSON 2 WSBA #26004

3

Attorney General NOAH G. PURCELL

4 WSBA #43492 Solicitor General

5 COLLEEN M. MELODY

WSBA #42275 6 Civil Rights Unit Chief

7

Office of the Attorney General 800 Fifth Avenue, Suite 2000

8 Seattle, WA 98104 206-464-7744

9

The Honorable James L. Robart

10

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

11

STATE OF WASHINGTON and 12 STATE OF MINNESOTA,

CIVIL ACTION NO. 2:17-cv-00141-JLR

13

Plaintiffs,

14

v.

15 DONALD TRUMP, in his official
capacity as President of the United 16 States; U.S. DEPARTMENT OF
HOMELAND SECURITY; JOHN F. 17 KELLY, in his official capacity as
Secretary of the Department of 18 Homeland Security; REX W.
TILLERSON, in his official capacity 19 as Secretary of State; and the UNITED
STATES OF AMERICA, 20
Defendants. 21

DECLARATION OF NOAH G. PURCELL IN SUPPORT OF RESPONSE TO DEFENDANTS’ NOTICE OF FILING OF EXECUTIVE ORDER

22

Pursuant to 28 U.S.C. § 1746(2), I, Noah G. Purcell, hereby declare as follows:

23 1. I am over the age of eighteen and competent to testify.

24 2. I am the Solicitor General for the State of Washington. I make this declaration as a

25 representative of the State of Washington (“State”) in support of Response to Defendants’

26 Notice of Filing of Executive Order.

PURCELL DECL. ISO RESPONSE TO DEFENDANTS’ NOTICE OF FILING OF EXECUTIVE ORDER

1

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 113-1 Filed 03/09/17 Page 2 of 3

1 3. Attached hereto as Purcell Declaration Exhibit A is a true and correct copy of a 2 transcript from the Republican primary debate held on January 14, 2016, printed from 3 http://www.presidency.ucsb.edu/ws/index.php?pid=111395. 4 4. Attached hereto as Purcell Declaration Exhibit B is a true and correct copy of printout 5 from the C-SPAN webpage containing a video of President Trump’s remarks on 6 December 21, 2016. The video is available at: https://www.c-span.org/video/?4205837 101/presidentelect-trump-speaks-reporters-palm-beach-florida. 8 5. Attached hereto as Purcell Declaration Exhibit C is a true and correct copy of a 9 printout of a Washington Post news article dated February 16, 2017, titled “Donald Trump’s 10 combative, grievance-filled news conference, annotated,” which includes a transcript of 11 President Trump’s February 16, 2017 press conference. 12 6. Attached hereto as Purcell Declaration Exhibit D is a true and correct copy of a 13 transcript of a February 21, 2017, Fox News interview with President Trump’s advisor, 14 Stephen Miller, titled “Miller: New order will be responsive to the judicial ruling; Rep. Ron 15 DeSantis: Congress has gotten off to a slow start,” printed from 16 http://www.foxnews.com/transcript/2017/02/21/miller-new-order-will-be-responsive-to17 judicial-ruling-rep-ron-desantis. 18 7. Attached hereto as Purcell Declaration Exhibit E is a true and correct copy of a 19 transcript of White House Press Secretary Sean Spicer’s Press Gaggle held on 20 March 6, 2017, printed from https://www.whitehouse.gov/the-press-office/2017/03/06/press21 gaggle-press-secretary-sean-spicer. 22 8. Attached hereto as Purcell Declaration Exhibit F is a true and correct copy of a 23 transcript of White House Press Secretary Sean Spicer’s Press Conference held on 24 February 27, 2017, printed from https://www.whitehouse.gov/the-press-office25 2017/02/27/press-briefing-press-secretary-sean-spicer-2272017-17. 26

PURCELL DECL. ISO RESPONSE TO DEFENDANTS’ NOTICE OF FILING OF EXECUTIVE ORDER

2

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 113-1 Filed 03/09/17 Page 3 of 3

1 9. Attached hereto as Purcell Declaration Exhibit G is a true and correct copy of a

2 printout of a Washington Post news article dated March 6, 2017, titled “Revised executive

3 order bans travelers from six Muslim-majority countries from getting new visas.”

4 10. Attached hereto as Purcell Declaration Exhibit H is a true and correct copy of a draft

5 report linked to a Washington Post news article dated February 24, 2017, titled “DHS report

6 casts doubt on need for Trump travel ban.” The draft report is available at

7 https://assets.documentcloud.org/documents/3474730/DHS-intelligence-document-on-

8 President-Donald.pdf.

9 11. Attached hereto as Purcell Declaration Exhibit I is a true and correct copy of a final

10 report published in an MSNBC news article dated March 3, 2017, titled “TRMS Exclusive:

11 DHS document undermines Trump case for travel ban.” The final report, titled Intelligence

12 Assessment: Most Foreign-born, US-based Violent Extremists Radicalized after Entering the

13 Homeland; Opportunities for Tailored CVE Programs Exist, is available at

14 http://i2.cdn.turner.com/cnn/2017/images/03/03/dhs.intell.assessment.pdf.

15 12. Attached hereto as Purcell Declaration Exhibit J is a true and correct copy of a

16 printout of a Fox news article dated February 25, 2017, titled “Trump rejects DHS intelligence

17 report on travel ban.”

18

I declare under penalty of perjury that the foregoing is true and correct.

19

Executed this 9th day of March, 2017

20

s/ Noah G. Purcell

21

NOAH G. PURCELL, WSBA #43492

Solicitor General

22

Office of the Attorney General

800 Fifth Avenue, Suite 2000

23

Seattle, WA 98104-3188

(206) 464-7744 24

25

26

PURCELL DECL. ISO RESPONSE TO DEFENDANTS’ NOTICE OF FILING OF EXECUTIVE ORDER

3

ATTORNEY GENERAL OF WASHINGTON

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 1 of 34
Purcell Declaration Exhibit A

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 2 of 34

Republican Candidates Debate in North Charleston, South Carolina
January 14, 2016

Like 13K Tweet

PARTICIPANTS: Former Governor Jeb Bush (FL); Ben Carson; Governor Chris Christie (NJ); Senator Ted Cruz (TX); Governor John Kasich (OH); Senator Marco Rubio (FL); Donald Trump;

Location:

MODERATORS:

Document Archive
• Public Papers of the Presidents • State of the Union Addresses & Messages • Inaugural Addresses • Farewell Addresses • Weekly Addresses • Fireside Chats • News Conferences • Executive Orders • Proclamations • Signing Statements • Press Briefings • Statements of Administration Policy • Economic Report of the President • Debates • Convention Speeches • Party Platforms • 2016 Election Documents • 2012 Election Documents • 2008 Election Documents • 2004 Election Documents • 1960 Election Documents • 2017 Transition • 2009 Transition • 2001 Transition
Data Archive
Data Index
Media Archive
Audio/Video Index
Elections
Election Index Florida 2000
Links
Presidential Libraries
View Public Papers by
Month and Year

Maria Bartiromo (Fox Business Network); and Neil Cavuto (Fox Business Network)
CAVUTO: It is 9:00 p.m. here at the North Charleston Coliseum and Performing Arts Center in South Carolina. Welcome to the sixth Republican presidential of the 2016 campaign, here on the Fox Business Network. I'm Neil Cavuto, alongside my friend and co-moderator Maria Bartiromo.
BARTIROMO: Tonight we are working with Facebook to ask the candidates the questions voters want answered. And according to Facebook, the U.S. election has dominated the global conversation, with 131 million people talking about the 2016 race. That makes it the number one issue talked about on Facebook last year worldwide.
CAVUTO: Now, the seven candidates on the stage tonight were selected based on their standing in six national polls, as well as polls in the early-voting states of Iowa and New Hampshire, those standings determining the position on the stage of the candidates tonight. And here they are.
Businessman Donald Trump. [applause]
Texas senator Ted Cruz. [applause]
Florida senator Marco Rubio. [applause]
Neurosurgeon Ben Carson. [applause]
New Jersey governor Chris Christie. [applause]
Former Florida governor Jeb Bush.

United States South Carolina
Font Size: Share
The American Presidency Project
Promote Your Page Too

MMoontnh th

YYeearar And Ohio governor John Kasich. [applause]

January 1789 3 FINeCbLrUuDaErdyocum1e7n9ts0 fSroemcMrethtaaerryOcfhfice of the1P7r9es1s 3 AINpCrLilUDE electi1on792 camMpaaigyn document1s 793

BARTIROMO: Tonight's rules are simple: up to 90 seconds for each answer, one minute for each follow-up response. And if a candidate goes over the allotted time, you'll hear this. [bell rings] So let's get started. Candidates, jobs and growth — two of the biggest issues facing the country right now. In his State of the Union address earlier this week, the president said, quote, "we have the strongest, most durable economy in the world."

June

1794

JSuelayrch the E1n7tir9e5

And according to our Facebook research, jobs is one of the biggest issues resonating across the country, including here in South Carolina. The president is touting 14 million new jobs and an unemployment rate cut in half.

August 1796

September1797

October 1798 http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 3 of 34
Document Archive

Enter keyword:

The president said that anyone who claims America's economy is in decline is peddling fiction. Senator Cruz, what do you

see that he doesn't?

AND OR NOT

CRUZ: Well, Maria, thank you for that question, and let me say thank you to the state of South Carolina for welcoming us.

Limit by Year
From: 11778989 To : 2107179809 Limit resul1ts7p9er10page
310107921

Let me start — I want to get to the substance of the question on jobs, but I want to start with something. Today, many of us picked up our newspapers, and we were horrified to see the sight of 10 American sailors on their knees, with their hands on their heads.
In that State of the Union, President Obama didn't so much as mention the 10 sailors that had been captured by Iran.

3
the

IONfCficLeUDofE23thd1100eo77cPur99ems3423esnts

from

Secretary 4107954

3 INCLUDE5e10le7ct9io65n

campaign docu1m7e9nt76s

17987

President Obama's preparing to send $100 billion or more to the Ayatollah Khamenei. And I'll tell you, it was heartbreaking.
But the good news is the next commander-in-chief is standing on this stage. [applause] And I give you my word, if I am elected president, no service man or service woman will be forced to be on their knees, and any nation that captures our fighting men will feel the full force and fury of the United States of America. [applause]

17998

Now, on to your substantive question. The president tried to paint a rosy picture of jobs. And you know, he's right. If

Instru1c87ti09on09s

you're a Washington lobbyist, if you make your money in and around Washington, things are doing great. The

You can sea1rc8h 0th10e Public millionaires and billionaires are doing great under Obama. But we have the lowest percentage of Americans working

Papers in two w1a8y0s:21

today of any year since 1977. Median wages have stagnated. And the Obama-Clinton economy has left behind the working

1. Search Year

by11K88e00yw3423ord

and

You can sear1ch80by54keyword

and choose within your

thsee1ar8racn0hg65eboyf

years filling

out the boxes1u8n0de76r Search

men and women of this country.
The reason all of us are here is we believe we should be fighting for the working men and women of this country, and not Washington, D.C.
BARTIROMO: Thank you, sir. [applause]

the Public Pap1er8s.087

2. View by 1M8o0nt98h and/or

Year

181009

CAVUTO: Governor Kasich, we are not even two weeks into this stock trading year, but [inaudible] investors already lost $1.6 trillion in market value. That makes it the worst start to a new year ever. Many worry that things will get even worse,

Select the mo1nt8h 1an10d/or year yaobuoutwaonudldpreli1kses8V1iin21efwormPautbiolinc Papers. Then c1h8oo1s32e a Public

Paper and the1p8a1ge43will load

for you.

18154

and that banks and financial stocks are particularly vulnerable.
Now, if this escalates, like it did back when Barack Obama first assumed the presidency, what actions would you take if this same thing happens all over again just as, in this example, you are taking over the presidency?
KASICH: Look, it takes three things basically to grow jobs. And I've done it when I was in Washington when we had a

Search Engine 1pr8ov1id65ed by the balanced budget; had four years of balanced budgets; paid down a half-trillion of debt. And our economy was growing like

HtJhiamarnrykBsoSrtow. icTkruamn11dan88Dr11L. i7867bRraafreye.

Our Che

crazy. It's the same thing that I did in Ohio. It's a simple formula: common sense regulations, which is why I think we should freeze all federal regulations for one year, except for health and safety. It requires tax cuts, because that sends a

Kassim at Pro1je8ct1W98histlestop message to the job creators that things are headed the right way. And if you tax cuts — if you cut taxes for corporations,

182109 for critical assistance in the
implementation of the search

and you cut taxes for individuals, you're going to make things move, particularly the corporate tax, which is the highest, of

function, and to18Sc2ot10t Roley at 18221 the Truman Library for facilitating
this collaboration.
18232 18243 18254

course, in the — in the world.
But in addition to that, we have to have fiscal discipline. We have to show that we can march to a balanced budget. And when you do that, when you're in a position of managing regulations; when you reduce taxes; and when you have fiscal discipline, you see the job creators begin to get very comfortable with the fact that they can invest.

18265

Right now, you don't have the — you have taxes that are too high. You have regulations — I mean, come on, they're

18276

affecting everybody here, particularly our small businesses. They are — they're in a position where they're smothering

18287

people. And I mean, are you kidding me? We're nowhere close to a balanced budget or fiscal discipline.

18298 183209 18310 18321

Those three things put together are going to give confidence to job creators and you will begin to see wages rise. You will begin to see jobs created in a robust economy. And how do I know it? Because I've done it. I did it as the chairman of the Budget Committee, working with Senator Domenici. And I've done it in the state of Ohio as the chief executive.

18332

Our wages are growing faster than the national average. We're running surpluses. And we can take that message and that

18343

formula to Washington to lift every single American to a better life. [applause]

18354

18365

BARTIROMO: We know that recent global events have many people worried — Iran detaining American sailors, forcing

18376

them to apologize; North Korea and its nuclear ambitions; an aggressive China; and a Middle East that continues to

18387

18398 http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 4 of 34
deteriorate, not to mention ISIS is getting stronger.
Governor Christie, sometimes it seems the world is on fire. Where and when should a president use military action to restore order?
CHRISTIE: Well, Maria, I'm glad to have heard from you in the summary of that question about what's going on in the world. Because Tuesday night, I watched story time with Barack Obama. And I've got to tell you, it sounded like everything in the world was going amazing, you know? [applause]
The fact is, there's a number of things that the next president is going to have to do to clean up this mess. The first thing is we have to strengthen our alliances around the world. And the best way to do that is to start talking to our allies again and having them be able to count on our word.
Lots of people will say lots of different things about me in this campaign and others, but the one thing they've never said about me is that I'm misunderstood. And so when we talk to our allies and we give them our word, in a Christie administration, they know we're going to keep it.
Next, we have to talk to our adversaries, and we have to make sure they understand the limits of our patience. And this president, given what Ted said right at the beginning, he's absolutely right. It's a — it's absolutely disgraceful that Secretary Kerry and others said in their response to what's going on in Iran that this was a good thing; it showed how the relationship was getting better.
The president doesn't understand — and by the way, neither does Secretary Clinton — and here's my warning to everybody out in the audience tonight. If you're worried about the world being on fire, you're worried about how we're going to use our military, you're worried about strengthening our military and you're worried most of all about keeping your homes and your families safe and secure, you cannot give Hillary Clinton a third term of Barack Obama's leadership.
I will not do that. If I'm the nominee, she won't get within 10 miles of the White House. [applause]
BARTIROMO: Just to be clear Governor, where and when would you use military action?
CHRISTIE: MIlitary action, Maria, would be used when it was absolutely necessary to protect American lives and protect American interests around the world. We are not the world's policeman, but we need to stand up and be ready.
And the problem, Maria, is that the military is not ready, either. We need to rebuild our military, and this president has let it diminish to a point where tinpot dictators like the mullahs in Iran are taking our Navy ships. It is disgraceful, and in a Christie administration, they would know much, much better than to do that. [applause]
CAVUTO: Governor Bush, the president just told the nation two nights ago that America is back and that the idea that our enemies are getting stronger or that this country is getting weaker, well, it's just rhetoric and hot air. Now other Democrats go even further, sir, saying Republicans even suggesting such comments actually embolden our enemies. I guess they would include you. What do you say?
BUSH: Well first of all, the idea that somehow we're better off today than the day that Barack Obama was inaugurated president of the United States is totally an alternative universe. The simple fact is that the world has been torn asunder.
Think about it. With grandiose language, the president talks about red lines and nothing to follow it up; talks about ISIS being the JV team, they form a caliphate the size of Indiana with 35 (thousand) to 40,000 battle-tested terrorists. He's missing the whole point, that America's leadership in the world is required for peace and stability.
In the crowd today is Major General James Livingston, who's the co-chairman of my campaign here in South Carolina, a Medal of Honor recipient. [applause]
I've learned from him that what we need to achieve is peace through strength, which means we need to rebuild the military. In this administration, every weapon system has been gutted, in this administration, the force levels are going down to a level where we can't even project force. Our friends no longer think we have their back and our enemies no longer fear us, and we're in a much difficult — we're in a much different position than we should be.
And for the life of me, I have no understanding why the president thinks that everything is going well. Terrorism is on the run, China, Russia is advancing their agenda at warp speed, and we pull back.
As president of the United States, I will be a commander in chief that will have the back of the military. We will rebuild the
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 5 of 34
military to make sure that it is a solid force, not to be the world's policeman, but to make sure that in a peaceful world, people know that the United States is there to take care of our own national interests and take care of our allies. [applause]
CAVUTO: So I take it from that you do not agree with the president.
BUSH: No. And worse — worse yet, to be honest with you, Hillary Clinton would be a national security disaster.
Think about it. She wants to continue down the path of Iran, Benghazi, the Russian reset, Dodd-Frank, all the things that have — that have gone wrong in this country, she would be a national security mess. And that is wrong.
And you know what? Here's the problem. If she gets elected, she's under investigation with the FBI right now. If she gets elected, her first 100 days, instead of setting an agenda, she might be going back and forth between the White House and the courthouse. We need to stop that. [laughter and applause]
CAVUTO: Senator Rubio, the president says that ISIS doesn't threaten our national existence like a Germany or a Japan back in World War II, that the terror group is nothing more than twisted souls plotting attacks in their garages.
But House Homeland Security Committee recently said that over 1,000 ongoing investigations of homegrown extremism in 50 states. So how do you define the threat? Germany then or dangerous nut cases now?
RUBIO: Yeah, I would go, first of all, one step further in this description of Hillary Clinton. She wouldn't just be a disaster, Hillary Clinton is disqualified from being commander in chief of the United States. [applause]
Someone who cannot handle intelligence information appropriately cannot be commander in chief and someone who lies to the families of those four victims in Benghazi can never be president of the United States. Ever. [applause]
On the issue of Barack Obama, Barack Obama does not believe that America is a great global power. Barack Obama believes that America is a arrogant global power that needs to be cut down to size. And that's how you get a foreign policy where we cut deals with our enemies like Iran and we betray our allies like Israel and we gut our military and we go around the world like he has done on 10 separate occasions and apologized for America.
He doesn't understand the threat in ISIS. He consistently underestimates it but I do not. There is a war against ISIS, not just against ISIS but against radical jihadists terrorists, and it is a war that they win or we win.
When I'm president of the United States, we are going to win this war on ISIS. The most powerful intelligence agency in the world is going to tell us where we are, the most powerful military in the world is going to destroy them. And if we capture any of them alive, they are getting a one-way ticket to Guantanamo Bay, Cuba, and we are going to find out everything they know. [applause]
CAVUTO: Thank you, Senator.
BARTIROMO: Dr. Carson, the president says he does not want to treat ISIS as a foreign army, but ISIS is neither a country nor a government. How do you attack a network that does not respect national borders?
CARSON: Well, I'm very happy to get a question this early on. I was going to ask you to wake me up when that time came. [laughter]
You know, I find it really quite fascinating some of the president's proclamations. The fact of the matter is he doesn't realize that we now live in the 21st century, and that war is very different than it used to be before. Not armies massively marching on each other and air forces, but now we have dirty bombs and we have cyber attacks and we have people who will be attacking our electrical grid. And, you know, we have a whole variety of things that they can do and they can do these things simultaneously. And we have enemies who are obtaining nuclear weapons that they can explode in our exoatmosphere and destroy our electric grid.
I mean, just think about a scenario like that. They explode the bomb, we have an electromagnetic pulse. They hit us with a cyberattack simultaneously and dirty bombs. Can you imagine the chaos that would ensue at that point? He needs to recognize that those kinds of things are in fact an existential threat to us.
But here's the real key. We have the world's best military, even though he's done everything he can to diminish it. And the fact of the matter is if we give them a mission and we don't tie their hands behind their back, they can get it accomplished. [applause]
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 6 of 34
CAVUTO: Mr. Trump, at the State of the Union, the president pointed to a guest who was a Syrian refugee you might recall whose wife and daughter and other family members were killed in an air attack. Now he fled that country seeking asylum here, ultimately ended up in Detroit where he's now trying to start a new life.
The president says that that doctor is the real face of these refugees and not the one that you and some of your colleagues on this stage are painting; that you prefer the face of fear and terror and that you would refuse to let in anyone into this country seeking legitimate asylum. How do you answer that?
TRUMP: It's not fear and terror, it's reality. You just have to look today at Indonesia, bombings all over. [applause]
You look at California, you look, frankly, at Paris where there's a — the strictest no-gun policy of any city anywhere in the world, and you see what happens: 130 people dead with many to follow. They're very, very badly wounded. They will — some will follow. And you look around, and you see what's happening, and this is not the case when he introduced the doctor — very nice, everything perfect but that is not representative of what you have in that line of migration.
That could be the great Trojan Horse. It could be people that are going to do great, great destruction. When I look at the migration, I looked at the line, I said it actually on your show recently, where are the women? It looked like very few women. Very few children. Strong, powerful men, young and people are looking at that and they're saying what's going on?
You look at the kind of damage that two people that two people that got married, they were radicalized — they got married, they killed 15 people in actually 15 — going to be probably 16 but you look at that and you take a look — a good strong look and that's what we have. We are nineteen trillion dollars — our country's a mess and we can't let all these people come into our country and break our borders. We can't do it. [applause]
BARTIROMO: Senator Cruz, the New York Times is reporting that you failed to properly disclose a million dollars in loans from Goldman Sachs and CitiBank. During your senate race, your campaign said, "it was inadvertent." A million dollars is inadvertent?
CRUZ: Well Maria, thank you for passing on that hit piece in the front page of the New York Times. You know the nice thing about the mainstream media, they don't hide their views. The New York Times a few weeks back had a columnist who wrote a column saying, "Anybody But Cruz." Had that actually — that same columnist wrote a column comparing me to an evil demonic spirit from the move, "It Follows" that jumps apparently from body to body possessing people.
So you know the New York Times and I don't have exactly have the warmest of relationships. Now in terms of their really stunning hit piece, what they mentioned is when I was running for senate — unlike Hillary Clinton, I don't have masses of money in the bank, hundreds of millions of dollars. When I was running for senate just about every lobbyist, just about all of the establishment opposed me in the senate race in Texas and my opponent in that race was worth over 200 million dollars. He put a 25 million dollar check up from his own pocket to fund that campaign and my wife Heidi and I, we ended up investing everything we owned.
We took a loan against our assets to invest it in that campaign to defend ourselves against those attacks. And the entire New York times attack — is that I disclosed that loan on one filing with the United States Senate, that was a public filing. But it was not on a second filing with FDIC and yes, I made a paperwork error disclosing it on one piece of paper instead of the other. But if that's the best the New York Times has got, they better go back to the well.
BARTIROMO: Thank you.
[commercial break]
CAVUTO: All right. Welcome back to the Republican presidential , right here in North Charleston, South Carolina. Let's get right back to the questions. And I'll start with you, Senator Cruz.
Now you are, of course, a strict constitutionalist — no one would doubt that. And as you know, the U.S. Constitution says only natural-born citizens are eligible for the office of president of the United States. Stop me if you've heard this before. Now, you were born...[laughter]... you were born in Canada to an American mother. So you were and are considered an American citizen. But that fellow next to you, Donald Trump — and others — have said that being born in Canada means you are not natural-born, and that has raised questions about your eligibility.
Do you want to try to close this topic once and for all tonight?
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 7 of 34
CRUZ: Well, Neil, I'm glad we're focusing on the important topics of the evening. [laughter and applause]
You know, back in September, my friend Donald said that he had had his lawyers look at this from every which way, and there was no issue there. There was nothing to this birther issue. [laughter]
Now, since September, the Constitution hasn't changed. [laughter]
But the poll numbers have. [applause]
And I recognize — I recognize that Donald is dismayed that his poll numbers are falling in Iowa. But the facts and the law here are really quite clear. Under longstanding U.S. law, the child of a U.S. citizen born abroad is a natural-born citizen.
If a soldier has a child abroad, that child is a natural-born citizen. That's why John McCain, even though he was born in Panama, was eligible to run for president.
If an American missionary has a child abroad, that child is a natural-born citizen. That's why George Romney, Mitt's dad, was eligible to run for president, even though he was born in Mexico.
At the end of the day, the legal issue is quite straightforward, but I would note that the birther theories that Donald has been relying on — some of the more extreme ones insist that you must not only be born on U.S. soil, but have two parents born on U.S. soil.
Under that theory, not only would I be disqualified, Marco Rubio would be disqualified, Bobby Jindal would be disqualified and, interestingly enough, Donald J. Trump would be disqualified. [applause]
UNKNOWN: Not me.
CRUZ: Because — because Donald's mother was born in Scotland. She was naturalized. Now, Donald...
TRUMP: But I was born here.
CRUZ: ... on the issue — on the issue of citizenship, Donald...
TRUMP: [inaudible]. Big difference.
CRUZ: ... on the issue of citizenship, Donald, I'm not going to use your mother's birth against you.
TRUMP: OK, good. Because it wouldn't work.
CRUZ: You're an American, as is everybody else on this stage, and I would suggest we focus on who's best prepared to be commander- in-chief, because that's the most important question facing the country. [applause]
CAVUTO: Mr. Trump...[crosstalk]...that you raised it because of his rising poll numbers.
TRUMP: ... first of all, let me just tell you something — and you know, because you just saw the numbers yourself — NBC Wall Street Journal just came out with a poll — headline: Trump way up, Cruz going down. I mean, so don't — so you can't — you can't...[booing]...they don't like the Wall Street Journal. They don't like NBC, but I like the poll. [laughter]
And frankly, it just came out, and in Iowa now, as you know, Ted, in the last three polls, I'm beating you. So — you know, you shouldn't misrepresent how well you're doing with the polls. [applause]
You don't have to say that. In fact, I was all for you until you started doing that, because that's a misrepresentation, number one.
Number two, this isn't me saying it. I don't care. I think I'm going to win fair and square [inaudible] to win this way. Thank you.
Lawrence Tribe and [inaudible] from Harvard — of Harvard, said that there is a serious question as to whether or not Ted can do this. OK? There are other attorneys that feel, and very, very fine constitutional attorneys, that feel that because he was not born on the land, he cannot run for office.
Here's the problem. We're running. We're running. He does great. I win. I choose him as my vice presidential candidate, and the Democrats sue because we can't take him along for the ride. I don't like that. OK? [laughter]
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 8 of 34
The fact is — and if for some reason he beats the rest of the field, he beats the rest of the field [inaudible]. See, they don't like that. They don't like that. [audience booing]
No, they don't like he beats the rest of the field, because they want me. [laughter]
But — if for some reason, Neil, he beats the rest of the field, I already know the Democrats are going to be bringing a suit. You have a big lawsuit over your head while you're running. And if you become the nominee, who the hell knows if you can even serve in office? So you should go out, get a declaratory judgment, let the courts decide. And you shouldn't have mentioned the polls because I would have been much...[crosstalk]
CAVUTO: Why are you saying this now — right now? Why are you raising this issue now?
TRUMP: Because now he's going a little bit better. No, I didn't care [inaudible]. It's true. No, it's true. Hey look, he never had a chance. Now, he's doing better. He's got probably a four or five percent chance. [laughter]
[crosstalk]
CRUZ: Neil... [crosstalk]
TRUMP: The fact is, there is a big overhang. There's a big question mark on your head. And you can't do that to the party. You really can't. You can't do that to the party. You have to have certainty. Even if it was a one percent chance, and it's far greater than one percent because [inaudible].
I mean, you have great constitutional lawyers that say you can't run. If there was a — and you know I'm not bringing a suit. I promise. But the Democrats are going to bring a lawsuit, and you have to have certainty. You can't have a question. I can agree with you or not, but you can't have a question over your head.
CAVUTO: Senator, do you want to respond?
CRUZ: Well, listen, I've spent my entire life defending the Constitution before the U.S. Supreme Court. And I'll tell you, I'm not going to be taking legal advice from Donald Trump.
TRUMP: You don't have to. Take it from Lawrence Tribe. [applause] [crosstalk]
Take it from your professors...[crosstalk]
CRUZ: The chances of any litigation proceeding and succeeding on this are zero. And Mr. Trump is very focused...
TRUMP: He's wrong. He's wrong.
CRUZ: ... on Larry Tribe. Let me tell you who Larry Tribe is. He's a left-wing judicial activist, Harvard Law professor who was Al Gore's lawyer in Bush versus Gore. He's a major Hillary Clinton supporter. And there's a reason why Hillary's supporters are echoing Donald's attacks on me, because Hillary...
TRUMP: He is not the only one.
CRUZ: ... wants to face Donald Trump in the general election.
TRUMP: There are many lawyers.
CRUZ: And I'll tell you what, Donald, you — you very kindly just a moment ago offered me the V.P. slot. [laughter]
I'll tell you what. If this all works out, I'm happy to consider naming you as V.P. So if you happen to be right, you could get the top job at the end of the day.
TRUMP: No — no...[laughter]... I think if it doesn't... [applause] I like that. I like it. I'd consider it. But I think I'll go back to building buildings if it doesn't work out.
CRUZ: Actually, I'd love to get you to build a wall.
[crosstalk]
TRUMP: I have a feeling it's going to work out, actually.
[crosstalk]
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 9 of 34
RUBIO: Let me [inaudible]. I was invoked in that question, so let me just say — in that answer — let me say, the real question here, I hate to interrupt this episode of Court TV. [laughter]
But the real — but I think we have to get back to what this election has to be about. OK? Listen, we — this is the greatest country in the history of mankind. But in 2008, we elected a president that didn't want to fix America. He wants to change America. We elected a president that doesn't believe in the Constitution. He undermines it. We elected a president that is weakening America on the global stage. We elected a president that doesn't believe in the free enterprise system.
This election has to be about reversing all of that damage. That's why I'm running for office because when I become president of the United States, on my first day in office we are going to repeal every single one of his unconstitutional executive orders. When I'm president of the United States we are getting rid of Obamacare and we are rebuilding our military. And when I'm president, we're not just going to have a president that gives a State of the Union and says America is the greatest country in the world. When I'm president, we're going to have a president that acts like it.
BARTIROMO: Thank you, senator.
Mr. Trump, South Carolina Governor Nikki Haley in her response to the State of the Union address... [applause]...appeared to choose sides within the party, saying Republicans should resist, quote, "the siren call of the angriest voices". She confirmed, she was referring to you among others. Was she out of line? And, how would a President Trump unite the party?
TRUMP: Okay. First of all, Nikki this afternoon said I'm a friend of hers. Actually a close friend. And wherever you are sitting Nikki, I'm a friend. We're friends. That's good. [laughter] But she did say there was anger. And I could say, oh, I'm not angry. I'm very angry because our country is being run horribly and I will gladly accept the mantle of anger. Our military is a disaster. [applause]
Our healthcare is a horror show. Obamacare, we're going to repeal it and replace it. We have no borders. Our vets are being treated horribly. Illegal immigration is beyond belief. Our country is being run by incompetent people. And yes, I am angry. [applause] And I won't be angry when we fix it, but until we fix it, I'm very, very angry. And I say that to Nikki. So when Nikki said that, I wasn't offended. She said the truth.
One of your colleagues interviewed me. And said, well, she said you were angry and I said to myself, huh, she's right. I'm not fighting that. I didn't find it offensive at all. I'm angry because our country is a mess. [applause]
BARTIROMO: But what are you going to do about it?
CAVUTO: Marco Rubio. I'm sorry, it's the time constraints. You and Governor Christie have been exchanging some fairly nasty words of late, and I will allow the governor to respond as well.
The governor went so far to say, you won't be able to slime your way to the White House. He's referring to a series of ads done by a PAC, speaking on your behalf, that say quote,"One high tax, Common Core, liberal, energy-loving, Obamacare, Medicaid-expanding president is enough. You think you went too far on that and do you want to apologize to the governor?
RUBIO: You know, as I said already twice in this , we have a very serious problem in this country. [applause] We have a president of the United States that is undermining this country's security and expanding the role of...
CAVUTO: That is not my question.
RUBIO: Well, I am going to answer your question, Neil. He is — this president is undermining the constitutional basis of this government. This president is undermining our military. He is undermining our standing in the world. I like Chris Christie, but we can not afford to have a president of the United States that supports Common Core. [applause]
We can not afford to have a president of the United States that supports gun control. This president, this president is more interested in funding — less interested in funding the military, than he is in funding planned — he's more interested in funding Planned Parenthood than he is in funding the military.
Chris Christie wrote a check to Planned Parenthood. All I'm saying is our next president has to be someone that undoes the damage Barack Obama has done to this country. It can not be someone that agrees with his agenda.
Because the damage he has done to America is extraordinary. Let me tell you, if we don't get this election right, there may
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 10 of 34
be no turning back for America. We're on the verge of being the first generation of Americans that leave our children worse off than ourselves.
So I just truly, with all my heart belief, I like everybody on the stage. No one is a socialist. No one here is under FBI investigation. So we have a good group of people.
CAVUTO: Is he a liberal?
RUBIO: Our next president...
CAVUTO: Is he a liberal?
RUBIO: Unfortunately, Governor Christie has endorsed many of the ideas that Barack Obama supports, whether it is Common Core or gun control or the appointment of Sonia Sotomayor or the donation he made to Planned Parenthood. Our next president, and our Republican nominee can not be someone who supports those positions.
CAVUTO: Governor? [applause]
CHRISTIE: I stood on the stage and watched Marco in rather indignantly, look at Governor Bush and say, someone told you that because we're running for the same office, that criticizing me will get you to that office.
It appears that the same someone who has been whispering in old Marco's ear too. [laughter]
So the indignation that you carry on, some of the stuff, you have to also own then. So let's set the facts straight. First of all, I didn't support Sonia Sotomayor. Secondly, I never wrote a check to Planned Parenthood.
Third, if you look at my record as governor of New Jersey, I have vetoed a 50-caliber rifle ban. I have vetoed a reduction this clip size. I vetoed a statewide I.D. system for gun owners and I pardoned, six out-of-state folks who came through our state and were arrested for owning a gun legally in another state so they never have to face charges.
And on Common Core, Common Core has been eliminated in New Jersey. So listen, this is the difference between being a governor and a senator. See when you're a senator, what you get to do is just talk and talk and talk. And you talk so much that nobody can ever keep up with what you're saying is accurate or not.
When you're a governor, you're held accountable for everything you do. And the people of New Jersey, I've seen it. [applause]
CHRISTIE: And the last piece is this. I like Marco too, and two years ago, he called me a conservative reformer that New Jersey needed. That was before he was running against me. Now that he is, he's changed his tune.
I'm never going to change my tune. I like Marco Rubio. He's a good guy, a smart guy, and he would be a heck of a lot better president than Hillary Rodham Clinton would ever be. [applause]
BUSH: Neil, my name was mentioned here. Neil, my name was mentioned as well.
Here's the deal, Chris is totally right. He's been a good governor, and he's a heck of a lot better than his predecessor that would have bankrupted New Jersey.
Everybody on this stage is better than Hillary Clinton. And I think the focus ought to be on making sure that we leave this nomination process, as wild and woolly as it's going to be — this is not being bad.
These attack ads are going to be part of life. Everybody just needs to get used to it. Everybody's record's going to be scrutinized, and at the end of the day we need to unite behind the winner so we can defeat Hillary Clinton, because she is a disaster. [applause]
Our country rise up again, but we need to have a compelling conservative agenda that we present to the American people in a way that doesn't disparage people, that unites us around our common purpose.
And so everybody needs to discount some of the things you're going to hear in these ads, and discount the — the backand-forth here, because every person here is better than Hillary Clinton.
CARSON: Neil, I was mentioned too.
CAVUTO: You were?
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 11 of 34
CARSON: Yeah, he said everybody. [laughter]
And — and I just want to take this opportunity to say, you know, in the 2012 election, you know, we — and when I say we, Republicans — tore themselves apart.
You know, we have to stop this because, you know, if we manage to damage ourselves, and we lose the next election, and a progressive gets in there and they get two or three Supreme Court picks, this nation is over as we know it. And we got to look at the big picture here.
BARTIROMO: Governor Kasich...[applause]... Governor Kasich, Hillary Clinton is getting some serious competition from Senator Bernie Sanders. He's now at 41 percent in the latest CBS/New York Times poll. Vice President Biden sang his praises, saying Bernie is speaking to a yearning that is deep and real, and he has credibility on it.
So what does it say about our country that a candidate who is a self-avowed socialist and who doesn't think a 90 percent tax rate is too high could be the Democratic nominee?
KASICH: Well, if that's the case, we're going to win every state, if Bernie Sanders is the nominee. That's not even an issue. But look...[applause]...and I know Bernie, and I can promise you he's not going to be president of the United States. So here's this — the situation, I think, Maria.
And this is what we have to — I — I've got to tell you, when wages don't rise — and they haven't for a lot of families for a number of years — it's very, very difficult for them.
Part of the reason why it hasn't risen because sometimes we're not giving people the skills they need. Sometimes it's because the Federal Reserve kept interest rates so low that the wealthy were able to invest in — in strong assets like the stock market when everybody else was left behind.
People are upset about it. I'll tell you what else they're upset about: you're 50 or 51 years old, and some kid walks in and tells you you're out of work, and you don't know where to go and where to turn. Do we have answer for that? We do. There are ways to retrain the 50 and 51-year-olds, because they've got great value.
I'll tell you what else people are concerned about. Their kids come out of college, they have high debt and they can't get a good job. We got to do a lot about the high cost of high — higher education, but we've got to make sure we're training people for jobs that exist, that are good jobs that can pay. [applause]
Let me tell you that, in this country — in this country, people are concerned about their economic future. They're very concerned about it. And they wonder whether somebody is getting something to — keeping them from getting it.
That's not the America that I've ever known. My father used to say, "Johnny, we never — we don't hate the rich. We just want to be the rich." And we just got to make sure that every American has the tools, in K-through-12 and in vocational education, in higher education.
And we got to fight like crazy so people can think the American dream still exists, because it does, with rising wages, with full employment and with everybody in America — and I mean everybody in America — having an opportunity to realize the American dream of having a better life than their mother and their father.
I'm president — look, I've done it once. I've done it once in Washington, with great jobs and lower taxes. The economy was really booming.
And now in Ohio, with the same formula, wages higher than the — than the national average. A growth of 385,000 jobs.
[bell rings]
It's not that hard. Just know where you want to go, stick to your guts. Get it done, because our — our children and grandchildren are counting on us to get it done. And, folks, we will. You count on it.
BARTIROMO: Dr. Carson, one of the other candidates on this stage has brought Bill Clinton's past indiscretions. Is that a legitimate topic in this election? And what do you think of the notion that Hillary Clinton is an enabler of sexual misconduct?
CARSON: Well, there's not question that we should be able to look at past president whether they're married to somebody who's running for president or not in terms of their past behavior and what it means. But you know, here's the
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 12 of 34
real issue, is this America anymore? Do we still have standards? Do we still have values and principles?
You know, you look at what's going on, you see all the divisiveness and the hatred that goes on in our society. You know, we have a war on virtual everything — race wars, gender wars, income wars, religious wars, age wars. Every war you can imaging, we have people at each other's throat and our strength is actually in our unity.
You know, you go to the internet, you start reading an article and you go to the comments section — you cannot go five comments down before people are calling each all manner of names. Where did that spirit come from in America? It did not come from our Judeo-Christian roots, I can tell you that. And wherever it came from we need to start once again recognizing that there is such a thing as right and wrong. And let's not let the secular progressives drive that out of us.
The majority of people in American actually have values and principles and they believe in the very things that made America great. They've been beaten into submission. It's time for us to stand up for what we believe in. [applause]
CAVUTO: Well, we are not done. Coming up, one of the top things people are talking about on Facebook, guns. And you can join us live us on this stage in the conversation during this commercial break right from home. You can go to Facebook.com/[inaudible]. We will be streaming live and talking about how we think the is going so far.
We're back in a moment in Charleston, South Carolina.
[commercial break]
BARTIROMO: Welcome back to the Republican presidential debates, right here in North Charleston. Let's get right back to the questions.
Governor Bush, gun rights, one of the top issues seen on Facebook with close to 3 million people talking about it in the past month. Right here in Charleston, Dylann Roof, who has been accused of killing nine people in a nearby church, reportedly had not passed his background check when he got his gun. What is the harm in tightening standards for not only who buys guns, but those who sell them?
BUSH: First of all, I'd like to recognize Governor Haley for her incredible leadership in the aftermath of the — [applause] — the Emanuel AME church killings. And I also want to recognize the people in that church that showed the grace of God and the grace of forgiveness and the mercy that they showed. [applause] I don't know if any of us could have done what they did, one after another, within 48 hours of that tragedy taking place. Look, here's the deal, in this particular case, the FBI made a mistake. The law itself requires a background check, but that didn't fulfill their part of the bargain within the time that they were supposed to do.
We don't need to add new rules, we need to make sure the FBI does its job. Because that person should not have gotten a gun, should not — would not have passed a background check. The first impulse of Barack Obama and Hillary Clinton is to take rights away from law- abiding citizens.
That's what they do, whether it's the San Bernardino attack or if it's these tragedies that take place, I think we need to focus on what the bigger issue is. It isn't law-abiding gun owners.
Look, I have an A plus rating in the NRA and we also have a reduction in gun violence because in Florida, if you commit a crime with a gun, you're going away. You're going away for a long, long while.
And that's what we should focus on is the violence in our communities. Target the efforts for people that are committing crimes with guns, and if you do that, and get it right, you're going to be much better off than creating a political argument where there's a big divide.
The other issue is mental health. That's a serious issue that we could work on. Republicans and Democrats alike believe this. [applause] The president's first impulse is do this by executive order, power he doesn't have. Why not go to Congress and in a bipartisan way, begin to deal with the process of mental health issues so that people that are spiraling out of control because of mental health challenges don't have access to guns. [applause]
BARTIROMO: Thank you, sir.
Mr. Trump, are there any circumstances that you think we should be limiting gun sales of any kind in America?
TRUMP: No. I am a 2nd amendment person. If we had guns in California on the other side where the bullets went in the different direction, you wouldn't have 14 or 15 people dead right now.
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 13 of 34
If even in Paris, if they had guns on the other side, going in the opposite direction, you wouldn't have 130 people plus dead. So the answer is no and what Jeb said is absolutely correct.
We have a huge mental health problem in this country. We're closing hospitals, we're closing wards, we're closing so many because the states want to save money. We have to get back into looking at what's causing it. The guns don't pull the trigger. It's the people that pull the trigger and we have to find out what is going on. [applause]
We have to protect our 2nd amendment and you cannot do this and certainly what Barack Obama was doing with the executive order. He doesn't want to get people together, the old-fashioned way, where you get Congress. You get the Congress, you get the Senate, you get together, you do legislation. He just writes out an executive order. Not supposed to happen that way. [applause]
BARTIROMO: Thank you sir.
TRUMP: You get the Congress. You get the Senate. You get together. You do legislation. He just writes out an order, executive order. It's not supposed to happen that way. [applause]
BARTIROMO: Thank you, sir. [applause]
CAVUTO: Senator Rubio, you said that President Obama wants to take people's guns away. Yet under his presidency, gun sales have more than doubled. That doesn't sound like a White House unfriendly to gun owners.
RUBIO: That sounds like people are afraid the president's going to take their guns away. [applause]
Look, the Second Amendment is not an option. It is not a suggestion. It is a constitutional right of every American to be able to protect themselves and their families. I am convinced that if this president could confiscate every gun in America, he would. I am convinced that this president, if he could get rid of the Second Amendment, he would. I am convinced because I see how he works with his attorney general, not to defend the Second Amendment, but to figure out ways to undermine it.
I have seen him appoint people to our courts not to defend the Second Amendment, but to figure out ways to undermine it.
Here's my second problem. None of these instances that the president points to as the reason why he's doing these things would have been preventive. You know why? Because criminals don't buy their guns from a gun show. They don't buy their guns from a collector. And they don't buy their guns from a gun store. They get — they steal them. They get them on the black market.
And let me tell you, ISIS and terrorists do not get their guns from a gun show. These...[laughter and applause]... his answer — you name it. If there's an act of violence in America, his immediate answer before he even knows the facts is gun control. Here's a fact. We are in a war against ISIS. They are trying to attack us here in America. They attacked us in Philadelphia last week. They attacked us in San Bernardino two weeks ago. And the last line standing between them and our families might be us and a gun.
When I'm president of the United States, we are defending the Second Amendment, not undermining it the way Barack Obama does. [applause]
CAVUTO: But what fact can you point to, Senator — what fact can you point to that the president would take away everyone's gun? You don't think that's [inaudible]?
RUBIO: About every two weeks, he holds a press conference talking about how he can't wait to restrict people's access to guns. He has never defended...[crosstalk]...I'll give you a fact. Well, let me tell you this. Do you remember when he ran for president of the United States, and he was a candidate, and he went and said, "These Americans with traditional values, they are bitter people, and they cling to their guns and to their religion." That tells you right away where he was headed on all of this.
This president every chance he has ever gotten has tried to undermine the Second Amendment. [applause]
He doesn't meet — here's the difference. When he meets with the attorney general in the White House, it's not "how can we protect the Second Amendment rights of Americans." It's "give me options on how I can make it harder for law-abiding people to buy guns." That will never happen when I am president of the United States. [applause]
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 14 of 34
CAVUTO: Governor Christie, you, too, have criticized the president's recent executive action on gun control, saying it's unconstitutional, another step to bypass Congress. But hasn't your own position on guns evolved, sir? The New Jersey Star-Ledger reports that you signed several laws to regulate the possession of firearms, and that you argued back in August 2013, and I quote, "These common sense measures will strengthen New Jersey's already tough gun laws."
So isn't that kind of what the president wants to do now?
CHRISTIE: No, absolutely not. The president wants to do things without working with his Congress, without working with the legislature, and without getting the consent of the American people. And the fact is that that's not a democracy. That's a dictatorship. And we need to very, very concerned about that.
See, here's the thing. I don't think the founders put the Second Amendment as number two by accident. I don't think they dropped all the amendments into a hat and picked them out of a hat. I think they made the Second Amendment the second amendment because they thought it was just that important.
The fact is in New Jersey, what we have done is to make it easier now to get a conceal and carry permit. We have made it easier to do that, not harder. And the way we've done it properly through regulatory action, not by signing unconstitutional executive orders. This guy is a petulant child. That's what he is. I mean, you know...[applause]... the fact is, Neil, let's think about — let's think about — and I want to maybe — I hope the president is watching tonight, because here's what I'd like to tell him.
Mr. President, we're not against you. We're against your policies. When you became president, you had a Democratic Congress and a filibuster-proof Democratic Senate. You had only 21 Republican governors in this country. And now after seven years of your policies, we have the biggest majority we've had since the 1920s in the House; a Republican majority in the Senate; and 31 out of 50 Republican governors.
The American people have rejected your agenda and now you're trying to go around it. That's not right. It's not constitutional. And we are going to kick your rear end out of the White House come this fall. [applause]
BARTIROMO: So what is the answer, Senator Cruz, to stop mass shootings and violent crime, up in 30 cities across the country?
CRUZ: The answer is simple. Your prosecute criminals. You target the bad guys. You know, a minute ago, Neil asked: What has President Obama do — done to illustrate that he wants to go after guns?
Well, he appointed Eric Holder as attorney general. Eric Holder said he viewed his mission as brainwashing the American people against guns. He appointed Sonia Sotomayor to the Supreme Court, someone who has been a radical against the Second Amendment right to keep and bear arms.
He launched Fast and Furious, illegally selling guns to Mexican drug lords that were then used to shoot law enforcement officials. And I'll tell you what Hillary Clinton has said: Hillary Clinton says she agrees with the dissenters — the Supreme Court dissenters in the Heller case.
There were four dissenters, and they said that they believe the Second Amendment protects no individual right to keep and bear arms whatsoever, which means, if their view prevailed and the next president's going to get one, two, three, maybe four Supreme Court justices, the court will rule that not a single person in this room has any right under the Second Amendment and the government could confiscate your guns.
And I'll note that California senator — Democratic Senator Dianne Feinstein said, if she could say to Mr. America and Mrs. America, "give me your guns, I'm rounding them up," she would.
And let me make a final point on this. Listen, in any Republican primary, everyone is going to say they support the Second Amendment. Unless you are clinically insane...[laughter]...that's what you say in a primary. But the voters are savvier than that. They recognize that people's actions don't always match their words. I've got a proven record fighting to defend the Second Amendment.
There's a reason Gun Owners of America has endorsed me in this race. There's a reason the NRA gave me their Carter Knight Freedom Fund award...[bell rings]...and there's a reason, when Barack Obama and Chuck Schumer came after our right to keep and bear arms, that I led the opposition, along with millions of Americans — we defeated that gun control legislation.
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 15 of 34
And I would note the other individuals on this stage were nowhere to be found in that fight.
BARTIROMO: Senator...[applause]... let me follow up and switch gears. Senator Cruz, you suggested Mr. Trump, quote, "embodies New York values." Could you explain what you mean by that?
CRUZ: You know, I think most people know exactly what New York values are. [laughter]
BARTIROMO: I am from New York. I don't.
CRUZ: What — what — you're from New York? So you might not. [laughter]
But I promise you, in the state of South Carolina, they do. [applause]
And listen, there are many, many wonderful, wonderful working men and women in the state of New York. But everyone understands that the values in New York City are socially liberal or pro-abortion or pro- gay-marriage, focus around money and the media.
And — and I would note indeed, the reason I said that is I was asked — my friend Donald has taken to it as advance playing Bruce Springsteen's "Born in the USA", and I was asked what I thought of that.
And I said, "well, if he wanted to play a song, maybe he could play, 'New York, New York'?" And — and — you know, the concept of New York values is not that complicated to figure out.
Not too many years ago, Donald did a long interview with Tim Russert. And in that interview, he explained his views on a whole host of issues that were very, very different from the views he's describing now.
And his explanation — he said, "look, I'm from New York, that's what we believe in New York. Those aren't Iowa values, but this is what we believe in New York." And so that was his explanation.
And — and I guess I can — can frame it another way. Not a lot of conservatives come out of Manhattan. I'm just saying. [laughter]
BARTIROMO: Are you sure about that?
CAVUTO: Maria...
TRUMP: So conservatives actually do come out of Manhattan, including William F. Buckley and others, just so you understand. [applause]
And just so — if I could, because he insulted a lot of people. I've had more calls on that statement that Ted made — New York is a great place. It's got great people, it's got loving people, wonderful people.
When the World Trade Center came down, I saw something that no place on Earth could have handled more beautifully, more humanely than New York. You had two one hundred...[applause] ...you had two 110-story buildings come crashing down. I saw them come down. Thousands of people killed, and the cleanup started the next day, and it was the most horrific cleanup, probably in the history of doing this, and in construction. I was down there, and I've never seen anything like it.
And the people in New York fought and fought and fought, and we saw more death, and even the smell of death — nobody understood it. And it was with us for months, the smell, the air.
And we rebuilt downtown Manhattan, and everybody in the world watched and everybody in the world loved New York and loved New Yorkers. And I have to tell you, that was a very insulting statement that Ted made. [applause]
CAVUTO: Governor bush, for the third time in as many months, the Iranians have provoked us, detaining us, as we've been discussing, with these 10 Navy sailors Tehran had said strayed into their waters. The sailors were released, but only after shown on video apologizing for the incident. This occurring only weeks after Iran fired multiple rockets within 1,500 yards of a U.S. aircraft carrier and then continued to test medium range missiles.
Now you've claimed that such actions indicate Tehran has little to fear from a President Obama. I wonder, sir, what would change if they continued doing this sort of thing under a President Jeb Bush?
BUSH: Well, first of all, under President Jeb Bush, we would restore the strength of the military. Last week, Secretary
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 16 of 34
Carter announced that the Navy's going to be cut again. It's now half the size of what it was prior to Operation Desert Storm.
The deployments are too high for the military personnel. We don't have procurement being done for refreshing the equipment. The B-52 is still operational as the long range bomber; it was inaugurated in the age of Harry Truman. The planes are older than the pilots. We're gutting our military, and so the Iranians and the Chinese and the Russians and many other countries look at the United States not as serious as we once were.
We have to eliminate the sequester, rebuild our military in a way that makes it clear that we're back in the game.
Secondly, as it relates to Iran, we need to confront their ambitions across the board. We should reimpose sanctions, they've already violated sanctions after this agreement was signed by testing medium-range missiles.
Thirdly, we need to move our embassy from Tel Aviv to Jerusalem to send a serious signal that we're back in the game with Israel...[applause]...and sign an agreement that makes sure that the world knows that they will have technological superiority.
We need to get back in the game as it relates to our Arab nations. The rest of the world is moving away from us towards other alliances because we are weak. This president and John Kerry and Hillary Clinton all have made it harder for the next president to act, but he must act to confront the ambitions of Iran. We can get back in the game to restore order and security for our own country. [applause]
CAVUTO: Thank you, Governor. Governor Kasich, while everyone has been focusing on Iran's provocations, I'm wondering what you make of what Saudi Arabia has been doing and its recent moves in the region, including its execution of a well-known Shi'ite cleric and its move to dramatically increase oil production, some say in an effort to drive down oil prices and force a lot of U.S. oil producers out of business.
Sure enough, oil prices have tumbled. One brokerage house is predicting a third or more of American oil producers and those heavily invested in fracking will go bankrupt, and soon Saudi Arabia and OPEC will be back in the driver's seat. U.S. energy player Harold Hamrie similarly told me with friends like these, who needs enemies? Do you agree?
KASICH: Well, let me — let me first of all talk a little bit about my experience. I served on the Defense Committee for 18 years, and by the way, one of the members of that committee was Senator Strom Thurmond from South Carolina. Let em also tell you...[applause]...that after the 9/11 attacks, Secretary Rumsfeld invited me to the Pentagon with a meeting of the former secretaries of Defense. And in that meeting, I suggested we had a problem with technology, and that I wanted to take people from Silicon Valley into the Pentagon to solve our most significant problems. So I not only had the opportunity to go through the Cold War struggles in Central America, and even after 9/11 to be involved.
With Saudi Arabia and oil production, first of all, it's so critical for us to be energy independent, and we're getting there because of fracking and we ought to explore because, see, energy independence gives us leverage and flexibility, and secondly, if you want to bring jobs back to the United States of America in industry, low prices make the difference.
We're seeing it in my state and we'll see it in this country. And that's why we must make sure we continue to frack.
In terms of Saudi Arabia, look, my biggest problem with them is they're funding radical clerics through their madrasses. That is a bad deal and an evil situation, and presidents have looked the other way. And I was going to tell you, whether I'm president or not, we better make it clear to the Saudis that we're going to support you, we're in relation with you just like we were in the first Gulf War, but you've got to knock off the funding and teaching of radical clerics who are the very people who try to destroy us and will turn around and destroy them. [applause]
So look, in foreign policy — in foreign policy, it's strength, but you've got to be cool. You've got to have a clear vision of where you want to go. And I'm going to tell you, that it — I'm going to suggest to you here tonight, that you can't do on the job training.
I've seen so much of it – a Soviet Union, the coming down of a wall, the issues that we saw around the world in Central America, the potential spread of communism, and 9/11 and Gulf War. You see what the Saudi's — deliver them a strong message but at the end of the day we have to keep our cool because most of the time they're going right with us. And they must be part of our coalition to destroy ISIS and I believe we can get that done.
Thank you.
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 17 of 34
CAVUTO: Thank you John.
BARTIROMO: There's much more ahead including the fight against ISIS. More from Charleston, South Carolina when we come right back.
[commercial break]
BARTIROMO: We welcome back to the Republican Presidential , right back to the questions.
Candidates, the man who made fighting ISIS the cornerstone of his campaign, South Carolina Senator, Lindsey Graham is out the race but he joins us tonight in the audience. [applause]
He says, "the air-strike now in their 16th month have been ineffective." Dr. Carson ...
CARSON: Wait a minute, who in their 16th month?
BARTIROMO: The air-strikes.
CARSON: OK.
BARTIROMO: Now in their 16th month are ineffective. Dr. Carson, do you think Senator Graham is right in wanting to send 20,000 troops — ground troops to Iraq and Syria to take out ISIS?
CARSON: Well, there's no question that ISIS is a very serious problem, and I don't believe that this administration recognizes how serious it is.
I think we need to do a lot more than we're doing. Recognize that the caliphate is what gives them the legitimacy to go out on a jihadist mission, so we need to take that away from them.
The way to take that away from them is to talk to our military officials and ask them, "what do you need in order to accomplish this goal?"
Our decision is, then, do we give them what we need. I say, yes, not only do we give them what they need, but we don't tie their hands behind their backs so that they can go ahead and get the job done.
In addition to that...[applause]...in addition to that, we go ahead and we take the oil from them, their source of revenue. You know, some of these — these engagement rules that the administration has — "we're not going to bomb a tanker that's coming out of there because there might be a person in it" — give me a break.
Just tell them that, you put people in there, we're going to bomb them. So don't put people in there if you don't want them bombed. You know, that's so simple. [applause]
And then we need to shut down — we need to shut down their mechanisms of funding and attack their command-andcontrol centers. Why should we let their people be sitting there smoking their cigars, sitting in their comfortable chairs in Raqqa?
We know to go ahead and shut off the supply routes, and send in our special ops at 2:00 a.m. and attack them everywhere they go. They should be running all the time, then they won't have time to plan attacks against us. [applause]
BARTIROMO: Thank you, sir. Senator Graham has also said that the U.S. will find Arab support for its coalition if it removes Syrian President Bashar al-Assad. And I quote, "The now king of Saudi Arabia told us, 'you can have our army, you just got to deal with Assad.'
"The emir of Qatar said, 'I'll pay for the operation, but they are not going to fight ISIS and let Damascus fall into the hands of the Iranians. Assad has to go.'"
Governor Christie, how important is it to remove Assad from power and how would you do it?
CHRISTIE: Maria, you look at what this president and his secretary of state, Secretary of State Clinton, has done to get us in this spot. You think about it — this is the president who said, along with his secretary of state — drew a red line in Syria, said, if Assad uses chemical weapons against his people, that we're going to attack.
He used chemical weapons, he's killed, now, over a quarter of a million of his own people, and this president has done nothing. In fact, he's done worse than nothing.
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 18 of 34
This president — and, by the way, Secretary Clinton, who called Assad a reformer — she called Assad a reformer. Now, the fact is, what this president has done is invited Russia to play an even bigger role, bring in Vladimir Putin to negotiate getting those chemical weapons back from Assad, yet what do we have today?
We have the Russians and the Iranians working together, not to fight ISIS, but to prop up Assad. The fact of the matter is we're not going to have peace — we are not going to have peace in Syria. We're not going to be able to rebuild it unless we put a no-fly zone there, make it safe for those folks so we don't have to be talking about Syrian refugees anymore.
The Syrians should stay in Syria. They shouldn't be going to Europe. And here's the last piece...[applause]...you're not going to have peace in Syria with Assad in charge. You're simply not. And so Senator Graham is right about this.
And if we want to try to rebuild the coalition, as Governor Kasich was saying before, then what we better do is to get to the Arab countries that believe that ISIS is a threat, not only to them, but to us and to world peace, and bring them together.
And believe me, Assad is not worth it. And if you're going to leave this to Hillary Clinton, the person who gave us this foreign policy, the architect of it, and you're going to give her another four years, that's why I'm speaking out as strongly as I am about that.
Hillary Clinton cannot be president. It will lead to even greater war in this world. And remember this, after Hillary Clinton and Barack Obama have had nearly 8 years, we have fewer democracies in the world than we had when they started.
That makes the world less peaceful, less safe. In my administration, we will help to make sure we bring people together in the Middle East, and we will fight ISIS and defeat them.
BARTIROMO: Thank you, sir. [applause]
Mr. Trump — Mr. Trump, your comments about banning Muslims from entering the country created a firestorm. According to Facebook, it was the most-talked-about moment online of your entire campaign, with more than 10 million people talking about the issue.
Is there anything you've heard that makes you want to rethink this position?
TRUMP: No. [laughter] No. [applause]
Look, we have to stop with political correctness. We have to get down to creating a country that's not going to have the kind of problems that we've had with people flying planes into the World Trade Centers, with the — with the shootings in California, with all the problems all over the world.
I just left Indonesia — bomb, bomb, bomb, bomb.
We have to find out what's going on. I said temporarily. I didn't say permanently. I said temporarily. And I have many great Muslim friends. And some of them, I will say, not all, have called me and said, "Donald, thank you very much; you're exposing an unbelievable problem and we have to get to the bottom of it."
And unlike President Obama, where he refuses even to use the term of what's going on, he can't use the term for whatever reason. And if you can't use the term, you're never going to solve the problem. My Muslim friends, some, said, "thank you very much; we'll get to the bottom of it."
But we have a serious problem. And we can't be the stupid country any more. We're laughed at all over the world. [applause]
BUSH: Donald, Donald — can I — I hope you reconsider this, because this policy is a policy that makes it impossible to build the coalition necessary to take out ISIS. The Kurds are our strongest allies. They're Muslim. You're not going to even allow them to come to our country?
The other Arab countries have a role to play in this. We cannot be the world's policeman. We can't do this unilaterally. We have to do this in unison with the Arab world. And sending that signal makes it impossible for us to be serious about taking out ISIS and restoring democracy in Syria. [applause]
So I hope you'll reconsider. I hope you'll reconsider. The better way of dealing with this — the better way of dealing with this is recognizing that there are people in, you know, the — Islamic terrorists inside, embedded in refugee populations.
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 19 of 34
What we ought to do is tighten up our efforts to deal with the entry visa program so that a citizen from Europe, it's harder if they've been traveling to Syria or traveling to these other places where there is Islamic terrorism, make it harder — make the screening take place.
We don't have to have refugees come to our country, but all Muslims, seriously? What kind of signal does that send to the rest of the world that the United States is a serious player in creating peace and security?
CAVUTO: But you said — you said that he made those comments and they represented him being unhinged after he made them.
BUSH: Yeah, they are unhinged.
CAVUTO: Well — well, after he made them...[applause]...his poll numbers went up eight points in South Carolina. Now — now, wait...
TRUMP: Eleven points, to be exact.
CAVUTO: Are you — are you saying — are you saying that all those people who agree with Mr. Trump are unhinged?
BUSH: No, not at all, absolutely not. I can see why people are angry and scared, because this president has created a condition where our national security has weakened dramatically. I totally get that. But we're running for the presidency of the United States here. This isn't — this isn't, you know, a different kind of job. You have to lead. You cannot make rash statements and expect the rest of the world to respond as though, well, it's just politics.
Every time we send signals like this, we send a signal of weakness, not strength. And so it was [inaudible] his statement, which is why I'm asking him to consider changing his views. [applause]
TRUMP: I want security for this country. OK? [applause]
I want security. I'm tired of seeing what's going on, between the border where the people flow over; people come in; they live; they shoot. I want security for this country. We have a serious problem with, as you know, with radical Islam. We have a tremendous problem. It's not only a problem here. It's a problem all over the world.
I want to find out why those two young people — those two horrible young people in California when they shot the 14 people, killed them — people they knew, people that held the wedding reception for them. I want to find out — many people saw pipe bombs and all sorts of things all over their apartment. Why weren't they vigilant? Why didn't they call? Why didn't they call the police?
And by the way, the police are the most mistreated people in this country. I will tell you that. [applause]
The most mistreated people. In fact, we need to — wait a minute — we need vigilance. We have to find out — many people knew about what was going on. Why didn't they turn those two people in so that you wouldn't have had all the death?
There's something going on and it's bad. And I'm saying we have to get to the bottom of it. That's all I'm saying. We need security.
BARTIROMO: We — we want to hear from all of you on this. According to Pew Research, the U.S. admits more than 100,000 Muslim immigrants every single year on a permanent lifetime basis. I want to ask the rest of you to comment on this. Do you agree that we should pause Muslim immigration until we get a better handle on our homeland security situation, as Mr. Trump has said?
Beginning with you, Governor Kasich.
KASICH: I — I've been for pausing on admitting the Syrian refugees. And the reasons why I've done is I don't believe we have a good process of being able to vet them. But you know, we don't want to put everybody in the same category.
And I'll go back to something that had been mentioned just a few minutes ago. If we're going to have a coalition, we're going to have to have a coalition not just of people in the western part of the world, our European allies, but we need the Saudis, we need the Egyptians, we need the Jordanians, we need the Gulf states. We need Jordan.
We need all of them to be part of exactly what the first George Bush put together in the first Gulf War.
[bell rings]
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 20 of 34
It was a coalition made up of Arabs and Americans and westerners and we're going to need it again. And if we try to put everybody in the same — call everybody the same thing, we can't do it. And that's just not acceptable.
But I think a pause on Syrian refugees has been exactly right for all the governors that have called for it, and also, of course, for me as the governor of Ohio.
BARTIROMO: Thank you, sir, we want to hear from the rest of you,
Governor Christie, your take.
CHRISTIE: Now Maria, listen. I said right from the beginning that we should take no Syrian refugees of any kind. And the reason I said that is because the FBI director told the American people, told Congress, that he could not guarantee he could vet them and it would be safe. That's the end of the conversation.
I can tell you, after spending seven years as a former federal prosecutor, right after 9/11, dealing with this issue. Here's the way you need to deal with it. You can't just ban all Muslims. You have to ban radical Islamic jihadists. You have to ban the people who are trying to hurt us.
The only way to figure that out is to go back to getting the intelligence community the funding and the tools that it needs to be able to keep America safe.
[bell rings]
And this summer, we didn't do that. We took it away from the NSA, it was a bad decision by the president. Bad by those in the Senate who voted for it and if I'm president, we'll make our intelligence community strong, and won't have to keep everybody out, we're just going to keep the bad folk out and make sure they don't harm us.
BARTIROMO: Senator Rubio, where do you stand?
RUBIO: Well, first of all, let's understand why we are even having this and why Donald tapped in to some of that anger that's out there about this whole issue. Because this president has consistently underestimated the threat of ISIS.
If you listen to the State of the Union the other night, he described them as a bunch of guys with long beards on the back of a pickup truck. They are much more than that. This is a group of people that enslaves women and sells them, sells them as brides.
This is a group of people that burns people in cages, that is conducting genocide against Christians and Yazidis and others in the region. This is not some small scale group.
They are radicalizing people in the United States, they are conducting attacks around the world. So you know what needs to happen, it's a very simple equation, and it's going to happen when I'm president. If we do not know who you are, and we do not know why you are coming when I am president, you are not getting into the United States of America. [applause]
BARTIROMO: Senator Cruz, where do you stand? Senator Cruz?
CRUZ: You know I understand why Donald made the comments he did and I understand why Americans are feeling frustrated and scared and angry when we have a president who refuses to acknowledge the threat we face and even worse, who acts as an apologist for radical Islamic terrorism.
I think what we need is a commander in chief who is focused like a laser on keeping this country safe and on defeating radical Islamic terrorism. What should we do? First, we should pass the Expatriate Terrorist Act, legislation I've introduced that says if an American goes and joins ISIS and wages jihad against America, that you forfeit your citizenship and you can not come in on a passport. [applause]
And secondly, we should pass the legislation that I've introduced...[bell rings]...that suspends all refugees from nations that ISIS or Al Qaida controls significant territory. Just last week, we see saw two Iraqi refugees vetted using the same process the president says will work, that were arrested for being alleged ISIS terrorists.
If I'm elected president, we will not let in refugees from countries controlled by ISIS or Al Qaida. When it comes to ISIS, we will not weaken them, we will not degrade them, we will utterly and completely destroy ISIS [applause].
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 21 of 34
BARTIROMO: Dr. Carson, where do you stand? Do you agree with Mr. Trump?
CARSON: Well, first of all, recognize it is a substantial problem. But like all of our problems, there isn't a single one that can't be solved with common sense if you remove the ego and the politics. And clearly, what we need to do is get a group of experts together, including people from other countries, some of our friends from Israel, who have had experience screening these people and come up with new guidelines for immigration, and for visas, for people who are coming into this country.
That is the thing that obviously makes sense, we can do that. And as far as the Syrians are concerned, Al-Hasakah province, perfect place. They have infrastructure. All we need to do is protect them, they will be in their own country.
And that is what they told me when I was in Jordan in November. Let's listen to them and let's not listen to our politicians.
BARTIROMO: So, to be clear, the both of you do not agree with Mr. Trump?
BUSH: So, are we going to ban Muslims from India, from Indonesia, from countries that are strong allies — that we need to build better relationships with? Of course not. What we need to do is destroy ISIS.
I laid out a plan at the Citadel to do just that and it starts with creating a "No Fly Zone" and "Safe Zones" to make sure refugees are there. We need to lead a force, a Sunni led force inside of Syria. We need to embed with — with the Iraqi military. We need to arm the Kurds the directly. We need to re-establish the relationships with the Sunnis.
We need the lawyers off the back of the war fighters. That's how you solve the problem. You don't solve it by big talk where you're banning all Muslims and making it harder for us to build the kind of coalition for us to be successful.
BARTIROMO: Thank you governor.
CAVUTO: Mr. Trump, sometimes maybe in the heat of the campaign, you say things and you have to dial them back. Last week, the New York Times editorial board quoted as saying that you would oppose, "up to 45 percent tariff on Chinese goods."
TRUMP: That's wrong. They were wrong. It's the New York Times, they are always wrong.
CAVUTO: Well...
TRUMP: They were wrong.
CAVUTO: You never said because they provided that...
TRUMP: No, I said, " I would use — " they were asking me what to do about North Korea. China, they don't like to tell us but they have total control — just about, of North Korea. They can solve the problem of North Korea if they wanted to but they taunt us.
They say, " well, we don't really have control." Without China, North Korea doesn't even eat. China is ripping us on trade. They're devaluing their currency and they're killing our companies. Thousands of thousands — you look at the number of companies and the number in terms of manufacturing of plans that we've lost — 50,000 because of China.
[crosstalk]
CAVUTO: So they've never said to put a tariff on their...
TRUMP: We've lost anywhere between four and seven million jobs because of China. What I said then was, "we have very unfair trade with China. We're going to have a trade deficit of 505 billion dollars this year with China." A lot of that is because they devalue their currency.
What I said to the New York Times, is that, "we have great power, economic power over China and if we wanted to use that and the amount — where the 45 percent comes in, that would be the amount they saw their devaluations that we should get." That we should get.
What I'm saying is this, I'm saying that we do it but if they don't start treating us fairly and stop devaluing and let their currency rise so that our companies can compete and we don't lose all of these millions of jobs that we're losing, I would certainly start taxing goods that come in from China. Who the hell has to lose 505 billion dollars a year?
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 22 of 34
CAVUTO: I'm sorry, you lost me.
TRUMP: It's not that complicated actually.
CAVUTO: Then I apologize. Then I want to understand, if you don't want a 45 percent tariff, say that wasn't the figure, would you be open — are you open to slapping a higher tariff on Chinese goods of any sort to go back at them?
TRUMP: OK, just so you understand — I know so much about trading about with China. Carl Icahn today as you know endorsed. Many businessmen want to endorse me.
CAVUTO: I know...
TRUMP: Carl said, "no, no — " but he's somebody — these are the kind of people that we should use to negotiate and not the China people that we have who are political hacks who don't know what they're doing and we have problems like this. If these are the kinds of people — we should use our best and our finest.
Now, on that tariff — here's what I'm saying, China — they send their goods and we don't tax it — they do whatever they want to do. They do whatever what they do, OK. When we do business with China, they tax us. You don't know it, they tax us.
I have many friends that deal with China. They can't — when they order the product and when they finally get the product it is taxed. If you looking at what happened with Boeing and if you look at what happened with so many companies that deal — so we don't have an equal playing field. I'm saying, absolutely, we don't have to continue to lose 505 billion dollars as a trade deficit for the privilege of dealing with China.
I'm a free trader. I believe in it but we have to be smart and we have to use smart people to negotiate. I have the largest bank in the world as a tenant of mine. I sell tens' of millions of [inaudible].
I love China. I love the Chinese people but they laugh themselves, they can't believe how stupid the American leadership is.
CAVUTO: So you're open to a tariff?
TRUMP: I'm totally open to a tariff. If they don't treat us fairly, hey, their whole trade is tariffed. You can't deal in China without tariffs. They do it to us, we don't it. It's not fair trade.
KASICH: Neil, Neil — can I say one thing about this. I'm a free trader. I support NAFTA. I believe in the PTT because it's important those countries in Asia are interfacing against China. And we do need China — Donald's right about North Korea.
I mean the fact is, is that they need to put the pressure on and frankly we need to intercepts ships coming out of North Korea so they don't proliferate all these dangerous materials. But what he's touching — talking about, I think has got merit. And I'll allow putting that tariff or whatever he's saying here...
TRUMP: I'm happy to have him tonight...[laughter]
KASICH: For too long — no, for too long, what happens is somebody dumps their product in our country and take our people's jobs, and then we go to an international court and it takes them like a year or two to figure out whether they were cheating us. And guess what? The worker's out of a job.
So when they — be found against that country that's selling products in here lower than the cost of what it takes to produce them, then what do we tell the worker? Oh, well, you know, it just didn't work out for you.
I think we should be for free trade but I think fair trade. And when countries violate trade agreements or dump product in this country, we need — we need to stand up against those countries that do that without making them into an enemy.
And I want to just suggest to you. How do I know this? Because so many people in my family worked in steel mills, and they didn't work with a white collar, they worked in a blue collar. And the fact is those jobs are critical, they're hard working members of the middle class and they need to be paid attention to because they're Americans and they carry the load. So let's demand open trade but fair trade in this country. That's what I think we need to do. [applause]
CAVUTO: All right.
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 23 of 34
RUBIO: But on this point, if I may add something on this point. We are all frustrated with what China is doing. I think we need to be very careful with tariffs, and here's why.
China doesn't pay the tariff, the buyer pays the tariff. If you send a tie or a shirt made in China into the United States and an American goes to buy it at the store and there's a tariff on it, it gets passed on in the price to price to the consumer.
So I think the better approach, the best thing we can do to protect ourselves against China economically is to make our economy stronger, which means reversing course from all the damage Barack Obama is doing to this economy.
It begins with tax reform. Let's not have the most expensive business tax rate in the world. Let's allow companies to immediately expense. [applause]
It continues with regulatory reform. Regulations in this country are out of control, especially the Employment Prevention Agency, the EPA, and all of the rules they continue to impose on our economy and hurting us.
How about Obamacare, a certified job killer? It needs to be repealed and replaced. And we need to bring our debt under control, make our economy stronger. That is the way to deal with China at the end of the day.
TRUMP: Neil, the problem...
BARTIROMO: We're getting...
TRUMP: ... with what Marco is saying is that it takes too long, they're sucking us dry and it takes too long. It would just — you absolutely have to get involved with China, they are taking so much of what we have in terms of jobs in terms of money. We just can't do it any longer.
CAVUTO: He is right. If you put a tariff on a good, it's Americans who pay.
BUSH: Absolutely.
TRUMP: You looking at me?
BUSH: Yeah.
BARTIROMO: Prices go higher for...
TRUMP: Can I tell you what? It will never happen because they'll let their currency go up. They're never going to let it happen.
Japan, the same thing. They are devaluing — it's so impossible for — you look at Caterpillar Tractor and what's happening with Caterpillar and Kamatsu. Kamatsu is a tractor company in Japan. Friends of mine are ordering Kamatsu tractors now because they've de-valued the yen to such an extent that you can't buy a Caterpillar tractor. And we're letting them get away with it and we can't let them get away with it.
And that's why we have to use Carl and we have to use our great businesspeople and not political hacks to negotiate with these guys. [applause]
BUSH: Here's — apart from the — apart from the higher prices on consumers and people are living paycheck to paycheck, apart from that, there will be retaliation.
BARTIROMO: Yeah.
BUSH: So they soybean sales from Iowa, entire soybean production goes — the equivalent of it goes to China. Or how about Boeing right here within a mile? Do you think that the Chinese, if they had a 45 percent tariff imposed on all their imports wouldn't retaliate and start buying Airbus? Of course, they would. This would be devastating for the economy. We need someone with a steady hand being president of the United States.
BARTIROMO: Real quick, Senator — go ahead, Senator Cruz. [applause]
And then we have to get to tax reform.
TRUMP: And we don't need a weak person being president of the United State, OK? Because that's what we'd get if it were Jeb — I tell you what, we don't need that.
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 24 of 34
AUDIENCE: Boo.
TRUMP: We don't need that. That's essentially what we have now, and we don't need that. And that's why we're in the trouble that we're in now. And by the way, Jeb you mentioned Boeing, take a look. They order planes, they make Boeing build their plant in China. They don't want them made here. They want those planes made in China.
BUSH: They're a mile away from here.
TRUMP: That's not the way the game is supposed to be played.
BARTIROMO: Thank you, Governor Bush. Thank you, Mr. Trump. Very briefly.
BUSH: My name was mentioned. My name was mentioned here. The simple fact is that the plane that's being build here is being sold to China. You can — if you — you flew in with your 767, didn't you? Right there, right next to the plant.
TRUMP: No, the new planes. I'm not talking about now, I'm talking about in the future they're building massive plants in China because China does not want Boeing building their planes here, they want them built in China, because China happens to be smart the way they do it, not the way we do it.
BARTIROMO: Thank you, Mr. Trump.
BUSH: When you head back to airport tonight, go check and see what the...
BARTIROMO: Thank you, Mr. Trmup. Thank you, Governor.
TRUMP: I'll check for you.
BUSH: Check it out. [laughter]
BARTIROMO: Senator briefly.
CRUZ: Thanks for coming back to me, Maria. Both Donald and Jeb have good points, and there is a middle ground. Donald is right that China is running over President Obama like he is a child, President Obama is not protecting American workers and we are getting hammered.
You know, I sat down with the senior leadership of John Deere. They discussed how — how hard it is to sell tractors in China, because all the regulatory barriers. They're protectionist.
But Jeb is also right that, if we just impose a tariff, they'll put reciprocal tariffs, which will hurt Iowa farmers and South Carolina producers and 20 percent of the American jobs that depend on exports.
So the way you do it is you pass a tax plan like the tax plan I've introduced: a simple flat tax, 10 percent for individuals, and a 16 percent business flat tax, you abolish the IRS...[applause]...and here's the critical point, Maria — the business flat tax enables us to abolish the corporate income tax, the death tax, the Obamacare taxes, the payroll taxes, and they're border-adjustable, so every export pays no taxes whatsoever.
It's tax-free — a huge advantage for our farmers and ranchers and manufacturers — and every import pays the 16 percent business flat tax. It's like a tariff, but here's the difference: if we impose a tariff, China responds.
The business flat tax, they already impose their taxes on us, so there's no reciprocal...[bell rings]...tariffs that come against us. It puts us on a level, even playing field, which brings jobs here at home...
UNKNOWN: Maria...
CRUZ: ... and as president, I'm going to fight for the working men and women.
[crosstalk]
BARTIROMO: We've got to get to tax reform, gentlemen. We've got to get to tax reform, and we've got to get to the...
UNKNOWN: Yeah, but I want to talk about taxes.
BARTIROMO: ... we've got to get to the national debt as well. Coming up next, the growing national debt, the war on crime, tax reform. More from North Charleston, South Carolina, when we come right back.
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 25 of 34
[commercial break]
BARTIROMO: Welcome back to the Republican presidential here in North Charleston. Right back to the questions. [applause]
Governor Christie, we have spoken much about cutting spending, given the $19 trillion debt. But according to one report, America needs $3.6 trillion in infrastructure spending by 2020.
Here in South Carolina, 11 percent of bridges are considered structurally deficient, costing drivers a billion dollars a year in auto repairs. What is your plan to fix the ailing roads and bridges without breaking the bank?
CHRISTIE: Well, I'm glad you asked that, Maria. Here's — here's our plan. We've all been talking about tax reforms tonight, and paying for infrastructure is caught right up in tax reform.
If you reform the corporate tax system in this country, which, as was mentioned before, is the highest rate in the world — and we double tax, as you know.
And what that's led to over $2 trillion of American companies' monies that are being kept offshore, because they don't want to pay the second tax. And who can blame them? They pay tax once overseas. They don't want to pay 35 percent tax on the way back.
So beside reforming that tax code, bringing it down to 25 percent and eliminating those special-interest loopholes that the lobbyists and the lawyers and the accountants have given — bring that rate down to 25 percent, but also, a one-time repatriation of that money.
Bring the money — the $2 trillion — back to the United States. We'll tax it, that one time, at 8.75 percent, because 35 percent of zero is zero, but 8.75 percent of $2 trillion is a lot of money. And I would then dedicate that money to rebuilding infrastructure here in this country.
It would not necessitate us raising any taxes. It would bring the money back into the United States to help build jobs by American companies and get our economy moving again, and growing as a higher rate, and it would rebuild those roads and bridges and tunnels that you were talking about. And — and — and the last piece of this, Maria, is this. You know, the fact is that this president has penalized corporations in America. He's penalized — and doesn't understand. In fact, what that hurts is hurt hardworking taxpayers.
You've seen middle-class wages go backwards $3,700 during the Obama administration. That's wrong for hardworking taxpayers in this country. We'd rebuild infrastructure that would also create jobs in this country, and we'd work with the states to do it the right way, to do it more efficiently and more effectively.
And remember this — I'm credible on this for this reason: Americans for Tax Reform says that I've vetoed more tax increases than any governor in American history. We don't need to raise taxes to get this done.
We need to make the government run smarter and better, and reform this corporate tax system, bring that money back to the United States to build jobs and rebuild our infrastructure, and we need to use it also to protect our grid from terrorists.
All of those things are important, and all those things would happen in a Christie administration.
BARTIROMO: Thank you, sir. Dr. Carson...[applause]...it is true U.S. companies have $2 trillion in cash sitting overseas right now. That could be used for investment and jobs in America.
Also, several companies right now are pursuing mergers to move their corporate headquarters abroad, and take advantage of much lower taxes. What will you do to stop the flow of companies building cash away from America, and those leaving America altogether?
CARSON: Well, I would suggest a fair tax system, and that's what we have proposed. A flat tax for everybody — no exemptions, no deductions, no shelters, because some people have a better capability of taking advantage of those than others.
You know, and then the other thing we have to do is stop spending so much money. You know, I — my — my mother taught me this. You know, she only had a third-grade education, but — you know, she knew how to stretch a dollar.
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 26 of 34
I mean, she would drive a car until it wouldn't make a sound, and then gather up all her coins and buy a new car. In fact, if my mother were secretary of treasury, we would not be in a deficit situation. But...[laughter]... you know, the — the — the fact of the matter is — you know, if we fix the taxation system, make it absolutely fair, and get rid of the incredible regulations — because every regulation is a tax, it's a — on goods and services. And it's the most regressive tax there is.
You know, when you go into the store and buy a box of laundry detergent, and the price has up — you know, 50 cents because of regulations, a poor person notices that. A rich person does not. Middle class may notice it when they get to the cash register.
And everything is costing more money, and we are killing our — our — our people like this. And Bernie Sanders and Hillary Clinton will say it's those evil rich people.
It's not the evil rich people. It's the evil government that is — that is putting all these regulations on us so that we can't survive. [applause]
BARTIROMO: Thank you, sir.
Senator Rubio...
TRUMP: Maria — Maria, what you were talking about just now is called corporate inversion. It's one of the biggest problems our country has. Right now, corporations, by the thousands, are thinking of leaving our country with the jobs — leave them behind.
They're leaving because of taxes, but they are also leaving because they can't get their money back and everybody agrees, Democrats and Republicans, that is should come back in. But they can't get along. They can't even make a deal.
Here is the case, they both agree, they can't make a deal. We have to do something. Corporate inversion is one of the biggest problems we have. So many companies are going to leave our country.
BARTIROMO: Which is why we raised it.
Senator Rubio?
Thank you, Mr. Trump.
TRUMP: Thank you.
BARTIROMO: One of the biggest fiscal challenges is our entitlement programs, particularly Social Security and Medicare. What policies will you put forward to make sure these programs are more financially secure?
RUBIO: Well, first let me address the tax issue because it's related to the entitlement issue and I want to thank you for holding a substantive debates where we can have debates about these key issues on taxes. [applause]
Here is the one thing I'm not going to do. I'm not going to have something that Ted described in his tax plan. It's called the value added tax. And it's a tax you find in many companies in Europe.
Where basically, businesses now will have to pay a tax, both on the money they make, but they also have to pay taxes on the money that they pay their employees.
And that's why they have it in Europe, because it is a way to blindfolded the people, that's what Ronald Reagan said. Ronald Regan opposed the value tax because he said it was a way to blindfold the people, so the true cost of government was not there there for them.
Now, you can support one now that's very low. But what is to prevent a future liberal president or a liberal Congress from coming back and not just raising the income tax, but also raising that VAT tax, and that vat tax is really bad for seniors. Because seniors, if they are retired, are no longer earning an income from a job. And therefore, they don't get the income tax break, but their prices are going to be higher, because the vat tax is embedded in both the prices that business that are charging and in the wages they pay their employees.
When I am president of the United States, I'm going to side with Ronald Regan on this and not Nancy Pelosi and we are not having a vat tax. [applause]
BARTIROMO: Thank you senator.
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 27 of 34
CRUZ: Maria, I assume that I can respond to that.
BARTIROMO: Senator Cruz, yes. You were meant to. Yes, of course.
CRUZ: Well, Marco has been floating this attack for a few weeks now, but the problem is, the business flat tax in my proposal is not a vat. A vat is imposed as a sales tax when you buy a good.
This is a business flat tax. It is imposed on business and a critical piece that Marco seems to be missing is that this 16 percent business flat tax enables us to eliminate the corporate income tax. It goes away. It enables us to eliminate the death tax.
If you're a farmer, if you're a rancher, if you are small business owner, the death tax is gone. We eliminate the payroll tax, we eliminate the Obamacare taxes. And listen, there is a real difference between Marco's tax plan and mine.
Mine gives every American a simple, flat tax of 10 percent. Marco's top tax rate is 35 percent. My tax plan enables you to fill out your taxes on a postcard so we can abolish the IRS. Marco leaves the IRS code in with all of the complexity. We need to break the Washington cartel, and the only way to do it is to end all the subsidies and all...[bell rings]...the mandates and have a simple flat tax. The final observation, invoked Ronald Reagan. I would note that Art Laffer, Ronald Reagan's chief economic adviser, has written publicly, that my simple flat tax is the best tax plan of any of the individuals on this stage cause it produces economic growth, it raises wages and it helps everyone from the very poorest to the very richest.
BARTIROMO: Thank you senator. [applause]
RUBIO: But that's not an accurate description of the plan. Because, first of all, you may rename the IRS but you are not going to abolishes the IRS, because there has to be some agency that's going to collect your vat tax. Someone's going to be collecting this tax.
In fact, Ronald Reagan's treasury, when Ronald Reagan's treasury looked at the vat tax, you know what they found? That they were going to have to hire 20,000 new IRS agencies to collect it.
The second point, it does not eliminate the corporate tax or the payroll tax. Businesses will now have to pay 16 percent on the money they make. They will also have to pay 16 percent on the money they pay their employees.
So there are people watching tonight in business. If you are now hit on a 60 percent tax on both your income and on the wages you pay your employees, where are you going to get that money from? You're going to get it by paying your employees less and charging your customers more, that is a tax, the difference is, you don't see it on the bill.
And that's why Ronald Reagan said that it was a blindfold. You blindfold the American people so that they cannot see the true cost of government. Now 16 percent is what the rate Ted wants it at. But what happens if, God forbid, the next Barack Obama takes over, and the next Nancy Pelosi, and the next Harry Reid...[bell rings]...and they decide, we're going to raise it to 30 percent, plus we're going to raise the income tax to 30 percent. Now, you've got Europe.
[crosstalk]
BARTIROMO: Thank you senator. I have to get to a question for Mr. Trump.
CRUZ: Maria...
BARTIROMO: Yes.
CRUZ: Maria, I'd just like to say...[crosstalk]
CHRISTIE: Maria, I'd like to interrupt this on the floor of the Senate to actually answer the question you asked, which was on entitlements. Do you remember that, everybody? This was a question on entitlements.
And the reason — and the reason...[crosstalk]...no, you already had your chance, Marco, and you blew it. Here's the thing. [crosstalk] The fact is, the reason why...
RUBIO: If you'll answer the [inaudible] core question.
CHRISTIE: ... the fact is — the fact is the reason why that no one wants to answer entitlements up here is because it's hard. It's a hard problem. And I'm the only one up on this stage who back in April put forward a detailed entitlement
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 28 of 34
reform plan that will save over $1 trillion, save Social Security, save Medicare, and avoid this — avoid what Hillary Rodham Clinton will do to you.
Because what she will do is come in and she will raise Social Security taxes. Bernie Sanders has already said it. And she is just one or two more poll drops down from even moving further left than she's moved already to get to the left of Bernie on this.
We have seniors out there who are scared to death because this Congress — this one that we have right now, just stole $150 billion from the Social Security retirement fund to give it to the Social Security disability fund. A Republican Congress did that.
And the fact is it was wrong. And they consorted with Barack Obama to steal from Social Security. We need to reform Social Security. Mine is the only plan that saves over $1 trillion and that's why I'm answering your question.
BARTIROMO: Thank you, Governor. Thank you, Governor. [applause]
CARSON: Can I just add one very quick thing? And I just want to say, you know, last week we released our tax plan. And multiple reputable journals, including The Wall Street Journal, said ours is the best. Just want to get that out there, just saying.
BARTIROMO: Thank you, Dr. Carson.
Coming up, how would the candidates protect America, and another terror attack, if we were to see it. But first, you can join us live on stage during the commercial break right from home. Go to facebook.com/foxbusiness. We'll be streaming live and answering your questions during this break next.
More from South Carolina coming up. Stay with us.
[commercial break]
BARTIROMO: Mr. Trump, your net worth is in the multi-billions of dollars and have an ongoing thriving hotel and real estate business. Are you planning on putting your assets in a blind trust should you become president? With such vast wealth, how difficult will it be for you to disentangle yourself from your business and your money and prioritize America's interest first?
TRUMP: Well, it's an interesting question because I'm very proud of my company. As you too know, I know I built a very great company. But if I become president, I couldn't care less about my company. It's peanuts.
I want to use that same up here, whatever it may be to make America rich again and to make America great again. I have Ivanka, and Eric and Don sitting there. Run the company kids, have a good time. I'm going to do it for America.
So I would — I would be willing to do that.
BARTIROMO: So you'll put your assets in a blind trust?
TRUMP: I would put it in a blind trust. Well, I don't know if it's a blind trust if Ivanka, Don and Eric run it. If that's a blind trust, I don't know. But I would probably have my children run it with my executives and I wouldn't ever be involved because I wouldn't care about anything but our country, anything.
BARTIROMO: Thank you sir.
TRUMP: Thank you.
CAVUTO: Governor Christie, going back to your U.S. Attorney days, you had been praised by both parties as certainly a tough law and order guy. So I wonder what you make of recent statistics that showed violent crimes that have been spiking sometimes by double digit ratings in 30 cities across the country. Milwaukee Police Chief Ed Flynn said, "most local law enforcement officials feel abandoned by Washington." Former NYC Police Chief Ray Kelly, says that, "police are being less proactive because they're being overly scrutinized and second guessed and they're afraid of being sued or thrown in jail."
What would you do as president to address this?
CHRISTIE: Well, first off, let's face it, the FBI director James Comey was a friend of mine who I worked with as U.S.
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 29 of 34
Attorney of New Jersey. He was the U.S. Attorney in Manhattan. He said, "there's a chill wind blowing through law enforcement in this country." Here's why, the president of the United States and both his attorney's general, they give the benefit of the doubt to the criminal, not to the police officers.
That's the truth of the matter and you see it every time with this president. Every time he's got a chance, going all the way back to — remember that Great Beer Summit he had after he messed up that time. This is a guy who just believes that law enforcement are the bad guys.
Now, I for seven years was the U.S. Attorney of New Jersey. I worked hard with not only federal agents but with police officers and here's the problem, sanctuary cities is part of the problem in this country. That's where crime is happening in these cities where they don't enforce the immigration laws. And this president turns his back — this president doesn't enforce the marijuana laws in this country because he doesn't agree with them.
And he allows states to go ahead and do whatever they want on a substance that's illegal. This president allows lawlessness throughout this country. Here's what I would do Neil, I would appoint an Attorney General and I would have one very brief conversation with that Attorney General. I'd say, "General, enforce the law against everyone justly, fairly, and aggressively. Make our streets safe again. Make our police officers proud of what they do but more important than that, let them know how proud we are of them."
We do that, this country would be safe and secure again not only from criminals but from the terrorist who threaten us as well. I'm the only person on this stage who's done that and we will get it done as President of the United States.
CAVUTO: Thank you governor.
Governor Kasich, as someone has to deal with controversial police shootings in your own state, what do you make of Chicago's move recently to sort of retrain police? Maybe make them not so quick to use their guns?
KASICH: Well, I created a task force well over a year ago and the purpose was to bring law enforcement, community people, clergy and the person that I named as one of the co-chair was a lady by the name of Nina Turner, a former State Senator, a liberal Democrat. She actually ran against one of my friends and our head of public safety.
And they say down as a group trying to make sure that we can begin to heal some of these problems that we see between community and police.
And they came back with 23 recommendations. One of them is a statewide use of deadly force. And it is now being put into place everyplace across the state of Ohio. Secondly, a policy on recruiting and hiring, and then more resources for — for training.
But let me also tell you, one of the issues has got to be the integration of both community and police. Community has to understand that that police officer wants to get home at night, and not — not to lose their life. Their family is waiting for them.
At the same time, law enforcement understands there are people in the community who not only think that the system doesn't work for them, but works against them.
See, in Ohio, we've had some controversial decisions. But the leaders have come forward to realize that protest is fine, but violence is wrong. And it has been a remarkable situation in our state. And as president of the United States, it's all about communication, folks. It's all about getting people to listen to one another's problems.
And when you do that, you will be amazed at how much progress you can make, and how much healing we can have. Because, folks, at the end of the day, the country needs healed. I've heard a lot of hot rhetoric here tonight, but I've got to tell you, as somebody that actually passed a budget; that paid down a half-a-trillion dollars of our national debt, you can't do it alone. You've got to bring people together. You've got to give people hope.
And together, we can solve these problems that hurt us and heal America. And that is what's so critical for our neighborhoods, our families, our children, and our grandchildren. [applause]
CAVUTO: Thank you, Governor.
BARTIROMO: Senator Rubio? [applause]
Under current law, the U.S. is on track to issue more new permanent immigrants on green cards over the next five years
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 30 of 34
than the entire population of South Carolina. The CBO says your 2013 immigration bill would have increased green cardholders by another 10 million over 10 years.
Why are you so interested in opening up borders to foreigners when American workers have a hard enough time finding work?
RUBIO: Well, first of all, this is an issue that's been debated now for 30 years. And for 30 years, the issue of immigration has been about someone who's in this country, maybe they're here illegally, but they're looking for a job. This issue is not about that anymore.
First and foremost, this issue has to be now more than anything else about keeping America safe. And here's why. There is a radical jihadist group that is manipulating our immigration system. And not just green cards. They're looking — they're recruiting people that enter this country as doctors and engineers and even fiances. They understand the vulnerabilities we have on the southern border.
They're looking — they're looking to manipulate our — the visa waiver countries to get people into the United States. So our number one priority must now become ensuring that ISIS cannot get killers into the United States. So whether it's green cards or any other form of entry into America, when I'm president if we do not know who you are or why you are coming, you are not going to get into the United States of America.
BARTIROMO: So your thinking has changed?
RUBIO: The issue is a dramatically different issue than it was 24 months ago. Twenty-four months ago, 36 months ago, you did not have a group of radical crazies named ISIS who were burning people in cages and recruiting people to enter our country legally. They have a sophisticated understanding of our legal immigration system and we now have an obligation to ensure that they are not able to use that system against us.
The entire system of legal immigration must now be reexamined for security first and foremost, with an eye on ISIS. Because they're recruiting people to enter this country as engineers, posing as doctors, posing as refugees. We know this for a fact. They've contacted the trafficking networks in the Western Hemisphere to get people in through the southern border. And they got a killer in San Bernardino in posing as a fiance.
This issue now has to be about stopping ISIS entering the United States, and when I'm president we will.
BARTIROMO: Thank you, Senator. [applause]
CRUZ: But Maria, radical Islamic terrorism was not invented 24 months ago; 24 months ago, we had Al Qaida. We had Boko Haram. We had Hamas. We had Hezbollah. We had Iran putting operatives in South America and Central America. It's the reason why I stood with Jeff Sessions and Steve King and led the fight to stop the Gang of Eight amnesty bill, because it was clear then, like it's clear now, that border security is national security. [applause]
BARTIROMO: Thank you, Senator.
CRUZ: It is also the case that that Rubio-Schumer amnesty bill, one of the things it did is it expanded Barack Obama's power to let in Syrian refugees. It enabled him — the president to certify them en masse without mandating meaningful background checks.
I think that's a mistake. That's why I've been leading the fight to stop it. And I would note the Senate just a few weeks ago voted to suspend refugees from Middle Eastern countries. I voted yes to suspend that. Marco voted on the other side. So you don't get to say we need to secure the borders, and at the same time try to give Barack Obama more authority to allow Middle Eastern refugees coming in, when the head of the FBI tells us they cannot vet them to determine if they are ISIS terrorists.
RUBIO: Maria, let me clear something up here. This is an interesting point when you talk about immigration. Ted Cruz, you used to say you supported doubling the number of green cards, now you say that you're against it. You used to support a 500 percent increase in the number of guest workers, now you say that you're against it. You used to support legalizing people that were here illegally, now you say you're against it. You used to say that you were in favor of birthright citizenship, now you say that you are against it.
And by the way, it's not just on immigration, you used to support TPA, now you say you're against it. I saw you on the Senate floor flip your vote on crop insurance because they told you it would help you in Iowa, and last week, we all saw
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 31 of 34
you flip your vote on ethanol in Iowa for the same reason. [applause]
That is not consistent conservatism, that is political calculation. When I am president, I will work consistently every single day to keep this country safe, not call Edward Snowden, as you did, a great public servant. Edward Snowden is a traitor. And if I am president and we get our hands on him, he is standing trial for treason. [applause]
And one more point, one more point. Every single time that there has been a Defense bill in the Senate, three people team up to vote against it. Bernie Sanders, Rand Paul and Ted Cruz. In fact, the only budget you have ever voted for, Ted, in your entire time in the Senate is a budget from Rand Paul that brags about how it cuts defense.
Here's the bottom line, and I'll close with this. If I'm president of the United States and Congress tries to cut the military, I will veto that in a millisecond. [applause]
BUSH: There's — look, there's —
CAVUTO: Gentlemen, gentlemen —
CRUZ: I'm going to get a response to that, Neil. There's no way he launches 11 attack —
CAVUTO: Very quick, very quick.
CRUZ: I'm going to — he had no fewer than 11 attacks there. I appreciate your dumping your [inaudible] research folder on the stage.
RUBIO: No, it's your record.
CRUZ: But I will say —
CAVUTO: Do you think they like each other?
CRUZ: — at least half of the things Marco said are flat-out false. They're absolutely false.
AUDIENCE: Boo.
CRUZ: So let's start — let's start with immigration. Let's start with immigration and have a little bit of clarity. Marco stood with Chuck Schumer and Barack Obama on amnesty. I stood with Jeff Sessions and Steve King. Marco stood today, standing on this stage Marco supports legalization and citizenship for 12 million illegals. I opposed and oppose legalization and citizenship.
And by the way, the attack he keeps throwing out on the military budget, Marco knows full well I voted for his amendment to increase military spending to $697 billion. What he said, and he said it in the last, it's simply not true. And as president, I will rebuild the military and keep this country safe.
CAVUTO: All right, gentlemen, we've got to stop. I know you are very passionate about that. [applause]
Governor Bush, fears have gripped this country obviously, and you touched on it earlier since the San Bernardino attacks. Since our last , the national conversation has changed, according to Facebook data as well.
Now this first graphic shows the issues that were most talked about right before those attacks and now after: the issues of Islam, homeland security and ISIS now loom very large. The FBI says Islamic radicals are using social media to communicate and that it needs better access to communication. Now the CEO of Apple, Governor, Tim Cook said unless served with a warrant private communication is private, period. Do you agree, or would you try to convince him otherwise?
BUSH: I would try to convince him otherwise, but this last back and forth between two senators — back bench senators, you know, explains why we have the mess in Washington, D.C. We need a president that will fix our immigration laws and stick with it, not bend with the wind.
The simple fact is one of the ways, Maria, to solve the problem you described is narrow the number of people coming by family petitioning to what every other country has so that we have the best and the brightest that come to our country. We need to control the border, we need to do all of this in a comprehensive way, not just going back and forth and talking about stuff —
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 32 of 34
CAVUTO: Would you answer this question?
BUSH: Oh, I'll talk about that, too. But you haven't asked me a question in a while, Neil, so I thought I'd get that off my chest if you don't mind. [laughter]
CAVUTO: Fair enough. So Tim Cook — so Tim Cook says he's going to keep it private.
BUSH: I got that. And the problem today is there's no confidence in Washington, D.C. There needs to be more than one meeting, there needs to complete dialogue with the large technology companies. They understand that there's a national security risk. We ought to give them a little bit of a liability release so that they share data amongst themselves and share data with the federal government, they're not fearful of a lawsuit.
We need to make sure that we keep the country safe. This is the first priority. The cybersecurity challenges that we face, this administration failed us completely, completely. Not just the hacking of OPM, but that is — that is just shameful. 23 million files in the hands of the Chinese? So it's not just the government — the private sector companies, it's also our own government that needs to raise the level of our game.
We should put the NSA in charge of the civilian side of this as well. That expertise needs to spread all across the government and there needs to be much more cooperation with our private sector.
CAVUTO: But if Tim cook is telling you no, Mr. President.
BUSH: You've got to keep asking. You've got to keep asking because this is a hugely important issue. If you can encrypt messages, ISIS can, over these platforms, and we have no ability to have a cooperative relationship —
CAVUTO: Do you ask or do you order?
BUSH: Well, if the law would change, yeah. But I think there has to be recognition that if we — if we are too punitive, then you'll go to other — other technology companies outside the United States. And what we want to do is to control this.
We also want to dominate this from a commercial side. So there's a lot of balanced interests. But the president leads in this regard. That's what we need. We need leadership, someone who has a backbone and sticks with things, rather than just talks about them as though anything matters when you're talking about amendments that don't even actually are part of a bill that ever passed.
CAVUTO: Governor, thank you. [applause]
BARTIROMO: When we come right back, closing statements. Stay with us.
[commercial break]
BARTIROMO: Welcome back.
Candidates, it is time for your closing statements. You get 60 seconds each.
Governor John Kasich, we begin with you.
KASICH: You know, in our country, there are a lot of people who feel as though they just don't have the power. You know, they feel like if they don't have a lobbyist, if they're not wealthy, that somehow they don't get to play.
But all of my career, you know, having been raised in — by a mailman father whose father was a coal miner, who died of black lung and was losing his eyesight; or a mother whose mother could barely speak English. You see, all of my career, I've fought about giving voice to the people that I grew up with and voice to the people that elected me.
Whether it's welfare reform and getting something back for the hard-earned taxpayers; whether it's engaging in Pentagon reform and taking on the big contractors that were charging thousands of dollars for hammers and screw drivers and ripping us off; or whether it's taking on the special interests in the nursing home industry in Ohio, so that mom and dad can have the ability to stay in their own home, rather than being forced into a nursing home.
Look, that's who I stand up for. That's who's in my mind...[bell rings]...And if you really want to believe that you can get your voice back, I will tell you, as I have all my career, I will continue to fight for you, because you're the ones that built this country, and will carry it into the future. Thank you. [applause]
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 33 of 34
CAVUTO: Governor Bush?
BUSH: Who can you count on to keep us safer, stronger and freer? Results count, and as governor, I pushed Florida up to the top in terms of jobs, income and small business growth.
Detailed plans count, and I believe that the plan I've laid out to destroy ISIS before the tragedies of San Bernardino and Paris are the right ones.
Credibility counts. There'll be people here that will talk about what they're going to do. I've done it. I ask for your support to build, together, a safer and stronger America. [applause]
BARTIROMO: Governor Chris Christie?
CHRISTIE: Maria, Neil, thank you for a great tonight.
When I think about the folks who are out there at home tonight watching, and I think about what they had to watch this week — the spectacle they had to watch on the floor of the House of Representatives, with the president of the United States, who talked a fantasy land about the way they're feeling.
They know that this country is not respected around the world anymore. They know that this country is pushing the middle class, the hardworking taxpayers, backwards, and they saw a president who doesn't understand their pain, and doesn't have any plan for getting away from it.
I love this country. It's the most exceptional country the world has ever known. We need someone to fight for the people. We need a fighter for this country again.
I've lived my whole life fighting — fighting for things that I believe in, fighting for justice and to protect people from crime and terrorism, fighting to stand up for folks who have not had enough and need an opportunity to get more, and to stand up and fight against the special interests.
But here's the best way that we're going to make America much more exceptional: it is to make sure we put someone on that stage in September who will fight Hillary Clinton and make sure she never, ever gets in the White House again.
I am the man who can bring us together to do that, and I ask for your vote. [applause]
CAVUTO: Dr. Ben Carson?
CARSON: You know, in recent travels around this country, I've encountered so many Americans who are discouraged and angry as they watch our freedom, our security and the American dream slipping away under an unresponsive government that is populated by bureaucrats and special interest groups.
We're not going to solve this problem with traditional politics. The only way we're going to solve this problem is with we, the people. And I ask you to join me in truth and honesty and integrity. Bencarson.com — we will heal, inspire and revive America for our children. [applause]
BARTIROMO: Senator Marco Rubio?
RUBIO: You know, 200 years ago, America was founded on this powerful principle that our rights don't come from government. Our rights come from God.
That's why we embraced free enterprise, and it made us the most prosperous people in the history of the world. That's why we embraced individual liberty, and we became the freest people ever, and the result was the American miracle.
But now as I travel the country, people say what I feel. This country is changing. It feels different. We feel like we're being left behind and left out.
And the reason is simple: because in 2008, we elected as president someone who wasn't interested in fixing America. We elected someone as president who wants to change America, who wants to make it more like the rest of the world.
And so he undermines the Constitution, and he undermines free enterprise by expanding government, and he betrays our allies and cuts deals with our enemies and guts our military. And that's why 2016 is a turning point in our history. If we elect Hillary Clinton, the next four years will be worse than the last eight, and our children will be the first Americans ever to inherit a diminished country.
http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Presidential Candidates Debates: Republican Candidates Debate in North Charleston, South Carolina
Case 2:17-cv-00141-JLR Document 113-2 Filed 03/09/17 Page 34 of 34
But if we elect the right person — if you elect me — we will turn this country around, we will reclaim the American dream and this nation will be stronger and greater than it has ever been. [applause]
CAVUTO: Senator Ted Cruz?
CRUZ: "13 Hours" — tomorrow morning, a new movie will debut about the incredible bravery of the men fighting for their lives in Benghazi and the politicians that abandoned them. I want to speak to all our fighting men and women.
I want to speak to all the moms and dads whose sons and daughters are fighting for this country, and the incredible sense of betrayal when you have a commander-in-chief who will not even speak the name of our enemy, radical Islamic terrorism, when you have a commander-in- chief who sends $150 billion to the Ayatollah Khamenei, who's responsible for murdering hundreds of our servicemen and women.
I want to speak to all of those maddened by political correctness, where Hillary Clinton apologizes for saying all lives matter. This will end. It will end on January 2017.
And if I am elected president, to every soldier and sailor and airman and marine, and to every police officer and firefighter and first responder who risk their lives to keep us safe, I will have your back. [applause]
BARTIROMO: Mr. Donald Trump?
TRUMP: I stood yesterday with 75 construction workers. They're tough, they're strong, they're great people. Half of them had tears pouring down their face. They were watching the humiliation of our young ten sailors, sitting on the floor with their knees in a begging position, their hands up.
And Iranian wise guys having guns to their heads. It was a terrible sight. A terrible sight. And the only reason we got them back is because we owed them with a stupid deal, $150 billion. If I'm president, there won't be stupid deals anymore.
We will make America great again. We will win on everything we do. Thank you. [applause]
BARTIROMO: Candidates, thank you.
CAVUTO: Gentlemen, thank you all. All of you. That wraps up our debate. We went a little bit over here. But we wanted to make sure everyone was able to say their due. He's upset. All right. Thank you for joining us. Much more to come in the Spin Room ahead.

NOTE: The criteria for appearing in the main debate is explained as, "Candidates must either: 1) Place in the top six nationally, based on an average of the five most recent national polls recognized by FOX News; OR 2) Place in the top five in Iowa, based on an average of the five most recent Iowa state polls recognized by FOX News; OR 3) Place in the top five in New Hampshire, based on an average of the five most recent New Hampshire state polls recognized by FOX News."

Citation: Presidential Candidates Debates: "Republican Candidates Debate in North Charleston, South Carolina," January 14, 2016. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=111395.

Home

Contact

© 1999-2017 - Gerhard Peters and John T. Woolley - The American Presidency Project

http://www.presidency.ucsb.edu/ws/index.php?pid=111395[2/15/2017 9:57:40 AM]

Case 2:17-cv-00141-JLR Document 113-3 Filed 03/09/17 Page 1 of 4
Purcell Declaration Exhibit B

President-eleCctaTsreum2:p1S7p-cevak-0s0R1e4p1o-rJteLrsRPaDlmocI uVmideenotI1C1-3S-P3ANF.iolergd 03/09/17 Page 2 of 4Page 1 of 3

MYC-SPAN LOGIN

Series v Congress Supreme Court

DECEMBER 21, 20%
President-Elect Trump Remarks in Palm Beach, Florida President-elect Donald Trump spoke
briefly with reporters following a meeting with members of his incoming national security team and... read more v

Report Video Issue

Clip

<1> Bopkmark.To NyC-S1..AN

Embed

Transcript type Text

Filter by Speaker Search this transcript

v All Speakers v

Q

E >

00:00:00 00

Unidentified Speaker .

n

TAKE YOU LIVE TO MAR-A-LAGO FLORIDA, LIVE COVE.

ON C-SPAN.

00:00:09
0.
00:01:33

Donald J. Trump >> THE F-35, WE ARE TRYING TO GET THE COST DOW[ GET THE COST DOWN AND THESE ARE GREAT PEOPLI IMPRESSED WITH THEM. WE HAD THE CHAIRMAN...
v Show Full Text
Unidentified Speaker

S PEOPLE IN THIS VIDEO
Donald J. Trump President-Elect United States
V HOSTING ORGANIZATION
Trump Presidential Transition I News Media Stakeout
0 MORE VIDEOS FROM President-elect Trump Remarks to
Reporters at Mar-a-Lago

https://www.c-span.org/video/?420583-101 /presidentelect-trump-speaks-reporters-palm-bea... 3/9/2017

President-eleCctaTsreum2:p17S-pceva-k0s0R1e4p1o-rJteLrRs PaDlmocI uVmideenot I1C1-3S-P3ANF.oilergd 03/09/17 Page 3 of 4Page 2 of 3

>> YOU SAW THE PRESIDENT ELECT FROM THE MAR-P STATE OF FLORIDA. LET'S LOOK AHEAD TO OUR PRIM' SCHEDULE TONIGHT ON C-SPAN, 8:00 EASTERN
V
`This transcript was compiled from uncorrected Closed Captioning.

President-Elect Trump Remarks in Palm Beac_h,_ Florida
President-Elect Trum.p.. _Remarks,.inPalm Beach, Flo...r...i.d...a.....................

8 More information about

President-Elect Trump Remarks in Palm

V

Beach, Florida

® Purchase a DVD or Download
President-Elect Trump Remarks in Palm Beach, Florida

! v

0 RELATED VIDEO

See all on BUDGET MILITARY TECHNOLOGY

_4 1

K

N

DECEMBER 21, 2016
President-Elect Trump Remarks in Palm Beach, Florida
President-elect Donald Trump spoke briefly with reporters while vacationing at his Mar-a-Lago Club in Palm Beach, Florida. He addressed...

DECEMBER 28, 2016
President-Elect Trump and Don King News Conference
President-elect Donald Trump and Don King answered questions from reporters outside the Mara-Lago complex. They answered...

DECEMBER 28, 2016
President-Elect Trump Remarks on the Transition
President-elect Trump spoke briefly to reporters about his transition, saying the process was going very smoothly.

DECEMBER 6, 2016
President-elect Trump Remarks to Reporters at Trump Tower
President-elect Donald Trump made brief remarks at Trump Tower, confirming reports that he is considering canceling the...

ABOUT C-SPAN
Our Mission Our History Cameras In The Court Milestones Leadership
Jobs G
In The Community Video Library Viewer Guide

RESOURCES
C-SPAN Classroom Blog Series A-Z Press Center FAQs Contact Us Shop C-SPAN's Book Collection

MyC-SPAN Login
C-SPAN Radio App
4 Download G
10, Download UT Download E-
®C-SPAN Podcasts

FOLLOW C-SPAN

©o®© 11«

CHANNEL FINDER
Find C-SPAN On Your TV

Step 1: Enter ZIP

CHECK

Step 2: select Your Provider ----I

Step 3: Find C-SPAN

© 2017 National Cable Satellite Corporation I Copyrights and Licensing I Terms and Conditions I Privacy

https://www.c-span.org/video/?420583-101/presidentelect-trump-speaks-reporters-palm-bea.., 3/9/2017

President-eleCctaTsreum2:p1S7p-cevak-0s0R1e4p1o-rJteLrRs PaDlmocIuVmideenotI1C1-3S-P3ANF.iolergd 03/09/17 Page 4 of 4Page 3 of 3 https://www.c-span.org/video/?4205 83-101/presidentelect-trump-speaks-reporters-palm-bea... 3/9/2017

Case 2:17-cv-00141-JLR Document 113-4 Filed 03/09/17 Page 1 of 68
Purcell Declaration Exhibit C

Donald Trump’s combative, grievance-filled news conference, annotated - The Washington Post
Case 2:17-cv-00141-JLR Document 113-4 Filed 03/09/17 Page 2 of 68